text:
    No. 1163.
    Wm. C. Culverhouse et al. vs. Jacob Marx.—James Pearson, Warrantor.
    "When peremptory exceptions filed in limine have been tried and overruled, and answers-have been filed, and at a subsequent term the case has been fixed and taken up and is on trial on the merits, the judge has no authority to interrupt said trial, and, of his own motion, to set aside the former judgment on exceptions and grant a new trial thereof,, and forthwith to hear them and render judgment thereon sustaining the exceptions and. dismissing plaintiff’s suit.
    The exceptions, as such, wore out of the caso, and the judge had no more authority to reinstate and try them as exceptionSy than he would have had to interpose such exceptions-originally,
    The right of judges to grant new trials ex oficio is subject to the same delays which apply-to parties.
    The overruling of exceptions is not res judicata on the subject matter thereof and does not preclude the court from rendering a different ruling when the same matter is brought up anew in proper form, as by answer to the merits j but this principle does not authorize the court to revive a defunct exception, and hy sustaining it, defeat and deny the-trial on the merits, which has been regularly opened.
    APPEAL from the Third District Court, Parish of Union. Holstecul, Special Judge.

      Titos. 0. Benton and James A. Bamsey for Plaintiffs and Appellants.

      Graham <£• Gasicins and J. JE. Trimble for Defendants and Appellees:-
    1. The special judge ordered a new trial, ex officio, of the exception which had been passed upon by his predecessor, a special judge, and tried the exception. Plaintiff retained bill.
    Courts have the legal right to order new trials, ex officio, and the exorcise of this right is in their discretion. C. P. 5-17; H. D. P. 987, Ko. 7; 10 Ann. 766.
    2. Plaintiffs alleging want of authority in counsel, who acted for thorn before the court, must, before they can require proof of their authority, deny it on oath. 27 Ann. p. 73r and .authority there cited; 26 Ann. 302; L, D. p. 70, Kos. 2, 3, 4 and 5.
    3. Plaintiffs’ petition discloses no cause of action. They claim the property as heirs of their mother, but show that defendant and warrantor hold under titles — and allege no roason why these titles should not stand in the way of their recovery, C. P. 44; L, I). p 520, No. 7, also p. 52L, No. 8.
    •4. The plea of res adjudícala, filed in exception of defendant and warrantor estops plaintiffs from recovery in this suit. In former suit judgment was rendered on agreement of parties, giving plaintiffs $567 50 instead of property claimed by them, and in terms settling the dispute between them. This judgment has become final, no appeal or action of nullity having been instituted. In the present suit the judgment is not attacked or mentioned.
    'The object of judgments is to settle disputes between parties, and it is as to the object of the judgment that the authority of the thing adjudged takes effect. C. C. 2286; 20 Ann. 285; K. X). p 763, No. 2; 23 Ann. 618; 32 Ann. 882 and 89S; 33 Ann. 617.
   The opinion of the Court was delivered by

Fenner, J.

This is a petitory action, to which the defendant and warrantor interposed in Imdne certain peremptory exceptions.

The judge of the court having recused himself, called Allen Barks-■dale, Esq., as judge ad hoc who, having duly qualified, heard the said exceptions at the November, 1885, term of the court, and rendered .judgment overruling them.

Thereafter the cause went to issue on the merits by answers filed by ■defendant and warrantor.

The case was continued at two succeeding terms and at the April term of 1886, Mr. Barksdale, being unable to attend, proffered his resignation as judge ad hoc and J. B. Holstead, Esq., was appointed and qualified in his stead, who thereupon entered his order fixing the case for trial on April 13.

On that day the case was regularly called and taken up for trial, and ■all the pleadings in the case were read, when the special judge, ex •oficio and of his own motion, entered his order setting aside the former .judgment which had been rendered on the exceptions and granted a now trial of said exceptions and, proceeding forthwith to trial thereof, he rendered his judgment sustaining the same and dismissing plaintiffs’ suit.

To these proceedings of the judge, counsel for plaintiffs excepted •and took a bill of exceptions which is brought up in the record.

The question which meets us at the threshold is as to correctness of tiie judge’s proceeding. We can discover no warrant of law or authority to sustain it.

By the effect of the former judgment overruling them, the exceptions ■as such were out of the case ; and the judge had no more right to rein.state and try them as exceptions, after the case had been opened on- the merits, than he would have had to interpose such exceptions of his own .motion, had the parties never filed them.

It is true that judges have the right ex offieio to grant new trials-under art. 547, C. P., hut that right can only be exercised ordinarily within the same delays which are allowed to parties to move therefor.

It is equally true that, so far as the overruling of an exception is. concerned, the judgment is not res judicata on the subject matter thereof, and does not preclude the court from reversing its ruling when the same matter is brought up anew in proper form, as by answer to the merits. Levy vs. Wise, 15 Ann. 38.

But this does not authorize the court to revive a defunct exception, after a case is on trial on the merits, to try it separately, and thus to-defeat the trial on the merits.

If the subject matters of the exceptions were involved in the issues on the merits the judge, after hearing the merits and in rendering-judgment, might have well ruled on such matters according to his discretion without being bound by the former ruling.

But he erred in depriving plaintiff of his trial on the merits and of the opportunity of bringing his whole case before this tribunal.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and it is now adjudged and decreed that the case be remanded to the lower court, to be there proceeded with according to law and the views herein ex- - pressed.


source: Caselaw Access Project

author: PochJí, J.

license: Public Domain

text:
    No. 1154.
    Auguste Rauxet vs. Emile Rauxet.
    A donation inter vivos duly accepted by tbe donee need not be accompanied by any other delivery.
    A person who is alleged to be too ignorant of the English language to understand the mean» ing of an act of donation drawn in that language will be held bound by such an act, on . proof that she understood the English language sufficiently well to dictate a will in that language.
    All issues presented in a cause by the pleadings, on which evidence is introduced on trial, will be considered as disposed of by a final judgment, although the latter be silent on-some of the issues in the case.
    APPEAL from the Fifth District Court, Parish of Ouachita. Biehardson, J.

      T. 0. Benton for Plaintiff and Appellee.

      Bobert Bay and Bobert Biehardson for Defendant and Appellant.
   The opinion of the Court was delivered by

PochJí, J.

Plaintiff sues for a partition by sale of á piece of immovable property which he claims to own in indivisión and in equal •shares with the defendant, his brother.

