text:
    No. 6815.
    Summers & Brannins vs. James S. Clark. S. L. Boyd, Garnishee.
    A judgment creditor who seizes under execution leased property belonging to his debtor, and held by the lessee under a lease not recorded, becomes entitled to, and may exact from the lessee all the rents thereafter accruing from said property ; and the fact that the lessee has executed and delivered to the debtor his negotiable promissory notes covering the rent to become due lor the whole of the unexpired term of the lease, will not exonerate him from liability to the seizing creditor, for the rents accruing subsequent to the seizure.
    A seizure under ft. fa. of property bearing rents includes a seizure of the rents.
    ^PPEAL from the Sixth- District Court, parish of Orleans. Mghtor,

      D. G. Ldbatt for plaintiffs and appellees.

      Kennarcl, Howe & Prentiss for garnishee and appellant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs having obtained judgment for large amount against Clark, seized under execution a house and lot on Canal street, belonging to their debtor. This house wa§ occupied at time of seizure by S. L. Boyd, under a lease from Clark, at $375 per quarter; for which quarterly rents Boyd had delivered to Clark his negotiable promissory notes. At the date of seizure one of those notes for quarterly rent was part due and had been paid. The plaintiffs, upon seizing the house and lot, served process of garnishment on Boyd, and propounded interrogatories to him, touching his indebtedness for rent. Boyd answered, stating that he held the house and lot under a notarial lease from Clark, and that he had delivered to Clark for the rent, falling due quarterly, negotiable promissory notes. That if Clark held these notes he was his debtor, otherwise not. That he did not, however, know who held them. Plaintiff moved for judgment against the garnishee, as on confession. No legal principle is better settled than that an indebtedness, evidenced by negotiable promissory notes, can not be seized by garnishment of the maker. The notes themselves must be taken into actual custody by the sheriff. But there are other legal principles which may modify or vary this rule. Thus when a contract gives rise to several successive ■obligations to be performed at different times, it may happen that one or more of these obligations, at the time of performance, are due to other persons than the original contracting creditor. Contracts of lease are of this character. The rents and fruits of an immovable belong primarily to its owner; but the ownership may be transferred from one person to another pending the lease.

As rents are considered to accrue day by day, and as being due by successive obligations, it inay well happen that the rents of to-day aré due to A, and those of to-morrow to B, though the lessee hold under one and the same contract all the while. In principle, therefore, where the right to receive the rents has passed from one person to another, the tenant can not plead, against the latter’s demand for rent, payments he may have made, by anticipation, to the former.

A tenant who has given negotiable promissory notes for future rents ought to be considered in a position similar to one who has paid his rents in advance. The question, therefore, presented for our decision is, when rents to accrue in the future have been paid in advance by cash or negotiable notes, does a seizure of the leased immovable by a judgment creditor of lessor operate a seizure of rents accruing after the seizure ? ■ .

As the lease in this case was not recorded in the conveyance office, the question is not affected by the registry laws. “ All sales, contracts, ■and judgments affecting immovable property which shall not be so recorded, shall be utterly null and void, except between the parties thereto.” C. C. 2266. See also C. C. 2264, which provides: “No notarial act concerning immovable property shall have any effect against third persons,” unless recorded in the conveyance office. These are negatives pregnant with affirmatives to the effect that contracts “ affecting ” or “concerning” immovables (and therefore leases thereof), will have effect against third persons, if duly recorded; just as sales, mortgages, etc., affect them when recorded. It would seem that where a lease of real estate has been made in good faith and duly recorded, a creditor of the lessor, seizing the property, will take it subject to the rights of lessee under the contract, unless the seizing creditor have a mortgage or privilege anterior to the registered lease. If, in such a case, the tenant have paid his rents in advance for the whole term, either in cash or in negotiable notes, the seizing creditor, having no antferipr mortgage or privilege, can not, nor can any subsequent purchaser, exact rents until the expiration of the term. But, as we have stated, the tenant Boyd holds under an unrecorded lease, and any payments of rent which he may have made by anticipation, to Clark, are without effect as against creditors or subsequent purchasers of Clark. But it is contended by the counsel of Boyd that until the seizure made by plaintiffs ultimates in a sale of the property they can not take the rents; that it is only by title of owner, and after that title is acquired, that rents can be demanded. It is true that the right to take rents must be derived from or through the owner; but it is not true that the person exercising this right of the owner must be the owner himself. His creditors may exercise that right, and may even do so in cases and under circumstances where he could not himself do so, as we shall see hereafter. The law undoubtedly gives the creditor the right to seize the debtor’s property; and article 466, C. C. declares that: “The fruits of an immovable * * produced while it is under seizure are considered as making part thereof, and inure to the benefit of the person making the seizure.” Article 656, C. P., provides: “When the sheriff seizes houses or lands, he must take at the same time all the rents, issues, and revenue which this property may yield.” How, in the face of these provisions, can it be maintained that the seizing creditor can not as such, and through the sheriff, demand and take the rents of the seized premises ? The- distinction, therefore, attempted to bo drawn between the effects of a seizure and those of an actual sale under the writ is more seeming than real. The law does not more clearly or explicitly give the right of taking the fruits to the owner, than it does to the seizing creditor of the owner. Both rights are unquestionable, for both are positively given by the law. This distinction, too, when pushed to its legitimate results leads to legal absurdity. Thus A, being a judgment creditor of B for $100, seizes an immovable producing a monthly relit of $500. The law commands the sheriff to take those rents in satisfaction of the writ, and declares that they inure to the benefit of the seizing creditor. Before a sale of the immovable can possibly be effected, the rents satisfy and therefore extinguish the writ. But it is argued that these rents can not be taken and applied to the writ until after the sale, which can not be made because there is nothing due under the writ!

But it is urged in the second- place that the seizing creditor, under garnishment process, can have no other or greater right than his debtor!

In our opinion, under the facts of the case before us, the process of garnishment was unnecessary, and constituted simply another seizure of what was already under seizure. The rents and fruits of an immovable under seizure “are considered as making part” of the thing seized — C. C. 466 — and the sheriff is required “ to take them.” C. P. 656. But, if unnecessary, it was a convenient form for testing the tenant’s liability. The proposition that the rights of a seizing creditor, in garnishment process, are precisely measured by those of his debtor, must be taken cum grano salis, and is not absolutely true. Garnishment under a ft. fa. is simply a mode of seizing incorporeal, intangible things. There is no philosophic reason for distinguishing between the rights of a creditor seizing by garnishment intangible things, and those of a creditor seizing, by the hand of the sheriff corporeal or tangible things. And, in point of fact, both classes of creditors often exercise other and greater rights than their debtors have or can exercise. The debtor may have so divested himself of rights as to prevent his exercising them, without having done it so as to debar his creditors from exercising them. Thus, in the sale of movables and incorporeal rights, delivery in one case, C. C. 1922, 1923, and notice to the debtor in the other, C. O. 2642, 2643, are essential to bind and give effect against creditors, though the debtor himself, who sold, is bound without delivery or notice. In either case the creditor may sieze directly or by garnishment, as the case may be, and exercise rights therefore which the debtor himself could not exercise. In the very case before us it is clear that Clark, having received in advance the rents for the term of the lease, could not do what we think his creditors have a clear right to do, to wit: compel the tenant, Boyd, to pay the rents from and after the date of the seizure into the hands of the sheriff. This is because the payments made by anticipation under an unrecorded lease though binding on the lessor are not so on his creditors. Nor are these principles more inequitable when applied to a lessee than when applied to a purchaser of immovables without registry, or movables without delivery. If a vendee in such case can, by seizure, be deprived of possession and enjoyment under his purchase, why not a lessee? If, in such case, it is no defense that the vendee has paid the price, why should it be that the lessee has paid the rent? The principles involved in the two cases are the same, and by no means novel. The judgment below condemned the garnishee to pay the rent after seizure, and we think it is correct.

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

On Application for Rehearing.

In the opinion heretofore rendered in this case we held that under articles 2264 and 2266 of the Revised Oivil Code an unrecorded lease of real estate was “ without effect “null and void, ” as against subsequent bona fide purchasers and creditors of the lessor. These articles were incorporated in the Code of 1870 for the first time, though there was in the Acts of 1855 a statute to the same effect as article 2264. Article 2266, as it now exists, is substantially new legislation, and appears in the Code of 1870 for the first time. AVe do not think these facts warrant or sustain the assertion made by the counsel that we have “suddenly introduced into our jurisprudence a doctrine at toar with the settled views of half a century." As we have seen, article 2266 is but eight years old, and if the jurisprudence were settled differently a half-century ago, we do not feel at liberty to adhere to doctrines -which would be in direct conflict with a later provision of the Code. But as we are not referred by the counsel to any of the cases which establish his views, and knowing of none ourselves, we are dispensed from its further notice. It may be that the rule of article 2266 is a harsh one. ■ If so we are not the proper authority to change it.

But the counsel says that we declare the lease from Clark to Boyd without effect and-null and void as to Summers and Brannins, and yet proceed to enforce it against Boyd. In response to this we have only to say, that when Mr. Boyd’s enjoyment under the lease was disturbed by the seizure he had the perfect right to abandon the premises, and proceed against Clark for restitution of the rents ho had paid in advance (by negotiable promissory notes). But if he elected to continue his possession after the seizure, with the sheriff’s consent, and without changing the terms, there was, as it were, a tacit reconduction or attornment, and the seizing creditor properly measured his claims by the agreed rents.

