text:
    No. 7759.
    In the Matter of the Morgan R. R. and S. S. Co. Praying for Appointment of Commissioners.
    Perfect ownership consists of the use, the enjoyment and the disposal of the thing — the usuSi fruotus and abusus.

    Perfect ownership gives the unlimitod right of disposal and enjoyment. Imperfect owner? ship gives this right only when it can he done without injuring the rights of others, tlrafo. is, of those who may have real or other rights to exercise upon the same property.
    Plie usus, fructus and abusus are tho three elements of perfect ownership and constitute the jura in re- The right of a lessee is not a real right — a jus in re- It is a jus ad rem. The lease of real estate does not therefore operate a divestiture of any element of property, hut it prevents or encumbers the exercise of the right of full ownership. The right* of a lessee is substantive, and is independent of changes in the ownership of the thing. Hence the purchase or expropriation of the rights of the owner does not necessarily embrace or operate upon the right of the lessee. That right, in order to he affected, must - itself he the object of the purchase or expropriation.
    Tho purchase or expropriation of tho rights of the owner simply gives subrogation thereto-^no more, no less — and are the measure of the rights of the purchaser or expropriator-
    If tho right of lessee is worth no more than he has agreed to pay in futuro for it, the expro> \- priator of that right would pay him nothing, as it is worth nothing. * But if the right of J lease will bring a greater sum than it is to cost the lessee, the latter is entitled to he paid \ the amount of snob excess, which amount cannot he charged upon tho sum ñxed for the- j rights of the owner, unless tho owner has received the rent in advance, or unless the < value of his right has been fixed by reference to the present actual value of the lease. J The true test of tlio value of tho rights of the lessee is found in the excess which it will now ■ soli for over the amount he has agreed to pay for it. I*
    The improvements put by the lessee on the leased promises belong to him. The owner of the- 1 premises has tho right of electing to take them or not. But the owner can not he compelled to take them.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers?. J.
    Leovy & Kruttschnitt, for the railroad, appellant:
    First — The whole theory of the company’s ease is based upon the mathematical axiom that the parts cannot be greater than the whole; that the amount to be paid by the company is a fixed sum, is the value of the land, and does not vary whether the fee be a unit, or whether it be split up into a thousand estates ; and the only» variables are the amounts to be paid to the owners of the different interests in the land.
    If we express our whole case in the form of an equation, we have: .
    Value of lease & Value of remainder = Value of fee.
    In which equation the value of the fee is a fixed quantity, and the valué of the lease and of the remainder are variables. Mills on Eminent Domain, \ 68, 73.

      Second — In the above calculations we have not touched upon the question of improvements, which are really included in the above figures, and which now demand our attention. Those improvements belong to the lessee. They are worth, according to the appraisers, $1200. What is to be their fate ?
    Upon the termination of the lease, the lessee has the right to remove the improvements, unless the landlord elects to retain them at their fair value. C. C. 2726. By the expropriation proceedings the lease is terminated, and we must now fix the right of the parties. The value of the improvements is fixed at $1200.
    C. E. Schmidt, for Montagnet, appellant:
    First — It would be strange, indeed, if the lessee could be thus turned adrift at the instance of a private corporation, dispossessing him of the benefits of a valuable contract to serve to its own purposes of gain in the prosecution of works deemed advantageous to the public, and if he wore to be compelled to submit without redress to such an impairment of the obligation of his contract, and to such an unceremonious divestiture of vested rights.
    If the law creating this operation gave it such a right, such law would evidently be unconstitutional. Constitution of 1868, article 110 ; Constitution of 1879, article 155.
    As said by,Mr. Mills in his treatise on the Law of Eminent Domain, ?¿ 37, “ the Legislature may not destroy or impair the rights secured to individuals by virtue of their contracts. Const. U. S. art. 1110. The rights of individuals in and to property contained in their contracts of transfer are protected by the Constitution, but this does not interfere with the power of the State to condemn the property thus affected on giving due compensation. The property and the contracts must yield to the demands of the sovereign. The contract is not thereby impaired, for full compensation is given. A State may not annul or modify a grant of land, or a lease, or a mortgage on it, but it may take the land for public use on making compensation.” 10 Md. 87 ; 6 Mass. 251.
    Second — Act 37, of 1877, being the charter of the Morgan Company, requires that all owners or persons interested in the real estate shall be notified of the proceedings in expropriation. Sec. 17, g 5th, and sec. 19 of same act.
    Third — The power, under the act of 1879 (modifying section 20 of the original act of 1877), given to this court, to make such order as it may deem proper on a review of the proceedings had, and evidence adduced in the cause, would seem to be ample to authorize it to render such judgement as it may deem just and equitable, and to put an end to a controversy which the law contemplates should be brought to a speedy termination. 49 Mo. 557; 115 Mass. 15 ■; Mills on Eminent Domain, $ 65 ; 66 Penn. 425 ; 26 Penn. 238.
    Fourth — The company purchased the reversion of the lessors, and then, in virtue of their grant of eminent domain, appropriated the lot to their own use. They thus extinguished the estate of the lessees, both their actual interest under the two-years term in the lease, and their possible interest under the covenant of renewal. They took all the lessees had in that land. Ought they not pay for all ? A renewal of the lease agreeably to the covenant was out of the question. Although the company had succeeded to the rights and powers of the landlords, yet they wanted the lot for a depot, and this was incompatible with a renewal of the lease for the purpose of the defendants. The direct injury to them, or in other words, the value of the thing taken away from them, was to be measured by the worth of the lot, at the stipulated rents, for the residue of the term of two years, and for the whole of the term of three years. No assessment of damages or compensation would have been just or adequate that did not embrace both these terms, for the true measure of the interest the lessees had in the land was the joint value of the two terms. 32 Wisconsin, 569 ; Mills, \ 246; 26 Vermont, 345.
    W. E. Murphy for appellees:
    First — “The valuation made by the assessor for purposes of taxation is not admissible in evidence, the determination of value having been made for a different purpose.” Brown vs. Providence Railroad, 5 Gray, 35. “Nor is the return made by the owner conclusive upqn him.” Virginia Railroad vs. Henry, 8 Nev. 165; Mills on Eminent Domain, 1172.
    ■ Second — We find no guide on this subject in our own jurisprudence ; the constitution of 1879 provides that “private property shall not be taken nor damaged for public purposes, without just and adequate compensation being first paid.” Art. 156. And yet it is the damage they themselves have caused that they invoke for the purpose of reducing the value of property from $10,000 to $3000, or $3600.
    Mills on Eminent Domain, g168, says, “the owner is entitled not simply to such sum as the property would bring at forced sale or under peculiar circumstances, but to such sum as the property is worth in the market, that is, to persons generally, if those desiring to purchase were found who were willing to pay its just and full value. Ordinarily, sales of property-similar to that proposed to be condemned are not admissible in evidence, for the reason that the j ury cannot determine what motives of necessity may have dictated the prices obtained.” 1170.
    IThird — “In such a case the finding of the jury of freeholders ought to be conclusive, unless, perhaps, where the misbehavior of the jury may be inferred from the inadequacy or exorbitancy of the dam- . ages awarded.” Carrollton Bailroad Company vs. Avart, 11 La. ' 192 ; Mills on Eminent Domain, $ 245, 246 ; 26 Yt. 345.
   The opinion of the court was delivered by

Spencer, J.

This is a proceeding under the charter of said company and acts amendatory thereof, to expropriate a certain lot of ground In New Orleans for the use of said company.

The lot in question is owned by J. B. Trescazes and others. It is xmder lease to the firm of H. J. Montagnet for a term of three years, with privilege of renewal for three years more, at a rental of sixty dollars per month. The lessees keep thereon a coal-yard, and have con-structed upon it certain buildings for their own use and convenience.

Commissioners were appointed, and after hearing the various parties in interest, made their report, awarding compensation as follows :

First — To the owners of the lot, its value. $8000 00
Second — To the owners of the lot, the right of accretion, which they value at. 500 00
IPhird — To the lessees, the value of their improvements. 1200 00
Fourth — To the lessees, the value of their lease. 4020 00
Total to be paid’ by company.$13,720 00

The report of the commissioners was opposed in the court a qua, which, on hearing, confirmed it as to the first and third items and rejected the second and fourth.

The company and the lessees appeal. The owners pray for the affirmance of the decree below.

We think the evidence abundantly establishes that the rights of the •¡owners in and to said lot are worth $8000. We deem it unnecessary to xecapitulate it. The company must therefore pay, for the rights held by -these owners and thus expropriated, the sum of $8000.

Perfect ownership consists of the use, the enjoyment, and the disposal of the thing — the usus, fructus, and abusus.

The Code, article 490, says : “ Ownership is perfect when it is perpetual, and when the thing which is the subject of it is unencumbered with any charges toward any other person than the owner.” It is imperfect * * * “if the thing which is the subject of it being an immovable is charged with any real right toward a third person, as an -aasufruct, use, or service.”

Perfect ownership gives the unlimited right of disposal and enjoyment. C. C. 491.

Imperfect ownership gives these.rights only “when it can be done without injuring the rights of others, that is, of those who may have real or other rights to exercise upon the same property.” C. C. 492.

The rights of use, enjoyment, and disposal are said to be the three •elements of property in things. They constitute the jura in re. The right of a lessee is not a real right, i. e. a jus in re. In other words, the lessee does not hold one of the elements of property in the thing. His -right is a jus ad rem, a right upon the thing. While therefore, tech-meally, the lease of real estate does not operate a divestiture of any •elements of property, it does by the express terms of article 492 C. C. •prevent or encumber the exercise of the right of perfect ownership. 'That article says that not only real rights but other rights,” vested in 'third persons, limit the exercise of full ownership. The right of a lessee is substantive, and is independent of changes in the ownership of the 'thing. C. C. 2733. The purchase or expropriation of the rights of the •owner does not therefore necessarily embrace or operate upon the right -of the lessee. That right in order to be affected must be itself the object of purchase or expropriation. If the rights of the owner are alone the objects of the purchase or expropriation, the right of lease is unaffected and continues. The purchaser gets only the thing encumbered '■by the lease. That is all he can get, for that is all the owner has. In •other words, the purchase or expropriation of the owner’s rights gives simple subrogation thereto, no more, no less. This of course gives the right to take any sums, falling due, in futuro, for rents of the thing.