Both are nephews of the original owner who died on the 28th of August, 1884.

Plaintiff claims title to one-half of the property under a donation •inter vivos of date of June 18, 1884; and defendant lays claim to the whole property by the effect of a will of the deceased, the aunt of both, under date of May 30, 1884.

I-Icnce ho denies the alleged ownership of his brother to the half of -the property, and he concludes with a prayer for a partition in kind in the event of a judgment favorable to plaintiff’s ownership; claiming also reimbursement of moneys disbursed by him, on account of taxes -duo on his aunt’s property during her lifetime, and judgment for sundry amounts alleged to be due to the succession by plaintiff.

Defendant sets up the nullity of the donation inter vivos in favor of •plaintiff on the following grounds substantially :

1. Want of delivery of the property.

2. Want of acceptance by the donee.

3. That the donation was obtained by plaintiff by improper influences, fraudulent misrepresentations, and devices practiced on his aunt, who was at the time very old and very weak from sickness.

4. That the act of donation was signed by the donor in ignorance of its real meaning and effect, the same being in the English language which she did not know sufficiently to understand a legal document drawn in that language.

I and II.

The first two grounds of alleged nullity are answered by the act which was authentic m form, and which recites the formal acceptance of the donee who signed the instrument for that purpose; and by art. 1550 of the Civil Code which reads: “A donation duly accepted, is perfect by the mere consent of the parties; and the ownership of the • objects given is transferred to the donee, without the necessity of any -other delivery.”

On the third ground of nullity, the record is absolutely barren of any ■evidence of any representations made to the aunt by plaintiff, and hence we are powerless to ascertain whether any or all of them were false, and it is equally silent on the subject of the means, fraudulent or •otherwise, used by plaintiff to secure the donation.

The record shows that the act was drawn by the notary at his office, under the direction of a reputable attorney retained therefor by the plaintiff, after which the officer proceeded to the house of the donor, accompanied by two witnesses and by the plaintiff. ■

After their arrival át the house, plaintiff went into the room of his -aunt, who was sick in bed, and remained with her more than half an hour, after which the officer and the witnesses were introduced, and the .act was then signed after being read to the donor and other persons present, including defendant’s -wife.

In all of these proceedings we fail to discover even an intimation of any fraudulent design or unfair dealing on the part of plaintiff or of anyone acting in his behalf.

The only attempt made by defendant to prove circumstances tending-in the least to invalidate the donation, -was by means of his own testimony consisting mainly of statements made to him by his aunt to the effect that she had signed the act in ignorance, and that her intention was, as it had always been, to leave the whole property to him.

But his recital is silenced by his own acts, which speak louder than his words. The act was signed on the 14th of June, and the deceased lived-until the 28th of August following, and no step was taken by either to carry out her supposed intentions; or to expose the alleged deceits and fraudulent deeds of the other brother.

IV.

The alleged ignorance of the deceased of the English language is not .supported by the record.

The very will under which defendant bases all his claims and rests his hopes of success, was drawn in the English language under her directions given in that language to her attorney. On that point the •evidence is simply overwhelming against the pretensions of the defendant. Upon the whole, we feel constrained to_say that it would be ■difficult to imagine a weaker attack on an authentic act than the one which is exhibited in this record. -

The district judge reached the same conclusions, and rendered judgment recognizing plaintiff’s title, and ordering a partition in kind of the property in suit. His judgment is silent on'tke amounts claimed in reconvention by the defendant. His silence must be construed in law as rejecting the same. 36 Ann. 398, Villars vs. Faivre et al.

As the evidence is insufficient to support the demand, we think that it was correctly ignored.

We note a motion made in this Court by plaintiff for an amendment •of the judgment so as to allow time rent on the half of the property from the death of the donor until he obtains possession of the same. When his counsel filed this motion, he doubtless thought that he had made demand for such rent in his pleadings. Such, however, is not .the fact, and hence he must enforce his claim by some other proceedings.

Judgment affirmed.


author: Fenner, J.

text:
    No. 1159.
    R. B. Todd, curator, vs. Mrs. M. T. Larkin et al.
    This suit is an attack by a creditor upon titles of third persons, on the ground that they are-pure simulations, and that the property belongs to tho debtor and is subject to his debts.. On the evidence the simulation is not established to our satisfaction.
    APPEAL from the Sixth District Court, Parish of Morehouse.. Dunn, judge ad hoc.

      David Todd and Bussey & Naff for Plaintiff and Appellant:
    1.Good faith is essential in a person pleading prescription of ten years to real estate,, under a title. C, C. 5479.
    2.A judgment is not prescribed till ten years after the date of the adjournment of thetorm of court wherein the judgment is rendered. Page 555; 29 Ann. 518; 35 Ann. 285.
    3.Service of citation on one obligor in solido stops prescription against tho other obligors insólido, or the heirs of such obligors. O. 0. 3552 ; 29 Ann.298; 26 Ann. 60S; 30 Ann-498.
    4.A judgment of separation of property is null, if the wife does not pursue her husband’s-property by an uninterrupted suit to collect her debt, till it is collected or all of hiarneans are exhausted. C. C, 3428; 34 Arm. 690; 27 Ann. 193; 28 Ann. 151, 346.
    5.An act of giving in payment from a husband to his wife must be an authentic act. C - C. 2428.
    6.When a fraudulent simulation is made, and all of the debtor’s creditors are afraid or unwilling to go to the expense and trouble of procuring the evidence and instituting and prosecuting a suit in declaration of simulation, the creditor who goes to this expense- and trouble and succeeds in unveiling the simulation, and having the property decreed the property of his debtor, is entitled to be paid out of tho proceeds of such property totlio prejudices of all creditors who failed to bring such a suit. 9 R. 29; 8 Ann. 453.
    7.One cannot claim by reconvention what one is estopped from demanding in a direct action.
    8.In. a suit in declaration of simulation where it is shown that no money passed, the transaction will be annulled. 1 Ann. 42; 10 Ann. 691; 12 Ama. 666.

      Boatner t& Boatner for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff is the holder of a judgment against Porter J. Larkin, deceased, rendered in 1875, and recorded in Morehouse parish on November 17th of that year.

