text:
    No. 83.
    The State of Louisiana vs Sam. Granville et al.
    1. It is not necessary that an indictment should show, on its face, that it was found during a session of the court, when that fact appears from the minutes in the record.
    2. Where the finding, endorsed on the indictment, is signed “A. Wartelle, Foreman,” and the minutes show that “ Arruaud Wartelle ” was appointed foreman, held, sufficient.
    3. Sec. 1048, Rev. Stat., dispensing with the necessity of sotting forth in indictments for murder the manner and means in and by which the death was caused, is not inconsistent with Art. 8 of Constitution of 1879. Affirming State vs. Bartley, 34 An. 147.
    4. Evidence to show the absence and sickness of the witness and the consequent impossibility of procuring his attendance, is admissible, in aid of the sheriff's return of non-service, as a foundation for the introduction of his testimony taken on preliminary trial.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      31. 8. Grain, District Attorney, for the State, Appellee.

      Strother & Fragee, for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

Defendant, convicted of murder without capital punishment, and sentenced to the penitentiary for life, demands reversal on ollowing grounds, viz:

1. That the indictment does not show, on its face, that it was-found during a session of the court.

This was unnecessary. The minutes of the court, forming part of the record, sufficiently show the facts as to the sessions of the court.

2. That the finding, endorsed on the indictment, is signed, “ A. Wartelle, Foreman of the Grand Jury,” while the minutes of the court show that Armancl Wartelle was appointed as such foreman.

In presence of the fact that the record shows there was but one Wartelle on the Grand Jury, and in absence of any suggestion of fraud, the objection must be treated as frivolous.

3. That the indictment does not set forth the “nature and cause of the accusation,” as required by Article 8 of the present Constitution.

The objection is founded on the failure of the indictment to set forth “the manner in which, or the means by which, the death of the deceased was caused.” ,

Such setting forth is expressly dispensed with by R. S. Sec. 1048, and we have heretofore held that this Section was not inconsistent with Art. 8 of the Constitution, disposing of all the arguments now urged against the position. State vs. Bartley, 34 An. 147.

4. The admission, over defendant’s objection, of the testimony of Bacon, a witness for the State, taken a.t a preliminary trial. The sheriff’s return on the summons to Bacon was, that he was unable to serve it, being reliably informed that the said Bacon had left the parish.

At the trial the State offered, and the court received, against defendant’s objection, parol evidence establishing that Bacon was lying sick in hosjrital in New Orleans.

The admissibility of this last mentioned evidence, and its sufficiency, in connection with the sheriff’s return, to authorize the reception of Bacon’s testimony at the preliminary trial, are fully sustained by the authority of State vs. Harvey, 28 An. 105.

The case of State vs. Boitreaux, 31 An. 188, relied on by defendants’ counsel, rested upon the insufficiency of the return on the subpoena., unaided by testimony establishing affirmatively the impossibility of procuring the attendance of the witness. The case, therefore, does not apply.

• Other errors assigned have no force, and are not even supported by argument.

Judgment affirmed.


source: Caselaw Access Project

author: Manning, J.

license: Public Domain

text:
    No. 91.
    Angus McNeil et al. vs. Hicks & Howell.
    The dedication of property to public use needs not he .made in express terms.
    In case of doubt as to tbe extent of the property dedicated, the contemporaneous and subsequent continuous construction of the dedication, put upon it, or accepted by both the public and the former owners of the property, should serve to remove the doubt.
    A municipal corporation may alienate, or change the use and destination of public places, when authorized to do so by the legislature, in view of the public interest.
    ApPEAL from the First District Court, Parish of Caddo. Taylor, J.

      J. W. Jones and J. B. Slattery, for Plaintiffs aud Appellants:
    The locus in quo, not having been subdivided in lots, blocks, streets and alleys, prior to the incorporation of Shreveport, (Acts of 1839, p. 200) did not form part of the city of Shreveport, until its limits were enlarged in 1871.
    If not within the city limits, the city could exercise no control over it, even to keep it for the public use.
    If within the pity limits, there is no evidence to show a dedication. The affairs of the Town Company were managed by its president. T. 53. He could not dedicate the common property without a special authorization. C. C. 733.
    The individual members could not dedicate the common property, or any part, until it was partitioned. C. C. 743.
    Some of the owners, at the time of the partition, were minors and married women, and could • only alienate it according to the forms prescribed for the alienation of their property. CO. 731.
    Ho use by the city for public purposes is shown, and no assent by the owners is shown that it should be used for said purpose, and such assent is absolutely necessary.
    The failure of the owners to pay taxes is no evidence of a dedication. 7 An. 497, 502.
    Use by the public of private property does not make the property public. 26 An. 462.
    If the property was dedicated to public use, it reverted to the original owners free from such use by the abandonment of the use. C. C. 472; 15 An. 427; 17 An. 171.
    The use of property for public purposes is servitude. C. C. 658, G65; H. O. & Chattanooga R. R. vs. Hew Orleans, 26 An. 522; Mackeldy, p 20; Dillon on Incorporations, 496; Cooley’s Con. Dim. 697, et seq.

    Servitudes are extinguished by abandonment, by renunciation, and by expiration of time. C. C. 783.
    By prescription resulting from non-use. C. C. 3546 ; 20 An. 52.
    "When they are in such a situation that they can no longer be used. C. C. 784.
    Servitudes are alsoextiuguishedby therouunciation or voluntary release of them by the owner of the estate to which they belong. C. C. 816.
    When the servitude is extinguished the property in full reverts to the original owners. C. C* 482, 658; 15 An. 428; 17 An. 281.

      Alexander & Blanchard and Wise & Herndon, for Defendants and Appellees:
    Ho deed or act of conveyance is necessary to dedicate land to public use, nor does it require any formality.
    All that is required is tbe assent of the owner of tbe land, and the fact of Ha being used for tbe purposes intended.
    The dedication of property for public uses may be inferred from facts and circumstances. 5 L. 132; 13 L. 326 ; 18 L. 232, 286; 8 R. 92; 7 An. 259 ; 9 An. 244, 597 ; 18 An. 560; 21 An. 244; 22 An. 526; 6 Peters, 431; Angelí on Highways, pars. 142, 149.

      The Legislature lias at all times a riglit to change the destination of public places. 5 L. 174 and 194; 13 L. 351; 10 Peters, 733; 18 L. 122; 8 An. 145; 3 An. 230.
   The opinion of the Court was delivered by

Manning, J.

Larkin Edwards, to whom a grant of six hundred and forty acres of land had been made, sold it to Angus McNeil and six others in 1835, and they divided a part of it into lots and streets, formed a company for its sale and management, which they called the Shreveport Town Company, and obtained an act of incorporation in 1839. The present town of Shreveport is situated upon and within that grant.

A map or plat of the future town was made between the two dates above, upon which an open space of irregular shape and width is left between the front blocks of lots and the river. In 1871 this open space was divided into fifty-three lots, and these lots were sold by the town authorities, and purchased by a number of persons, among whom are the present defendants.

The plaintiffs claim title to this open space, or the lots into which it was divided, through immediate or mesne conveyances from Larkin Edwards. The defendants contend that this open space was dedicated to the public when the town was laid off and incorporated, and had been used for public purposes more than thirty years, when iu 1871 the town council,-by authority of the legislature, sold and conveyed it, or such parts of it as the plaintiffs claim in this suit,' to them. The prescription of thirty years and res adjudícala are pleaded.

The act of incorporation provides, “ that all the tract or portion of land situate in the Parish of Caddo, on the southwest hank of Red River, laid off and divided into lots by the i^ireveport Company, and known as the reservation made by the Caddo Indians to Larkin Edwards, consisting of six hundred and forty acres, shall continue to ho designated and known as the Town of Shreveport, etc.” Acts of 1839, p. 200.

The plaintiffs contend that only such part of this tract as had been then laid off and divided into lots was incorporated as a town by this Act, and since the open space between the river and the nearest lots or blocks was not laid off, that the ownership of-it remained in the proprietors of the Larkin Edwards’ reservation, and that it was not within the corporate limits of Shreveport prior to 1871, and had not been dedicated to, or used by the town for public purposes; and if it had been so dedicated, it was afterwards sold to private individuals, for private purposes, and, in consquence, its ownership reverted to the original proprietors or their vendees.

The land thus incorporated is described as that known as the reservation made by the Caddo Indians to Larkin Edwards, consisting of six hundred and forty acres,” and also as ‘‘laid off and divided into lots by the Shreveport Company.” To sustain the plaintiffs’ construction, this last sentence must alone be adopted as the description of the area incorporated, and the larger and broader descriptive terms must be ignored. This is not in accordance with the accepted canons of construction. The draftsman of the Act first recites the territory to be incorporated as the land in Caddo, on the river bank, laid off into lots, and then to prevent its restriction to that alone, adds its designation as the Larkin reservation, and its extent as 640 acres.

The plaintiffs’ counsel ask, what reason could there be, at that early day, to include so much rural property within a city (sic) and subject it to taxation, property which could not reasonably be expected to be needed for urban purposes for many years.” He need only measure tlie extravagant hopes of the founders of Shreveport by those of the inhabitants of villages and towns on the route of the railway down the Red River valley, at this moment, to understand what visions of coming- greatness agitated their breasts. The men who incorporated Shreveport would have scornfully smiled at the incredulity and want of confidence of him who doubted that tlie whole Larkin Edwards’reservation would shortly be needed for tlie rapidly increasing population.