We find therefore that the rights of the owner, expropriated by the company, constitute the measure of its rights against the lessee. What are those rights ? They are: i

First — The full ownership of the thing encumbered by a lease.
Second — The monthly rents, at sixty dollars per month, during the term of the lease.

But the company has also demanded the expropriation of this right of the lessee — this encumbrance upon the full ownership. If that right is worth no more than the lessee has agreed to pay for it, then, as the •price, or rent in futuro, is yet to be paid, and as the company, holding the owner’s rights, is the payee thereof, the company would owe the 'lessee nothing. But if this right is worth more than the sum so agreed to be paid for it, the lessee is certainly entitled to be paid the amount of this excess. He must have the value of the right which is taken away irom him.

But it is said that the company having paid the owners the value of j •the property in full ownership, the amount to be allowed the lessee J must be taken out of the sum awarded to the owners. This would be-just in the case when the owners had received in advance the rents, and-where the right of lease was worth no more than the sums paid for it.. But where the value of the property has been fixed, as in this case, by-reference to the rent stipulated, and not by reference to the actual present value of the lease, and where the company becomes subrogee-of the owner of the stipulated rents, it would be exceedingly inequitable-to charge the owner with this difference between the stipulated rent and actual value of the lease. Such a process might result in giving the-owner absolutely nothing where he had granted a lease at a small price,, and when from unforeseen and temporary causes the leasehold had acquired an extraordinary and unexpected value. In this case all the experts, the commissioners, and the court evidently fixed and predicated' the value of the lot by reference to tíje rental stipulated in the contract-of lease. If the price of the fee is to be charged with and diminished. by the difference between the stipulated rents and the actual present. value of the leasehold, then the price of the fee should have been calculated on a rental equal to such actual present value — a process which would have largely increased the amount to be paid the owners of the-fee.

We understand that the $8000 awarded to the owners is compensa- ’ tion for what the company takes and acquires from them. We have-’seen that this consisted of,, first, the ownership in fee, encumbered by a. ¡lease, and, second, the rent stipulated in that lease. What the owners-.have not cannot be taken from them. They are to be paid only for what was taken from them, and are. to be charged only with what they have-received. The right of the lessee did not belong to the owners of the fee. It was a substantive right vested in him, and its acquisition by the company is derived from and through him. He is to be paid its value,, i. e. the excess of what it will bring over what he has agreed to pay for it, and that excess cannot, in this case, be justly charged upon the amount awarded the owners.

The only true test of this excess of the value of the lease over the* stipulated rental or price, thereof, is to ascertain what sum the right of' lease, or leasehold, will bring over and above the rent stipulated to b'e-’paid. In the case before us the rental is sixty dollars per month. If the right of lease would sell for seventy-five dollars per month of its. term, then the excess of its value over its price is fifteen dollars per-month.

The right of expropriation being a legal one, its exercise does not: give rise to any other than actual damages ; consequently, damages are-not to be considered. The law fixes these actual damages where the whole of a thing or right is taken at the fair value of that thing or-right. The fact that the owner or lessee might build a store, or a factory. or warehouse on the lot, and derive large profits from that business,, would not make those contemplated profits a proper element in fixing-its present value. So the fact that the lessees, by keeping a coal-yard, on the lot, and having free access to the wharf (which they have not, by-reason of the privileges accorded to this company by the city), might realize large profits from that business, would not justify us in taking the amount of these prospective and problematical profits as the value - of the lease.

The true question is, what advance could the lessees get for the" lease over the price or rent they are to pay ? In other words, if the lease was put on the market for sale, what sum in excess of sixty dol- “ lars per month could be obtained for it, the improvements put thereon* by the present lessees being excluded from the calculation? These improvements belong to the lessees, the lessor or owner having the right;1 of electing to keep them at an estimation. The owner and not the lessee has this right of election, and he cannot be compelled to take-them, it being by law a matter of option on his part. The commissioners and the court erred, therefore, in charging unconditionally these improvements as part of the amount to be paid by the company. C. C... 2726,608.

We think the evidence shows that the right of lease is worth more-than sixty dollars per month. We are satisfied, however, that some of' the witnesses exaggerate it when they fix it as high as $120 per month. They make too many conditions to that estimate, some of which have-already been rendered legally impossible by the action of the city in granting the use of the wharf to the company, and in removing the-Third District ferry-landing.

We think that the interests of all parties will be subserved by a-final determination of this controversy. The lessees formerly paid seventy-five dollars per month, but induced the owners, under the-present lease, to reduce the rental to sixty dollars. We see nothing in,: the present condition of affairs, as disclosed in the record, to justify the belief that the right of lease would sell at a greater price than seventy-five dollars per month, which would be fifteen dollars per month advance ■ over the sum to be paid. We think, therefore, that an allowance to the-lessees of fifteen dollars per month for the unexpired term of the lease-will do justice.

It is therefore ordered, adjudged, and decreed that the judgment-appealed from is amended as follows :

First. By fixing the amount to be paid the lessees for value of' their lease at fifteen dollars per month from the- date- of the company? taking possession to the expiration of the term for which said lease ■may continue.

Second. By fixing the value of the improvements put by lessees on the lot at twelve hundred dollars ; by giving the company the right, to elect •whether it will take said improvements at that price, said election to be made in writing within thirty days from the date this decree is filed in the court a qua; said improvements to be removed by the lessee, if the company elect not to keep them; that as thus amended .said judgment is affirmed. The costs to be paid by the company.

Beliearing refused.


source: Caselaw Access Project

author: Marr, J.

license: Public Domain

text:
    No. 7774.
    Sarah Losee, Tutrix, vs. John Orsborne, Executor.
    *T1i© filing, by an executor, of a list of the debts of a succession, cannot be the basis of a final or conclusive judgment; and the homologation of snch list is not such a judgment as can be revived.
    j\.PPEAL from the Parish Court of Bapides. Thornton, J.
    No brief filed for plaintiff and appellee.
    B. J. Bowman for defendant and appellant:
    First — Because no such thing as a mere list of debts is recognized in law as a basis upon which a judgment can be rendered, nor can the creditor or heirs be cited to sanction or oppose such a proceeding by notice through the public prints, and said pretended homologation as to them is an absolute nullity. 30 An. 702 ; 8 B. 121; 2 An. 895 ; 12 An. 268 ; 30 An. 692, 363.
    "Second — That the homologation of an account is res judicata only so far as the funds on hand and proposed to be distributed, is too well settled to be controverted. 9 An. 85 ; 12 An. 96 ; 13 An. 286 ; 10 B. 118 ; 1 An. 92.
    There being no funds on hand to distribute, this tableau of debts could not be the basis of a judgment of res adjudicata.

    Third — Those who are not creditors of a succession cannot oppose the tableau of the administrator. 21 An. 561.
   The opinion of the court was delivered by

Marr, J.

Mrs. Eliza Huie, late of the parish of Bapides, was executrix of the last will of her husband, Josiah Huie. In December, 1866, she ;gave a power of attorney to H. S. Losee, to represent her in all business of the estate; and, in 1867, she removed to Texas, whence she did not return, and where she died,

In September, 1868, Losee, as attorney, filed what he styled a “tableau of the debts of succession of Josiah Huie, deceased ; together •with a petition praying that this tableau be advertised according to law, after which, and the legal delays, that said tableau be duly approved and homologated, and for all further orders, necessary, and for general and equitable relief.”

This tableau was simply a list of debts, one being for the attorney’s fees of Losee, 5530 00. Opposition was filed by creditors of Mrs. Huie, individually, which was dismissed by the court: “ and there being no further opposition * * * it is hereby ordered, adjudged, and decreed that the tableau of debts presented by said executrix, Eliza Huie, be and the same is hereby approved and homologated, and that the funds of said succession be distributed in accordance therewith.” Signed 16 th June, 1869.

This suit is brought by the widow in community, and natural tutrix of the minor children of Losee, to have this judgment revived. Ors-borne, dative executor of the will of Huie, was cited; and he answered that the judgment of homologation was a nullity; that the statement of debts did not pretend to distribute any funds, or that there were any on hand to be distributed ; and, finally, that the said tableau was not filed by the executrix, but by her agent Losee ; “and was, virtually, an attempt of an agent to confess judgment in favor of himself as plaintiff.”

The parish judge revived the judgment, “to have the same force and effect from this date as when rendered; ” and the executor appealed.

The filing of a list of debts might interrupt prescription; but the homologation of it is not a judgment in favor of any creditor ; and it •cannot be revived. A judgment homologating an account, or a tableau of distribution, is conclusive with respect only to the fund to be distributed ; but the mere list or statement of debts cannot be the basis of a final or conclusive judgment.

The judgment appealed from is, therefore, avoided and reversed ; •and it is now ordered, adjudged, and decreed that plaintiff’s petition and writ be dismissed, with costs in both courts.


author: Spencer, J.

text:
    No. 7747.
    Adèle Pedesclaux, Wife of P. Landry, vs. Margaret C. Legaré.
    In April, 1869, there was no law of this State which declared the vendor’s lien on real estate forfeited and lost if not recorded on the day of the contract.
    The court feels obliged to accept the conclusions of counsel when they agree, as to matters of fact; but not so as to the law. That wo take from the Code or Statute, and not from the counsel.
    If a privilege exists it pilmes all mortgages.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Poohé, Judge ad hoc.

    Edward N. Pugh for plaintiff and appellant:
    First — We propose now to discuss the legal results quoad the ownership-of this note flowing from Mrs. Landry, intrusting the husband with the administration of this note and the obtaining judgment on the same. This question was thoroughly ventilated in the leading case-of Succession of Gilmore, 12 A. 562, where the doctrine is laid down. “ that where the wife’s paraphernal property was sold and negotiable notes taken payable to the husband, and on which the husband sued the makers and obtained judgment, the legal ownership of the judgment was in the husband; that the original notes were merged in and novated by the judgment, and that the judgment, might be compensated by any debts equally liquidated due by the husband to the judgment debtor.” C. C. 2362; 12 R. 525; 19 L. 440 ; 13 A. 537 ; 25 A. 288 ; 6 A. 110 ; 19 A. 457 ; 28 A. 164.
    Second — We assert that if the husband becomes the owner of the property of the wife (8 A. 288), he necessarily owes her the value of that property, which is secured by mortgage. In conclusion, on this branch of the case, we say that Landry, in 1861, by novating-the claim and re-loaning the money, assumed the ownership of the note, the paraphernal property of the wife, and became bound to her for $7000. If the court should hold that that act did not constitute a conversion, then we assert that the suit in 1865, on the new note, made Landry the owner of the judgment, and was a disposaL of the same for his individual interest in the meaning of art. 2390 , C. C.; 4 N. S. 408 ; 6 A. 592 ; 2 A. 824; 18 L. 431; 20 A. 208 ; 21 A.. 54; 18 A. 472 ; 2 A. 891 ; 16 A. 145.
    Third — -We understand that where the husband allows the wife to obtain judgment against him without proof, that then it is a consent decree ;. but where the wife proves up her claim, the fact that the husband has not in some incidental matter insisted upon all the formalities of law, that this by no means has the effect of making the judgment a. consent decree. 28 A. 547 ; 27 A. 687 ; 23 A. 279.