In January, 1883, Porter J. Larkin transferred, by an act of sale, to his brother, M. K. Larkin, a certain plantation in said parish; and on March 29th, 1876, M. K. Larkin executed an act of sale of the same property to Mrs. M. T. Larkin, wife of Porter J. Larkin, separate in property.

The object of the present action is to have the foregoing transfers declared to he pure simulations, and to have the property decreed to have been, and to be, that of Porter J. Larkin and his heirs, and to he subject to plaintiff’s judicial mortgage.

It is to he noted, as an important fact, that on May 29th, 1873, Mrs. M. T. Larkin had obtained a judicial separation of property from her husband, Porter J. Larkin, and a judgment against him for $11,513.47, with legal mortgage on all his property, then duly recorded, and operating as a legal and judicial mortgage, ante-dating by several years that of plaintiff, and this judgment has been duly kept alive and rein-scribed.

We fail to find evidence in this record which would justify us in pronouncing simulated titles which have stood unimpeached for so long a time.

All the parties to these conveyances were dead at the time of the trial of this case, except M. K. Larkin. Porter J. Larkin had died in -. Mrs. M. T. Larkin, though alive at the date of institution of this suit, died before issue joined.

The testimony of M. K. Larkiu was taken under commission issued by plaintiff, but proving unsatisfactory, plaintiff did not offer it, and defendants introduced it in evidence.

That testimony is positive to the effect that the sale to M. Y. Larkin was a real transaction; that Porter J. Larkin desired and intended to sell and induced M. K. to buy; that the consideration was $4,000, for which four notes of $1,000 each were given ; that he only consented to buy, however, to oblige his brother and upon a verbal understanding that, if he should be unable to pay his notes, his brother would not foreclose, but would return them and take back the -place. But his right to pay the notes and keep the property was unquestioned and, in law, his obligation was equally absolute, if insisted on by Porter, because the above verbal understanding was of no legal effect.

It is impossible to treat such a contract as a simulation, because under it Porter Larkin’s ownership was absolutely divested and M. K. Larkin acquired the unconditional right to keep the property on paying the price, which is all that, under the effect of the resolutory condition, any vendee acquires.

It is quite possible that Porter’s object in selling and M. K.’s motive in consenting to buy, were to put the property beyond the reach of creditors; but this would only subject the transaction to the revocatory action, which is long since prescribed. It is the necessity of plaintiff’s case to establish, not fraud, but simulation.

The only rebuttal of this testimony cousist-s of circumstances and presumptions which, however powerful in themselves, find an explanation upon the hypothesis of a fraudulent contract, as complete as upon that of simulation.

So much for the first transfer. Now, in March, 1876, M. K. Larkin, being desirous to sell back the property, found his notes in the hands of Mrs. Larkin, then separate in property from her husband. How she acquired them, on what consideration and for what purpose is not shown.

This failure of proof is not the fault of defendants, their mother and father having both died during the long delay which plaintiff suffered to elapse in sleeping on his rights.

At all events, she held the notes and was legally capable of owning and dealing with them in her separate right.

M. K. Larkin applied to her to buy the property in consideration of the notes. She at first declined to do so, but ultimately consented, and the conveyance to her was executed.

From what we had just said, it is apparent that this was a real transaction, the effect of which was to transfer the title from the real owner for a valuable consideration.

But plaintiffs contend that she was a mere person interposed paying for the property with her husband’s means and receiving and holding it for him.

But this is inere assumption and not supported by any weighty proof and loses even its plausibility when it is considered that she was then the holder of the superior mortgage, legal and judicial, against her husband, for an amount equal to the value of the property, to which the property, if acquired by the husband, would be instantly subjected.

What motive, then, for disguise or simulation? How natural, then, that all parties should have intended that the title should pass to the wife, as a real title and as the true owner ! If such was the intention, and we are convinced that it was, the wife’s title could not be attacked as a simulation, even if the husband had given the notes to her without consideration. The gift of the notes might possibly be the subject of attack under proper conditions, and fraud on creditors might be invoked, but it would be impossible to treat the title as a mere simulation.

We have considered all the circumstances of the case very barefully; but the title to property which has subsisted so long without question, and which was made to a party who, at the time of taking it, held the first mortgage upon it equal to its value, is not to be lightly treated as a simulation.

All the aversion which the judicial conscience rightly feels against devices to screen and cover up property under fictitious appearances, loses its force in presence of such a state of facts. The property lias gone to the one who had the best right to it; and, except upon clear proof, neither law nor equity would justify our interference with it.

Such was the conclusion of the judge a quo, and we approve it.

Judgment affirmed. '

Todd, J., is recused.


author: Watkins, J.

text:
    No. 1160.
    Heirs of Mason vs. Mrs M. T. Layton et al.
    1. In a suit against a married woman, appertaining to her separate property-rights, demands respecting the community cannot be determined.
    2. A judgment in a previous suit against her by some plaintiff, annulling a sale made to her ostensibly of that part of the property claimed in the present suit by plaintiff, and “putting the parties in the condition they stood prior to the transaction,*’ forms res adjudicccta with respect to the parties, and will protect a title she may receive under judgment of partition.
    3. Plaintiffs’ want of authority to institute suit must be specially urged by way of oxcep • cepfcion in limine litis, or it will not prevail.
    APPEAL from the Fifth District Court, Parish of Ouachita. Biehwrdson, J.

      Stubbs <& Bussell for Plaintiffs and Appellants.