AVe made no reference to “Maduel vs. Mousseaux,” 29 A. 231, because we did not then and do not now consider that case as iu conflict with ,our views in this. That case announces correctly the general rule as to the liabilities of garnishees. This case rests upon wholly different principles, and is based upon exceptions to that rule. AV'e do not share the counsel’s fears as to the disastrous consequences which are to follow our ruling in this case. On the contrary, we think that the rule of article 2266 is a very salutary one, and in perfect harmony with the theory of our constitution and laws on the subject of registry. If you will not give effect to a sale, or a donation, or a grant of usufruct, or mortgage, or privilege as against third persons, without registry, why should the rule differ for leases, which may be for long series of years ? There is no doubt that the general rule is “that no one can transfer a greater right than he himself has; except (says article 2015 C. C.) where the neglect of some formality required by law luis subjected the owner of the real incumbrance” (such as servitudes, leases, etc.) “to a loss of bis right, in favor of a creditor or bona fide purchaser.” That is precisely the case here. Boyd neglected a formality required by law for the preservation of his rights against creditors of Clark.

This article 2015 fully sustains the other proposition maintained in this case, to wit: that when a lease of real estate has been preserved by the formality of registry, and is made in good faith, without fraud, it is good against subsequent purchasers and creditors, without precedent, mortgages, or privileges, and rents paid in advance by the tenant can not be demanded again or his enjoyment disturbed.

We see no reason to doubt the correctness of our decree in this case, and the rehearing- is refused.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 6962.
    John O’Connor et al. vs. Sheriff et al.
    Matters that eoulcl have been urged by way of defense, on the original trial of a ease, and on appeal from the judgment in the ease, afford no grounds for enjoining the execution of that judgment.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. McVeq, J.

      Herron Bird and Beal for plaintiffs and appellants.

      Jno. H. Lamon, District Attorney, for defendants and appellees.
   The opinion of the court was delivered by

Spencer, J.

In June, 1876, affidávit was made against Brown, Tennant, and others, charging them with shooting on sixteenth June, 1876, one James Ellis, with intent to murder.

Warrants issued and the parties were arrested and committed. Brown and Tennant applied, on fifteenth July, for preliminary examination and the district judge granted an order therefor. An order was also granted fixing the bonds of accused at §500 each, to appear and answer the charge “'of shooting with intent to kill.”

On August 12, 1876, Brown and Tennant, as principals, entered into bond with O’Connor and others (plaintiffs herein) as sureties, in the sum of §1000, for their appearance in the Fifth District Court on seventh November, 1876, pursuant to said order.

At the March term, 1877, the grand jury found an indictment against Brown, Tennant, and others for the murder of one James Ellis on the sixteenth June, 1876.

On April 7, 1877, judgment was rendered forfeiting said bond and giving judgment against the principals and sureties therein in solido for $1000.

The sureties took a devolutive appeal from this judgment of forfeiture, which is now pending in this court.

A writ of fi. fa. having issued on this judgment of forfeiture, the sureties bring this suit to enjoin the sale of their property seized thereunder, and to annul the judgment, for the following reasons:

1. That “ there is no such bond ordered. It does not appear, and the fact is no such bond as the one forfeited, and on which execution has issued, was ever ordered by any competent authority.”

2. “ That at the time of the forfeiture there was no such charge pending against the principals as that mentioned in the forfeited bond.”

3. “ At the time of signing said bond there was no charge pending in the Eifth District Court against said principals.”

4. “There never was and never has been in said court any charge against them for shooting with intent to kill.”

5. “ There is no such offense known in Louisiana as that described in the bond.”

6. That petitioners had no opportunity before judgment to urge these defenses.

The defendants in injunction filed sundry peremptory exceptions, and, among others, that the grounds alleged could only be urged as matter of defense in the court below, or on appeal from the judgment in the proceeding for forfeiture, and could not be set up by way of injunction arid action of nullity against that judgment.

The court below dissolved the injunction and rejected plaintiffs’ demands. They took a suspensive appeal, but failing to prosecute it, the attorney for the State has procured and filed the transcript and prays for affirmance of the judgment, with an amendment, allowing general and special damages.

We think the exception above stated was well taken. All the grounds alleged by plaintiffs were matters determinable by the record of the proceeding in the case of the State vs. Tennant et al., in which the judgment of forfeiture was rendered. It is wrell settled that matters which can be urged by way of defense, and on appeal, afford no grounds for an injunction. This case is not distinguishable from that in 13 A. 111. See 14 A. 656; 25. A. 538; and 26 A. 34. We do not think this a proper case to award damages.

We see no error in the judgment appealed from, and it is therefore affirmed with costs.


author: Marr, L

text:
    No. 6873.
    H. W. Hamlin et al. vs. the Board of Liquidators. Isidore Newman, Intervenor.
    In the absence oí proof to the contrary, it must be assumed that in the issue, and negotiation of certain State bonds nearly twenty-five years ago, the Governor and Treasurer, who were charged with their issue and negotiation, fulfilled the trust confided to them in accordance with the terms of the law which authorized the issue of the bonds.
    Where bonds of the State, payable to the order of a certain payee, and indorsed in blank by the payee, are offered and received in evidence without objection, the indorsements will be doemed sufficiently proved to establish in the holder, a legal title to the bonds.
    Under the plea of general denial, in a suit brought to enforce the funding of certain State bonds, evidence is not admissible to prove an adverse title to the one declared on by the holder of the bonds.
    In suits between holders of bonds and the Board of Liquidation, (under the funding acts of 187-i and 1875) the only question that can bo put at issue is the validity of the bonds, as obligations of the State. The issue of the ownership of the bonds can not be raised, save by a rival claimant, intervening and setting up an adverse title.
    The mere fact that a certain bond of the State belongs to one of'the issues declared by the act of 1675 to be questioned and doubtful, will not authorize the holder of that bond to intervene in a suit brought against the Board of Liquidators by the holder of bonds belonging to another of the questioned and doubtful issues. Bonds of the State that appear to have been issued according to law, and to have had a lawful consideration, are valid obligations of the State entitled to be funded.
    The costs of a suit brought by the holder of bonds to compel the Board of Liquidators to.fund his bonds, must be paid out of the treasury of the State, if the Board is east in the sub.
    j^RPEAL from the Fifth District Court, parish of Orleans. Rogers,

      Kennard, Howe & Prentiss, for plaintiff and appellee.

      H. N. Ogden, Attorney General, for defendants.
   The opinion of the court was delivered by

Marr, L

Plaintiffs, assignees of the Exchange Bank of Canandaigua, allege that they are the' lawful holders and owners of five bonds, Nos. 13, 14, 15, 16, 20, of the State of Louisiana, issued to the Baton Rouge, Grosse Tete, and Opelousas Railroad Company in accordance with Acts Nos. 179, 231, 271, of 1853, in exchange for stock of said company, indorsed by said company, and purchased by their assignees in open market, in the city of New York, in good faith, for value, without notice.

That they desire to fund said bonds, under the provisions of Act No. 3, of 1874; but the Board of Liquidation refuse to fund them, alleging they are forbidden to do so by Act No. 11, of 1875, extra session.

That said bonds were issued in strict conformity to law, and not in violation o£ the constitution oí this State, or of the United States, and for a valid consideration; and that they are entitled to be funded.

They pray that it be decreed that these bonds were issued in strict .conformity to law, and not in violation of the constitution of the United States, or of this State, and for a valid considei ation; and that they ought to be funded.

Isidore Newman intervened, alleging that he is lawful holder and owner for value and in good faith, of one bond of the State of Louisiana, issued under the act for the relief of the State treasury, approved April 30,1853, to the order of the State Treasurer, and by him indorsed, being No. 605 of said issue.

The other allegations and the prayer correspond with those in the petition of plaintiffs.

The Attorney General appeared for the Board ’of Liquidation, and answered the demands of plaintiffs and intervenor by general denial. He afterward.filed amended answers, alleging that the bonds in question are not valid obligations in the hands of relators; that the Act No. 81, of 1872, so far as it authorized the re-issue of the said bonds, is void; and that the State has received no valid consideration for them.

The judgment of the district court was in favor of plaintiffs and intervenor, as prayed for; and we are called upon to review that judgment.

By the constitution of 1845, article 113, the Legislature was forbidden to “pledge the faith of the State for the payment of any bonds, bills, or other contracts or obligations, for the benefit or Use of any person or persons, corporations, or body politic whatever.”

Works of internal improvement, considered to be of great importance to the public interest, were projected, for the prosecution of which the aid of the State was deemed essential; and one of the chief objects of calling the convention of 1852, was to remove the restrictions on the legislative power to contract, imposed by the constitution of 1845. We are indebted to this convention for the constitution of 1852, article 109 of which gave power to the legislature “to grant aid to companies or associations of individuals, formed for the exclusive purpose of making works of internal improvement wholly or partially within the State, to the extent of one fifth of the capital of such companies, by subscription of stock, or loan of money, or public bonds.”

Article 114, of the constitution of 1845, provided that “ the aggregate amount of debts hereafter contracted by the Legislature shall never exceed one hundred, thousand dollars, except in case of war, to repel invasions or suppress insurrections, unless for some single object or work, to be distinctly specified therein.”

Article 110, of the constitution of 1852, fixed the limit of liabilities that might be incurred at eight millions of dollars; and article 111 required the Legislature, in the law creating a debt exceeding one hundred thousand dollars, “ to provide adequate ways and means for the payment of the current interest and of the principal, when the same snail become due.” _ .