      Fourth — On the question of erasure of mortgage without the consent or making the mortgagee a party, we refer your Honors to 20 A. 425 ; Herton vs. Cotton, 28 A. 334 ; 29 A. 550 ; Hin. IV. (b. 2), No. 7.
    Fut grant for argument’s sake that the judgment of separation in 1860 has lapsed for want of execution, would not the registry of this judgment in the book of mortgages of the parish of Ascension on 'the 29th of April, 1869, (where the property is situated) under the provisions of Act No. 95 of 1869, suffice to preserve the wife’s mortgage ? 8 A. 478 ; 29- A. 846 ; 10 A. 550 ; 30 A. 266 ; 31 A. 674.
    Fifth — We repeat that article 123 and acts of 1869 were framed and-made for the express purpose of doing away with tacit and latent mortgages ; that publicity of these claims was made a pre-requisite under the new order of things to their having effect against third ■persons. Art. 123 recognized the existence of tacit mortgages, and •did not prohibit them in the future. It designated how their existence to affect third persons should be made to appear. 28 A. 365. If prior to the year 1869 plaintiff’s judgment had been of record, there would have been no necessity of recording it again under the act of 1869. 23 A. 689, 363 ; 27 A. 406 ; 25 A. 613.
    'The object of registry is notice, and it certainly cannot be said that plaintiff’s judgment, which was very full, did not convey to the practice all that the law required. 5 A. 225 ; 6 A. 242 ; 10 A. 502; 25 A. 643.
    In 24 A. 190, as to the recording of inventory to preserve minor’s mortgage under Act No. 95 of 1869.
    ‘Sixth — A privilege primes all mortgages. 31 A. 518 ; C. C. 3186, 3187,3371.
    :Seventh — Question as to existence of vendor’s privilege, the court says : “ In order to preserve his privilege, the law requires the vendor of an immovable or slave to cause the act to be duly recorded. His privilege is valid against third persons from the date of the act, when such act has been duly recorded within six days from the date, etc. O. C. 3238-3240. But where the act has not been recorded within the time thus prescribed, article 3241 C. C. declares it shall have no effect as a privilege, that is to say, it shall confer no preference on the creditor who holds it over creditors who have acquired a mortgage in the meantime, which they have recorded before it; it shall, however, still avail as a mortgage, and be good against third persons from the time of its being recorded. In the case at bar, it is clear that the act of sale, in consequence of its non-registry within the time required by law, can only take effect in favor of the appellant from the date of its inscription, 6th of October, 1841.” 18 A.-143 ; 20 A. 225, 80 ;,27 A. 407 ; 29 A. 416 ; 27 A. 246 ; 23 A. 286 ; -.24 A. 610 ; 25 A. 232 ; 28 A. 80, 305, 536; 30 A. 833.

      R. N. Sims for defendant and appellee :
    FirsU-Admitting, for the sake of argument, that the appellant did have-a valid judgment against her husband on the 5th of August, 1871,, . we maintain at the threshold of this discussion that the mortgage-resulting from the inscription of that judgment on the 29th of December, 1869, was wiped out and extinguished by the sheriff’s sale to Dr. Legaré.
    Second — The mortgage granted by Landry on the 3d of April, 1869,, could not be enforced in part, but was made executory by th'e flat of the judge to the order of seizure and sale, as to all the stipulations in the aet which it was given to secure, particularly that clause relating to his assumption of the antecedent mortgage debt due to the Consolidated Association. The assumption by Landry of that, ranking mortgage on the Souvenir plantation was as much a part-of the consideration of the sale to him as the notes given by him to represent the balance of the purchase price. Pepperktal vs. Dunlap,. 16 La. 170 ; Adams et al. vs. Lear et al. 3 An. 124.
    Third — The failure to record the act of sale on the day on which it was passed in the mortgage-book of the recorder’s office could in no manner affect the mortgage rights of the Consolidated Association r that mortgage, as we have seen, was given by Yalery Landry in 1838.
    Fourth — The judgment of separation is a nullity. It was rendered by consent. Plaintiff’s husband accepted service of her petition, and waived delays ; and he allowed her to have a judgment entered up against him for interest during thirteen years prior to any demand for the restitution of her paraphernal property. No effort was ever made to execute the judgment. No execution ever issued, and not a single act appears to have been done showing any intention to execute it. There was an utter absence of every legal requisite to show a bona fide non-interrupted suit to obtain judgment.
    Fifth — The only reason assigned for not having executed the judgment was- that plaintiff’s husband had no property subject to seizure. Nothing prevented plaintiff from carrying on a bona fide suit to obtain payment. She failed to comply with a positive injunction of the law. The nullity related back to the rendition of the judgment, and there was no dissolution of the community. C. C. 2428 ; 1 An. 308; 7 R. 73 ; 4 A. 513 ; 11 A. 696; 12 A. 193 ; 27 A. 401.
    Sixth — The judgment being a nullity, the community was never dissolved, and the appellant cannot maintain her hypothecary action. She is, and was, in 1869 and 1871, a partner in community with her husband, liable for one half of the community debts. The property against which she seeks to enforce her alleged mortgage was sold by tlie sheriff in 1871, to pay a community debt. Plaintiff has never renounced the community. The wife stands in the position of a third person only after she has renounced the community. McDonough vs. Tregre et al. 7 Ni S. 70; Succession of Dejean, 5-An. 594.
    Seventh — Plaintiff's pretended tacit mortgage was never properly recorded.
    Eighth — A voluntary separation of property is null as to all parties. 0.. C. 2427 ; 7 N. S. 48 ; 11 L. 533 ; 11 A. 696.
    Ninth — C. O. 2428 ; Hennen, p. 901, No. 2.
    Tenth — Plaintiff has not shown she ever had a valid claim against her husband. 29 A. 215 ; C. C. 2399, 2402.
    Eleventh--The husband is not responsible for failing to collect funds or assets belonging to his wife during his administration of her affairs; she can at any time resume the administration and protect herself.. C. C. 2591; 15 An. 597 ; 20 An. 301; 10 A. 260 ; 12 A. 565.
    Twelfth — The wife’s proof of her demand against her husband must be' strict, particularly where creditors are to be affected. 11 L. 559 ; C.. C. 2367.
    Thirteenth — The lien and privilege of the vendor were preserved by the recording of the act of sale simultaneously in the books of conveyance and mortgage. 27 A. 461, 237; 20 A. 80 ; C. C. 2266 ; 14 A.. 345 ; 5 A. 197 ; 6 A. 771.
   The opinion of the court was delivered by

Spencer, J.

On the 23d May, 1868, plaintiff obtained' a judgment against her husband for $9050, with legal mortgage, etc., also dissolving-the community, and restoring to her the administration of her separate estate. This judgment was advertised, but no execution was ever issued thereon, or other steps taken to satisfy it.

On 3d April, 1869, her husband, Landry, bought from Mrs. Walker, by public act passed in New Orleans, a sugar plantation situated in Ascension parish, for $40,000, of which $10,248 36 was paid in cash, and for the balance the vendee assumed a "pre-existing mortgage on the property, and gave notes at one and two years. The vendor reserved special mortgage and vendor’s lien on the property to secure the credit part of the price. This act of sale and mortgage was recorded simultaneously in the conveyance and mortgage books of Ascension, on the 14th April,. 1869.

Landry having failed to pay the price, the vendor’s mortgage and-privilege were foreclosed by Dr. J. C. Legaré, the holder of the notes,, and the property was adjudicated to him in August, 1871, at less than-the debt due. In August, 1876, Dr. Legaré sold the plantation to the-•defendant. About a year later (in 1877), the plaintiff commenced the present suit, which is an hypothecary action to subject said plantation •to her legal mortgage.

The plaintiff’s theory is, that the law in force in April, 1869, required, In order to preserve the vendor’s lien, that the act of sale and mortgage •should be recorded in the mortgage office “on the day of the passage of the act.” And strangely enough, counsel for defendant has discussed this •case at great length, upon that hypothesis.

When counsel agree as to what the facts of a ease are, we feel •obliged to accept their conclusions ; but not so as to the law. We take •the law from the Co dp, and not from the counsel. The Eevised Civil Code of 1870 was adopted only on the 14th March of that year. The ■provisions of that Code, therefore, are inapplicable to this case, and we must look elsewhere for the law governing it.

Art. 3240 of the Code of 1825 provides that the vendor’s privilege ■on immovables is “ valid against third persons from the date of the act, if It has been duly recorded, that is to say, within six days of the date, if the act has been passed in the place where the registry of mortgages is Jcept, or adding one day more for every two leagues from the place where •the act was passed to that where the register’s office is kept.”

This article was amended and re-enacted in 1868 (see Act No. 126, •approved September 29th), so as to read as follows : “ The privileges ■enumerated in the two preceding articles'” (i. e. those of the vendor and of architects, etc.,) “ are valid against third persons from the date of the ■■ recording the act or evidence of indebtedness, as provided in the foregoing articles.” The “ foregoing articles'” referred to simply require these privileges to be recorded in the mortgage registry of the parish where the property is situated. They fix no time within which the recording is to be done, under pain of forfeiture of privilege, as did the original •art. 3240, and as did art. 3274 of the Code of 1870, which has been amended by act of 1877.