If tlie extent of the incorporated area were in doubt, by reason of confusion in its description, tlie contemporaneous and subsequent continuous construction, accepted by the public and by the Larkin Edwards’ vendees, shows that it was not considered as confined to the laid-off lots.

These vendees, as thq, Shreveport Town Company, sold as many lots as were in demand, and in 1848 divided among themselves whatever property was then unsold. The notarial act of partition is drawn with great minuteness of detail, and in the opening sentence announces that they ‘‘ proceeded to make a partition and distribution in kind of the property belonging to the Shreveport Company, remaining unsold in the town of Shreveport, among and between the owners and proprietors thereof.” No part of this “ open space” is included in this partition, and it is thus apparent that the members of the Company did not then suppose they had retained the proprietorship of it. This partition was manifestly intended to be final and complete, and tbe failure to include this open space in it negatives tlie plaintiffs’ theory that it was treated as their private property. Sarpy vs. Municipality, 9 An. 597.

If it wa.s not their property in tlie same sense as the lots which they partitioned, it must have been the property of the public, and must have been considered by themselves as dedicated to public uses, as the spaces between the blocks were thus dedicated for streets. In neither case was there an express dedication in totidem verbis, nor was it necessary. City of Lafayette vs. Holland, 18 La. 287.

From 1839, the date of incorporation, to 1861 when a claim was first set up to this open space, neither the plaintiffs nor their vendors ever exercised anjr act of ownership over it, nor is there any evidence to raise a presumption that they ever intended to interpose any claim to it. This claim was first made in 1861, and was not successful. Pickett vs. Brown, 18 An. 560. The same question was again presented, and adjudicated adversely to the claimants. Shreveport vs. Walpole, 22 An. 526. We do not propose to go over the ground covered by the opinions in those cases. They form the basis of the plea of res adjudicates Strictly and technically they do not sustain it, but they decide the identical question in this suit, and we see no reason to induce us to reach a different conclusion.

The doctrine was early declared by this Court, that a municipal corporation may alienate, or change the use and destination of public places with the consent and by the authorization of the sovereign power first obtained, whenever the public interest may require it. De Armas vs. Mayor, 5 La. 132; Mayor vs. Hopkins, 13 La. 326; Mayor vs. Leverich, Ibid, 332..

Such authorization was given the Town of Shreveport by the legislature of the. State in 1871, and tlm title of the defendants is thus protected from successful attack. The two adjudications, that the open space upon which the defendants have built, had been and was dedicated to public uses, and that the title thereto was vested in the municipal corporation for such purposes, ought not lightly to be disturbed, even if they were erroneous; but we are satisfied of their correctness.

The. lower court so adjudged.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 92.
    Virginia Jones, Administratrix, vs. A. Currie et al.
    In order to recover against public officers liaving the control and distribution of public monies, for non-payment of a debt liquidated by a judgment against the corporation, to force-which, a mandamus was granted and which was placed on the budget of expenditures, it is necessary to prove that the fund required to pay was raised, that it was diverted, and that the creditor has sustained loss and injury.
    ApPEAL from the First District Court, Parish of Caddo. Taylor, J.

      J, W. Jones, for Plaintiff and Appellant:
    1. Article 209 of the Constitution of 1879, which limits the powers of municipal taxation to ten mills on the dollar, cannot affect the rights of antecedent contracts of the city of Shreveport. They are protected by the Constitution of the United States, which forbids States to pass laws impairing the obligations of contracts. This is no longer an open question in the jurisprudence of this State. 31 An. 765; 32 An. 409, 726, 884; 33 An. 79, 1179.
    2. Municipal corporations have no inherent powers of taxation, hut can tax only as the State has thought proper to permit. 33 An. 1179.
    3. Under the city charter of 1871, as well as the charter of 1878, the city had power to levy taxes not exceeding H per cent., which can only he levied in one year for the ensuing year. 33 An. 1180, and the charters there referred to.
    4. The revenues of the city thus raised for the ensuing year must he applied to meet the expenditures and liabilities as set down in the budget. City charter of 1878, p 288-9, Sec. 12; 33 An. 1181.
    5. The defendants, in disbursing the taxes gathered from the people otherwise than the liabilities specified in the budget, were wrongdoers^and iu fault, and thereby damaged plaintiff and are liable for same. C. C. 2315*16. And mistakes and honest intentions will not excuse the offenders for torts. Dillon on Mun. Cor. par. 176, and note to same as to liability for torts, p. 299, par. 691. Cooley’s Con. Lim. p. 259.
    6. The measure of damages, is the amount collected by taxation and-otherwise by the defendants from the people and misapplied, which is the sum as claimed by plaintiff. The defendants having exercised the right once, cannot force the payment a second time* Cooley on Lim. p. 259.

      Win. A. Seay, for Defendants and Appellees :
    1. In order to render the officers of a municipal corporation liable personally it must he shown that they refused to obey a peremptory mandamus to levy a special tax. Dillon on Municipal Corporations, § 691; 11 Wall. 136^.
    2. The placing of a part of plaintiff’s judgment on the annual city budget is not the levying of a special tax, or a contract binding the city to devote the proceeds of the tax of that year to its full payment.
    3. A peremptory mandamus on one class of officers, under one form of tho city government, cannot be extended so as to operate another class, under a different form, two years after its issuance.
    4. All the creditors of a municipal corporation have an equal right to he placed on the annual budget and he paid in concursu. 33 An. 1183. If, after paying tho greater part of the plaintiff’s judgment, the city officers should wait until the other creditors should have received their fair proportion, they would he exercising a sound discretion and could pot-he compelled by mandamus to pursue a different course.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to hold personally responsible the defendants, who are the Mayor and Trustees of the City of Shreveport, for an alleged diversion of funds raised to satisfy a judgment which plaintiff represents against the corporation, and on which $2,350 remain due.

The defense is, that the taxes, etc., were not levied for the special purpose of paying the judgment, but with a view to satisfy, as far as the same could j nstify, all the budgeted debts and liabilities of the city after provision made for its alimony, and tliat what taxes, etc., were thus realized, were accordingly applied.

From a judgment in favor of the defendants, the plaintiff has appealed.

It appears that, in order to secure a satisfaction of the judgment, a mandamus had been obtained in Sept., 1875, directing the then municipal authorities to “forthwith proceed and collect a sufficient tax and discharge tho judgment of plaintiff and all costs.” This order was served in August, 1878.

The defendants were inducted into office in 1878. Finding the judgment unsatisfied, they placed it on the budget of that year, with other debts, to be paid in 1879; but passed no ordinance to levy a special tax and made no special provision for it.

The evidence shows that the funds proceeding from taxes, licenses and fines, after being applied to the alimony of the city, were distributed pro rata among the city creditors recognized on the budget, and that the amount accruing on the judgment in question was actually applied to it, reducing it, as stated, to $2,350.

The plaintiff claims that part of the funds, which should have been applied to a further satisfaction of the judgment, was diverted and used to pay liabilities not in the budget.

We have looked through the transcript, and specially the Comptroller’s report for 1875, and although we.find that a saving of some $3,000 was made, we have failed to discover any accounted misappropriation of the same to such liabilities or otherwise, as charged by plaintiff.

Surely there was no diversion of funds for private purposes. If the amount was used to extinguish corporate debts, the plaintiff has not sustained such injury thereby as demands that the defendants, who are not charged with bad faith, should be mulcted personally to pay the balance due, when the corporation is well able to pay her debts, particularly that represented by the plaintiff. The only injury which can be complained of is the deprivation of the enjoyment of the money ; but for such deprivation, the very judgment allows eight per cent, interest. Dillon, M. C., § 691 and note.

Had the diversion charged taken place, and liad the plaintiff thereby sustained loss and injury, there can be no doubt that the defendants would have been liable.

Judgment affirmed, rvith costs.


text:
    No. 93.
    M. D. C. Cane vs. F. E. Sewall et al.
    Where a judgment creditor, adjudícateos and sheriffs are joined in a suit to annul the judgment and the sales and to recover damages in solido, there is a misjoinder and an exception setting up the same should he sustained.
    Whe.eit appears that a judgment was rendered after answer, and was subsequently acquiesced in by the defendant, by payment of interest and promise to pay such, and the party against whom it was rendered was present in the parish and yet suffered it to bo executed, without opposing its execution by suit, such party is considered as estopped and cannot attack the judgment, or what was legally done under it.
    a: PPEAL from the First District Court, Parish of Caddo. Taylor, J.

      E. J. Looney, for Plaintiff and Appellant.

      Alexander <& Blanchard and Sanil. Landrum, for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

This suit is brought to annul a judgment, two sales of real estate made under it to different purchasers, and situate in different parishes, and to claim damages from the judgment creditor, the adjudicatees and the sheriffs who officiated at the sales.

The purchasers of the property in Bossier Parish, and the sheriff there pleaded misjoinder of parties, and were sustained. The suit remained between the plaintiff, the judgment creditor, the adjudicatee of the property in Caddo Parish, and the sheriff.

On the trial of the case on its merits, the court found, under the defense, that the judgment attacked, had been, in divers ways, impliedly and expressly acquiesced in by the defendant therein, and that the defense of estoppel should prevail.

Prom the judgment sustaining the exception of misjoinder, and that, rejecting plaintiff’s demand, the plaintiff has appealed.

It is impossible to conceive how the numerous defendants could have been legally brought together, to defend an action which is not the same, as to each and everyone of them, and which contemplates four distinct objects.