The Legislature of 1853, the first that met under the constitution of 1852, exercised freely the power conferred by that instrument. Act No. 179, the sole object of which was “to grant the aid of the State to the Grosse Tete and Baton Bouge Plank-road Company,” made it the duty of the State Treasurer, within ten days after the passage of the act, to subscribe, on behalf of the State, for two thousand shares, of twenty-five dollars each, of the stock of the company, that being one fifth of the whole number of shares, representing one fifth of the entire capital.

The object of Act No. 231, as declared by the title, was “to provide for the manner of giving the aid of the State to railroad and plank-road companies.” It authorized the issue of bonds of the State, each for §1000, having forty years to run, bearing six per cent interest, to the order of the company, to be delivered to the company, at par, in payment for stock taken and subscribed by the State, for an amount equal to one fourth of the amount actually received by the company from its other stockholders. Provision was made for the payment of the current interest and principal of these bonds; and by section two “said bonds may be transferred by the indorsement of the president and secretary of the company.”

The Grosse Tete and Baton Bouge Plank-road Company was organized by notarial act, under the general corporation law of the State. By Act No. 271 of 1853 the charter was «amended, and the company was incorporated under the name of the Baton Bouge, Grosse Téte, and Opelousas Plank-road Company;” and, by section four, “with the vote of two thirds of the stock of said company, said road, or any part thereof, may, at any time, be converted into a railroad or common toll road.”

The testimony of Andrew S. Herron, formerly Secretary of State, proves that the five bonds held by plaintiffs, which are for §1000 each, dated April 7, 1855, were issued to the “ Baton Bouge, Grosse Tete, and Opelousas Bailroad Company, in 1855 and 1856, in exchange for stock of the company subscribed by the State under and in conformity with Acts Nos. 179, 231, 271, of 1853. The railroad was at first a plank-road; but at the time of the issue of these bonds it had been converted to a railroad under its said name, under the provisions of the law.”

The Auditor of Public Accounts certifies that these five bonds, “ in favor of the Baton Bouge, Grosse Tete, and Opelousas Bailroad Company, were issued to said company in accordance with Act No. 231 of 1853.”

Act No. 277 of 1853, entitled “An Act to provide the means necessary for the relief of the treasury of the State,” authorized the Governor to issue bonds, in sums of $500 each, having forty years to run, for the total amount of $750,000. It was the duty of the Governor, forthwith, by publication for sixty days, to invite proposals for the purchase of these bonds, and to accept the best price offered, not less than par. This Act provided for the payment of the current interest and principal of these bonds.

These several acts seem to have been very carefully drawn, and to have been in strict conformity to the power conferred by the constitution of 1852, articles 109, 110, 111.

The five bonds held by plaintiffs, and the bond held by intervenor, and the indorsements on them, appear by the note of evidence, to. have been offered and received without objection. Those held by plaintiffs purport to have been indorsed in blank by the president and secretary of the company to the order of which they were made payable; and the bond held by intervenor purports to have been indorsed in blank by the State Treasurer, to whose order it was made payable.

The mere legal title of these bonds is in the bearer, any holder in virtue of the indorsements in blank by the payees, which, having been offered and received in evidence without objection, were sufficiently proven^ and must have their legitimate effect, that is, to show title in the holders for the purposes of the suit.

The Attorney General offered certificates of the Treasurer to prove that these bonds belonged to the “ free-school fund,” and that they were sold as assets of that fund under act eighty-one of 1872. As they were not issued, and did not originally belong to that fund, the position thus taken by the Attorney General virtually admits the genuineness of the indorsements, by which alone they purport to have passed from the ownership and dominion of the original payees; but, independently of this, the indorsements are sufficiently proven, as already stated.

The five bonds held by plaintiffs are each for the amount and in the form prescribed by the act 231 of 1853. They were transferred by the indorsement of the president and secretary of the company to which they were issued, as authorized by that act; and they were issued and-delivered to the company in payment for stock taken and subscribed by the State, in accordance with acts 179, 231, 271, of 1853, in conformity to articles 109, 110, 111, of the constitution of 1852.

The bond held by intervenor is one of the series each for $500, which the Legislature, by act No. 277, of 1853, authorized the Governor to issue in aid of the treasury of the State. It was proper to make these bonds payable to the order of the Treasurer; and the bond in question was legally transferred and made payable to bearer by the official indorsement in blank of the payee.

In the absence of proof, or even suggestion to the contrary, it must be assumed that what the Governor and the State Treasurer did, nearly a quarter of a eentui’y since, in virtue and in execution of a power and trust conferred by special law, was done in accordance with the terms and requirements of that law; and that the bond held by intervenor, one of those issued for the relief of the State treasury, was negotiated to the highest bidder at not less than par, after proposals had been invited, as required by the act. Indeed, the attempt of the Attorney General to prove that this and the bonds held by plaintiffs belonged to the free-school fund necessarily pre-supposed that they were valid obligations of the State, and that they passed lawfully as such to that fund, in virtue of transfers sufficient to divest the title of the original payees.

It will be observed that neither the original nor the amended answers set up any title or claim to the bonds in question. When the Attorney General offered proof that they had belonged to the free-school fund, and that they were sold under act eighty-one of 1872 at certain rates per cent, counsel for plaintiffs and intervenor objected on the grounds:

First — That the answer is a general denial; and it is not competent for the Attorney General to make the proof sought to be made.

Second — That the bonds on their face do not indicate to any third person or bona fide holder their value, or any adverse ownership of any kind.

The amended answers were filed nine days after this testimony had been offered and admitted; but if they had been filed at that time they contain nothing which would have made it admissible, if it was not admissible under the general denial. If the testimony tended to show that these bonds had belonged to the free-school fund, it tended equally to show that the State had received a valuable consideration for them twice, once when they were issued to the original payees and holders; and again when they were put upon the market in 1872.

The judge of the district court considered the objections as going to the effect not to the admissibility of the testimony; and he overruled them on that ground. We think the testimony was not admissible to prove an adverse title, because no such title was set up in the answers. It was not alleged that these bonds had belonged to the free-school fund, nor that they were re-issued by authority of act eighty-one of 1872.

The difference between these bonds and those held by Durant is manifest. These bonds on their face are negotiable, and they purport to have been negotiated by the original payees. The bonds held by Durant were issued under act 182 of 1857, and were payable to the free-school fund. On their face they were not negotiable; and they were not originally designed to be negotiated. They were given as evidence of the amount of money clue by the State to the free-school fund; and they could not have been lawfully negotiated or put upon the market. 29 An. 77.

By act No. 3 of 1874, provision was made for funding the outstanding valid obligations of the State. By act No. 11 of 1875, the Board of Liquidation created under the Funding Act of 1874 was forbidden to fund certain bonds and warrants, “ the legality of w-hich has been or may be questioned, until such bonds or warrants shall first, by final decree of the Supreme Court of Louisiana, have been declared legal and valid obligations against the State of Louisiana, and that the same were issued in strict conformity to law, and not in violation of the constitution of this State, or of the United States, and for a valid consideration.”

The second section of this act specifies certain bonds, among others, those issued to the Baton Rouge, Grosse Tete, and Opelousas Railroad Company, amounting to @30,000, and those issued for the relief of the State treasury, amounting to @65,000; but it establishes no fact touching their validity, except that it is questioned, and therefore the Board of Liquidation is forbidden to fund them until that question has been finally passed upon by this court, as provided by the first section.

The funding act of 1874 authorized the holders of bonds to bring suit against the Board of Liquidation to enforce their asserted right of funding; but neither that act nor the act No. 11 of 1875 provided the means of litigating and determining questions between the holders and those claiming to be owners adversely to them. No such legislation was necessary, since the general laws are amply sufficient for all such purposes. The suits provided for and authorized by these two acts are to be brought against the Board of Liquidation alone, for the single and specified purpose of testing the legality and validity of any questioned bonds or warrants, particularly the bonds mentioned in the second section of the abt'of 1875. It does not concern the Board to inquire whether or not the holder, who presents a bond for funding, is the real owner. The question which interests the State, the question which the act of 1875 intends to have determined contradictorily with the Board of Liquidation, and in the last resort, is whether the bond which the holder seeks to have funded is a valid obligation of the State, and, as such, entitled to be funded. Any controversy or question as to the actual ownership would be wholly foreign to the issues which the act intends shall be submitted to this court for determination. It may be that the real owner might intervene, and assert his title against the plaintiff, in a suit brought under this act by the holder claiming to be owner; but if any such question could be entertained in such a suit, the adverse title must be set up plainly and distinctly by the person claiming against the apparent owner, the holder; and it can not be proven incidentally in a suit in. which the holder and the Board of Liquidation are the only parties.

The act of 1875 provides that suit may be brought by tax-payers,, and that they may intervene in any suit brought against the Board of Liquidation, to test the legality of any warrants or issue of bonds; and it authorizes the holder of such securities, the legality, validity, or consideration of which is questioned in such suit, to intervene for the protection of his rights.

It is manifest that the intervention of Newman in this case is not authorized by this act. The bond held by him is not questioned or attacked in the suit; nor is there any thiDg in common between it and-the bonds held by plaintiffs, except that they respectively belong to-issues which are questioned, and which the Board of Liquidation is', forbidden to fund, except on the final decree of this court. The case of the intervenor was put at issue and passed upon in the district eourtr. without objection; and we see no good reason why it should not be disposed of in this proceeding; but we think confusion might arise if the-holders of bonds in no way connected with those which the plaintiff seeks', to have funded, issued under a different law, for wholly different purposes, to different payees, are permitted to intervene, and to have their separate and distinct demands passed upon in that suit. We mention this now in order that such unnecessary complications may be avoided.