There was not therefore in existence on the 3d April, 1869, any law ■fixing a delay within which registry must be made in order to preserve the existence of the vendor’s lien. On the contrary, the act of 1868, above quoted, provided that that privilege should be valid against third persons from the day it was recorded. There was no law forfeiting the privilege. There was no law which authorized a court to say that where an act was passed on the third and recorded on the fourteenth, the privilege was not preserved. The plaintiff’s claim is by no means • an equitable one, in that it is an effort to appropriate to herself property which her husband bought and never paid for; and that to •the prejudice of the vendor, who had not only a legal but moral right • of revendication for this failure to ,pay. We are not disposed in •the interest of such a demand to extend forfeitures of just rights by 'implication. Nothing short of a positive enactment would justify our holding plaintiff’s claims to be superior to those of the vendor.

We have said that as between a mortgage and a privilege the question of priority of registry could not arise ; that if the privilege existed at all it of necessity primes all mortgages as being higher in its nature. Jacob vs. Preston, 31 An. 518.

The vendor’s privilege in the case before us did exist and was preserved by the registry on the 14th April. No law declared its forfeiture for failure to register on the 3d April, 1869.

If we applied the rule of the original article 3240 of the Code of 1825, the registry on 14th April was seasonable, for it is more than ten leagues from New Orleans, where the act was passed, to the parish seat of Ascension, where the property was situated.

We hold, therefore, that the vendor’s lien was in full force in 1871, and that the sale thereunder passed the property to the purchaser free of plaintiff’s alleged mortgage.

This view dispenses us from considering the many intricate questions raised and discussed by counsel.

The j udgment appealed from is affirmed with costs.

Rehearing refused.


author: DeBlanc, J.

text:
    No. 7806.
    In the Matter of the Estate of Frances Parke Lewis.

      'A. -will vrlncli devises tlie whole of the testator’s property to one of her children, and the sons of that child, contains no substitution.
    The -will of a non-resident which, without legal cause, deprives her children, or grandchildren of their legitime> must, as to the immovable property of the testator situated in Louisiana, be reduced to the disposable quantum. But as to the movable property of the testator in Louisiana, its disposition by will must be governed by the law of the State where the will was made, and where the testator resided.
    ■Where the testatrix leaving major and minor heirs, and who at the time of her death resided in Mississippi, owned property in Louisiana and the executor appointed in her will refuses to act, and a contest arises*for the administration of the property situated in this State between an administrator appointed by the court of Louisiana with the approval of the testator’s husband and son, and one apppointed by the court of Mississippi, the administration will be given to the one appointed by the court of this State.
    .A.PPEAL from the Parish Court of Iberville. Cole, J.
    Geo. Wailes and Barrow & Pope for appellant:
    First — A will executed in another State devising property situated in Louisiana must as to that property, whether movable or immovable, be reduced to the disposable portion. C. C. 1493,1502,1504 ; R. S. of' 1870, sec. 3677 ; C. C. 1220 ; 17 A.. 15 ; 23 A. 22.
    Second — The powers of administrators appointed in different States extend only to the limits of the sovereigns creating them, and that neither allows the other to intermeddle with any assets within their respective jurisdictions. 17 An. 16 ; Burbank vs. Payne & Co., 19' An. 42 ; 8 La. 508 ; 2 N. S. 20.#
    The article C. C. above quoted says : “ The judge before whom such succession shall be opened, shall proceed to appoint or confirm the officer to administer it under the name and in the manner pointed out by the existing laws.”
    Art. 1121 (1114) C. C. fixes the order of preference to be observed in making appointments.
    A dative executor is a private officer. C. C. 2817 (2788).
    Third — One who claims the administration of a succession must make due publication of his application. C. C. 1114,1116 ; C. P. 966,167 ; 13 A. 582 ; 18 L. 402.
    Fourth — Andrew II. Gay, who holds a power of attorney from Lawrence L. Butler, a beneficiary heir, which authorizes him to represent said heir, has a preference over Henderson, a non-resident, and a stranger to the succession. 21 A. 614 ; C. C. 1121; 3 A. 261; 23 A. 22.
    Danl. Turnbull and Sam. Matthews for appellee:
    First — Mrs. Butler’s will was duly and properly probated, and in form is valid under the laws of Mississippi which govern its conception. (See transcript of probate proceedings before the Ohancery Court of Harrison county. R. pp. 11 to 24, also sections 974,995,1785, and 2388, Revised Code of Mississippi. B. pp. 40 to 43).
    As Mrs. Butler was a resident of, and domiciled in the State of Mississippi, and as movable property has no situs, but is governed by the law of the domicile, any disposition of property of that kind, valid under the laws of Mississippi, is valid every where. See Rev. O. C. art. 10 [10]; 8 Rob. p. 414 ; 9 Rob. p. 438 ; 12 Rob. p. 334; and 15 An. p. 155.
    The disposition of immovable property situated here is not null, but simply reducible. See Rev. C. C. art. 1502 (1489); 12 Rob. pp. 552 to 558 ; 1 An. 142.
    Arguments made and authorities cited by counsel for appellants under this head are irrelevant, since the movable property belonging to this estate is not situated in the State of Louisiana. 15 An. p. 154.
    The claim that the will contains a prohibited substitution, and is void for ambiguity, we do not think it necessary to- discuss,, but will let the will plead its own cause.

      Second — That an administrator who has been appointed by the court of the State where the will was made and the testator lived, and where most of her estate was situated, is entitled to the administration of the property of the succession as situated in this State. 15 A. 244 ; 0. 0. 1596 ; 6 L. 688 ; 8 N. S. 232 ; 8 L. 86 ; 30 A. 887.
   The opinion of the court was delivered by

DeBlanc, J.

Mrs. Frances Parke Lewis, the wife of E. G. W. Butler, died in the State of Mississippi, leaving as her legal heirs two of her own children — Lawrence L. and Cora, and the issue of the marriage of a deceased daughter with George Williamson.

In her last will, which was twice probated, here and in Mississippi, she declared — and this stands uncontradicted — that she was a citizen and resident of the last mentioned State, named — as her universal legatees — her daughter Cora, the widow of W. B. Turnbull and the sons of said widow, and designated — as the executor of her will — Charles M. Conrad, of New Orleans, who declined to qualify in that capacity.

In 1876, on the 4th of September — a little over a year after the death of Mrs. Butler — Andrew H. Gay qualified as the administrator of her succession. He was appointed as such by the parish court of Iberville. On the 13th of said month, nine days after he had thus qualified, the administration of said succession, with the will annexed, was granted to Elliot Henderson, by one of the chancellors of the State of Mississippi.

On the 30th of April, 1877, Henderson presented a petition to the parish cpurt of Iberville, in which he asks to he recognised as the executor of the last will of Frances Parke Butler, and that Gay’s appointment as the administrator of her succession be revoked.

In Gay’s answer, and in two interventions filed, one by the husband, the other by the son of the deceased, they contend :

1. That Mrs. Butler’s will contains a substitution reprobated by our laws, and — if not — that the legacy made by her should be reduced to the disposable quantum.

2. That her will has not been probated by any court of this State, and is so vague as to render its execution an impossibility.

3. That the appointment, by a foreign court, of an administrator with the will annexed, does not — of itself — authorize him to interfere with an administration previously conferred by a court of this State, nor entitle him — by preference — to the appointment of dative testamentary executor.

4. That — if Gay’s appointment as administrator should be revoked — one of the intervenors, the husband, as partner in community of the deceased, claims to be appointed as dative executor of her will.

In April last, we remanded this cause to the lower court, to try and determine two issues :

1. The validity or invalidity of the will, whether in whole or in part.

2. Who is entitled to be appointed as the executor thereof.

I.

Mrs. Butler’s will contains no substitution. She gave to her daughter Cora and the sons of the latter, the whole of the property of which she would die possessed, and then explained the causes which have induced her to thus favor only one of her several descendants. Those causes are not such as would justify any disposition intended to deprive her children or grandchildren of their legitime. This is not denied by their adversaries, and — therefore—as to the property situated in Louisiana and belonging to the succession of Mrs. Butler, the donation already referred to must be reduced to the disposable quantum.

There can be no doubt, as held by our predecessors, that — -when a person dies, leaving property in two or more States, his property in each State, is — for the purpose of its administration — considered as a separate succession ; but can we — from that fact — deduce, as a necessary consequence, that — of whatever it may be composed, that separate succession cannot be — to any extent — disposed of, by testament, otherwise than according to our laws ?

The second paragraph of article 10 of the Civil Code provides “ that the effect of acts passed in one country to have effect in another, is regulated by the laws of the country where such acts are to have effect,” and the third paragraph “ that the exception made in the 'second does not hold, when a citizen of another State of the Union, or a citizen or subject of a foreign state or country disposes by will or testament, or any other act causa mortis made out of this State, of his movable property situated in this State, if at the time of making said will or testament, or any other act causa mortis, and at the time of his death, he resides and is domiciliated out of the State.”

Mrs. Butler died, and — at the time of her death — had her residence and domicile in the State of Mississippi, and there — by testament — disposed of the whole of her property, movable and immovable, and it is clear that, under the legislative provision which we have quoted, the effect of her testament — as regards her movable property — must be regulated by the laws of Mississippi, and — as regards the balance of said property — this is conceded — by the laws of this State.

C. C. 491 — (483).

In Succession of Senac, this court held that the only exception to the rule laid down in article 483 of our Code, “ that persons who reside out of the State cannot dispose of property they possess here, in a manner different from that prescribed by our laws,” is to be found in the 10th article of said Code, and that it is only under the conditions specified in that' article, that foreign laws are permitted to operate in the disposition of property in this State.

2 R. 258.

As regards her movable property, the effect of Mrs. Butler’s donation is to be regulated by the laws of Mississippi; and — to determine the reduction to which said donation is liable under the laws of Louisiana, an aggregate must be formed of exclusively the property and things, or of the proceeds of the sale of the property and things which she owned in this State at the time of her death, and which — at that date and under our laws — were immovable by either their nature, destination, or the object to which they were applied ; and — this aggregate formed — by deducting therefrom the portion reserved to the forced heirs of the deceased.

0. 0.1493, (1480).

II.

Henderson and Gay ask, the first to be recognized in a capacity ■which — as yet — has not been conferred upon him, and it is that of dative testamentary executor — and the other, to be continued as administrator of a succession, which — as to the minor Williamson — is, by operation of law, accepted with benefit of inventory. Gay’s demand is urged by the surviving husband and one of the forced heirs of Mrs. Butler. The two contestants seek to be recognized, each in his alleged capacity, and not one of them to be appointed as dative testamentary executor.