      Stone & Murphy and G. J. & J. S. Boatner for Defendant and Appellee •.
    In order that a party may be held bound by a judgment, it is necessary: 1st. That he should have been sued and judgment prayed for against him. 2d. That judgment'should have been rendered actually and in terms against him. 3d. That such prayer should have been made, and such judgment rendered against him in the same quality in which he is sought to be bound under it. P. G. 0. 2286.
    Judgments must be road and construed with reference to the jjarties suing and being sued; and the issues presented for adjudication, and cannot be given effect to decide other issues, upon which no evidence was taken, upon another cause of action not set forth in the pleadings, and at variance with and precluding the cause of action set up in the pleadings, even as between the parties, nor can they decide any issue whatever against a party not sued. "Where, in a suit against a married woman, demanding the unpaid balance of the purchase price of property sold nominally to her, authorized by her husband and demanding also recognition of mortgage granted in her name upon her separate property as additional security for the notes evidencing the purchase price of the property conveyed, she resists the demand and is released on the ground that the sale was made to and the unpaid balanoe is due by the community, and thatthorofore neither .she» nor her individual property can be held liable, and when the court, in rendering judgment, releasing her and her individual property on the ground stated says, in terms: , That the sale and mortgage incident thereto are null and void. Such judgment will be read with reference to the parties and the issues involved in the suit, and such oxpres • sions construed to mean that the sale was of no effect as to the issues between plaintiffs and defendant in said suit; and the mortgage referred to to mean the mortgage given in the name of the defendant upon other, her individual property, and not as a judgment against the community not sued granting rescission of sale not prayed for. The more especially where the notes evidencing the balance of the purchase price of the property conveyed are left outstanding and the husband declared, in the opinion confirming such judgment, to he the party liable for the balance due upon these notes, and where neither the notes nor the vendor’s lien upon the property conveyed seeming them are cancelled, or in anywise affected by the judgment, and where the community was not a party to the suit and the judgment was, in terms, against the wife alone, who cannot represent- or stand in judgment for either the community or the husband, as to both of whom she is a third party, and when the cause of action necessary to a ju dgment rescinding the sale was not set forth in the pleadings, and when no evidence was offer ed thereon, and where, if such cause of action had been set up, it would have -been in confiict with and precluded by the cause of action and the only one which was set forth in the pleadings. R. C. C. 2286; C. P. 119; Bonvillian vs. Bourg, 1(5 Ann. 363, and authorities there cited: Freeman on Judgments, 3d ed., § 271, 272 ; 20 Ann. 170 ; 27 Ann. 366, Lebauve vs. Slack; 31 Ann. 140-i — construing judgment reported. 28 Ann. 296-7.
    In order for judgment to hind the community, the community must have been a party to the suit. The wife cannot stand in judgment for the community. Whatever the terms of a judgmentmight he, it could not affect the community unless given against the husband, tho only person through whom this ideal third person could he reached, and the only person in whose name judgment could be rendered against it. R. C. C. 2404; 24 Ann. 295; 28 Ann. 624.
    The object of the prayer for general relief is to cover vague allegations or omissions in pleadings upon matters germainto the issues presented, hut not to authorize a judgment upon issues not raised, and as to which no evidence was introduced against aparty not sued.
    Nor could it under any circumstances, even as between the parties, have effect to authorize the granting of relief not prayed for upon a cause of action not set forth, and upon which no evidence was introduced so contrary to the cause of action set forth and the relief asked that by special statute parties are prohibited from joining tho two demands in the same suit, the one cause of action precluding the other, under O. P. Art. 149. It is, therefore, clear that plaintiffs could not obtain, under prayer for general relief, a judgment giving relief which they could not have been heard to ask for by special prayer, even in the alternative. fcjyer vs. Bundy, 9 Ann. 541; 10 Ann. 23; 2 R. 313; R. G. C. 2286 ? G. P. 149.
    A party sued for rents and revenues of all and for proceods of sale of part, and for partition of remainder of property alleged to be owned jointly and in indivisión by plaintiffs with defendant may except that the party suing is not owner and is without interest or capacity to stand in judgment, for if these allegations be true, payment to plaintiffs would not discharge the debt if owing, and partition with plaintiffs would give no title to all of the part drawn in partition even if completed in duo legal form.
    Where a married woman is sued for proceeds of sale of part and for rents and revenues of tho remainder of property bought by the community in her name, and from liability for the purchase price of whiok she has been released by judgment (84 Ann. 976) on the ground and for the reason tliafe'tke purchase was not made by her but by the community and when it is admitted that tho property in question was always administered by tho husband as head and master of the community, and that the proceeds of tho part sold? and the rents and revenues of all the property in question, had always been received by the husband and used for the benefit of the community, the wife is not liable. To hold otherwise would ho in violation of every principle of marital law bearing upon this question.
   The opinion of the Court was delivered by

Watkins, J.

John W. Scarborough as the administrator of the estate of Mary B. Mason, deceased, and as curator of the estate of Alice T. Mason, an interdict, alleges that said estates are the joint owners of one undivided half interest in a plantation adjoining the city of Monroe, on the south, and known as the Big Place, comprising 863 31 -100 acres, worth in 1871 and now $25,000, by inheritance from their mother, Mrs. Hannah Mason, nee Bey; the other half being, by inheritance, the property of Mrs. M. T. Layton, wife of Robert Layton.

Plaintiff represents that in pursiiance of an order of court the father and natural tutor of the two heirs whose estates he represents caused their half interest to be sold for $27,000 — all on time — with mortgage and vendor’s lien retained, to their co-owner, Mrs. M. T. Layton, who gave her notes.

On these notes sums had been paid, aggregating $9,471, when suit was brought to euforce the collection of the balance due, in which a linal judgment was rendered releasing Mrs. M. T. Layton from all liability thereon, but annulling the sale, and restoring the property, as will appear by reference to the suit of Forbes, executor, vs. Mrs. M. T. Layton, 34 Ann. 975.

Plaintiff claims that Mrs. Layton has had possession, and enjoyed the revenues of said plantation since 1871, worth $2,000 per annum, and during the time the title stood in her name she sold off building-lots for sums aggregating- $4,550, and the estates he represents are entitled to one-half thereof — $2,275, or a total amount due to them for revenues and sales of $17,275, and he demands a partition of the real estate by licitation and a settlement of rents, and the proceeds of sales.

Mrs. Layton, in her individual right, appears and excepts on the ground that plaintiff, as the representative of the parties named, is not owner of the property in controversy, and has no capacity to stand in judgment, and shows that by virtue of the sale of 1871, all the right, title and interest of the persons named in said property was sold to Robert Layton, her husband, who owns same and the use of her name as purchaser — but who was without the legal capacity to purchase— did not prevent the legal effect of said sale on the divestiture of their title, and its investiture in the community then and noio existing between her and her husband, Robert Layton, and she prays that plaintiff’s suit be dismissed.

She urges as an estoppel against the assertion of her liability for revenues and the proceeds of certain sales, certain judicial admissions of plaintiff, in Ms same capacity, made in the suit of Forbes vs. Mason, to the effect that said property had at all times been under the administration of her husband, and which she now affirms in her answer to be a fact.

She pleads the general issue, claims the ownership of one undivided one-half interest in the property; denies that same was ever under her separate administration and control, and consequently any responsibility for the revenues; and pleads the prescription of one, three, five and ten years in bar of plaintiff’s action.