The purchasers of the property in Bossier Parish surely have no interest in having the sale of that in Caddo Parish maintained. Although it may seem that the adjudicatee of the latter property may have an interest in maintaining the sale of the property in the first parish, the truth is, this interest originates, notin the fact of the purchase, hut because the purchaser is the judgment creditor warranting the sale.

How can the purchasers of the property in Bossier be made answerable in damages alleged to have been perpetrated by another party more than six years previous to the sale ? How can the sheriff of Caddo be held accountable for the frauds said to have been committed by the purchasers of the Bossier Parish property, with which he had nothing at all to do ¶ 14 An. 181; 12 An. 74; 15 An. 311, 502 ; 24 An. 614.

The judgment sustaining the .exception is Correct.

On the merits of the suit for the nullity of the judgment, contradictorily with the judgment creditor, who was the adjudicatee of the property in the Parish of Caddo, it is apparent, from the evidence, that although the present plaintiff was not cited, an answer was filed in her name by her counsel, who were also her agents, And that the judgment was rendered upon a proper showing. It recites that the law and the evidence were in favor of the plaintiff.

The evidence expressly establishes that the defendant in the case knew that the judgment had been rendered, that interest had been paid thereon, and that she was willing to continue paying such until the debt could be satisfied or a settlement made.

It is also proved that the defendant in the case was present in the parish, which was the place of her domicil, and yet suffered the judgment to be executed without opposing the same.

The law on the subject of nullity of judgment is unambiguous.

Article 612, C. P., provides: The nullity of a judgment rendered against a party without his having been cited, or by an incompetent Judge, even if all the formalities of the law have been observed, may be demanded at any time, unless the defendant were present in the parish, and yet suffered the judgment to be executed, without opposing the same.”

The announcement or protest made at the time of sale, is not the opposition contemplated by law. It should have been made in the shape of a suit. In this respect, parties defendants are held to the same formalities as are required from third persons. C. P. 395, et seq.

We have given due consideration to the elaborate written opinions' of our learned and painstaking brother of the District Court, and are satisfied that justice has been done to the litigants.

Judgment affirmed, with costs.


author: Poché, J.

text:
    No. 88.
    Mrs. Ann M. Beall vs. Succession of D. J. Elder.
    A suit to revive a judgment against a defendant since deceased, is properly brought against the legal representatives of his succession.
    A citation addressed to the executor of a succession is substantially a compliance with a prayer for citation on the legal representative of said succession, and is addressed to the de* fendant in the oapacity set forth in the petition.
    Under the requirements of Art. 312, Code of Practice, the plaintiff, in seeking to revive a judgment by citation on the legal representatives of .a succession,- must prove the capacity of the alleged legal representatives.
    .¿APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      T. F. Fell, for Plaintiff and Appellee.

      Lcmd (& Land, for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

This is a suit for the revival of a judgment originally rendered against D. J. Elder, alleged to have since died.

Plaintiff alleges the rendition of the judgment sought to be revived; the subsequent death of her judgment debtor; the opening of his succession, and the appointment of Tomkiss and White as his legal representatives, and the petition concludes with a prayer for citation on the succession, through its legal representatives, and for revival of the judgment described in the petition.

Citation was issued, addressed to White and Tomkiss, executors of D, J. Elder’s succession.

Defendants excepted, urging, in substance, that a suit to revive a judgment against Elder could not he brought against Isis succession, which is not the representative of the deceased; denying that they were legal representatives of Elder, who had left heirs of age, and present in the State, and urging that the citation was not addressed to them in the capacity set forth in the petition.

This exception being overruled, and defendants having filed no answer, judgment was rendered against them by default, and they have appealed.

There is no force in the position of defendants that the suit was erroneously brought against the succession. The allegations of the petition show clearly that the object of the action was to revive a judgment rendered against Elder, alleged to have subsequently died; and under the statute, the only mode of proceeding was to cite the succession through its legal representative.

The pleadings substantially comply with the requirements of the law, which provides a mode of reviving judgments, which directs the suit to be filed against the original defendant or his representative. And we are clear in our conclusion, that in cases where the succession of the deceased defendant is under administration, the curator, executor or administrator of such succession is the identical and only “ representative ” contemplated by the statute under consideration.

■ It is well settled in our jurisprudence, that the word “ representative,” as used in this statute, " simply means the agent or attorney in fact, if the defendant be living, or the executor, curator- or administrator orheir, as the case may be, if he be dead.” Chapman vs. Nelson et al., 31 An. 343.

It is also settled, and can now be considered as elementary, that all suits by or against a succession under administration, mqst be brought in the name of, or through the curator, executor or administrator, or other person entrusted with the administration of the succession.

Hence, it has been held that an appeal from a judgment rendered against a succession under administration, taken by one of the heirs of said succession, without the aid or concurrence of the administrator, could not be maintained. West vs. Davis, 34 An. 358; Audot vs. Gilly, 12 R. 325; Préjean vs. Robin, 14 An. 788.

A citation issued to a defendant as executor is a substantial compliance with a prayer for service of citation on the legal representative of a succession.

The word legal representative is a generic term, and an executor is one of the species of legal representatives.

We are at a loss to discover a difference or variance between the capacities of legal representative and executor of a deceased person.

We, therefore, conclude, that the suit was properly brought; that the citation was correctly issued, and that the District Judge did not err in overruling defendants’ exception.

But an inspection of the record shows that the only evidence introduced by plaintiff, in the confirmation of her default, was the original judgment rendered against Elder; and that she offered no proof of the death of Elder, or of the appointment and qualification of White and Tomkiss, as^the alleged legal representatives of his succession.

The textual provisions of our Code of Practice require, that in taking a judgment by default, the plaintiff must prove his demand, and that this proof is required in all cases. C. P. Art. 312. ’

. Under these plain requirements it was unquestionally incumbent on plaintiff to prove the appointment and qualification of his executors or other legal representatives. Nothing in the record shows the appointment of legal representatives to his succession. Mechanics’ Bank vs. Walton, 7 R. 451.

In default of such proof, the demand of plaintiff has not been proved, and the judgment by default was, therefore, not confirmed according to law, and is a nullity.

For these reasons, our duty is to remand the cause.

It is, therefore, ordered, that the judgment appealed from be reversed and set aside, and that this cause be remanded to the lower court, to be proceeded with according to law; all costs in both Courts, incurred after the overruling of defendants' "exception, to be paid by plaintiff.

Fenner, J., absent when the case was argued, takes no part.


text:
    No. 87.
    John J. Dillon vs. V. L. Porier.
    •Tho lessor who takes a provisional seizure before the rent is due, when he acts without malice and in the honest belief or fear that the lessee will remove his property from the leased premises, does not thereby render himself liable in damages, even if the lessee did not have any fraudulent intent of saving his property from the lessor’s privilege for rent.
    ApPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Alexander <& Blanchard, for Plaintiff and Appellee:
    1. A reconventional demand for damages for the wrongful suing out of a wiit of provisional seizure, cannot be set up by defendant in his answer, where both parties reside in the same pai ish. C ■ P. 375, 37(3; 5 An. 248; 12 An. 114 ; 24 An. 208.
    3. The wiit of provisional seizure, unlike all other conservatory writs known to the law, is not based upon any unlawful or fraudulent intent on the part of defendant. It is the fact of the removal, or intended removal, of the property, and not the intent with which it is done, or contemplated to be done, that gives ground for its issuance The lessor’s privilege can only he maintained by keeping the property on the leased premises, and it is just as effectually destroyed by an honest as by a fraudulent removal.
    3. The lessor is entitled to the writ whenever “ho has good reasons to believe that the lessee will remove the property out of the premises, and that he may thereby be deprived of hia lien.” He is not required to swear or prove that the lessee intends by such removal to defraud him, or to avoid payment of the rent. C. P. 287.

      4. “ The facts or acts which constitute reasonable ground in such cases, are not required to be so complete and convincing as are necessary to support a conviction in a criminal charge. They need only be sufficient to rebut any presumption of malice or wantonness in suing out the writ.” 31 An. 184.

      Land & Land, for Defendant and Appellant:
    1. There are only three causes, reasons, or grounds, on which the law permits a lessor to obtain the provisional seizure of the property of his lessee before the rent is due; and they are as follows; 1st. "When there has been an actual removal. 2d. When there has been a/n attempt to- remove. 3d. When there has been an intention to remove the property out of the leased premises, in order to deprive the lessor of his lien on the same. O. P. 2S7. ^
    2. When one and all of these reasons have no existence in fact, a provisional seizure for rent ibefore it is due, is wrongful, illegal and malicious, and the law obliges the lessor, by whose act damage is caused to his lessee, to repair it. R. C. C. 2315; C. P. 295. This Article of the Code of Practice makes the plaintiff responsible for all damage suffered by the defendant by a wrongful seizure of his property without malice.