Henderson claims on but one ground that Gay’s appointment be revoked, and that ground is that he alone, under his appointment by the Mississippi court, has the right to administer the successions opened here and in the adjoining State. In Burbank vs. Payne & Co., this court said : “ It is our deliberate opinion that the powers of administrators, appointed in different States, extend only to the limits of the sovereigns creating them, and that neither allows the other to intermeddle with any assets within their respective jurisdictions ; and had any exception been taken to the right of the foreign administrator to stand in judgment, we should — without hesitation — have maintained it.”

17 A. 16.

The Code provides : “ That the successions of persons domiciliated out of the State of Louisiana, and leaving property in this State at their demise, shall be opened and administered upon as are those of the citizens of the State ; and the judge before whom such succession shall be opened, shall proceed to the appointment or confirmation of the officer to administer it under the name and in the manner pointed out by existing laws.” C. C. 1220.

As a general rule, “ if there be several heirs to a succession, some of whom have accepted unconditionally, and the others under benefit of inventory — as in this case — an administrator must be appointed to manage, until their partition, the effects of the succession.” We have so held ourselves, and in Girod’s Heirs vs. Girod’s Executors, this court had then already said: “ If it bo true that the heirs of the deceased are entitled to the benefit of inventory, they cannot be deprived of the right of administering the succession according to the provisions of the Code on this subject.” C. C. 1047 (1040); 18 L. 399 ; 30 A. 388, 801.

Before it was ascertained that Girod had left a testament, two of his nearest relations had been appointed as curators of his succession, and — alluding to that fact — the court added: “ We are unable to perceive any valid reason why the circumstance of there being a will, the object of which is merely to make certain legacies which are to be paid out of the estate, and which are to become the debts of the heirs, if they accept, should alter their situation, and should have the effect of divesting them of their legal right to obtain the administration of the estate, whether it be under the denomination of administrator, or that of dative testamentary executor; the formalities to bo observed, and the responsibilities and securities to which they are subjected are the same.”

18 L. 400.

Mrs. Turnbull, one of the three legatees of Mrs. Butler, died after the testatrix, and her sons, who are residents of this city, have accepted, and were — on the 4th of October 1876 — put in possession of their own mother’s succession, which comprises the .latter’s share in the only legacy made by said testatrix — and we are at a loss to imagine, when we consider that all the heirs and legatees reside or are represented in this State, in whose interest, and under what principle of law or justice, we could — at the request of one who derives his authority, not from any clause of the will, but from exclusively his appointment by the court of a sister State — discharge an administrator appointed by a competent court of Louisiana, after legal delay and notice, on the application of the husband and with the approbation of the son of the deceased ; and— this done — place under the control of the foreign court and under the foreign administration, against the wish and will of the husband and son, the share of the first in the community, the legitime of the other !

“In regard to the title of executors and administrators, derived from a grant of administration in the country of the domicile of the deceased, it is to be considered — said Mr. Story — that the title cannot, de jure, extend, as a matter of right, beyond the territory of the government which grants it, and the movable property therein — as no nation is under obligation to enforce foreign laws prejudicial to its own rights, or to those of its own citizens.” Conflict of Laws, p. 840, No. 512.

He adds: “It has hence become a general doctrine of the common law, recognized both in England and America, that no suit can be brought or maintained by any executor or administrator, in his official •capacity, in the courts .of any other country, except that from which he derives his authority to act in virtue of the probate and letters of administration there granted to him.

“If he desires to maintain a suit in a foreign country, he must obtain new letters according to the general rules of law prescribed in that countrybut “the new administration is made subservient to the rights of creditors, legatees, and distributees, who are resident within the country where it is granted; and the residuum is transmissible only, when a final account has been settled in the proper tribunal where the new administration is granted, upon the equitable principle adopted by its own law, in the application and distribution of the assets found there.”

Conflict of Laws, pp. 841, 843, No. 513.

“ Where administrations are granted to different persons in different States, they are so far deemed independent of each other, that a judgment obtained against one will furnish no right of action against the other, to affect assets received by the latter in virtue of his own administration ; for, in contemplation of law, there is no privity between them.”

Conflict of Laws, p. 868, No. 522.

In Danes vs. Head, Chief Justice Parker said: “ It would be but an idle show of courtesy to order the proceeds of an estate to be sent to a foreign country, the province of Bengal, for instance, and oblige our citizens to go or send there for their debts, when no possible prejudice could arise to the estate, or those interested in it, by causing them to be paid here, and possibly the same remark may be applicable to legacies payable to legatees living here.”

3 Pick. B. 128.

Under these doctrines and our own law, a foreign administrator cannot sue to revoke the appointment made, by a competent court of one State, of an officer to administer upon a succession opened here, and more particularly when, as in this case, that officer was appointed on the application of the husband and with the approbation of a son of the deceased, and when her legatees — though present in the State — did not oppose that appointment and do not ask its revocation.

It is, therefore, ordered, adjudged and decreed that — in so far as it empowers Elliot Henderson to interfere with, and assume the administration of the movable property situated in this State and belonging to the succession of Mrs. Frances Parke Butler, and deprives Andrew H. Gay of that administration, the judgment appealed from is avoided and' reversed, and Henderson’s action for the revocation of Gay’s appointment as administrator of Mrs. Butler’s succession in this State, dismissed at his costs in both courts.

It is further ordered,, adjudged and decreed that, as amended by that partial reversal — the judgment appealed from is affirmed.


author: Manning, C. J.

text:
    No. 7815.
    Peter Young vs. Police Jury of Concordia.
    "While the parish, of Concordia may have plenary power to make enactments for levees, and? incur any expense for their construction or repairs, its police jury cannot create any valid debt for such purposes, unless, in the ordinance creating the debt, means for its payment are provided.
    APPEAL from the Thirteenth Judicial District Court, parish of Con-cordia. Hough, J.
    T. P. Parrar and J. S. Boatner for plaintiff and appellant:
    First' — The celebrated restrictive act of 1853, which is relied on by the defendant, ought not to be applied in.this ease, for the following reasons, viz.:
    1. This debt was not “ created by an ordinance,” and, therefore, no provision could be made for its payment at the time the debt arose, as provided in the act. It was, to all intents and purposes, a “ quasi contract”

    The statute referred to was evidently enacted to prfevent police juries from raising money by contract. It was certainly not intended to prevent them from causing a sudden crevasse in the levees to be promptly stopped. If they in accomplishing such a great and urgent work, had to call a meeting of the board, and make a contract, and levy a tax, all in the same ordinance, the country subject to inundation would be flooded before all these preliminaries could be gone-through with.
    There is no legal inhibition against the parish being made liable for work, done or for benefits received.
    Second — This restrictive act, being a general law, does not repeal the-special act of 1829, p. 102, which gives to the parish of Concordia plenary and unlimited powers to make all such enactments with • regard to roads and levees as may be deemed necessary and proper,, etc. “ A particular is not repealed by a general law, unless they be-so repugnant that they could not, under any circumstances, stand together.” 20 A. 140 ; 5 N. S. 575 ; 6 L. 135; 3 A. 399 ; 15 A. 383.. Under this “particular” law of 1829, then, the parish of Ooncordia could pass any enactments it might deem proper, in regard to levees ; could order them to -be built, and cause taxes to be levied, either before or after the work was done, for its payment.
    Third — The prescription of ten years applies to accounts stated. Bub if it should be held that the prescription of three years is to govern the claim sued on, and that it is not an “ account stated,” then we still maintain that it has not yet been accomplished as to any portion of the §1449 47 save, perhaps, on the sum of §370 57.
    The act of the Louisiana Legislature of 10th June, 1863, page 5, expressly provides that prescription against debts shall not run during the existence of the late civil war. This portion of the act is certainly valid. It has been authoritatively settled that the civil' war ended April 2, 1866. 12 Wallace, 700 ; 15 Wallace, 555, and 600.
    Geo. W. Sawyer for defendant and appellee:
    First — There is no legislative authority shown in the police jury of Ooncordia to contract debts in that manner, or-to issue bonds, drafts,, orders, or warrants of that kind. (See authorities cited above, first point). Clack vs. City of Des Moines, 19 Iowa, where this subject is fully discussed by Dillon, Justice ; Oooley on Const. Lim. page 215,. where he says : “ If these corporate bodies have no general power to issue negotiable securities, any one who becomes holder of such securities, even though they be negotiable in form, will take them with constructive notice of any want of power in the corporation to issue them, and cannot enforce them when that issue was unauthorized.” 1 Dill. Munic. Corp. sec. 106, and pp. 196 and 211; Mayor vs. Ray, 19 Wall. 468 ; 14 A. 699 ; 24 A. 457 ; 23 A. 190, 232, 251; 15-Wall. 566 ; 13 Gray, N. H. 318 ; 46 Maine, 318 ; 7 N. H. 278 ; 26 Yt. 345 ; 11 Cal. 170 ; 35 Barb. 136 ; 5 Denio, 117 ; 19 Penn. 200 ; 5 Munic. 280; 1 Dill. Munic. Corp. sec. 10.
    Second — Police juries cannot delegate the powers which must be exercised by their legislative branch to any of their officers or agents. Cooley Const. Lim. p. 204 ; Sedgewick on Statute Law, p. 164; Dill. Munic. Corp. sec. 60 ; 47 Pen. St. Rep. 21, 382 ; 17 N. Y. 454.
    Nor can they validly ratify by subsequent action any thing done by another, which they only could do. 20 Cal. 96 ; 2 Kansas, 357 ; 20 N. Y. 317 ; 6 How. 432; 11 Wall. 176 ; C. C. 2272.
    Third — A police jury cannot create a valid debt when it does not provide, in the act creating the debt, the means for paying it. Rev. Stat. of 1870, sect. 2786 ; constitution of 1852, art. Ill; 10 A. 676; 23 A. 190,. 232, 251 ; 24 A. 457.

      Fourth — The obligations issued herein being negotiable in form were prescribed in five years. O. 0. 3040 ; 21 A. 645 ; 22 A. 76, 72; 21 A. 611.
    Fifth — There has been no suspension or interruption of prescription. 0. 0. 3578, 3520 ; 12 W. 700 ; 0. 0. 3519, 2997 ; 4 L. 310; 25 L. 65 ; 20 A. 131, 280, 397, 413, 422, 565 ; O. 0. 3462 ; 10 L. 569.
   The opinion of the court was delivered by

Manning, C. J.