Plaintiffs and intervenor in their answers to the appeal ask that the judgment appealed from may be so amended as to decree that the costs be paid from the State treasury; and we think they are entitled to this relief under the first section of act No. 11 of 1875.

We find and declare, and we intend that our decree shall not extend beyond this, that the five bonds held by plaintiffs, each for $1000, Nos. 13,14,15,16, 20, issued to the BatorÍ Rouge, Grosse Téte, and Opelousas Railroad Company, indorsed in blank by the President and Secretary of the company, and the bond held by intervenor for $500, No. 605, issued for the relief of the State treasury, indorsed in blank by the payee, the Treasurer, are legal and valid obligations against the State of Louisiana; and that the same were issued in strict conformity to law, and not in violation of the constitution of this State or of the United States, and for a valuable consideration; and that they are entitled as such to be funded.

If there is any adverse title or claim to these bonds, it must be asserted and litigated in a proceeding wholly different from this, and between the proper parties. The apparent legal title is in the plaintiffs and intervenor; but if some other persons are the real owners, our decree does not preclude them.

It is therefore ordered, adjudged, and decreed that the judgment-appealed, from be so amended as to decree that the costs of this proceeding, as well in the district court as in this court, be borne by the State of Louisiana, and be paid from the State treasury in accordance with the terms and provisions of section one of act No. 11 of 1875, extra session; and, as thus amended, that said judgment be affirmed, with the reservation of the rights of all persons whomsoever claiming to be the owners of the bonds the subject matter of this suit.


author: Manning, C. J.

text:
    No. 6888.
    The State ex rel. Herbert Geale vs. the Recorder of the First Recorder’s Court of New Orleans.
    The writ of certiorari, issued by a superior to inferior court, lies not only in causes of which the superior court has appellate jurisdiction, but likewise in causes in which there is no appeal, and whore the inferior court is of the last resort.
    The only court authorized to issue a writ of certiorari to an inferior court, is the one to which all appeals from the inferior court are made returnable.
    This .court has not appellate jurisdiction of criminal cases before the Recorders’ Courts of New Orleans, when the penalty imposed is not death, nor imprisonment at hard labor, nor a fino exceeding three hundred dollars, nor where a line or penalty imposed by municipal corporation is not involved; and hence is without authority, in such cases, to issue writs of oei'tiorari to the Recorders’ Courts. •
    A fine or penalty imposed by a State law, to bo exacted by the magistrates of a municipal corporation for the use of the corporation, is not a fine or penalty imposed by the corporation.
    The exercise of judicial power by the Recorders of New Orleans, when not extended further than the cognizance of eases arising under the regulations for the police of the city, is constitutional. Such cases need not be tried by jury.
    REPLICATION for a writ of certiorari.

      R. Hutchenson and Chas. S. Rice for relator.

      Jno. A. Campbell for respondent.
   The opinion of the court was delivered by

Manning, C. J.

Herbert Geale was arrested upon a warrant, issued by one of the Recorders of New Orleans, for selling or otherwise disposing of a policy, combination, or device in a lottery to be drawn in this city, without license or permission of the Company now authorized by law, and in violation of an act of the General Assembly. He applied to this court for a writ of certiorari, commanding the Recorder to send up a certified copy of the proceedings in the cause then pending before him, to the end that their legality may be inquired into and determined, and also for an order injoining him from proceding further therein until this Court had acted upon the same. Provisional orders were made ■accordingly, and the Recorder having answered, we have now to determine whether the relator is entitled to the relief he has sought.

The law which Geale is charged with violating is an act relative to ■the unlicensed sale of lottery tickets in New Orleans, and conferring on "the police courts the power to suppress such sale. Acts 1874, p. 47. The petition alleges that, according to the provisions of this act, no appeal lies from a final judgment of the Recorder to this Court, or to any District court, and hence the judgment of the Recorder will be a decision of the court of the last- resort, if he shall try and convict the relator upon ■this charge. It is then alleged that the Recorder is an inferior judge, over whom this court has immediate appellate jurisdiction — that he •ought not to be permitted to take jurisdiction of the cause, or to proceed to the trial of relator, for the reason that he would be exercising judicial power which the legislature was not competent to confer upon him — that the Act, with the violation of which he is charged, is unconstitutional in so far as it attempts to confer this jurisdiction upon the police court, ■because it contravenes arts. 73 and 94 of the Constitution, and because it denies the right of trial by jury for an offense against the State, and is partial and unequal in its operation.

The answer of the Recorder is: — “ The respondent comes in obedience to the mandate of the court and for answer to the rule says,

1st. That the cause before him as Recorder, described in the order and mandate of the Court, under the constitution and laws of the State is not examinable in this Court in manner and form as proposed in the petition and rule, and that this Court ought not to take cognisance of the same.
“ 2d. That this respondent had jurisdiction of the said cause under the constitution and laws of this State, and. was proceeding regularly and lawfully in the determination of the same as he might, and that this honorable court ought not to entertain any motion or proceeding to arrest him, and because that he was proceeding lawfully and regularly in a matter submitted to him by the Constitution and laws, and ought to continue to exercise the jurisdiction conferred by them, and because this honorable court is not charged with authority to suspend his proceedings, he prays judgment and that he may be discharged from further answer, and be allowed to proceed as he was proceeding.”

An inquiry into the nature and purpose of the writ of certiorari is necessary to the proper presentation and understanding of the question submitted to our decision.'

The writ has its origin in the Common Law. Blackstone assigns to it four purposes, 1. to consider and determine the validity of appeals or indictments, and the proceedings thereon, and to quash or confirm them as there is cause, 2. where it is surmised that a partial or insufficient trial will probably be had in the court below, the indictment is removed in order to have the defendant tried in the Queen’s Bench, or beforls the. justices of nisiprius. The other two purposes need not be noticed. The writ, when issued to the inferior court for removing any record or other-proceeding, as well upon indictment as otherwise, supersedes the jurisdiction of such inferior court. Comm, book IV. p. 321. Afterwards,, another purpose was assigned to it, viz to complete the records of a civil cause, and it is to effect this purpose that it is commonly invoked here,, but it is also used in the common law States- to remove either a civil or criminal cause from an inferior to a superior court for the purpose of inquiring into the validity of the proceeding in the lower court. In England, certiorari would lie from the Court of Queen’s Bench to justices, even in cases which they were empowered finally to hear and determine. 2 Haw. P. C. 286.

That these features of the writ were intended to be preserved here, at least in part, is manifest from the peculiar provision of art. 857 of our Code of Practice; — this mandate is only granted in cases where the suit is to be decided in the last resort, and where there lies no appeal, by means of which, proceedings absolutely void might be set aside. And that it was intended to be applied to both criminal and civil causes is apparent from the instances, given by way of illustration, where the-writ may be used — when the inferior judge has refused to hear the party or his witnesses — when he has pronounced sentence without having cited them to appear.

It will be observed then, that this article of the Code of Practice, so far from restricting the operation of the writ to causes of which the superior court has appellate jurisdictton, was framed expressly for those causes wherein there was no appeal, and where the inferior court was of the last resort. Then as to the. source from which the writ must emanate, art. 860 provides that it can only be directed to an inferior judge by the court having immediate appellate jurisdiction over him, and by no-other — not that the court issuing the writ shall be vested with jurisdiction of the cause, for the removal of which the writ is sought, but it must be the court to which appeals lie direct from the judge in such causes as are appealable.

The peculiarities of these two articles have been to all appearance very little noticed in our jurisprudence. The petition in this cause, so far from asking for the writ to bring before us a cause that is appealable, makes the fact that the cause is unappealable the foundation of the relator’s right to the writ. It is because the judgment of the Recorder, when pronounced, will be a decision in the last resort, that he prays the issuance of a writ which will enable us to set aside proceedings that he claims are absolutely void.

Now if we derived our jurisdiction from the Code of Practice, we ■should unquestionably have the power to have the proceedings of the Recorder brought before us for examination of their validity. That Code contemplates and provides for such examination in unappealable cases, arts. 855-866. We have therefore to inquire whether we are forbidden or permitted by the organic law to take jurisdiction of “this cause.

The Constitution commands that we shall have appellate jurisdiction only, except in cases which it alone shall designate, and it has designated but one, i. e. the power to issue writs of habeas corpus, in cases where we may have appellate jurisdiction. The cases to which this jurisdiction shall extend are enumerated and classified, and among them are those in which the constitutionality or legality of any fine, forfeiture or penalty imposed by a municipal corporation shall be in contestation, whatever may be the amount thereof. In criminal cases ‘the jurisdiction is of questions of law only, whenever the punishment of death, or imprisonment at hard labor, or a fine exceeding three hundred ■dollars is actually imposed. In civil cases, the matter in dispute must exceed five hundred dollars, art. 74.

All the previous constitutions of this State had similar provisions except that of 1812, which simply conferred appellate jurisdiction and applied it to all civil causes involving a specified sum. art. IV. sec. 2. The constitutions of 1845 (art. 63) and of 1852 (art. 62) are like that of 1868 in this respect, except that the latter provides that an appeal will lie to this court direct from a judgment for a fine, forfeiture, or penalty imposed by a municipal corporation, whatever may be the amount thereof. The adjudications of this court upon these corresponding articles in the earlier constitutions are therefore authority in the interpretation of the one now in force.