      3. When the uncorroborated testimony of a lessor, in a suit for rent before it is due, is contradicted by the testimony of the lessee, the defendant in the suit, and the testimony of the lessee is corroborated by two credible witnesses, who. had a knowledge of the facts, then there is no evidence before the court on which a judgment can be rendered sustaining the legality of the lessor’s seizure, or his right of action when the suit was'instituted. Borden vs. Hope, 2t An. 581.
    4. A part payment or discharge of rent by the lessee, before it is due, is not a novation of the contract of lease, nor a waiver of the rights of the lessee to pay the rent at the periods stipulated in the lease. R. C. C. 2190.
    5. A payment of rent to an agent authorized to receive it, is a payment to the lessor himself. R. C. C. 2985.
    6. An agent is bound to restore to his principal whatever he has received, by virtue of his procuration, even should he have received it unduly. R. C. C. 3005.
    He is obliged to render an account of his management to his principal, and is answerable for the interest of any sum of money he has employed to his own use, from the time he has so employed it, and for that of any sums remaining in his hands, from the day he becomes a defaulter by delaying to pay it over. R. C. C. 3004, 3015.
    An agent cannot apply the money of his principal to the payment of his own debts, nor to the debts due by third persons. 6 An. 40; 19 An. 300.
    The agent of the plaintiff in this case was as much bound to pay him the proceeds of the rent cotton, as if he had given his bond,' or his written acceptance to him for the payment. 10 R. 481; 2 An. 25.
    7. The new doctrine of suppositions, or of possibilities in human affairs, as to what an agent or ' a lessee might possibly do, has no resting place, or recognition in our jurisprudence, for, if it had, then every debtor in the State would be subject to arrest, attachment, sequestration, and injunction, and every lessee to provisional seizure, on the mere affidavit of his creditor, or of his lessor, however false, malicious, or injurious it might be to him.
    The law does not presume bad faith, dishonesty, ov fraud, in past, present or future time. The allegation must be proved by legal evidence in all cases. R. C. C. 1848.
    8. The defendant had the right to reconvene in liis. answer, by way of exception, for the damages which he had suffered by the illegal seizure of bis property. O. P. 20; Solomon vs. Cavalier, 4 An. 136.
    His demand is connected with and incidental to the seizure, which is not only-a part, but the foundation of this suit.
    There was no bond and security given by the plaintiff on. which a suit for damages could be instituted; there is no security or third person who could he affected by a judgment against the plaintiff for damages.
    It is only in case of arrest, attachment, sequestration, and injunction, that the plaintiff is required to give boudand security, on which the defendant may institute suit for damages; but in cases of provisional seizure, no bond and security aro required, or given, and the lessee’s claim for damages is by personal action agaiust the lessor, or by reconvention when sued, by way of exception. C. P 20, 295, 377.
    The law abhors a multiplicity of suits.
    The plaintiff objected to the introduction of evidence to prove damages, but he did not state specially his objections, nor did betake any bill of exceptions. Heiss vs Corcoran, 15 An. 694: Stewart vs. Harper, 16 An. 181.
   Tlie opinion of the Court was delivered by

Manning, J.

The defendant, Porier, leased a part of a plantation from Mrs. Hart for the years 1881 and 1882, the stipulated rent being sixty bales cotton of a specified weight and grade, of which forty were to be delivered to the lessor, at the gin house of the plantation, during October, November and December of the first year, and the residue at the same place and time of the second year. Mrs. Hart sold and.transferred this lease to the plaintiff, Dillon, with subrogation to all her rights as lessor. J. C. Soape was her commission merchant, and Dillon agreed that he should have the selling of this rent cotton.

On October 3,1881, Dillon instituted this suit, and obtained a writ of provisional seizure, under which twenty seven bales of pressed cotton and five in seed and five in lint, and four mules, their harness, and a wagon, were seized, the appraised value of the whole being $2,275. The property was released on bond, with Soape as surety, and in answer to the suit, the seizure was alleged to have been malicious, and it was denied that the plaintiff liad reason to believe or fear a removal of the cotton. The defendant also averred that no part of the rent was due when the suit was instituted, and prayed for $2,250 as damages.

Lessors can use the writ of provisional seizure to secure the payment of rent not due, as well as that which is due, the only difference being in contingent liability for costs in certain events. Code of Practice, Art. 287. The question here is, whether the plaintiff had good reason to believe that the lessee would remove the property from the leased premises, and was thus justified in using the writ.

Failure to pay the rent has been' held to constitute good grounds for believing that the tenant will not pay, and will remove the property. Heirs of Lalaurie vs. Woods, 8 An. 366 ; Shiff vs. Ezekiel, 23 An. 383.

About the time Dillon was contemplating the probable necessity for seizure, nine bales of cotton were sent by Porier to Soape, for Dillon’s ■ account. He seems to have apprehended that was all that would be sent. The suit was filed, and Dillon accompanied the sheriff to the plantation, for the purpose of ascertaining with reasonable certainty whether the quantity of cotton necessary to pay the rent was to be sent to Soape for him. ITe could get no satisfaction. Porier was sullen and angry. Dillon directed the sheriff to execute his process. Porier, as a witness, swears he intended to deliver enough cotton to pay his rent, and Soape knows of no reason for Dillon to believe or think or fear the contrary. Soape was the factor of Porier, and his creditor for supplies, and "would have held the latter’s cotton for Dillon’s account, if' so instructed by Porier specially ; but otherwise, would have placed proceeds of its sale tó his own account against the defendant. This was just what Dillon feared. It was not at all unreasonable or unnatural for Dillon to believe, that Porier, in sending the cotton to Soape, as all agreed was to be done, should either negligently or purposely omit any instruction as to its destination, and in that event, Soape says he should have looked after his own interest.

Dillon and Soape had each a privilege. The enforcement of Dilloji’s would depend on the non-amotion of the cotton,'or his ability to pursue it within a given time. He, was not obliged to run any risk. He had a right to seize, and the whole testimony negatives the charge of malice.

Our law wisely provides. the lessor with drastic remedies for a lessee’s failure to pay his rent, and it is as much in the interest of the one as of the other. Tenants are more numerous than proprietors. He who has no house of his own to shelter his family, or no land of his own to cultivate, has need to use that of others, and can more easily obtain it and on easier terms if the law assures the landlord the payment of his rent by affording.him exceptional facilities for enforcing its payment. Hence, the conditions under which,a lessor may use the writ of provisional seizure differ from those attending the other, conservatory writs. .

• Fraudulent intent on the part of the lessee is not an essential element in such case. Nay, the best and- most honest intent will not avail him, because the crucial inquiry is, not whether the tenant did or did not intend to pay his rent, but whether he intended to remove the property upon which the privilege rests of securing its payment. •The lessor has good reason to believe that the lessee will remove from the premises the property upon which he has a privilege, and thereby deprive him of his lien, the sole condition for the issuance of the writ exists. The intention of the lessee in removing it may be honest-. His purpose may be thus to obtain the means for paying the rent, but that in nowise impairs the right of the landlord to prevent the removal by a seizure. While on the premises, it is absolutely subject to the landlord’s claim. If removed, he has only a limited time to pursue-it, and only-while owned by his tenant. The law, therefore, does not require that he shall concern himself about his lessee’s honest intent to pay, but only whether Ms intent is to remove the property and destroy the lien, whether the motive of the removal be good or bad.

Tiie plaintiff did no more than use process provided expressly for the better security of landlords,.and so the lower court adjudged.

Judgment affirmed.

Fenner, J., not being present at the argument, takes no part in this decision.


text:
    No. 84.
    Walling Heirs vs. Succession of Joseph Howell.
    Tlio.judgment of homologation of tlio account of an administrator, allowing a balance of money due by liim, is pi escribed after ten years, and the debt extinguished, whether said • account was advertised asan annual or final one, when, in fact, it was a complete account of administration.
    ApPEAL from the First District Court, Parish of Caddo. Taylor, J.

      J. W. Jones and J. B. Slatterly, for Plaintiffs and Appellants.

      Alexander <& Blanchard, for Defendant and Appellee.
   The opinion of the Court was delivered by

Manning, J.

James Walliug, Jr., died in 1853, and S. II. Cain was appointed administrator of his succession, and gave bond with Joseph Howell as surety. In the same year Cain filed a tableau of- debts, and a petition jwraymg the-sale of property to pay them. The sold property was a tract of land and some lots in the Town of Shreveport, all of which was sold under order of court.

In January, 1861, Cain presented an account of his administration, which was filed, published and homologated March 2 of same year. This account exhibits his entire and complete administration, containing, on the one'side, charges against himself of the full amount of sales of all the property with interest while in his hands; and on the other, credits for the sums paid in extinguishment of the debts of the deceased, law charges, etc., the balance against the administrator being $2,229.07.

In December, 1873, the heirs of the deceased Walling sued Cain’s succession (he having meanwhile died,) in the parish court of 'Caddo, claiming $5,000 therefrom, because of Cain’s administration of their ancestor’s succession, his sale of the property, receipt of its proceeds, and failure to account for it. Judgment was rendered for $2,229.07, these figures being manifestly based on and obtained from Cain’s account.

In April, 1875, the Walling Heirs instituted suit in the District Court of Caddo, against the surety of Cain, Joseph Howell, or his succession, he having also died, alleging the judgment against Cain, and their futile attempt to execute it, and the insolvency of Cain’s succession, and their consequent right to proceed against Howell, his surety. An exception of prematurity was interposed, and prescription was also pleaded. The exception was maintained by the Supreme Court, on ijhe ground that the judgment obtained in the parish court against Cain was null, for want of jurisdiction of so large á sum, and hence, no; legal effort had been made to make the money out of the principal before the surety was sued. Walling vs. Howell, 28 An. 857.

The plaintiffs had to begin anew.

In May, 1881, they filed a petition in the succession proceedings of their ancestor, calling on Cain’s administrator for an account of his intestate gestión of Walling’s succession. In answer, he filed a copy of the account which Cain had presented twenty years before, and which had been then homologated. It seems to have been again homologated, no change having been made, except to allow interest on the balance admittedly due. Upon this judgment a writ of fieri facias issued — a singular writ to issue against a succession — and the return was nulla bona.

Then the present suit was filed, February 20, 1882, to which, res adjudicata and the prescription of ten years were pleaded, and both were sustained, and hence, this appeal.