The defendant is sued herein for $4,643.06 with interest, being the amount of scrip or certificates of indebtedness, issued to him and to others, of whom he is the assignee, for work done by him and by others on the levees. It is conceded by the plaintiff that the evidence will not warrant a judgment for more than $1,449.47. The defendant contests the whole claim.

One of the grounds of defence is that the police jury, in creating the debt, did not provide the means of paying it. The plaintiff admits that such is the fact, but insists that the act of 1829 dispenses this parish from the necessity of providing for the payment of a levee debt when it is contracted. Sec. 52 of the act referred to exempts the parishes of Concordia and Ouachita from its operation, and proceeds to enact that the police juries of those parishes shall have plenary and unlimited power to make such enactments with regard to roads and levees within their respective limits, as may be deemed necessary and proper by them, including the power to authorize the assessment and collection of any taxes which they may deem necessary on the private land claims within, ■any levee district established by them to cover the expenses of leveeing any public land included in such district, or other necessary work or expense, authorized by their ordinances. Sess. Acts 1829, p. 102. The prohibition of contracting a debt without providing for its payment is of a later date. Sess. Acts 1853, p. 234, now sec. 2786 Rev. Stats.

The two laws are not inconsistent. The parish may have plenary power to make enactments for levees, and to incur any expense for their construction or repairs, and still be bound to provide for the payment of a debt thus incurred simultaneous with incurring it. The plaintiff’s counsel suggests that public policy requires the allowance of some latitude in this matter, for it cannot be expected or intended that when there is danger of a crevasse, the police jury of a parish must be convened and the repair or strengthening of a levee be ordered, and means provided for paying for the work, before any thing can be done for the public safety. We might meet this appeal for the public welfare by ■saying that the legislature of a State, that is subject to inundations from defective levees, must be supposed to have foreseen such events, and made all the provision for them it deemed necessary, and if it is inadequate the remedy must be supplied by that department of the government. But it can scarcely be doubted, if a sudden emergency required work to be done and it was done, the police jury would acknowledge indebtedness for it, and could in the same ordinance provide for its payment. That police juries must provide for paying debts when they create them has been decided as often as the question has been presented. Benham v. Carroll parish, 28 Ann. 343 and cases there cited. Smith v. Madison, 30 Ann. 461. Police Jury v. Britton, 15 Wall. 566.

Judgment affirmed.


text:
    No. 7701.
    O. G. Burbank, Tutrix, vs. William Harris.
    After a judgment sustaining tlie exception of no cause of action it is too late for the plaintiff to amend his pleadings, even though tho motion to amend is filed before the judgment is signed.
    In a suit for damages the judgment of this court remanding the case to ascertain tho quantum of damages is not res adoudiocUa as to tho question whether the plaintiff had made the averments necessary to enable him to maintain the action, more especially when in the judgment of this court tho absence of the necessary averments was broadly intimated.
    PPEAL from the Fourth Judicial District Court, parish of St. Charles. Duffel, J.
    Wm. Reed Mills for plaintiff and appellant:
    First — “ Amendments will be allowed even after the cause is fixed for trial, if the litigation will thereby become closed, and the party who resists the amendment can point out no injury he will suffer.” 1 Martin, 175.
    “ Amendments not changing the issue will be allowed at any stage of the cause to further justice.” 2 M. 297 ; 11 M. 639 ; 2 N. S. 625 ; 4 N. S. 516; 2 M. 297 ; 1 Bac. 108 ; 3 Lev. 345 ; 2 Stra. 890; 1 M. 183 ; 2 N. S. 625 ; Louque’s Dig. p. 553 ; 27 An. 316, 715. '
    Second — That the decree of the Supreme Court remanding tlie case to ■ ascertain the amount of damages due by the defendant was res acljudicata as to plaintiff’s right to recover those damages.
    Breaux, Fenner & Hall for defendant and appellee:
    First — That no amendment tendering a new and essential issue can be allowed after the trial of the case has commenced. 30 An. 531; C. P. 419, 420 ; 7 An. 576 ; 22 An. 534 ; do. 351; 14 An. 355 ; 3 Rob. 126.
    Second — That no amendment of tho pleadings can be permitted after ■ the suit has been dismissed, even though the judgment of dismissal has not been signed. C, C. 556.'

      Third — That the decree oí the Supreme Court was not res adjudicata as to plaintiff’s capacity, under the pleadings, to recover.
   The opinion of the court was delivered by

Manning, C. J.

This action, having for its object the recovery of seven thousand dollars damages for the destruction of a sugar-house upon a plantation leased to the defendant, resulted in a judgment in her favor. On appeal, it was reversed, the court saying that the ñre was caused bj' the carelessness of the defendant, and he was responsible for it, but as the evidence did not establish the amount of the damage, the case was remanded, and is unreported.

The second trial resulted in a verdict and judgment for the plaintiff for five hundred dollars, which was also set aside on appeal, and the-cause remanded with instructions to admit of the origin and character of the plaintiff’s title, and any other evidence tending to establish the nature, duration, and value of the possession of the destroyed property, all of these being considered by us as elements entering into the proper estimation of the damages sustained. Burbank vs. Harris, 30 Ann. 487.

On the third trial in the lower court the plaintiff offered in evidence of title a marshal’s deed, whereupon the defendant objected to its reception on the ground that the pleadings contained no averment of title, and presented no issue to which evidence of title would be pertinent, and instantly made an exception of no cause of action by reason of the want of such averment. The exception was sustained, and the suit dismissed. This appeal is from that judgment.

After the exception had been considered and sustained, the plaintiff moved for leave to amend her petition by alleging ownership, which was refused. It was then too late. The amendment was not offered until after judgment, and was obviously beyond the power of the court to consider in the then condition of the. case. The plaintiff lays stress upon the fact that the amendment was offered before the judgment was signed. It was impossible for the judge to entertain it unless he had first set aside the judgment on the exception, and ordered a new trial. As it was, there was no case before him. We are specially invited to examine Debuys vs. Mollere, 2 Mart. N. S. 626, where it is said, amendments may be allowed at any stage of the proceedings in furtherance of justice. That has often been said since, and rightly said, but how, when the proceedings are not at aDy stage, but have come to an end? So also in McOubbin vs. Hastings, 27 Ann. 715, an amendment was allowed after the jury had been impaneled, but an amendment of pleadings after judgment of dismissal of the case is a judicial anomaly.

Another complaint of the plaintiff is that the mandate of this court, in remanding the case, was to admit evidence of title — that it had already been adjudged that she had cause of action when this court said on the first appeal, that some one was responsible for the damage inflicted, and remanded solely to ascertain the quantum — and therefore that the lower court was precluded from inquiring into any other matter than that quantum. In other words that any and all faults of pleading had been condoned in and by the judgments on the previous appeals, and they were res adjudicata as to all matters save that which had been remitted to the lower court for further investigation.

There was nothing adjudged touching the sufficiency of the pleadings. On the contrary, there was more than an intimation of their defectiveness, when in the opinion read when the case was last before us we remarked the absence of an averment and proof of ownership. We held that such proof must be made before the quantum of damage could be properly ascertained, and gave the reasons for it, and sent the case back for its reception. But we could not be understood to order proof to be admitted which was legally inadmissible. We knew that amendments to pleadings were admissible in the lower court, if offered in season, and on the assumption that all things would be made ready for the reception of such evidence, pointed out its necessity, and left the plaintiff to adopt the means to insure its reception. She seems to have overlooked the substantive parts of the opinion read on the last appeal, in which we broadly stated that we could not supply the omitted averment. It was not for us to direct an amendment of the pleadings. The omission to make that amendment lays at her own door.

Judgment affirmed.

Rehearing refused.

Mr. Justice White recuses himself in this case.


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    No. 7785.
    Henry Shorten vs. Wm. S. Booth, Sheriff, et al.
    *Where one makes a surrender and is discharged in bankruptcy execution cannot legally issue against him on a judgment rendered prior to his bankruptcy.
    If be have bought at bankrupt sale some of his own property subject to a mortgage resulting from that judgment, he must be proceeded against as any other third possessor, not personally liable for the debt.
    A creditor who proves his whole debt, as one without security, against a bankrupt’s estate, thereby releases any mortgage he may have.
    PPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. McVea, J.

      Rouse & Grant for plaintiff:
    First — The judgment became vacated and discharged under the bankrupt act the moment Horner & Gaff proved their debt against the ‘ estate of the appellant. Sec. 5105 and 5106 U. S. Statutes ; 6 Black-ford, 254; Bump, 8 ed. p. 106; 9 Bankrupt Register, p. 508; 20 A. 108 ; 151 A. 601 ; 22 A. 440 ; 27 A. 572 ; 29 A. 21.
    Second — Proving their debt as without security waives the security. 24 A. 506; sec. 5075 and 5077 R. S. N. S. ; 4 Bankrupt Rep. 485; 40 Indiana, 239.
    Third — Shorten and his wife are third possessors, and should be proceeded ‘ against by the hypothecary action, O. P. 71, and they can show the mortgage is discharged. 13 A. 382,
    C. D. Favrot and Favrot & Lamon for defendants :
    First — The property acquired in the name of Mrs. Shorten became subject to the provisions of law which regulate the community. C. C. 2399, 2406, 2402. It became liable for Shorten’s debts. 3 R. 528 ; 12 R. 578 ; 2 A. 762 ; 12 A. 598.
    Second — Shorten fails to allege that Horner & Gaff were notified that the real estate affected by their mortgage (judicial) was to be sold. The proceedings in the U. S. Courts should be the same as that in the State courts ; Brightly’s Dig. pp. 584, 794.
    Third — Horner & Gaff did not lose their mortgage by being a party to the bankruptcy proceedings. 24 A. 506 ; 25 A. 600 ; 28 A. 844.
   The opinion of the court was delivered by

Spencer, J.

Defendants, Horner & Gaff, recovered judgment in December, 1869, against Henry Shorten, plaintiff herein, for $2311 95,. and interest-. This judgment was duly recorded as a judicial mortgage on tenth of same month in the parish of East Baton Rouge, where the judgment was obtained.

On 21st April, 1871, before any execution was taken out, Shorten filed his schedule in bankruptcy and made a surrender of his property to his creditors. He was duly discharged by the U. S. District Court for Louisiana on 12th June, 1874.