The objection of invalidity, because the relator is deprived of the right of trial by jury by the Act in question, may be disposed of with the remark that the contrary has been long held to be a sound construction. State v. Gutierrez, 15 Annual, 190. So also, the argument on the part of the respondent’s counsel, that the issuing of the writs applied for by relator is not allowable, because of the uniform decisions of this court, that writs of mandamus, prohibition, etc. will only be issued in •aid of its appellate jurisdiction, does not apply here. Art. 857 contemplates, and in terms provided for, a writ of certiorari, specially adapted to such cases as are not appealable. ■ .

Considered as a civil cause alone, our jurisdiction does not attach to ■the proceedings of the Recorder, because the matter in dispute is only twenty-five dollars. Considered as a criminal causé, we have not jurisdiction because the penalty imposed is not death, nor imprisonment at hard labor, nor a fine exceeding three hundred dollars. There remains, for inquiry whether the case falls within the definition of a fine, or penalty imposed by a municipal corporation.

Two acts were passed by the General Assembly on the same day-relative to the sale of lottery tickets. The first enacts that any person-who shall within the city of New Orleans sell a lottery ticket' without license of the company now authorized by law, shall be liable to pay a fine of twenty-five dollars to the City, one half of which shall be for the benefit of the informer, and imposes upon any police officer the duty of' arresting such person, and of taking him .before the police court of the district, wherein the violation may have occurred, which court shall condemn the offender to pay the fine, or in default of payment, to imprisonment for five days. Acts 1874, p. 47.

The second makes the same act of any person, done any where in the State, a misdemeanor, punishable by imprisonment of not less than ten days nor more than a month, and a fine of not less than fifty nor more than two hundred dollars, one half of which is for the informer and the other for the parish wherein the offense was committed. Idem,. p. 48.

The thought in the mind of the legislator evidently was that the act denounced and punished by the first law was not an offence against the State, for if it had been, its operation would have been made to extend through the whole State, and the second act would have been, superfluous. The relator in his petition denominates it a State offense. But if he has correctly denominated it, then it is not an act for which a fine- or penalty has been or can be imposed by a municipal corporation, and our jurisdiction would fail on that ground. Fines, forfeitures, and penalties are imposed by municipal corporations for violations of their ordinances. But the power of the State to impose fines and penalties for-the same act that is punishable by a municipal ordinance is well established. The fact that the State has conferred upon a corporation the power to pass ordinances and impose penalties for the regulation of any-specified subject does not necessarily supersede the State law on this, same subject, but the State law and the City ordinance may both stand, - if not inconsistent. Thus in New York, the legislature imposed a penalty of one dollar for servile labor on Sunday, and the corporation of theCityof New York imposed a penalty of five dollars for the same offence. Both were held good. Oooley says, the same act may constitute an offence against both the State and the municipal corporation, and may be punished under both without violation of any constitutional principle. Const.. Lim. 199. So also Dillon; — The State may, and as to local matters often does except municipal corporations from the operation of its laws, and either provides a special law for them, or authorizes them to make special regulations for themselves. •* * Hence the same act is sometimes forbidden by general statute, and by the ordinance of a municipal corporation, each 'providing a separate and different punishment. Munic. Corp. g 301.

The fine impending over the relator is not imposed by an ordinance of the City, and hence we haye not here the case of an act twice forbidden by distinct and several authorities, viz the State law and the municipal ordinance. But in principle it is the same. A corporation has no power to pass any ordinances whatever except in so far as that power is actually delegated to it by the State, or is imparted to it by implication, as flowing necessarily from the grant of a general power to regulate its administration. The State need not grant a corporation the power to make any ordinance whatever, but may reserve to itself the entire and exclusive control of the administration of each city or town within its limits, but convenience and necessity have always prompted the delegation of those powers to the corporation. As the corporation derives the power to pass ordinances from the State, it follows that the State can enact a law for the corporation, and accordingly the State in 1874 did pass on the same day the two laws already mentioned. The fine or penalty provided by these acts is in neither case imposed by a municipal corporation. The first makes a police regulation for the government of a particular city, and confides its enforcement to the police magistrates of the city. The second makes the same act an offence against the State, punishable by the State courts,.and it is only when the fine or penalty is imposed by a municipal corporation that we have jurisdiction. New Orleans v. Blanc, 1 Annual, 385. Travers’ ease, 3 Annual 693.

And this brings us to the consideration of the last objection of the relator, i. e. that the legislature could not constitutionally confer judicial power upon the Recorder.

The judicial power of this State is vested in a Supreme court, in district courts, in parish courts, and in justices of the peace, (Const. art. 73) and no judicial power, except as committing magistrates in criminal cases, shall be conferred on any officers other than those mentioned above, except such as may be necessary in towns and cities, and the judicial powers of such officers shall not extend farther than the cognisance of cases arising under the police regulations of towns and cities in the State, art. 94.

We are met on the threshold here-by the well settled jurisprudence of this State, that no appeal will lie to this Court from a j udgment for less than the sum mentioned in'the constitution, rendered by a mayor or police magistrate of a town for an alleged infraction of an ordinance of the corporation, where the only question raised is the constitutionality of an act of the legislature vesting judicial power in the officer who rendered the judgment. Donaldsonville v. Richard, 4 Annual 83. Municipality v. Corning, idem 407. Albert v. Brewer, 9 Annual 64. State v. Rebassa, idem 305. Penn v. Municipality, 4 Annual 13.

The case of Lafon v. Dufrocq, 9 Annual 350 is cited as authority for the want of power of the legislature to confer judicial power upon the police magistrate of a town, but that decision was based on the constitutions of 1845 and 1852, which did not contain any provision similar to art. 94 of the present Constitution, which, as we have seen, makes special mention of the ‘judicial powers’ that are permitted to be conferred upon such officers as may be ‘necessary in towns and cities.’ We therefore hold that the exercise of judicial power by the recorders of New Orleans, when not extended further than the cognisance of cases arising under the regulations for the 'police of the city, is not unconstitutional.

Even without this delegation of a partial and limited judicial power to a police magistrate, it has been elsewhere held that the power could be exercised because it was not in the strict sense judicial. Thus where the power of the mayor of Hagerstown to try and fine under an ordinance imposing a fine for an offense was disputed, and the same offense was punishable by the State as a misdemeanor, and the constitution of Maryland was like our own in respect to the coui’ts wherein judicial power was vested, it was said; — the argument that the mayor could not try and fine under the ordinance, because the exercise of such power is judicial, which by the Constitution is confided to certain classes of persons, would be entitled to great weight, if we thought the power exercised by the defendant was, in the sense of the Constitution, a part of the judicial power. But we entertain no such opinion. We regard it as but a part of the police power, as contradistinguished from the regular judiciary powers of the State. From time immemorial, a distinction has been observed between the two, both in England and this country. * * * We regard the power, conferred on the corporation of Hagerstown, to summarily punish persons of the description of appellant, as falling directly within the definition of a police regulation. She was punished for an offense against the decency and morals of the town, and not against those of the State. This did not wipe out all responsibility for the offense to the dignity and sovereignty of the State. Shafer v. Mumma, 17 Md. 331. See also Floyd v. Eatonton, 14 Ga. 354 on this point, and also on thar of non-trial by a jury.

We have therefore arrived at the conclusion that we can not grant the relator the relief by a writ of certiorari to bring up the proceedings of the Recorder, to the end that inquiry of their validity be made, because of our want of constitutional power to exercise the jurisdiction. We readily concede, and have endeavored to demonstrate, that the Code of Practice intends that the writ shall issue in an unappealable case, wherein the judgment is of the court of the last resort, but that Code is not the source of this court’s jurisdiction, and its provisions relative to the issuing of that writ under the circumstances ot this case are inapplicable to this court, because the Constitution has in- express terms limited its original jurisdiction to the issuance of the .habeas corpus, and. in all other causes has conferred appellate jurisdiction alone. Shalor’s case, 9 Annual, 522. Taenzer’s case, 15 Annual, 120.

We are urged to interpose to prevent the infliction of a grave and flagrant public injury. But it would be a graver injury if this court should overstep the bounds set up by the organic law, within which it must move, for the purpose of correcting any evil, however flagrant.

It is adjudged and decreed that the writ of certiorari is refused, and the restraining order, heretofore issued to the Becorder, is cancelled and annulled at the costs of the relator.


text:
    No. 6977.
    State of Louisiana vs. Richard Smith, alias Dick Smith.
    In putting questions to witnesses in a criminal trial it is not permitted to assume as true, facts which, have not been proved, and which the jury alone are charged with finding.
    One witness can not testify in a criminal trial as to what another witness said on the examination before the committing magistrate, when that other witness is present in court, and not disqualified, and when it is not sought to contradict him.
    The mere fact that an accused when under examination before a magistrate does not rise up and contradict the witnesses who testify against him, does not warrant the implication that he thereby confesses the truth of their statements.
    To make the declarations of others evidence against an accused, when made out of his presence, it must be first shown that there was a conspiracy between him and them.
    APPEAL from the Sixth Judicial District Court, parish of Tangipahoa. Duncan, J.

      H. N. Ogden, Attorney General, and J. H. Muse for the State.

      Jas. M. Thompson and E. F. Bussell for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

The defendant was indicted, tried, and convicted on a charge of murdering one Eliza 'Whittington; was found guilty and sentenced to death. lie appeals, and presents for our consideration various grounds for reversal of the sentence.

The first and second bills of exception present substantially the same questions, and may be considered together.