The plea of prescription is good. The judgment homologating Cain’s account of his administration was rendered March 2,1861. The first suit of the Walling Heirs against Cain or his succession, for moneys alleged to be due by him because of his administration, was instituted more than twelve years thereafter, i. e., on December 23, 1873.

The plaintiffs contend that the account filed by Cain in 1861 was not a final account; that, in fact, it was advertised as an annual account, and in the judgment of homologation was styled simply an account; in short, that the omission of the descriptive word “ final,” is fatal to the pretension that the account was á complete exhibit of the administrator’s gestión.

The character or quality of legal instruments, or pleadings is not fixed by the name applied to them by court officers or printers. We ascertain what the pleading really is from its contents, and not from the designation given it by the clerk. But, in fact, the administrator had properly styled it in his petition. He*called it an account of his administration,” and so it is. Not a partial or annual account — not a, final account, which might imply that it was a continuation of, or addendum to others that had preceded it — but a complete account of his: entire gestión. And when we look into it, we find that it embraces everything that the administrator did, or could have done. The plaintiffs liave treated it as final. Nowhere in these numerous suits have they alleged that anything more was to be done. Cain is not charged with liability for omissions. Their demand against him is for moneys derived from selling the property which, in that account, he acknowledges to have sold, and the judgment they obtained is based upon the figures he furnishes. The judgment of homologation of 1861 Was a judgment against him for the balance on account. It was a judgment for a named sum of money, and was enforceable against Cain and his property, and is, therefore, susceptible of prescription. Wade vs. Caspari, 24 An. 211.

• If the suit of 1873 was-too late, prescription having been already acquired, it is needless to say the present suit must fail for a like reason. ■ It is not needful to consider the plea of res adjudieata, nor to enter upon the discussion of the force and effect of the Supreme Court decree, annulling, the parish court judgment, since we find the case is with the defendant upon the plea of prescription.

Judgment'affirmed.

Eenner, J., not being present at the argument, took no part in this decision. - ’ . • ’


author: Eenner, J.

text:
    No. 94.
    James S. Ray, Administrator, vs. H. D. Shehee.
    An appeal bond for costs, oovering only the oosts of appeal, is defective.
    APPEAL from the Second District' Court, Parish of Bienville. Drew, J.

      J. F. Pierson, for Plaintiff and Appellee.

      Boone & Howell and T. J. Butler, for Defendant and Appellant.
   The opinion of the Court was delivered by

Eenner, J.

Appellee moves to dismiss this devolutive appeal, on the'ground that the bond of appeal does not1 conform to the requirements of the law. The terms of the bond are, that the appellant “ shall pay or cause to be paid, all such costs of appeal as may accrue in said suit and appeal.”

• It has been repeatedly decided that the bond must secure payment of all costs of suit, and that where, as in' the instant case, it covers only costs of appeal, the appeal will be dismissed. Rawle vs. Feltus, 33 An. 421; Gillis vs. Carter, 28 An. 805 ; Jordan vs. Sanders, 13 An. 417; 4 An. 3; 3 An. 135.

The appeal is, therefore, dismissed at appellant’s cost.-


author: Poché, J.'

text:
    No. 86.
    John H. Scheen vs. W. M. Poland.
    Exemplary damages •will be allowed against a party who makes a violent assault on,another, whom he strikes and wounds, without provocation.
    In such cases the Supreme Court will not hesitate to ignore the verdict of a’ jury which had allowed only nominal damages; and will assess such damages as the nature of the case demanda and the interest of Justice requires.
    ApPEAL from the Second District Court, Parish of Bienville, Drew, J.

      J. F. Pierson, aud O. F. McDonald, for Plaintiff and Appellant.

      Fdwards & Patterson, for Defendant and Appellee.
   Poché, J.'

Plaintiff seeks to recover fivethousand dollars as damages^ for a violent blow and a wound inflicted on him by the defendant with a pistol; and he has taken the present appeal from the verdict of a jury allowing him damages in the sum of one dollar and costs.

Although the evidence is somewhat conflicting, the record discloses the following state of facts:

While the plaintiff was engaged, in the month of May, 1881, in a law office in the courthouse of Bienville Parish, in assisting a committee of arbitration charged with the settlement of a commercial partnership formerly existing between the defendant and Mr. A. Cockerham, a son-in-law of plaintiff, the defendant Poland entered the room and urged objections to the further proceeding of the settlement, whereupon plaintiff protested against his interference, and asked him, with warmth, by what right he had come to disturb the settlement.

After stating that he would show to Scheen by what right he had come to that office, Poland crossed over to where Scheen was sitting at a table, and standing in his rear, he pulled out a pistol, with which he violently struck Scheen on the right side of the head, inflicting a painful wound, from which Scheen suffered for several days, and by which he was for sometime confined to his house, and incapacitated for business. , "

The defense was great provocation, resulting from the offehsive and insulting language used towards him by Scheen.

After a careful examination of the evidence, we are thoroughly convinced, as the jury must have believed, that the attack was unprovoked, premeditated, brutal and ferocious, and we are therefore at a loss to conceive the reasons or motives which prompted,,the jury to allow only nominal damages in such a'case.

There is no force in the argument urged by defendant,'that plaintiff was an intruder in the committee room, and that his objections to defendant’s presence in that room were impertinent and provoking. Even if such were the fact, that circumstance could not be weighed in mitigation of damages. But the evidence shows that the arbitration had been agreed upon and organized through the efforts of Scheen, for the laudable purpose of averting a lawsuit, and a bitter litigation between his son-in-law and Poland, who had, from partners, become personal enemies.

The circumstances of this case present the very features under which the law blends together the interest of society and of the aggrieved individual, and gives damages, not only to recompense the sufferer, but to punish the offender.” Sedgwick on the Measure of Damages, p. 36. Hona vs. Miller, 13 La. 110; Richardson vs. Zuntz, 26 An. 313; Decuir vs. Linx, 33 An. 393.

Although we fully recognize the wisdom of the rule which gives great weight to the verdict of a jury in questions so peculiarly within their province, yet as we are clothed with the power and charged with the responsibility of examining into the facts, as well as the law in such cases, we must do our duty, when we find that the jury have failed to perform theirs, and we must set aside their verdict when we are satisfied that it has not done justice.

This case loudly calls for the infliction of exemplary damages, which we feel compelled to allow, and which we shall fix at the sum of five hundred dollars. '

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended, so as to increase the amount of damages allowed to five hundred dollars, and that as thus amended, said judgment be affirmed, at defendant’s costs, in both Courts.

Fenner, J., takes no part, being absent when the case was argued.


text:
    No. 95.
    The State of Louisiana vs. George Bassett.
    Under the charge in an indictment of stealing chickms, proof is admissible to show that hens were stolen.
    A sentence not containing the words "it is considered ” is legal and valid. The use of the words is not sacramental.
    .A PPEAL from the First District Court, Parish of Caddo. Taylor, J.

      M. S. Orain, District Attorney, for the State, Appellee :

      1. Such descriptions of the thing stolen, as the following, are good and sufficient: “One sheep,” “ a horse,” “ a certain mare,” “one cow,” “one watch,” “one certain hog.” Bish. Or.Pro., Yol. 2, § 700; 33 An. 1214.
    2. Animals not ferie natures or reclaimed, are objects of larceny. Bish. Cr. Law, Yol. 2, §771.
    3. Animals or fowls fit for food. Ib. §775.
    4. Animals or fowls tame in their nature are subjects of larceny — the same as other personal property. Ib. §774.

      Hieles & Hieles, for Defendant and Appellant:
    An information for larceny of chickens need not describe their color, size or sex, but it must allege that they were tame, as the term applies to the young of wild as well as tame birds. 2 Bussell on Crimes, 83-4, 107; 2 Bish.' Cr. L. Secs. 683-4; 2 Bish. Cr. P. Sec. 706.
    The name appropriated to the young of birds is chicken, and does not include hen, its mother, and proof of theft of the latter does not sustain a charge of theft of the former. Arch. Crim. PI. top p 49, 52; 1 Bish. Crim. P. 518, 519,568to 571 ; 2 Bish. Crim. P. 707; 2Bussell on Crimes, 82.
    The allegations that the chickens were Cochin China must be proved. 1 Bish. Crim. P, Secs. 485-6-8; Arch. Crim PI., top p. 108.
    The sentence is, “it is ordered, adjudged and decreed,” not “it is considered,” and is not a valid final sentence. B. S. Sec. 976 ; 4 Black. Com. 289 and appendix; 3 Black. Com. 396; 1 Bish. Crim. P. Sec. 1595; "Wharton’s Crim. P. and P. Sec. 923; 6 Johnson’s ÜN". X. Bep. 335 to 523.
   Tlie opinion of tlie Court was delivered by

Bermudez, C. J.

Tlie defendant was convicted, of larceny and sentenced to hard labor.

On appeal he complains, as he did in the lower court:

That tlie information should have been quashed, because it does not allege tliat the chickens which he is charged to have stolen, were tame or wild, nor the species of fowl to which they belonged, or otherwise show that they were the subjects of larceny ;

That the court erred in allowing evidence in support of the allegations in tlie information, which were too vague to admit an.y such;

That he could not be convinced of stealing hens, when the charge was of stealing ehieleens, and that it was not proved that the chickens were Cochin China, but Buff Cochin chickens.

Finally, he urges:

That tlie sentence is not a valid judgment, as it does not contain the sacramental words: “ it is considered.”