In the petition Robert Layton was mentioned only as being the husband of defendant, and as such he was cited.

When one intends to sue a married woman for a cause of action relative to her own separate interest, the. suit must be brought against her and her husband.” C. P. 118.

The husband was not otherwise named or cited as a defendant. The community is, therefore, not before this court, and the wife has no authority to represent it, or to stand in judgment for it. Hence, we need not notice the assignment of error filed in this Court. In this manner new issues caunot be engrafted on this suit, nor a judgment of this Court — which, in so far as he is concerned, was res inter alios acta — be assailed!

This view dispenses us from any consideration of the claim of title in the community, and of its incidents, embracing the demand for the sum of $9,471 paid on the price of sale in 1871. 24 Ann. 295; 28 Ann. 624; R. C. C. 2404.

If the community is not a party for one purpose, it caunot be for another — if not in respect to the title, it cannot in respect to any part •of the revenues of the property sought to be partitioned.

Plaintiff’s right to recover same of Mrs. Layton depends upon the proper averment and pi’oof of her having operated aud used this property. This has not been done — could not be done. For if she was not purchaser, in her paraphernal right, it could not have been legally under her administration, and she could not be chargeable with its revenues, nor an account demanded of her for them. 86 Ann. 511, Succ. of Boyer.

In Forbes vs. Layton the Court said: “There was judgment, relieving the defendant from the debt, annulling the sale, and putting the parties in the condition they stood prior to the transaction.” This judgment was affirmed. 34 Ann. 976.

For a like reason we are also dispensed from passing upon defendant’s pleas of prescription urged against the money demands of plaintiff.

Prescription does not run against the action for partition, nor the settlement of accounts. R. C. C. 825; 14 Ann. 740; 16 Ann. 170; 12 Ann. 354, Aiken vs. Ogilvie.

The argument of counsel that the decree of this Court in Forbes vs. Layton, was ultra petitionem, cannot bo noticed. It was and' is a valid and binding judgment, and between the parties, forms res ad¿udicata. R. C. C. 2286; 16 Ann. 365, Bouvillain vs. Bourg.

On this theory defendant has shown herself without interest to dispute plaintiff’s title — the judgment in Forbes vs. Layton will protect her title under a partition made under a decision in this suit.

Defendant’s exception that “plaintiff, as the representative of the parties named,” is without?capacity to stand in judgment was properly overruled by the district judge, and the same objection assigned as error in this Court is unavailing.

John W. Scarborough is the duly qualified administrator of the succession of Mary B. Mason, deceased, and curator for the estate of Miss Alice T. Mason, his appointment having been duly recommended by a family meeting and their proceedings duly homologated, as the evidence attests, and his capacity to stand in judgment is fully verified. The defendant did not except that the curator had not been “specially authorized by the judge, on the advice of the family meeting,” to institute this suit, and that objection cannot be inferred.

It is, therefore, ordered and decreed that the judgment appealed from- be affirmed, in so far as same relates to the partition of the property; and that same be annulled, avoided and reversed in all other respects — parties to pay costs of appeal ratably.

But we will reserve the right of all parties to have their respective claims determined in some proper proceeding.


author: Pocinó, J.

text:
    The State of Louisiana vs. Abraham Lewis, alias Nish or Snoot.
    Criminal courts have no authority to examine members of the grand jury as witnesses concerning proceedings which may have taken place ia their room or during their deliberations.
    There is no law which prescribes the quantimv of evidence on which grand juries must rest their conclusions in returning indictments.
    Their findings amount at most to accusations, and in their conclusions they are beyond the control of the courts.
    APPEAL from the Twenty-sixth District Court, Parish of St. John the Baptist. Host, J.

      G. Leche, District Attorney, .¡I. N. Gautier and John M. Ogden for the State, Appellee.

      Chas. A. Baqwié, for Defendant and Appellant:
    1. Where an indiciment is laid before the grand jury without any names of witnesses being indorsed thereon, with the cox'oner’s inquest and the testimony taken thereat, and the grand jury, without summoning, swearing or examining any witnesses in the case, finds a true hill against the accused upon the testimony taken before the coroner, the indictment will be quashed as being found on illegal and insufficient proof. 14 Ann. 461; Archbold’s P. and P., vol. I, pp. 98 et seq. and .foot notes.
    2. Such irregularities may be urged in a motion to quash, and competent evidence should be heard in support of the motion.
    3. In the absence of any count or averment to that effect in the indictment, the State should not be allowed to prove that the accused was a fugitive from justice when arrested, thereby illegally creating a presumption of guilt against him. 3(5 Ann., State, vs. Victor.
    4. The general presumption of guilt resulting from fight does not arise when the crime has been committed in the presence of witnesses who testify at the trial. 37 Ann. 77. State vs. Melton.
    o. The accused has a constitutional right of being heard by his counsel and to present his defense to the court and jury, and any abridgment of that right is repugnant to the principle of charity aud liberality which characterizes the criminal law towards accused persons.
   The opinion of the Court was delivered by

Pocinó, J.

The defendant s.eelrs relief from a conviction of murder without capital punishment, and he relies on two hills of exception :

1st. He charges error in the disposition made by the trial judge of his motion to quash the indictment. His ground was that the finding of the grand jury was not supported by sufficient evidence, but that it rested exclusively on the testimony taken at the coroner’s inquest. The judge properly refused to hear evidence in support of the charge of alleged misconduct of the grand jury.

There was no defect of form or of substance apparent on the face of the indictment, and none was even alleged, and hence the motion to quash contained no elements which must form the basis of such a motion. i

The finding of the grand jury is not a, verdict or judgment; it amounts, at most, to an accusation; aud we know of no law which fixes the nature or quantum of the evidence on which the grand jury must rest their conclusions.

The law which exacts of members of the grand jury a solemn oath not to disclose the proceedings which take place in the grand jury room can surely not he invoked to open the lips of these same members in order to give testimony concerning the very proceedings which they have promised under the sanctity of an oath to keep secret. If, therefore, the inquiry suggested by defendant’s complaint could in the least he sanctioned by law, the investigation would, he paralyzed by reason of the utter absence of a.ll means to render it effective.