The district attorney asked a State witness the following question:

“ Leaving out of view the delusion that you were first under, when you saw an individual at and going round the house in which the murder was committed on the evening of Friday, March 16, that it was the-brother of the deceased; and taking into consideration the description which you have heretofore given of the person of the individual whom you there saw, and supposing that the hat now exhibited to you, and which has been shown to have been worn by the accused on the day on the evening of which the murder was committed, had been worn by him (the defendant) on the seventeenth March when he appeared before the coroner’s inquest, and, also, the shirt which he now has on, in an unwashed state, and also the pants which he now has on, would you, on that occasion, have had any doubt o£ the identity of the accused with the person above described and referred to ? ” Defendant’s counsel objected to this question, on the grounds that it presents a “ supposititious” case; that it is an attempt to elicit the opinion of the witness on a state of 'facts not established, and to elicit the witness’s conclusions from a supposed state of facts — functions belonging exclusively to the jury. The objections were overruled and the witness allowed to answer. We think the court erred. This question is doubly objectionable. It assumes as true, and as already proved, two important facts, to wit: that the witness’s first impression (that the person he saw was the brother of deceased) was a delusion; secondly, that the identical hat exhibited had been worn by the deceased on the day of the murder. In the next place, it is an attempt to identify a person upon a supposed state of facts, and that by the opinion of the witness. The witness had evidently testified that he took the person seen going round the house where the deceased was shot to be her brother. The question i-equires him to ignore this impression as a delusion, then proceeds to dress up and exhibit to the witness a man of straw, and then solicits the witness’s opinion whether he would have entertained any doubt of the identity of that imaginary man with the accused. It was the province of the witness to state facts, and of the jury to draw inferences, opinions, and conclusions from those facts. In asking a question it is not permissible to assume as true facts which the jury is alone charged with finding. Thus, whether the witness’s first impression was or was not a delusion, whether the hat exhibited was or was not the one worn by accused on the day of the murder, were questions to be determined by the jury, upon the facts sworn to by the ivitnesses, and not upon the assumption of the counsel.

Greenleaf, in Part 3, chapter 3 §434, says: “The interrogatory must not assume facts to have been proved which have not been proved, nor that particular answers have been given which have not been given. The witness, except in certain cases hereafter to be mentioned, is to be examined only as to matters of fact within his own knowledge, whether they consist of words or actions; and to these matters he should, in general, be plainly, directly, and distinctly interrogated. Inferences or conclusions which may be drawn from facts, are ordinarily to be drawn by the jury alone, except where the conclusion is an inference of skill and judgment; in which ease it may be drawn by an expert, and testified by him to the jury.”

The third bill of exception was taken to the ruling of the court permitting a State witness to testify to the statements made by another witness, Esther King, on her examination before the committing magistrate and in presence of the accused. The defendant objected, on the ground that Esther King was alive and present in court; that the evidence sought is hearsay, and not the best evidence. The court admitted the evidence of these statements, because “ the testimony of Esther King had not been taken down in writing ” by the committing magistrate.

It is difficult to perceive upon what principle of law A is permitted to testify as to the statements made by another witness, B, when B is present in court, and in no way disqualified, and when it is not sought to contradict or discredit B.

It was argued that this evidence was offered in order to show an implied confession by the accused — inasmuch as th.ese statements of Esther King were made in his presence and not contradicted by him. Even if a confession could be implied under such circumstances, still Esther King’s own oath was the best evidence of what she had previously stated. But it is manifestly a misconception of the law to hold that because an accused, undergoing an examination in court, does not rise up and contradict each witness, that he thereby tacitly confesses the truth of their statements. The accused is not only under no obligation to do so, but in no properly conducted trial would be permitted to do so. Greenleaf says, part II. chapter XI. par. 197, note 3: “ To affect a party with the statements of others, on the ground of his implied admission of their truth by silent acquiescence, it is not enough that they were made in his presence; for if they were given in evidence, in a judicial proceeding, he is not at liberty to interpose when and how he pleases though a party, and therefore is not concluded.”

In Archbold’s eighth edition, page 380, we'find the following: “ Where a man, atfidl liberty to speak, and not in the course of a judicial inquiry, is charged with a crime and remains silent, that is, make no denial of the accusation by word or gesture, his silence is a circumstance which may be left to the jury.”

The fourth bill of exceptions was taken to the admission by the court of testimony going to show the declarations of an unnamed third person of his purpose to use money to have the deceased removed from the neighborhood, and going to show that the accused was a frequent visitor at the house of said unnamed person. The defendant objected that the declarations offered were those of unnamed and, to him, unknown parties; that until a conspiracy had been shown between him and such unnamed party the declarations of the latter were inadmissible against him. The court overruled the objections as going rather to the effect than to the admissibility of the evidence. The court erred. No principle is better settled than that to make the declarations of others evidence against an accused when made out of his presence, it must be shown that there was a conspiracy between him and them. Besides, it was unfair to conceal or withhold the name of the party whose declarations were sought to be offered. They should have been excluded. It is unnecessary to notice the other bills.

The verdict and sentence must be set aside and the cause remanded for a new trial according to law, and it is so ordered.


text:
    No. 6950.
    Succession of S. M. Hyams.
    When a parish judge is recused in any ease on the ground of personal interest, he can not appoint a lawyor to try the ease in his stead.
    The fact that the wile ol the judge is one ol the parties to the suit is sufficient to recuse him on the ground ol personal interest, whether she be separate in property Irom him or not.
    APPEAL from the Parish Court of Natchitoches. Breda, J., special judge.

      Chaplin, Cunningham & Chaplin and Morse & Dranguet for succession and appellant.

      J. M. B. Tucker for opponents.
   The opinion of the court was delivered by

Manning, C. J.

The succession of S. M. Hyams is insolvent and is administered by Lemée as syndic, who filed the final account of his gestión in August, 1877. The Laplace heirs, claiming to be judgment creditors of the deceased, opposed its homologation. The parish judge is the husband of one of the opponents, and recused himself because of interest, and selected a lawyer to try the case, who accordingly heard and determined the contestation. Exception vyas made to the right of the parish judge to select a lawyer to act as judge ad hoc, when the ground of recusation was personal interest. The exception is good.

The judge selects a lawyer to try a case in which he maybe recused, when he is not personally interested in the matter in contestation. Const, art. 90. When the wife of the judge is a party to the cause, he is personally interested sufficiently to deprive him of the power to select a lawyer to try it. And we do not choose to put this inability on the ground that the legal presumption of a community of acquets between the spouses exists, for it would be the same if the judge and his wife were separate in property, but rather on the ground that if the phraseology of the constitution left the question doubtful, we will in construing it incline to the side of good morals and decency, and hold that the constitution did not intend that a shadow should be thrown over the fair face of justice by interposing a suspicious object between it and the light of impartial truth.

The whole proceedings now before us are coram nonjuclice. Therefore

It is ordered and decreed that the judgment appealed from is reversed, and the cause is remanded for trial, the appellees paying costs of appeal.


text:
    No. 7015.
    J. P. Smith vs. the Parish of Madison.
    The police jury of a parish have no power to issue its warrants, or paper of any' kind, negotiable or otherwise, for any purpose, unless specifially authorized to do it by the Legislature, and the means of paying the debt are provided for in the ordinance creating it.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J.

      Seale & Morrison for plaintiff and appellant.

      Isaac H. Crawford for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff is the holder of ten warrants on the parish treasury of Madison, drawn in this way;

Delta La. Sept. 29 1869
Treasurer of Madison Parish La. pay to Walter 33. Brockett or order the sum of one hundred dollars with eight per cent, interest from date, payable annually, to be paid out of the first funds coming into the parish treasury. JOHN P. EDEN, Pres. Police Jury.
Attest; Jos. A. Hebert, clerk police jury.
They were endorsed.

The allegations of the petition are, that these warrants were drawn on funds provided to be raised by the police jury, by an estimate of necessary expenditures duly published, for the purpose of erecting needful public buildings, and that an assessment of taxes was made therefor, and the taxes were collected and paid into the parish treasury, and were diverted to other purposes.

There was an exception to the sufficiency of the allegations to shew a cause of action, and also to the legality of the service of citation, but we prefer to settle the question of the validity and binding force of the warrants at once, without dealing with these preliminary matters.

The defendant pleads want of authority in law for the emission of the paper. The plea is good.

On Sept. 10, 1869, the police jury passed an ordinance authorizing its president and clerk to issue scrip to the amount of fifteen thousand dollars in sums of one hundred dollars each, to bear eight per cent, interest, and to be applied to the erection of public buildings, and appointed a committee to dispose of the scrip at a discount not exceeding ten per centum, and directing the scrip to be paid out of any money coming into the treasury before all other claims. On the first of the same month, the jury had directed the assessment of a tax of five hundred per centum upon the amount of all the taxes assessed by the State for 1868, for the purpose of defraying the necessary expenses of the parish, and a further assessment of fifty per centum upon the same sums for bridges and roads.

The police jury is without authority to issue its warrants or scrip, or paper of any kind, negotiable or otherwise, for the purpose of providing a fund for building or for any other purpose, unless specially empowered thereto by an act of the General Assembly, and without providing in the ordinance creating the debt the means of paying it. The plaintiff’s counsel state that the ordinance does comply with this last requisite. We are unable to discover how any provision is made for the payment of the' debt by the simple declaration that the scrip shall be paid out of any money coming into the treasury.