The- District Judge has well answered all the objections urged by the defendant. He says :

“ The description of the stolen property is two Cochin China chickens, of the value of, etc.”

In Bishop’s Cr. Pr. 2, § 700, it is held, that snob description of the tiling stolen as the following, is good and sufficient, viz: “ One sheep,” “ahorse,” “ a certain mare,” “one cow,” “ one watch,” “one certain liog.” In State vs. Carter, 33 An. 1214, where the description was “one liog,” it was held to be good, and a number of authorities cited in support.' See also, p. 122, same vol.; 31 An. 179.

In 30 An. 600,. the property was described as one small hog.” It was urged that indictment was insufficient in not describing the animal by any mark, or by its color and sex. So in the case at bar, it was urged that the color, condition and sex of the chickens ought to have been alleged. But if the description,'such as "one hog,” is sufficient, without mention of the color, sex, condition, flesh marks, or earmarks, as was held in 33 An. 1214, what reason exists for a more particular description when chickens are the subject of larceny, Chickens are designated according to sex and a'ge, as chicks, pullets, cockrills, hens and. roosters. Hogs are also known as pigs, shoats, barrows, sows and boars. If an indictment charging the larceny of l< one hog,” or of “ one small hog,” is sustained by proof that the property stolen was either a boar, a barrow, a sow, certainly an indictment, charging the larceny of a chicken is good, and evidence is admissible, whether the chickens stolen were hens, roosters or pullets.

The State is bound to allege and prove every fact or ingredient, necessary to constitute the crime charged. The converse must be equally true. If it is unnecessary to aver the color, marks, or sex of a hog, or chicken charged to have been stolen, then itisuunecessary to prove either of those facts.

If the hog, or chicken stolen, be identified as the property mentioned in the indictment, it is immaterial whether it-be a boar, a barrow, a rooster or a hen. The witness- Barker testified that the two chickens, charged as stolen, are usually called Cochin China chickens, .but'that he called them Buff chickens.

It is indeed laughable, that the accused, who unscrupulously ignored the ownership of the chickens when he committed-the theft,-should afterwards, on his trial, become so very punctilious, and require of the State a minute description of them, specially as to age. The fact was found against him, and must be considered as having been well found.

The last objection is as to the form- of the judgment or sentence.

Those reasons appear to bo conclusive-.

In the case- of the State ex rel. Pringle, decided a few days ago, we had occasion to hold that the words, “it is considered,” are not sacramental and essentially necessary. In this case the word ordered ” is used.

Judgment affirmed.


text:
    No. 7887.
    Mrs. B. W. Lisso et al. vs. Navra & Offner et al.
    An action lies to recover a disputed claim from one of the partners of a dissolved firm, when it was placed as an indebtedness on the books of the firm, and such partner, by agreement with his co-partner, at the dissolution causes him to assume all the debts and liabilities ol' the partnership among which the claim figures.
    The creditor in such a case, who makes himself party to composition proceeding's in bankruptcy by the assuming partner, and grants him a discharge, on certain terms, is concluded and cannot recover from such debtor.
    The provisions of a^composition are binding, when confirmed, only on the creditors whose names and addresses and claims are shown in the debtor's statement produced at the meeting at which the resolution has been passed. The composition does not afi'ect or prejudice the rights of other creditors who did not make themselves parties.
    Payment of the claim by the first partner subrogated him to all the rights of the creditor against the second partner who assumed the debt. • Judgment affirmed.
    APPEAL from the Fifth District Court for the Parish of Orleans. Rogers, J.

      J. 0: Egan and 0. N. Ogden, for Plaintiff and Appellee.

      W. 8. Benedict and J. B. liornor, for Defendants and Appellants.

      Bmughn, Bucle & Dinlcelspiel, on the same side.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff, as widow in community and as tutrix of her minor son, sues the defendants as a firm, and the members thereof in solido, as late partners, to recover a sum of money alleged to have been loaned the concern and used by it in its business.

The defenses are a denial of liability.

Offner pleads, that if the debt ever existed, it was extinguished by novation; that plaintiff has discharged him; that Navrahas bound himself to pay all the liabilities of the firm, and is alone responsible for the debt. He calls Navra in warranty.

Navra pleads, that he is a discharged bankrupt, and is exonerated from all responsibility, as well towards the plaintiff as against Offner.

There was judgment in favor of plaintiff against Offner and in favor of Navra in the main demand, and in favor of Offner against Navra in the call in warranty.

The judgment is brought up for review, only so far as it affects Offner and Navra, as the ifiaintiff and appellee has askedno amendment.

I.

There can be no difficulty in fixing a liability against Offner. The evidence shows, that the amount was received by Navra,'his partner, during the existence of the partnership, and that the plaintiff was recognized as a creditor for the-same'on the books of the firm. It also shows that, at the time of the dissolution of the partnership, the payment of all its liabilities, among which figured specially the debt due plaintiff, was assumed by Navra.

The burden then rested on the defendants to show a discharge from liability.

Offner says that Navra was plaintiff’s agent; that Navra had control of her claim; that Navra released and discharged him therefrom, by returning to him the note which Navra & Offner had issued to represent it; that he, Offner, received and destroyed it, and that Navra made his individual note and delivered it to plaintiff, who accepted it, in place of that destroyed.

Offner also sets up, that plaintiff waived all recourse against him, by proving up her debt in the bankruptcy of Navra, as a debt without security.

Navra says that he made, in bankruptcy, a composition with his creditors, to which plaintiff assented, and that the discharge which ■ he obtained in bankruptcy is likewise binding on Offner.

The evidence does not satisfy us that Mrs. Lisso ever authorized. Navra to novate the claim against Offner & Navra. Novation is one of tlie modes in which obligations can be extinguished. R. C. C..2130.

A special authorization to novate would have been necessary, R. C. C. 2997, and none was shown, whether oral or written. It is questionable whether the giving by Navra of his note to her, for the amount of the claim against the late firm, could constitute a novation which must be express, or surrounded by such circumstances that no doubt can be entertained touching the intention of the parties to change the character of the debt. R. C. C. 2190. Mrs. Lisso could have considered that the new note was nothing but an evidence of Navra’s acknowledged liability to her for the entirety of the claim. It is not so clear that as tutrix she could have authorized Navra to novate the interest of the minor son in the debt. It does not appear, however, that she has done so.

We see no force in the other defense*

Plaintiff’s claim could not be considered as a debt with security. It had never been secured by Navra, or even Offner, besides their responsibility as partners of the firm of Navra & Offner. Her conduct could not and did not deprive Offner of any of the rights which she might have had against Navra, had she not voted at the meeting. On payment to her of her claim, Offner will be fully subrogated to all her rights and entitled to enforce against Navra all the obligations which, he incurred by assuming specially all the liabilities of the firm, among which is embraced that presently sued upon by plaintiff.

II.

As the plaintiff and appellee has not prayed for an amendment of the judgment against her, and in favor of Navra, we have no authority to inquire into its correctness.

III.

Offner is entitled to recover from Navra the amount for which he is held liable to the plaintiff, as a partner of the late firm of Offner &■ Navra. The latter had assumed payment of it by special contract with Offner-. He has not discharged it and is responsible under the assumption.

The defense that the composition and discharge are binding on Offner cannot hold, as Offner was in no way made a party thereto, and not named in the proceedings for composition. -That was essentially necessary.

The law is formal, that the provisions of a composition shall be binding on the creditors, whose names and addresses, and the amounts duo them, are shown in the debtor’s statement, produced at the meeting at which the resolution shall have been passed, but shall not affect or prejudice the rights of any other creditors. Ex parte Matthews, L. R. Ch. App. 307; Breslauer vs. Brown, 3 Appeal Cases, 672; 11 Rep. 412; 124 Mass. 497; 131 Mass. 457; 129 Mass. 519.

Finding no error in the judgment appealed from, it is affirmed, with costs.


author: Poché, J. Fenner, J.

text:
    No. 8631.
    The State of Louisiana ex rel. E. A. Luminais vs. The Judges of the Civil District Court for the Parish of Orleans.
    A mandamus will not issue to compel the Judges of the Civil District Court of the Parish, of Orleans to approve the salary now due of one of their officers, for a particular amount, when their refusal to thus approve is predicated on an act of the legislature reducing such salary twenty per cent.
    The Judges could be compelled, by mandamus to act on such an application 5 but not to act in a particular manner. To do so would be to divest them of their judicial discretion.
    Application for Mandamus.
    P. JE. & O. J. Théard and 6. II. TMard, for the Relator:
    1. Act 21 of 1882, amendatory of Act 47 of 1880, makes it the duty of the Judges of the Civil District Court for the Parish of Orleans to approve the warrants for the salaries of the minute clerks, docket clerks and record clerks of said Court, when signed by the clerk. Mandamus is the proper remedy to enforce the performance of that duty. C. P. 829, 834, 830.
    2. This Court, under Article 90 of the Constitution, has jurisdiction of this'matter. 32 An. 549, 553, 719, 774, 1256; 33 An. 146, 180, 358, 832, 1201, 1381. There is no inferior tribunal to which relator could apply for redress.
    3. Relator’s salary is fixed by Act 130 of 18a0 at eighteen hundred dollars per annum.
    4. Act 108 of1882, entitled “ an Act to ñx the salaries of all deputies and employees who are paid out of the Judicial Expense Fund,” and purporting to reduce relator’s salary twenty per cent., is violative of Articles 29 and 30 of the Constitution.
    5. The object of Act 108 of 1882, is either “to amend Act 130 of 1880, and to reduce the salaries of the employees of the Civil and Criminal District Courts and Court of Appeals of the Parish of Orleans,” or to amend Acts 130, 131, 115, 94 and 66 of 1880, and to reduce the salaries of all the employees who are paid out of the Judicial Expense Fund.” Is either of these objects is expressed in the title. The law is unconstitutional. 4 An. 297; 5 An. 91, 94; 6 An. 605 j 23 An, 720; 33 An. 63; Const. Art. 29 ; Cooley’s Const. Dim. p. 141.
    6. The effect of Act 108 of 1882 is to amend Act 130 of 1880 only. There is no clue to that in the title.
    7. A law which purports to ñx salaries by a reduction of twenty per cent, on amounts previously fixed by statutes which are not repealed, is in reality an amendatory law which should specify in its title the laws aménded, and should re-enact and publish them at length as amended. The omission to do so makes the statute unconstitutional. Article 30, Const, of 1879.
   The opinion of the Court was delivered by

Poché, J.