But in law as well as in reason there is no more authority to justify an inquiry into the nature of the evidence which the grand jury has considered in finding a true bill than there would be to require the District Attorney to disclose or detail the sources of knowledge on which lie bases Me information in cases where that proceeding is sanctioned by law. State vs. Jones, 8 Rob. 617; State vs. Bunger, 14 Ann. 461.

2d. The second complaint charges error in allowing the officer who had arrested the accused to answer the question, “when and where was the accused arrested V

The ground is that the intention of the State was to show that the accused had ded from justice, without any averment to that effect in the indictment.

Nothing in the question or in the record shows that such was the intention of the District Attorney.

And if the question had drawn from the witness an answer showing the fact, the objection would go to the effect, and not to the admissibility of the evidence.

We find no error to the prejudice of the accused.

Judgment affirmed.


author: Todd, J.

text:
    No. 1265.
    The State of Louisiana vs. Vernon Hendricks.
    An indictment is not amenable to duplicity, because it charges one or more acts contemporaneously, germane in character, and altogether making one offense, although each of said acts constitutes in itself a minor offense of the same genus with the graver one charged.
    A verdict of guilty of shootieg with intent to kill is not responsive to the charge of shooting with intent to murder, nor does it meet any offence denounced by any statute of the State.
    Where the indictment is good bnt the verdict returned is unwarranted and illegal, and is. therefore, annulled and set aside, the accused is thereby not entitled to his discharge, but can be tried again under tbe same indictment.
    APPEAL from the Twelfth District Court, Parish of Avoyelles, Blackman, J.

      M. J. Owvningham, Attorney General; John 0. Wickliffe and John W. Ogden, District Attorneys.

      Onllom (& Ooco for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was charged by indictment as follows : “That Vernon Hendricks * * * did wilfully, feloniously and maliciously make an assault with a dangerous weapon in and upon one Thomas Williams, * * * and did then and there shoot, wound and ill-treat him, the said Williams, with intent him, the said Williams, then and there, to kill and murder,” etc.

Under this indictment a trial was had, and the jury returned the following verdict: “We, the jury, find him guilty with an assault with a dangerous weapon, and with shooting with intent to kill.”

Thereupon a motion in arrest of judgment was filed, substantially to the effect that the indictment charges, in one count, three separate and distinct offenses, viz: those provided by sections 792, 793 and 794 of the Revised Statutes, and was, therefore, amenable to the charge of duplicity; and, further, that the verdict was not in conformity to, or did not find, any offense known to the laws of Louisiana.

It is true, as charged, that the acts recited in the indictment do constitute one or more offenses recognized by the laws of the State. These acts are, however, of a kindred character, were contemporaneous, were parts of the same affair, and, in point of fact, led up to and culminated in the grave offense charged, which evidently at once constitutes the subject of the prosecution, and that is, substantially, shooting with intent to murder. Sec. 791, R. S.

It is certain that, as a general rule, the inclusion in one count of two separate and distinct offenses is duplicity, and fatal to an indictment, but where the acts charged, even though of themselves each a minor offense, are germane to each other and to the main charge, and taken altogether constitute but one affair and make one offense, it is uniformly held, in letter and spirit, to be out of this general rule, and not, in fact, amenable to the charge of duplicity. 2 vol. Bishop Crim. Pro. 191, 192; 33 Ann. 182, Habe vs. Collins.

There is nothing, therefore, wrong about the indictment; at least, nothing that condemns it as invalid, although inartistically and care* lessly drawn ; but when we come to consider the verdict, we meet with more difficulty. As stated, it finds the accused guilty, not of shooting with intent to murder, as charged in the indictment, but guilty of shooting with intent to kill, which it is clear is not responsive to the charge, nor does it meet or respond to any other or lesser offense of the same general- or, indeed, of any kind prescribed or denounced by any statute or law of the State.

We shall, therefore, be compelled to sustain the second point embraced in the assignment of the counsel, and set aside the verdict, for the cause mentioned.

This will not have the effect of discharging the defendant, but under authority of the State vs. Olivier, recently decided at Monroe, and not yet reported, supported by the precedents therein cited, the conclusion reached necessitates another trial under the same indictment. State vs. Foster, 36 Ann. 857; State vs. Burden, 38 Ann.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, so far as it quashes the indictment, be annulled, avoided and reversed, and the case be remanded, to be proceeded with accordiug to law and the views herein expressed.


author: Watkins, .1.

text:
    No. 1259.
    The State of Louisiana vs. Moses Wire.
    1. A motion for new trial that is unaccompanied by any hill of exceptions, or evidence touching tho errors complained of, will not he examined.
    2. Unless the record discloses a bill of exceptions, motion in arrest of judgment, proper assignment of error, or error apxmrent on its face, the judgment will be affirmed.
    APPEAL from the Twenty-sixth District Court, Parish of >St. John tho Baptist. Host, J.

      Q. Leche, District Attorney, and Chas. A. JBaquié, for the State, Appellee:
    It has been repeatedly decided that the jury are the sole judges of the facts adduced in tho course of a criminal trial, and that they have the right to disregard certain facts as being untrue, and receive other as being true. 18 A nn. 35: 35 Ann. 573; 20 Ann. 402; 8 H. 540.
    It has also been repeatedly decided by this Court that it has nothing to do with the facts in such proceedings, and will not weigh them. 28 Arm. 236; 23 Ann. 129; 30 Ann. 132; Const. 1879, art. 81.
    And also that this Court will not interfere with, the discretion of the lower court in refusing a new trial, unless there is error patent of record. 28 Ann. 402; 36 Ann. 341: 32 Ann 842; 33 Ann. 679.
    Therefore we submit that the judgment of the lower court should be affirmed.