The police jury appear to have wanted fifteen thousand dollars of money, and it therefore issued negotiable paper for discount, and ordained that the first funds coming into the treasury shall- be used to take it up. The powers of police juries are limited. They can not exercise any others than those specially delegated to them, and all persons dealing with them are bound to ascertain the extent of their authority, and there can be no better illustration of the wisdom of that rule of law than the present instance. The taxable property within a parish can not be burthened by the obligation to pay for the redemption of paper or bills, emitted by its police jury, without special authorization in the form and manner designated by law. There was no authority of any kind in this case.

Judgment affirmed.


author: Marr, J. Egan, J.

text:
    No. 6971.
    Succession of D. P. Jackson. Opposition of Heirs to Provisional Account of Administratrix.
    The decree of the lower court will not be disturbed on the ground of its alleged nonconformity to evidence not submitted to the inspection of this court.
    Where it appears that the services of an attorney in settling up the complicated affairs of a succession have been long continued, wisely directed, and valuable, this court will be guided as to the money value of his services (in the absence of special agreement as to his fees, and of specific evidence as to the extent of his services) by the opinion of the local bar to which he belongs.
    ^PPEAL from the Parish Court of Tensas. Cordell, J.

      Wade R. Young for opponents and appellants.

      St. Vincent Reeves for administratrix and appellee.
   The opinion of the court was delivered by

Marr, J.

May E. Wood, James Jackson, and Kate A. Bailey, children and heirs of Dempsey P. Jackson, opposed the provisional account of the administratrix, their mother. The parish court maintained their opposition with respect to the amount claimed for fees of the attorney for the succession, which was reduced $300; and the account was homologated as rendered in all other respects. The heirs appealed; and the administratrix asks in her answer that the judgment be so amended as to allow the full amount charged in the account.

Before proceeding with the ease we think it proper to say that a paper styled the protest of the heirs was filed in the parish court, and is copied in the transcript, which the parish judge should not have allowed to be filed. It could not have been written by or under the advice of a lawyer; nor would any respectable lawyer have sanctioned it. The counsel for the heirs asked us not to notice it; and he repudiated it as soon as he was employed in the ease. It is couched in such terms and manifests such temper and spirit as should not be tolerated in a judicial proceeding, and should not be permitted to pass unrebuked. The parish judge should have reprimanded any member of the bar who would have ventured to offer and file such a paper; and he should have strioken this paper from the files of his court.

The opposition to the other items of the account rest upon- the allegation that they are in excess of the amounts actually paid by the administratrix, as evidenced by the vouchers. The vouchers are not copied in the transcript; and we can not question the sufficiency of testimony not submitted to us which was submitted to the parish judge. We must presume that the judgment was in accordance with the vouchers which were exhibited; and that it is correct, so far as the items in question are concerned.

Dempsey P. Jackson lived in Adams county, Mississippi, where he died in 1874. He had owned a plantation in Tensas, which, some time before his death he conveyed to his wife in payment of her paraphernal claims, amounting to $13,664. The immediate cause of his making this conveyance was the pressure of certain large debts, on which suits were threatened. The conveyance was made under the advice and with the assistance of Messrs. Reeves and Parrar, who were then partners. Mr. Parrar testifies that he considered the conveyance to be valid; but he has no doubt that Jackson made it in view of the threatened suits. Jackson informed Mr. Parrar, some time after the conveyance was made, that he had settled these claims.

The title to the entire property wras in Mrs. Jackson at the time of her husband’s death; and the conveyance was recorded in Tensas parish. There was no retrocession; nor is there any proof of the existence of any counter letter or other similar writing.

Jackson was largely indebted at the time of his death; and, among others, he owed H. S. Buckn,er, of New Orleans, some $7000. There was reason to apprehend that suit would be brought to set aside the conveyance to Mrs. Jackson, and to subject the property to the claims of Jackson’s creditors. It was, therefore, deemed advisable to have the property administered as belonging to the succession of Jackson; and the whole was inventoried as if .the title had been in him at the time of his death. The appraisers state in the inventory that it was represented to them that the property belonged to the community.

Mrs. Jackson qualified as administratrix; and it was through the influence of Mr. Reeves that a responsible citizen of Tensas parish became her surety on the bond required of her. She and her children, the heirs of her husband, joined in. a mortgage to Buckner; and it was by the agency of Mr. Reeves that this arrangement was consummated, by which the apprehended suit was avoided.

Precisely how or upon what theory the property was brought back into the succession we are not informed; and Mr. Parrar, who assisted in making the conveyance to Mrs. Jackson, frankly confesses that he does not know how that was accomplished. As between Jackson and his wife, during his life, the conveyance was conclusive against him, in the absence of a counter letter, or some equivalent writing; and after his death his heirs were equally concluded.

Perhaps, after the death of Jackson, Mr. Reeves had an opportunity to examine papers left by Jackson, and to obtain information of which he was ignorant at the time the conveyance to Mrs. Jackson was made, which satisfied him that a suit by the creditors of Jackson to subject tM property could not be successfully resisted; and to avoid the scandal of a litigation, based upon the fraud of the deceased and his widow, whom ■the heirs describe as “ our aged and infirm mother,” it was wise in Mr. Reeves to advise, and-wise in Mrs. Jackson to consent, that the conveyance to her should be ignored, and that the property should be administered as belonging to the succession, without respect to a title which neither Mr. Reeves nor Mrs. Jackson was willing to rely upon as against Jackson’s creditors.

The ago, experience, and reputation of Mr. Reeves preclude the theory that he advised Mrs. Jackson to abandon to the succession and to the creditors of her husband property which she held by a just and legal title. As we do not know what trouble, labor, and skill were necessary to enable Mr. Reeves to advise Mrs. Jackson properly, in view of his duty and obligation to protect her interests as well as the interests of the succession, we have no standard by which we can estimate the pecuniary value of this part of his services. His position was one of delicacy and of responsibility; and if he erred it was to the prejudice of Mrs. Jackson, not to the injury of the succession or of the heirs. The succession was benefited to the extent of the value of the property thus restored to it; and the heirs will be benefited to the extent of the residue which will fall to them after the payment of the debts. Surely th'e heirs have no right to complain that this large property was brought back into the succession by the voluntary act of their mother under the advice of her counsel. <

In the last year of Jackson’s life, he had, by contract in writing, leased the plantation in question to colored laborers. After the death of her husband Mrs. Jackson considered the contract as abandoned; and she made a verbal contract with the laborers, the effect of which was to give her a larger share of the crop than she would have had under the lease granted by her husband. Some eight or ten suits were brought by persons claiming liens on the crop for supplies furnished the laborers under the lease granted by Jackson. There was much complication in the affair; but the whole was compromised and settled through the agency of Mr. Reeves; and the succession had the benefit of the crop in accordance with the verbal contract with Mrs. Jackson.

There was a suit brought by the administratrix against Dreyfus for four bales of cotton, which was decided against her; and there was a suit brought by Muldoon against the administratrix which resulted in a judgment in his favor for some $300. Mr. Reeves represented the administratrix in both these cases.

It was proven that Mr. Reeves assisted in the taking of the inventory; and that he made a compromise with Watson, a creditor, by which $500 were saved to the succession. It seems that Mrs. Jackson cultivated the plantation in 1875, and that she met with heavy losses. By the advice and with the assistance of Mr. Reeves, she leased the property for three years, by authority of the parish court, at $4000 for 1876, and $5000 for each of the years 1877,1878; and Mr. Reeves believed that this arrangement would enable the administratrix to pay the debts of the succession, and to save the property.

It was agreed by Mrs. Jackson and Mr. Reeves, in writing, to leave the amount to be paid him for his professional services to the opinion of the members of the St. Joseph bar. They agreed upon $1200, as proper compensation for his services to date, January, 1876. Mr. Reeves testified that he considered the fee in the Muldoon case included in this-award. Subsequently, in January, 1877, he prepared and filed the provisional account, for which it is proven that $100 would be a proper fee;, and it is also proven that $50 would be a. reasonable fee for the services of Mr. Reeves in the Dreyfus suit, in the parish court, and in the district, court on appeal; making total for fees $1350. Mrs. Jackson paid $500 on account, after the award of the members of the bar, leaving balance of' $850, the amount put down in the account.

The account shows that Mrs. Jackson received from the crops and other sources the sum of $11,423 09; and that she had disbursed $11,431 12. According to this account there remained unpaid $5571 79-to Buckner, and $850 to Reeves, making total unpaid $6421 79. No part of the rent money figures in the account; nor does it include the $500 paid to Mr. Reeves, nor any charge for the commissions of the administratrix. There is nothing in the record to create a doubt as to the payment of the rent; 'and if it be paid there will be a large surplus after-discharging the debts put down in the-account as not paid.

It is evident, therefore, that the services of Mr. Reeves have been-valuable, and that his management was wise and most beneficial to the-succession. The proof shows that Mrs. Jackson consulted him very frequently. She lived in another State; and much of the details of the administration must have devolved upon him. He made the negotiation with Mr. Buckner, and visited New Orleans for that purpose, probably more than once. If there had not been a satisfactory arrangement with Mr. Buckner there would probably have been an expensive litigation, of a very disagreeable character, the result of which might have been the forced sale of the property, for cash, at a sacrifice, and the loss of the whole to the heirs.

There are standards by which the fees of attorneys for the management and conduct of suits, the collection of money, and the recovery of property, etc., can be fixed; but for such services as the greater part,, and by far the most important, responsible, and valuable of these rendered by Mr. Reeves, there can be no certain standard; and for which it-is difficult for any others than the aitorney and the client to make an accurate and satisfactory estimate. In such cases the compensation is usually the subject of special agreement. In this case, as there was no such agreement, the reference to the members of the local bar was eminently proper. There is nothing in the record in conflict with, or that tends to diminish the value of their testimony on this subject; and they had some means of knowing the nature and extent of the services rendered by Mr. Reeves. Mr. Reeves says: “My time was more engaged, and I was more taxed in the management of that succession than any that I have ever had in thirty years practice. It is utterly impossible for me to state the full services that I have rendered that estate.”