The Relator seeks by mandamus to compel the Respondents to approve his voucher, for his salary as docket clerk of the Civil District Court, for the month of August, 1882, at the rate of one hundred and fifty dollars a month.

Relator’s salary had been fixed at $150, by Act 130 of 1880, and was reduced twenty per cent, by Act 108 of 1882, and the Judges’ refusal to approve his voucher for the month of August last, for one hundred and fifty dollars, was predicated on the last mentioned act.

But Relator charges that said Act is unconstitutional, and avers that the plain ministerial duty of Respondents was to approve his voucher, in accordance with the provisions of the Act of 1880.

A compliance with Relator’s demand would necessitate from Respondents a declaration of the unconstitutionality of Act No. 108 of. 1882, and the mandamus which we are asked to grant in the premises, must be preceded by such a declaration on our part.

In other words, we are asked by this proceeding to command Respondents to decide that Act No. 108 of 1882 is unconstitutional, null and void.

The record shows that Respondents have not failed or refused to perform the plain duty of approving Relator’s voucher as required by. law; but that they have refused to approve his voucher, for the reason that said voucher does not comply with the provisions of the law regulating the subject matter.

The mandamus which, we would issue, at the instance of Relator, would not have the legal effect of compelling the Respondent Judges to perform the duty of approving a voucher for the salary of one of , their officers, but would go to the extent of compelliug them to judicially determine that the proposed object of the legislature to reduce such salary was illegal and of no effect. We are clear in our conviction; that we are powerless to grant any such relief, as this would be tantamount to our assuming original jurisdiction of the matter. We have frequently held that we were clothed with the power to compel the Judge of an inferior court to render a judgment, but that we were powerless to dictate to him what judgment he should render.

Thus, in the case of the State ex rel. Wise vs. Taylor, Judge, 32 An. 977, we declined to interfere with the judicial discretion of the inferior Judge who had refused to sign an order of seizure and sale, on the ground that his refusal was a judicial act, which could be reviewed by an appeal only.

. In the case of the State ex rel. Ames vs. Judge, 32 An., (O. B. 53, p. 43,) not reported, we refused to compel the District Judge to homologate the proceedings of a family meeting; holding that the Judge could be compelled to act on the petition for homologation of the proceedings, but could not be compelled to decide in a particular manner. See also, State ex rel. New Orleans vs. Judge, 32 An. 549; State vs. Judge, 5 Robinson, 161.

In the present case, the Judges of the Civil District Court could be compelled by mandamus to act on Relator’s application for their approval of his voucher; but to compel their approval, when they have acted on the application, and have refused their approval, would -be to dictate the judgment which they should have rendered, and such an act would divest them of their judicial discretion. State vs. Dunlap, 5 M. 271; State vs. Judge Second District Court, 13 An. 481; Same vs. Same, 13 An. 483; Same vs. Same, 15 An. 113; 15 An. 164.

' If the performance of an act by a Judge, which must be preceded by and predicated on his conclusion on the alleged unconstitutionality of an act of the legislature, is not a judicial act, it would be difficult to conceive of an ex-parte order of a Judge which would fall under .the definition.

Although these views have not been urged in defense by the Respondents, they forcibly present themselves at the threshold of this investigation, and lead to the inevitable conclusion that Relator has entirely mistaken his remedy.

The writ of mandamus herein prayed .for is, therefore, refused, at Relator’s costs.

Concurring Opinion.

Fenner, J.

While approving the decree rendered in this cause, I cannot concur in the reasons assigned in the opinion of the majority of the Court.

I do not regard the action of the Judge, in discharging the function imposed on him by law, of approving the warrant of the clerk for his salary, as a juclieial act, in the sense or spirit in which it is treated in the majority opinion.

Abbott defines “judicial,” as “pertaining to the administration of justice in courts,” “judicial authority,” as “the official right to hear and determine questions in controversy,” “judicial decision,” as “the determination of a court or a judge in a cause.”

Judicial discretion only arises in the exercise of judicial authority, which presupposes the existence of some cause or controversy submitted to the Judge for decision in the customary form of judicial proceedings.

It is manifest that the function imposed upon the Judge of approving the warrants of the clerk, as a condition precedent to their payment at the treasury, possesses none of the characteristics of judicial action in the sense referred to. It contemplates no proceeding whatever in court, nor any record-thereof in the court. It might he performed by the Judge at any time and anywhere, on the street, or even in a different parish or State, or country. If any controversy exists, it is solely between the clerk and the Judge himself.

The clerk has the absolute right to have his salary, as provided by law, paid; and it is the absolute duty of the Judge to approve his warrants therefor. When the clerk demands of the Judge the performance of this duty, and the Judge refuses, a controversy arises between the clerk and the Judge himself, which the Judge cannot determinefor himself, but which the clerk has the right to refer, like other controversies, to the determination of competent judicial power. The Judge has no discretion in the matter, except that discretion which every man has to determine for himself, primarily, what are his rights and obligations ; hut if that determination be contested by the adverse claimant, in the exercise of a like primary liberty, the latter has the right to invoke a settlement of the controversy by the judicial power.

If these views he correct, however, the Relator herein must, never-’ theless, be denied the relief sought at our hands, because we have no original jurisdiction of such a case, and for this reason, I concur iu the. decree.

I am not called upon to express any opinion as to whether a duty of this kind can be imposed by law upon Judges of the' District Court, under Art. 92 of the Constitution. That- question, and its hearing upon the rights of parties, should only be decided when properly presented.


author: Todd, J.

text:
    No. 8620.
    The State of Louisiana ex rel. New Orleans City Railroad Company et al. vs. Henry L. Lazarus, Judge, Etc.
    A remittitur entered after verdict and judgment does not affect tlie right of a party to appeal from suoli judgment.
    The appellate court must be governed by the record of the proceedings duly authenticated, and no statement of the Judge of the Court whero the proceedings were had, that such record is incorrect, after the same is on file in this Court, and no step taken to correct it, can prevail against the record itself.
    Mandamus made peremptory.
    Application for Mandamus.

      Braugluij Buck & Dinkelsplel and W. 0. Hart, for the Relators:
    1. The sura demanded and not the judgment rendered determines the jurisdiction of the appellate court. 16 An. 430.

      2.A case cannot be rendered unappealable by entering a remittitur after judgment. State ex rel. Orleans R. R. vs. Lazarus, Judge. Opinion Book 56, Folio 752.

      T. M. Gill, for the Respondent:
    1. The amount in dispute, and not the amount claimed, gives jurisdiction. Constitution 1879, Article 81.
    2. .When the amount in contest, or claimed, does not exceed 81000, exclusive of interest, the Coart of. Appeals has exclusive jurisdiction. 33 An. 358; see 32 An. 597 to 603, 929.
    3. A verdict is not a judgment. Webster’s and Bouvier’s Dictionaries, and Blackstono’s Commentaries.
    4. Verdicts are without effect unless there bo judgment. C. P. 541 et aeq.; 4 N. S. 532, 533
    5. Iiemittitur, reducing the amount in contest below appealable amount before judgment depraves this Court of jurisdiction. 21 An. 278, and authorities cited.
    6. Verdict may be a reason ibr, but a reason for judgment is not the judgment, nor a part of the judgment. 10 An. 261, 640 ; 12 An. 736.
   The opinion of the Court was delivered by

Todd, J.

The Relators allege, substantially, that in a suit entitled Win. Mattie vs. New Orleans City Railroad Company and F. Wintz, No. 4596, on the Docket of the District Court for the Parish of Orleans, Division E, there was a trial by jury, and a verdict rendered against them for $2,000, upon a demand for five thousand dollars.

That the verdict was recorded, and on the next day thereafter a judgment, in accordance, with the verdict, was rendered by the court. That on the day following, the Relators filed a motion for a new trial, Avhicli motion Avas taken under advisement by the court, and on the 23d of May following, an order Avas entered, suggesting- that if a remittitur of $1,000 was not made by the plaintiff, in the suit, a new trial Avould be granted.

That a remittitwr was then entered, and a new judgment was rendered, without notice to Relators, for $1,000, on the 25th of May, 1882. That after the signing of this judgment and within the legal delays, Relators asked for a suspensiA'fe appeal to this Court, which Avas refused by the Judge, on the ground that this Court Avas w-ithout jurisdiction ratione materiw, to entertain the appeal, the amount in dispute not exceeding $1,000. Thereupon, the Relators applied for a mandamus to compel the Respondent Judge to grant the apxieal.

The record presents a case precisely similar to that between the same parties, No. 8587, recently decided by this Court, in which the mandamus was made peremptory.