      James JD. Augustin for Defendant and Appellant:
    In the interest of justice the Supreme Court will sometimes grant a new trial in a criminal case, when no precedent for it exists. State vs. Gunter, 30 Ann, 536.
    The charge of the lower court and the facts urged as grounds for a new trial, can be brought before this Court in no other way than by bills of exception. Ibid 536, 539.
    The counsel appointed by the court to defend the accused is entitled to a reasonable time, to be regulated by the jndge, for preparation. 16 Ann. 425, State vs. Ferris; State vs. Shonhausen, 26 Ann. 422.
    The affidavit of the accused for a continuance cannot he contradicted; it must be taken as true. 30 Ann. 296, State vs. Simien.
    Favoring the liberty of the citizen, the Supreme Court will entertain the appeal, although there was no motion to quash, no hill of exception, no motion in arrest of judgment, nor formal assignment of errors. 23 Ann. 433, State vs. Forrest.
    Wo make part of our syllabus the humane views and liberal interpretation of the law in favor of the life and liberty of the citizen so pointedly expressed by the court in 30 Ann. p. 040, State vs. Gunter. His Honor, Justice Manning, was then Chief Justice, and that eminent jurist. Hon. R. H. Man* and Hons. Alcibiade HeBlano and W, B. Spencer, Associate Justices; Hon. H. H. Ogden, was Attorney G-eneral, and Robert & Hunter, for defendant. That experienced criminal lawyer, as organ of the court, Justice Egan— the Court say: •‘‘While, however, we have applied the principles of well settled law to the various matters revised and discussed by us in detail, on the whole case, we are not left without an impression of the possibility that there may have been irregularities calculated to influence the result of the trial unfavorably to the accused, and that his counsel may have mistaken the manner of presenting thorn for the consideration of this Court as therefore less injury would be done to the State by our granting another trial than, possibly to the accused by refusing it, and as this Court has held new trials may sometimes be granted though no precedent exist for them, it is ordered that the verdict and sentence appealed from be, and they are, hereby avoided and set aside, and the case remanded to be proceeded with according to law.”
   Tlie opinion of tlie court was delivered by

Watkins, .1.

The accused r^as indicted, tried and convicted of rape, and from a sentence to lifetime imprisonment in the penitentiary, in pursuance of the verdict of the jury, has prosecuted this appeal, which is predicated upon an alleged error of the trial judge in refusing to grant him a new trial, as prayed for.

The application for the new trial was not sivpported by any evidence, and no hill of exceptions was reserved for the accused, to the ruling complained of, and, even in the brief of defendant’s counsel there is no suggestion of any error apparent upon the face of the record, which would fatally affect the proceedings.

However much we may he disposed to favor the liberty of the citizen by entertaining appeals when the proper defense of the accused has suffered through neglect, or mismanagement of counsel, we will restrict that disposition to extreme cases, unless the record discloses error apparent, a hill of exceptions, motion in arrest of judgment, or proper assignment of error. 38 Ann. State vs. Balize; 40 S. 190; 7 N. S. 234; 40 S. 658; 5 N. S. 341.

Neither of those conditions exist in this case.

This court has repeatedly and recently held that it cannot take notice of any facts adduced during the trial of a criminal case, pertaining to rulings of the judge, unless same accompanies a bill of exceptions, reserved at the time such ruling was made. 35 Ann. 742, State vs. Williams; 32 Ann. 842, State vs. Nelson; 35 Ann. 823, State vs. Belden; 35 Ann. 769, State vs. Jackson.

The counsel for the defendant has filed in this court what he styles an assignment of errors, and which is to the effect, that “all the/acts stated in his brief as to the refusal of the judge a quo to allow a hill of exceptions to he drawn up * * * * and as to the statement of the prosecuting witness,” etc.; and further to the effect that the judge stated from the bench “ that counsel might do so, but that he would not sign ” such a bill of exceptions — but such errors cannot be presented in this manner. 35 Ann. 770, State vs. Riculfi and McClung; 90 S. 275, Wallace vs. Thompson. They are certainly not apparent upon the face of the record, and on this form of procedure we cannot grant the requested ruling.

The judgment is bheiefove affirmed.


text:
    No. 1261.
    The State of Louisiana vs Charles Johnson.
    The State is not entitled to prove, in support oí a charge of burglary of a bouse, and the larceny of a pocket-knife therein by the accused, another burglary at a different time and place and the larceny of a gold watch, to interpret the intent of the accused, in the commission of the former.
    APPEAL from the Twentieth District Court, Parish of Lafourche. Beattie, J.

      JS. A. O’/Sullivan and John IV. Ogden, District Attorneys for the State, Appellee.

      John S. Billin, for Defendant aud Appellant:
   The opinion of the court was delivered by

Watkins, J.

The accused was indicted, tried aud convicted of burglary and larceny, committed in the nighttime of the 23d of January, 1886, and from a sentence by the court, to fourteen years imprisonment in the penitentiary, in pursuance of the verdict of the jury, has appealed.

The indictment charges, in substance, that the accused and Nathan Taylor, “on the 23d of January, 1886, in the nighttime the dwelling house of Joseph 0. Toups * * feloniously and burglariously did break and enter, with intent the goods and chattels of the said Joseph ,0. Toups, in the said dwelling-house, feloniously and burglariously to steal, take and carry away ; and the said Charles Johnson and Nathan Taylor, one pocket-knife, of the value of ten dollars, the property of said Joseph 0. Toups, in the said dwelling-house, there being found, there feloniously and burglariously did steal, take and carry away.”

The record contains a bill of exceptions retained for the accused to the evidence of Charles Smith, witness for the State, to the effect that the accused Charles Johnson had told him that he had committed an other burglary at another time and place, and that in the later burglary he had taken a gold watch, and that said watch was then offered in evidence by the State ; and thereupon counsel for the accused objected to the testimony, and the admission on the ground that same was irrelevant to the issue, and not pertinent to crime charged.

The judge a quo appends to the bill the following statement of facts, viz: “A witness was on the stand who was detailing a confession the accused. The confession related to other burglaries and thefts committed about the same time. The witness stated that accused stated he had stolen a gold watch-, whereupon the District Attorney showed the gold watch, and asked if that was the one which witness said was like one described.

The evidence was admitted to show intent of the accused in breaking and entering, and the court thought it be (the means) by which to test the truth or falsity of the witness’s statements as to the alleged burglary. The jury was charged that accused could only be found guilty of the offense charged in the indictment, viz: the burglary of the house, of Toups, and if the verdict was of larceny, then only of the larceny of the knife. Put the court charged that the jury might judge of the intent of the accused, if they found the breaking and entering from all the circumstances of the case, as proven.”

The judge erroneously overruled the objections of the counsel for the accused, to the reception of this testimony on part of the State.

It is difficult to conceive in what way the commission of a burglary, at a different time and place from that charged in the indictment, by the accused, could interpret the latter ; or in what w7ay the subsequent larceny, by the accused, of a gold toateh, from a person not named, could interpret the previous larceny of a pocket-knife, the property of Joseph 0. Toups. It was not proper to allow such evidence to be heard by jury, and the instructions of the trial judge were improper.