The claim upon which Horner & Gaff obtained their judgment was not of a nature excepting it from discharge by the bankruptcy.

Among other property surrendered was a house and lot in Baton Rouge. In January, 1873, proceedings were taken,in the bankrupt-court to sell this property free of mortgage. The court ordered notice of the application to be given to creditors appearing to have mortgages-thereon, and among them to Horner & Gaff.

In March following, a decree was entered reciting that the required-notice had been given and ordering the sale free of encumbrances. It was accordingly sold and adjudicated to Mrs. Shorten, plaintiff’s wife,, between whom there existed a community of acquets and gains.

Horner & Gaff made proof of their claim and judgment in the bankrupt court as one “ without security,” swearing that they held no security whatever.”

The proof is that Horner & Gaff were never legally notified of the proceeding to sell this property free of encumbrances.

On the 15th May, 1878, Horner & Gaff took out a general writ of fieri facias on their judgment against Shorten and caused it to be levied on the property above referred to.

Shorten enjoins the sale and claims damages. He sets up his discharge from the judgment by operation of his bankruptcy, and claims to have acquired said property at bankrupt sale free of encumbrances, and that neither himself personally nor his said property is liable to execution for said debt, and that said writ of ft. fa. was illegally and wrongfully issued.

First — It is manifest that the' discharge in bankruptcy released Shorten from every sort of legal personal obligation to pay this debt; and that no execution could legally issue against him on said judgment. TJ. S. Statutes, secs. 5105, 5106 ; in re Robinson, 6 Blatchford, 254; Dinges vs. Becker, 9 Bankrupt Register, 508; Bank vs. Buckner, 20 How. 108 ; Beach vs. Miller, 15 A. 601; Murphy vs. Smith, 22 A. 440 ; 27 A. 572 ; 29 A. 21.

If not personally liable for the debt, he is a third possessor of the property, and if the same is subject to a judicial mortgage in favor of Horner & Gaff they should proceed by the hypothecary action, and not by execution.

Second — This brings us to the consideration of a second question, which is presented by the pleadings and has been argued before us, to wit: Have Horner & Gaff a judicial mortgage on this property ?

This court has repeatedly decided that the bankrupt court could not sell free of mortgage without giving notice to and making parties of the mortgage creditors. King vs. Bowman, 24 A. 506 ; Willard vs. Brigham, 25 A. 600 ; Pickett vs. Hayes, 28 A. 844.

It has been held uniformly that a creditor who makes proof of his debt, vnfh security, does not waive his mortgage. But it is contended that if he proves it as an unsecured debt, he does. Section 20 of the bankrupt act of 1867, being now section 5075 of the Revised Statutes of the U. S., provides:

“ When a creditor lias a mortgage or pledge of real or personal property of the bankrupt, or a lien thereon for securing the payment of a debt owing to him from the bankrupt, he shall be admitted as a creditor only for the balance of the debt after deducting the value of such properly, to be ascertained by agreement between him and the assignee, or by a sale thereof, to be made in such manner as the court shall direct; or the creditor may release or convey his claim to the assignee upon such property and be admitted to prove his whole debt. If the value of the property exceeds the sum for which it is so held as security, the assignee may release to the creditor the bankrupt’s right of redemption thereon on receiving such excess, or he may sell the property subject to the claim of the creditor thereon ; and in either case the assignee and creditor, respectively, shall execute all deeds and writings necessary or proper to consummate the transaction. If the property is not so sold or released and delivered up, the creditor shall not be allowed to prove any part of his debt.” Sec. 5077 of U. S. R. Statutes requires him to set forth under oath the securities of his debt.

"We think it fairly results from these provisions that where a creditor comes in and proves for his whole debt, as unsecured, he thereby releases any mortgages he may hold. The reason of this rule is apparent. One holding a special security should not come in and participate in the general dividends on the basis of his whole debt. In this very case Horner & Gaff have received, or at least were entitled to receive, and •must be presumed to have received, on the basis of their whole debt, their pro rata of the proceeds of the sale of this very property. It is plain to see that it was the intent of the law, and that it is in consonance with reason, that they should not now be heard to demand again the proceeds of the same property. See Stewart vs. Isidore, 4 Bankrupt Reports, 485, 129. Houdly vs. Oawood, 40 Ind. 239 ; In re Bloss, 4 B. R. 37 ; Bump, 79, 328.

Plaintiff claims damages, and we think him entitled to a reasonable sum for attorney’s fees, and will fix the amount at one hundred and fifty dollars.

It is therefore ordered and decreed that the judgment appealed from is annulled and reversed ; and it is now ordered and decreed that ,the injunction sued out by plaintiff be re-instated and made perpetual, and the said plaintiff and the property seized in this case be and are declared not liable for the judgment sought to be executed. It is further decreed that plaintiff recover of defendants, Horner & Gaff, one hundred and fifty dollars damages and all costs.


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    No. 7791.
    Daniel Fletcher vs. H. M. Jeter.
    In a contest for an office where the plaintiff alleges that the commissioners’ returns have been “fraudulently changed, altered and manipulated” so as to give the defendant, the commissioned incumbent, a majority, inferior or secondary evidence cannot be resorted to without proof of the loss or destruction of the official returns.
    1 PPEAL from the Ninth Judicial District Court, parish of Grant. Xi Blackman, J.
    H. L. Daigre for plaintiff and appellee:
    .All of the testimony, together with ballots in the boxes, proves the fact that the plaintiff, Daniel Eleteher, was elected. Now, if he was elected, could his opponent be returned and enjoy the fruits of the office without fraud being perpetrated upon him as alleged ?
    'The answer of Jeter sets forth the fact “that he. was legally elected to the office of sheriff of Grant parish at the election, November 5, 1878, by the ballots as deposited by the voters; he was so declared by the returns of the commissioners of election, etc.”
    'This is a special plea in his answer, and evidence received under it in aid of plaintiff’s case, which would otherwise have been excluded, seems to me would be sufficient, provided the evidence was such as enabled plaintiff to make out his case. See Bullard vs. Carroll-ton Bank, 14 La. 189. ‘
    'The very facts referred to by defendant in his answer to support him in his tenure to this office, i. e. the ballots as deposited by the voters, establish the fact that the plaintiff, Daniel Fletcher, was legally elected thereto.
    B. B. Hunter, Alphonse Cazabat, W. L. Bichardson for defendant ■and appellant.
    No brief was sent to the reporter in behalf of the defendant.-
   The opinion of the court was delivered by

Marr, J.

Plaintiff alleges that, at the general election, 5th November, 1878, he was duly and legally elected sheriff of Grant parish ; that the commissioners’ returns of the different precincts show a majority in', his favor of about seventy-seven votes ; and that the returning officers, ‘Charles B. Nugent, sheriff,H. G. Goodwin, A. Hayes, and W. L. Bichard--son, with other persons, have fraudulently changed, altered, and manip•ulated the returns so as to give Jeter a majority.

The defendant Jeter claims to have been elected by the ballots as deposited by the voters. He was declared elected by the official re-turns as promulgated and published by the Secretary of State ; and he received Ms commission, took the oath of office, gave bond, and entered' upon the discharge of his official duties.

This case differs in no respect from that of McKnight vs. Kagan,. 31 An. 289, except that the office of parish judge was the subject of the contest in the McKnight’s case; and that the verdict and judgment in this case were in favor of plaintiff, against the commissioned incumbent,, whereas, in McKnight case the defendant, the commissioned incumbent, was maintained in his office. This case was tried immediately after that of McKnight; and the testimony in that case was offered and received in this case.

If the Secretary of State did his duty, as we must presume he did,, he had before Mm, when he made up and promulgated the results of this election, the official return, made by the sheriff, and certified to be correct by the clerk of the court, and the tally-sheets of the several precincts, from which the official return was made. The comparison of these official proofs of the results of the election would have shown whether or not the returns of the commissioners of the different precincts had been “ fraudulently changed, altered, and manipulated,” as-charged in the petition; and inferior or secondary evidence cannot be-resorted to, without proof of the loss or destruction of the official returns.

Practically this controversy is reduced now to the right to the fees- and emoluments of the office of sheriff. Possibly plaintiff may be able to prove, by competent testimony, the serious charges, involving official' corruption, perjury, and forgery, upon whichhe based his right of action; and we shall remand the case, as we did McKnight’s case, to afford him an opportunity to produce and offer such proof if he can.

The verdict of the jury is set aside ; the judgment appealed from is-avoided and reversed; and the cause is remanded for further proceedings according to law, appellee, plaintiff, paying the costs of this appeal,, the costs in the district court to abide the final result.


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    No. 7797.
    State of Louisiana vs. Benjamin Bradley.
    An indictment will lie quashed when it appears that the clerk of the court who acted as a jury commissioner for drawing the jury which found the bill, had never been sworn as such commissioner.
    A PPEAL from the Ninth Judicial District Court, parish of Kapides,. Blackman, J.
   The opinion of the court was delivered by

Manning, C. J.

The defendant was indicted for'horse-stealing, and. on conviction was sentenced to hard labour for two years. A motion to quash was made on three grounds, the first of which is that the clerk of the court was not sworn as a commissioner for drawing the jury which found the bill.

This was held necessary in State v. Williams, 30 Annual, 1028, and was repeated in State v. Yance, 31 Annual, 398. We have also held that it dicl not vitiate the drawing when the clerk had not taken the oath at the drawing of this particular jury, provided he had before taken it during his then term of office. State v.-Revels, Ibid. 387.

It does not appear that the clerk had taken the oath of jury commissioner at any time during his term of office prior to the finding of this bill, and under the ruling above cited the motion to quash was improperly overruled. Therefore

It is ordered and decreed that the verdict of the jury is set aside, the judgment and sentence of the court is avoided and annulled, the bill of indictment is quashed, and the prisoner is ordered to be held in custody to await the further action of the authorities.


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    No. 7781.
    R. A. Hunter vs. W. F. Blackman.
    In a suit against a district judge, tlio parish judge having cognizance of the cause, may order any insulting or impertinent expression in the petition to he stricken out; hut he has no power or authority to order tlio petition to he taken from the record and' returned to the plaintiff, on tlio refusal of the latter to say whether lie intended any disrespect to, or reflection upon the defendant hy describing him in the petition as the “ acting ” judge.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Thornton, parish judge, sitting in place of Blackman, J., recused.