It is, however, urged by the Respondent Judge, that the record in the instant case is incorrect. That whilst in the previous case referred to, the remittitur Avas entered after judgment, in this case it Avas entered before j udgment, hut after verdict. He denies having rendered any judgment until after the remittitur was entered.

The remittitur was in these words:

Now comes Wm. Mattie, the plaintiff herein, through his undersigned counsel, and only because required so to do by the court, and specially reserving all of his rights, and excepting to the right and ruling of the court to impose the remittitur, and enters the remittitur of one -thousand dollars. T. M. Gill,
Attorney for Mattie, Plaintiff."

The transcript before us is duly authenticated by the certificate of the clerk of the court, over which the Respondent presides, as con: taining a true record of the proceedings. We there find a judgment purporting to bo a part of these proceedings, rendered -on the verdict of the jury and for the amount allowed by that verdict, ($2,000) though not signed by the Judge. This was followed by a motion for a new trial. This shows that the remittitur was entered after judgment, as alleged by the Relators.

However great our confidence in any statement that might be submitted by a Judge, nevertheless our knowledge of the facts must be derived from the record, and we can only take cognizance of them as there shown.

As held in the case referred to, we think that the remittitw was entered too late to affect the Relators’ right to appeal, even admitting that if entered before judgment, in the manner and form stated, it would have that effect, upon which we express no opinion.

It is, therefore, ordered, adjudged and decreed, that the mandamus asked for be made peremptory.


author: Fenner, J.

text:
    No. 7688.
    Stern Brothers vs. Germania National Bank.
    The purchaser or pledge© of negotiable instruments after maturity, whose rights are derived from one who was not the owner and who was not authorized to sell or pledge, acquires no title or right thereto or thereupon, aaangainst the true owner. And this principle applies equally to public securities past dSBBuch as coupons of State Bonds.
    APPEAL from the Third District Court for the Parish of Orleans. Monroe, J.

      Payne & Denegre and Semmes & Payne, for Plaintiffs and Appellees:
    “ The sale of a thing belonging to another person is irall.^ C. C. 2452.
    This applies to past duo obligations to pay money, as well as to other property. Bird vs. Cockrem, 28 An. Bop. 70; Henderson vs. Case, 31 An. Bep. 215; Texas vs. "White, 7 "Wallace Bep. 700; 21 "Wallace, 143 ; 10 Wallace, 90 ; 14 Peters, 321; 99 United States Bep, 440; 26 An Bep. 556 ; 13 Ba. Bep. 214.
    Detached coupons past due are independent obligations which mature like other obligations bear interest after maturity and" are subject to the rules of prescription applied to promissory notes. Conger vs. City of Hew Orleans, 32 An. Bep. 1255.

      Jas. McGonnell and Branglm, Bn eh & Binlcelspiel, for Defendant- and Appellant:
    1. Where the owner of property confers upon another an apparent title to or power of disposition over it, lie is estopped from asserting liis title against an innocent third party who has deult with the appaient owner in reference thereto, without knowledge of the claims of the true owner. McNeil vs. Tenth National Bank, 46 N. Y. 325, 329, 333, 337, 339; Dus Bassos ou “The Law of Stock Brokers and Stock Exchanges,” 611, 600; Moore vs. Metropolitan Bank, 55 New York, 41.
    2. "Where one of two innocent parties must suffer, the loss must remain upon the one upon whom it has all eady fallen. 6 An. 621; 21 An. 342; 4 An. 19.
    3. Where one of two innocent parties must suffer from the fraud of a third, the loss should fall on the one who enabled the third party to commit the fraud. Babcock vs. Lawson, ICnglLh High Court, Q. B. Div. 27, W. E. 866; Mahan vs. Dubuclet, 27 An. 45; 7 An. 358; Walker vs. Casmiway, 4 An. 20-21.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs entrusted to the late firm of A. Eimer Bader 6 Co., for collection merely, certain detached coupons of bonds of the State of Louisiana, said coupons being unconditional obligations of the State to pay to hearer certain sums of money, at dates specified therein, “being six months’ interest on Consolidated Bond” of specified number. These coupons, long after their maturity, were pledged by A. Eimer Bader & Co. to the defendant, to secure a loan of $5,000 made to said firm.

Plaintiffs now sue t.o recover said coupons or tlieir value.

There is no controversy ns to essential facts, viz: that plaintiffs owned the coupons; that Bader & Co. liad no authority from plaintiffs to sell or pledge them, and no other authority except to collect; that they wore pledged by Bader & Co. for their personal debt, in which plaintiffs had no concern; and that said pledge was made long after the maturity of the coupons.

• The authorities are quite unanimous and entirely convincing, that the purchaser or pledgee of negotiable instruments after maturity, whose rights are derived from one who is not the owner, and who is not authorized to sell or pledge, acquires no title or right thereto or thereupon, as against the true owner. C. C. 2452; Bird vs. Cockrem, 28 An. 70; Henderson vs. Case, 31 An. 215; Davis vs. Bradley, 26 An. 555; Foley vs. Smith, 6 Wall. 493; Texas vs. White, 7 Wall. 700; Vermilye vs. Adams, 21 Id. 143 ; Fowler vs. Brandy, 14 Pet. 321.

We have carefully considered the various grounds on which it is sought to except this case from the application of the above principle, viz:

1. It is urged that' it does not apply to public securities, like those of a State. This objection is answered by the cases above quoted from 7 Wall. 700, 21 Wall. 143, and also by 10 Wall. 90, and 99 U. S. 440. We have ourselves held, that detached coupons are independent obligations maturing like other obligations, bearing interest and prescriptible, like promissory notes, to which they are assimilated. Conger vs. New Orleans, 32 An. 1255.

2. It is claimed that the principle only applies when the past due paper has been protested. The fact of protest was an accident of the case in 31 An. 215; but in various others of the cases quoted, that circumstance did not exist, and its absence in no manner affects the principle. In 26 An. 556, it is said : “ a negotiable, instrument unpaid at its maturity shows, upon its face, that it was dishonored, etc.”

3. The doctrine is invoked that where one of two innocent parties must suffer, the loss should fall on the one who enabled the third party to commit the fraud. This objection to the application of the principle now under discussion is not new. It has been made, considered and overruled, both by this Court and the Supreme Court of the United States. Foley vs. Smith; 6 Wall. 493; Bird vs. Cockrem, 28 An. 70.

4. It is finally urged, that by conferring upon Bader & Co. an apparent title or power of disposition, plaintiffs are estopped from asserting title against an innocent third person dealing with such apparent owner. It is evident that plaintiffs did nothing except put Bader <S& Co. in possessioh of the coupons for a legitimate purpose, which purpose could not have been effected without such possession. Like possession and like apparent ownership necessarily existed in all the cases quoted by us, otherwise the sale or pledge could not have been made. The authorities relied on by defendant rest on other and peculiar circumstances not necessary to be here stated.

In conclusion, it must be admitted that the principle invoked by us, in its application to transfers, not only of past due negotiable instruments but of all personal property, by the possessors and apparent owners thereof, undoubtedly exposes innocent dealers to great danger of fraud and wrong; yet there are many equitable considerations which weigh equally in its favor; and the law, as it exists, has been-established, after a full and fair consideration of the equities on both sides. Arguments against its wisdom and propriety should be addressed to the legislative, not to the judicial discretion.

Judgment affirmed, at appellant’s cost.

Rehearing refused.


author: Manning, J,

text:
    No. 8372.
    Succession of Pierre Claverie.
    A judgment cannot properly be rendered for more tb.an is demanded.
    The burden of proof is on the opponent, when he alleges assets beyond those acknowledgedia the account.
    APPEAL from the Civil District Court for the Parish of Orleans.Monroe, J.

      Olías. Louque, for the Tutrix, Appellant.

      A. J. Villeré, for the Opponent and Appellee.
   The opinion of the Court was delivered by

Manning, J,

The widow Claverie, as tutrix of the decedent’s minor children, rendered the account of her administration of his succession,which was opposed by Louis G-olis, a mortgage creditor. Two items of his opposition were sustained by the lower court, viz: the rents charged to herself by the tutrix as $265 were increased to $785, and the widow’s portion — one thousand dollars — which she charged as $!)50, fifty dollars having been received by her from the sale of the contents of a shop, was further reduced by $40, the proceeds of sale of household furniture also received by her.

The opponent avers, as to the item of rents, that they amounted, or should have amounted to over five hundred dollars, and prays that they be increased to that sum. The Judge went beyond the prayer, and charged the accountant with more than was demanded. A judgment cannot properly be given for more than is demanded. Morgan vs. McGowan, 4 Mart. 289; Barckley vs. Evans, 2 Mart. N. S. 241.

The property, from which the rental was derived, consists of three tenements, yielding $26 a month, and another worth $8 a month, occupied by the widow and children ; but Mrs. Claverie proved that she had not received rent for fifteen months of the time charged by opponent and allowed by the court, and the. opponent has not proved that she either did receive, or could have received, the rents for that time. The burden was upon him to show that the assets with which he sought to charge her were available. Deducting the rental of the three tenements for fifteen months, from the sum charged against her by the lower court, the rents with whicli she is properly chargeable are fixed at $395.

The widow’s portion was properly reduced to $910, she having received and appropriated $90 of the assets of the succession.

Therefore, it is ordered and decreed, that the judgment of the lower court is amended by reducing the sum charged against the tutrix for rents to $395, and as thus amended, that it is affirmed, the opponent to pay the costs of appeal.