We are not at liberty, if we were inclined, to disregard the testimony in the cause, which is the only means of information which we have touching the matter in controversy. The amount allowed does not seem to be beyond a just and reasonable compensation for the services; as detailed by the witnesses; and we think the parish judge erred in deducting from it three hundred dollars.

It is therefore ordered, adjudged, and decreed that the judgment o£ the parish court be so amended as to reject and dismiss the opposition, of May E. Wood, James Jackson, and Kate A. Bailey, heirs of Dempsey P. Jackson, to the provisional account filed by Maria J. Jackson, administratrix; that the said account be homologated as rendered and filed; that the balance due S. Y. Reeves for his services as attorney for the succession of Dempsey P. Jackson the sum of eight hundred and fifty dollars, as set down and charged in the said provisional account, be allowed as a privileged claim against the said succession, and be paid in due course of administration, with interest at five per cent per annum from the twelfth day of January, 1877, until paid; that the said opponents, heirs of Dempsey P. Jackson pay the costs of their opposition in the parish court, and all the costs of this appeal; and that the said judgment as thus amended be affirmed.

On Application for Rehearing.

Egan, J.

We have been pressed with great earnestness to grant a rehearing of this cause. The opponents certainly can not complain that they have not been faithfully and zealously represented by their counsel before this court. The chief cause of complaint against the opinion and decree rendered we have no doubt has grown out of the fact that the judge who prepared it, out of regard for the zeal of counsel and following his example, entered into a dissection of the case sometimes important but not necessary to the determination of the issues presented in this record.

It is impossible to follow up or detail every distinct piece of service rendered or counsel given in the course of an administration running through several years. The occasion for both in such a succession as that now under consideration is constantly recurring, and it would be both unjust and unreasonable to expect a rendition of account of services by the attorney like the items of a merchant’s account. Enough has been shown by positive evidence, independent of the opinions of witnesses, as to value to satisfy us that the amount set down for counsel fees in this succession is very reasonable for one of the size and character. We do not share in the apprehensions of counsel of danger to the jurisprudence of the State from allowing reasonable fees to competent counsel of high character and professional standing, especially where the services have resulted so well as in this instance. We do not think any thing in the opinion already read could be construed into censure of the counsel who represented opponents before us. We very cheerfully say, however, that any strictures contained in it were elicited by a paper in the record for which he is in no wise responsible.

For the reasons given the rehearing is refused.


text:
    No. 6988.
    Succession of E. H. Leppelman. On Opposition of the Widow.
    The question of the widow’s right to the marital fourth may be raised and passed on in her opposition to the executor's account, when there are no heirs here, or claiming an interest, and when the universal legatee is present, and the account of the executor exhibits the proposed settlement oí the succession.
    Before a widow can rightfully claim the marital fourth from the succession of her husband she must show that her husband was rich, and loft her in necessitous . circumstances. If she fails to prove either of those essential facts her claim to the marital fourth will be rejected.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Brame, judge acl hoc. >'

      Kernan & Lyons for executor and appellee.

      Wedge & Moore and Thos. T. Semmes for opponent and appellant.
   The opinion of the court was delivered by

Manning, C. J.

The executor of E. EL Leppelman filed the final account of his gestión, the homologation of which is opposed by the widow of the deceased on various grounds. The sole question for determination is the opponent’s claim to the marital fourth.

The executor objects to the consideration of this question upon the pleadings now before us, for the reason that an opposition to an account is not the proper form for its legal presentation, and that the widow must be remitted to her action against the heirs. That is true as a general proposition. Harrell’s case, 17 La. 374. Vasser v. Dupre, 8 Annual 488.- But it will be presently seen that under the facts of this case the reason of that rule ceases, since there are no children, nor other heirs here or claiming any interest, and the universal legatee is present, is a witness on the trial, and the account filed by the executor exhibits the liquidation, or proposed settlement of the succession, so that we should be merely driving the widow to new costs if we should sustain the objection of the executor, and without any substantial good to be obtained by any party.

Leppelman removed to this State from Ohio in 1869, where he had married three years before. He owned property there, and it is proved that his purchases here were made with funds derived from his separate estate there, so that the community is largely indebted to his separate estate, and is absorbed by that debt. The wife brought nothing into the marriage. Her father lives in Ohio, and is rich, his property in that State being worth two hundred thousand dollars or more, besides owning property in this State worth about fifty thousand dollars. Mrs. Leppelman, as heir of her deceased mother, owns one third of her property in Ohio, which is however burthened by the life estate of her father. The husband, who is a father, is by the common law tenant by the curtesy of his deceased wife’s lands. Her father is near seventy years old, and her interest in her mother’s Ohio land, affected by the life estate of her father, is estimated by some witnesses as worth four thousand dollars, by others, eight hundred dollars. She said she would take from her father two thousand dollars for it.

Mr. Leppelman, died in Dec. 1875 after an illness of several months. During the earlier part of that illness his wife lived under bis roof, and seems to have taxed her ingenuity to increase his-misery by adding mental distress to his bodily ailments. He feared she would poison him. Her outbursts of temper appear to have impressed him with the-belief that she was insane, and in August before his death, he instituted a suit for her interdiction, which however was not pursued, it is not surprising that in his feeble condition he should have mistaken for insanity what a less enfeebled man would have understood was only the-exacerbation of a malignant temper that had become uncontrollable because habitually uncontrolled. As a foil to his suit for her interdiction, she instituted a suit against him for divorce. Death drew a curtain over this disgraceful spectacle, but the warfare was renewed over his grave by her claim for the marital portion from his estate. It will be for us to close the melancholy drama by a decree that shall silence the only remaining contestant.

Art. 2359 of the Civil Code gives the right to a surviving spouse to take out of the succession of the deceased one fourth of the succession: in full property, when as in this case there are no children and the wife brought no dowry, provided the decedent died rich and the survivor is left in necessitous circumstances, new no. 2382. In Gee v. Thompson, XI Annual 657 it was held that a decree of separation from bed and board does not preclude the surviving wife from claiming the marital ■fourth, and where the husband was worth thirty-one thousand dollars and the wife had but little over one thousand; the former was held to have died rich, and the latter to be in necessitous circumstances. And on the other hand, it was held in Armstrong v. Steeber, 3 Annual 713, that a wife who had abandoned her husband to live in concubinage with another can not be said to have been left by his demise in necessitous ■circumstances, within the reason and spirit of the law.

The wife in this case, as in Gee and Thompson, was legally in a position to fulfill the requirement as to her status, and although there is testimony in the record of her immodest deportment, it does not at all place her in the position of the wife in the Armstrong case. The inquiry is, did Leppelman die rich, and is she necessitous.

The community property was inventoried in Nov. 1875 in her suit for divorce at $5640, and in the succession proceedings shortly thereafter, the husband’s estate including the community is inventoried at $11,-050. The community is indebted to the separate estate of the husband for over $12,000, a sum exceeding its value. After the sale of the movables and the payment of the debts, there remains twelve hundred and seven dollars in the executor’s hands. The land is not sold, but was inventoried at $5250. The husband died worth less than eight thousand dollars, even if the land brings considerably more than its appraised value. The widow’s separate estate, i. e. her interest in her mother’s succession, is worth $2400 if we take the mean value between the opposing estimates of witnesses — she would sell it to her father for $2,000. The deceased left his property to Alice Earley, the niece of his first wife, who had lived with him in Ohio, and also here, and who superintended his household and nursed him. The executor proposed to deliver to Miss Earley the residuum of the estate, and refused to recognise the widow’s claim to the marital portion, and the court sustained him.

The marital portion had its origin with Justinian, and is found also in the Partidas. Gregorio Lopez, commenting on the latter, puts a question pertinent to our present inquiry — what if a wife should have a rich father, from whom she could demand alimony, could she sue for the marital fourth ? He cites two preceding commentators as holding the negative, because a daughter who has a rich father can not be called poor, and because the daughter may compel her father to support her, and thus her wants may be supplied, which is more just than that she •should receive assistance from the fortune of her deceased spouse, tom. Ill, p. 218.

So Merlin asks — La femme qui a ótó marióe sans dot, mais qui a un pére riche, peut-elle demander la Quarte comme pauvre? Lebrun rópond que non — la loi (dit-il) n’entend pas parler d’une femme qui ait un pére riche, car si le pére qui n’a pas dotó, etait opulent, la plupart des docteurs estiment que, comme il est oblige de doter et de nourrir sa Rile, le cas de la Quarte cesse. Repertoire, verbo, Quarte de conjointe pauvre.

The interest of Mrs. Leppelman in her mother’s estate is worth one fourth as much as the estate of her husband, and her father’s property in this State alone is worth more than sis times the latter. Rich is a relative term. Property which would make a person in one condition of life rich, would be inadequate to supply the wants, albeit they are artificial, of one in another condition of life. A woman whose father is •worth a quarter óf a million with only three heirs, can not be said to have had a rich husband, if he is only worth eight thousand dollars. Leppelman did not die rich; nor is his wife left by his death in necessitous circumstances, and both conditions must be fulfilled before a surviving spouse can legally claim the marital portion.

Judgment affirmed.