      B. A. Hunter and Bobt. P. Hunter for plaintiff and appellant.

      James Andrews for defendant and appellee. *
   The opinion of the court was delivered by

Marr, J.

Plaintiff, a member of the bar, seeks, in this action, to recover damages, of defendant, the judge of the district court, for alleged illegal and malicious conduct in causing him to be arrested and imprisoned for contempt.

The suit was brought, necessarily, in the district court; and the judge, defendant, so far took cognizance of it, as to order the clerk to take the petition from the files as. disrespectful; and to return it to the plaintiff by whom it was signed. On appeal we held, at the February term, 1879, that the defendant was incompetent to make any order in the case escept one of recusation; and we ’ordered the petition to be reinstated, and the cause to be remanded for further proceedings according to law.

The district judge recused himself, and called the parish judge to try the ease. On the same day he.file'd an exception that the petition disclosed no cause of action ; and he submitted the case, on the exception, without argument. The plaintiff read the petition, and was about to proceed with the argument, when the parish judge stated that he would be required, before proceeding further, to say whether the language of the petition was intended by him as a disrespect to the district judge, or casting a reflection on him, in speaking of him as the “acting” judge.

Plaintiff objected that the parish judge had no right to propound such a question to him. Thereupon the parish judge informed him that if he would not explain whether his petition was intended as disrespectful he would order the clerk to take it from the record, and return it to Mm on the ground that it was in contravention of the Code of Practice. The only question which we can consider and pass upon in this appeal is, whether the parish judge erred in this ruling and order.

The Code of Practice, article 172, paragraph 5, declares that the petition “ must not contain any insulting or impertinent expression.” The precise expression objected to by the parish judge is that in which the defendant is styled “the acting district judge.” The qualifying word acting was not necessary, to plaintiff’s right of action ; and the parish judge might have ordered it to be stricken out, if he considered it either insulting or impertinent. The use of this word adds nothing to, the omission of it would in no sense detract from, the force of the charges upon which plaintiff bases his right of action. It is of no consequence, either to plaintiff or to defendant, whether it be or be not stricken from the petition ; and the time and attention of judicial tribunals should not be occupied with a question which is absolutely without importance, so far as the rights of the parties are concerned.

It was competent for the parish judge to order any expression in the petition to be stricken out, if he really believed it to be either insulting or impertinent. There is nothing in the petition which could be tortured into a contempt of the parish judge ; and he had no power or authority to order the clerk to take it from the record, and to return it to the plaintiff.

Defendant by his exception, had raised a question of law, admitting, pro hac vice, the truth of the allegations of the petition ; and we had submitted that question to the court. It was the right of plaintiff to argue that question; and he could not have done this without reading the petition. It was the business and the duty of the parish judge to have passed upon and decided this question of law ; and if he had done so, his decision would have been subject to review in this court. As it is, we have no power to decide any other question than as to the correctness of his ruling and order; and it is clear that he erred.

The order appealed from is, therefore, avoided and reversed; and it is now ordered, adjudged, and decreed that the petition be re-instated and be filed as of the date of its original filing ; that the cause be remanded for further proceedings according to law; and that defendant, appellee, pay the costs of this appeal.


author: White, J.

text:
    No. 7802.
    T. O. Meaux vs. W. B. Pittman.
    Application to remove a canse to tlie Circuit Court of tlie United States comes too late after judgment, lienee an application to remove a petition for seizure and sale after tlie rendition of tlie decree for tlie issuance of executory process should be refused.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J.
    J. C. Seale for plaintiff and appellant:
    This is a suit by executory process, issued by the Thirteenth District Court, parish of Madison.
    Defendant obtained from the same court an order removing the cause to the Circuit Court of the United States.
    From this order the plaintiff has appealed and filed an assignment of errors:
    First. That the case is not transferable under any of the acts of Congress, being an action in rein, and no issue raised by the defendant upon which the court can act and pass judgment.
    Second. That the affidavit was made by defendant’s counsel without stating any reason why it was not made by the defendant himself.
    Third. That the attorney cannot make the affidavit.
    E. D. Farrar and J. W. Montgomery for defendant and appellee.
   The opinion of the court was delivered by

White, J.

The plaintiff, on an act importing confession of judgment obtained a decree for the issuance of executory process. The defendant applied to remove to the Circuit Court of the United States, which being allowed, the plaintiff appeals. The only question presented for consideration is, can a defendant in executory proceedings, after the rendition of the decree, remove the cause, when no issue exists on the subject, and when the prayer of the petition has been granted by the rendition oh the judgment? Upon this question we are clear that the case is with the plaintiff; for whether or not the order for executory process, or rather the application for its rendition, was a suit within the intendment of the act of Congress, need not be considered, for even if it be conceded that it was, there can be no doubt that the decree for the issuance of the executory process was a final judgment, exhausting the power of the court quoad the application, and leaving nothing to be decided, and no contest or issue between the parties. 2 An. 491; 3 An. 253 ; 13 An. 256.

Viewed in this light the application was to remove after judgment, or in other words to remove the judgment, and was not allowable. See Dillon on Removal of Causes, section 13, page 53, and numerous authorities there cited. The judgment below allowing the removal is reversed at the cost of the defendant.


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    No. 7796.
    State of Louisiana vs. William Crenshaw.
    An indictment charging the killing to have been done by the accused “ willfully, maliciously, and of his malice aforethought, ” held to sufficiently charge malice.
    A medical man is competent, as an expert, to testify as to the cause of death.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Blackman, J.
    J. C. Egan, Attorney-General, for the State, appellee:
    The indictment does explicitly and specifically charge that the accused committed the murder with malice aforethought.
    The admissibility or inadmissibility of a physician to testify as a medical expert, is in no manner affected by the time when the wound was inflicted.
   The opinion of the court was delivered by

White, J.

The accused having been indicted for murder, tried and convicted of manslaughter, appeals. The only matters presented for our consideration are: a motion to quash and a bill of exceptions. The first was based on the theory that the indictment did not charge that the killing was done with malice aforethought. It was correctly overruled, as it was not sustained by the indictment, which in terms charged the crime to have been committed “ willfully, feloniously, and of malice ¡aforethought.” The second was taken to the overruling of the objections to the testimony of the attending physician as to the fact that death resulted from the wound inflicted by the accused. The ground of the objection as statedin the bill is, " that as the deceased was wounded on Tuesday night, and died on the next Sunday night, the opinion of ¡said witness was his mere opinion as physician.” The objection was ■correctly overruled. State vs. Bailey, 4 A. 376.

■Judgment affirmed.


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    No. 7757.
    The State vs. Charles Angelo.
    'When tlie credibility-ef a witness is to he impeached hy anything he has said or done in relation to the cause, he must first he asked, on cross-examination, whether he has said or done that which is intended to he proved.
    "The fact that a verdict against the defendant, out of eight witnesses for the State rests exclusively upon one biased and revengeful witness must he made to appear in a hill of exception. It cannot he presumed.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.
    J. C. Egan, Attorney-General, for the State:
    The ruling of the court was correct. Tin dal, C. J., page 183, Eoscoe’s Criminal Evidence, says: “ I understand the rule to be, that, before you can contradict a witness by showing that he has at some time said something inconsistent with his present evidence, you must ask him as to the time, place, and person involved in the supposed contradiction. It is not enough to ask the general question whether he ■ever said so and so; because it may frequently happen that upon •the general question he may not remember having so said; whereas ■when his attention is challenged to particular circumstances and occasions, he may recollect and explain what he has formerly said.”
    S. Belden for defendant and appellant:
    'The bill of exceptions show the grounds on which defendant relies for judgment in his favor. The position assumed by the State, in brief and authority referred to, is hardly tenable as applied to the law governing this case. One of the main purposes of the evidence was to show malice, and consequently bias, against defendant. State vs. Duncan, 8 R. 562 ; State vs. Brown, 4 An. 505 ; State vs. Adams„ 14 An. 620, with authorities in decisions referred to.

      As the exceptions show that time is not of the essence, as in case where" a particular piece of evidence is sought to be introduced, as in the-case of State vs. Cazeau, 8 An. 114, it does not apply.
   The opinion of the court was delivered by

DeBlanc, J.

Oharles Angelo was indicted for murder, found guilty,, and — in accordance with the qualified verdict returned against him— sentenced to hard labor in the State penitentiary, for the term of his-natural life. He appealed.

It appears, by the record, that eight witnesses — among them one Mary Anderson — were called and examined in behalf of the State, and that the prisoner offered to prove by three parties sworn for that purpose, that — after his arrest — the said Mary Anderson had stated to each of those parties that “ by this prosecution, she had revenged herself against Oharles Angelo, because he had refused to pay her fine and release her from the parish prison, when sentenced by Judge Milten-berger.”

The testimony sought to be elicited was objected to on the ground that Mary Anderson had not been asked, while on the stand, whether she had ever made such statement, and to whom, where and when it was made. The objection was sustained, and the prisoner’s counsel excepted.

The authorities on which he relies do not sustain his exception.

The 33d section of the act of May 4 1805, -provides “ that all the crimes, offenses and misdemeanors herein before named, shall be taken,' intended and .construed according to and in conformity with the common law of England ; and that * * the method of trial and rules of evidence, shall be, except as is by this act otherwise declared, according to said common law.”

"Under that law, it is a general rule that, whenever the credit of a. witness is to be impeached by proof of any thing that he has said or-done, in relation to the cause, he is first to be asked — on cross-examination — whether he has said or done, that which is intended to be proved, in order that he may have an opportunity of explaining that which is-prima facie contradictory.”

8 An. 115 ; Greenleaf on Evidence, vol. 1, p. 463 ; Wharton on Crim.. Law, vol. 1, pp. 817, 819; the Queen’s case, 2 Brod. & Bing, 313, 314; Roscoe’s Crim. Evid. p. 183.

In Ms brief, the prisoner’s counsel asserts that the verdict rendered against his client is based on exclusively the testimony of Mary Anderson, whom he denounces as a biased and revengeful perjurer. If so, he-should have shown — by his bill of exception — that of the eight witnesses examined on his trial, she alone swore to his guilt. This he did not do, and we cannot arbitrarily presume that the jurors’ verdict and the judge’s sentence rest upon a perjury.

Life is as sacred as liberty, and the murderer’s liberty is ‘the least-a State can exact as the price of his crime.

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

[Rehearing refused.