Such evidence could not affect the credibility of the accused because he was not a witness, and the truth or falsity of his statement was in no way involved.

The accused had not, upon his own motion, put his character in proof, and the State could not do so otherwise. The witness in question was suffered to testify as to matters that were wholly irrelevant to the main issue on trial — the guilt or innocence of the accused — and totally disconnected with the charge contained in the indictment. 38 Ann. 737, State vs. Gregory.

It is therefore ordered, adjudged and decreed that the verdict of the jury and sentence by the court be annulled, avoided and reversed, and that the cause by remanded and reinstated for further proceedings according to law.


text:
    No. 1262.
    The State of Louisiana vs. Charles Johnson.
    Samo principle as in preceding case.
    APPEAL from the Twentieth District Court, Parish of Lafourche. . Beattie, J.
    75. A. O'Sullivan and John W. Ogden District Attorneys, for the State, Appellee.

      J. 8. Billiu for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The accused was indicted, tried and convicted of burglary and larceny, committed in the night time of the 24th of January, 1886, and from a sentence by the court to fourteen years’ imprisonment in the penitentiary, in pursuance of the verdict of the jury, has appealed.

The indictment charges, in substance, that Charles Johnson and Nathan Taylor did, on the 24th of January, 1886, feloniously break and enter, in the night-time, the dwelling-house of Cyprien Guidrey, and therefrom did take, steal and carry away one gold watch, of the value of twenty-four dollars, the property of one Henry Guidrey, therein being found at the time.

Under circumstances quite similar to those recited in the case No. 1261 — same parties — the trial judge permitted the State to prove, by Joseph Toups, a state of facts indicating that the accused had, at a different time aqd place, stolen from him a cooked turkey, under similar instructions to those he had given in the case last cited.

For the reasons assigned in that case — State of Louisiana vs. Charles Johnson, No. 1261 — it is ordered, adjudged and, decreed that the verdict of the jury and sentence of the court be annulled, avoided and reversed; and that the cause be remanded and reinstated for further proceedings according to law.


author: Poché, J.

text:
    No. 1264.
    The State of Louisiana vs. Anderson Heywood.
    Arricio 29 of the Constitution, which provides that every law of the General Assembly must embrace but one object, and must express the same in tbo title, is mandatory, and any enactment which violates it is null.
    Act lío. (>4 of 1884, entitled, “An act to provide for tho punishment of the offense and crime of malicious threatening or threats, the malicious sending of threatening letters or communications of malicious publications, or resorting to malicious acts, or threats of injury to person, reputation or property, though no valuable thing be demanded, or sought to be extorted,” embraces at least four separate objects, and is, therefore, unconstitutional, null and void.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Barbin, J.

      M. J. Oumúngham, Attorney General; John G. Wiclcliffe and John W. Ogden, District Attorneys, for the State, Appellee.

      Cullom & 8on and A. Y. Ooeo for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The State has appealed from a judgment quashing an indictment against the defendant, brought under act No. 64 of 1884 entitled, “An act to provide for the punishment of the offense and crime of malicious threatening or threats, the malicious sending of threatening letters or communications, of malicious publications, or resorting to malicious acts or threats of injury to person, reputation or property, though no valuable thing be. demanded or sought to bo extorted.”

The ground of the motion to quash is that the act in question is unconstitutional, being violative of article 29 of the Constitution of the State of Louisiana.

That article reads as follows :

“Every law enacted by the General Assembly shall embrace but one object, and that shall be expressed in its title.”

A similar provision had been incorporated in previous Constitutions of this State, and was at different times subjected to judicial test; and it has been uniformly held that tho provision was mandatory in its scope and character, and that a violation of its requirements would entail nullity on any act of the Legislature. Walker vs. Caldwell, 4 Ann. 297; State vs. Hackett, 5 Ann. 93; State vs. Harrison, 11 Ann. 722; State vs. Adeline, Ib. 736; Duvergé vs. Salter, 5 Ann. 94.

The following is the text of the act under consideration :

“Section 1. Be it enacted by the General Assembly of the State of Louisiana, That li any person shall, knowingly and maliciously, send or deliver, or cause to be sent or delivered, or cause to be received by another, any letter, postal card, written or printed matter, threatening to accuse him or her, or to cause or procure him or her to be accused of any fault, crime, offense or misdemeanor, or to charge, or cause or procure him or her to be charged, with any fault, misfortune, infirmity or failing, or to publish or make known any of his or her faults, misfortunes, infirmities or failings, or to injure or impair his or her good name, or reputation, or credit, or in any manner to cause him or her to be, or become subjected to, or liable to any public scandal, or public ridicule, or to subject him or her to any scandalous notoriety, or to any bodily harm, or if any person shall maliciously follow, or pursue, or intrude himself or herself upon another, at his or her home, place of abode, or residence, or at or in his or her place of business, office, or at any place of business or office where he or she may bo engaged or employed, or on any public street or highway, or in any public place or place of public assembly whatsoever, against his or her will and consent, or shall in any manner, or by any means, maliciously threaten to wound, maim, kill, murder or inflict bodily liaru, on another, or shall maliciously threaten to burn, or destroy, or damage his or her building or other property, with malicious intent, though no money, goods or valuable thing be demanded, shall, on conviction, be imprisoned, with or without hard labor, not less than six months nor more than three years, and fined not less than fifty dollars nor more than five hundred dollars.

“Section 2. Be it further enacted, ete., That this act shall take effect and be in force from the date of its promulgation.”

As a sample of obscure composition, it can successfully challenge comparison with any legislative enactment that has been submitted to judicial investigation before this Court; and it has taken us many readings and deep study of its language before we could detect any definite object, as expressed in the title or contained in the body of the act.

But after a trying and patient examination, we have found, or at least we think we have discovered, in the body of the act, that provision is therein made for four separate objects, and that the objects contemplated are not all expressed in the title.

1st. The first object suggested by the inartistic language of the act is to provide for the punishment of threats of accusations or of injurious publications communicated by means of letters or other writings.

2d. Tlie second is a provision for the punishment of the offense of maliciously following, or pursuing, or intruding on, another persoD, either in public or in private, against his or her will or consent.

3d. The third contemplates a penalty for making, in any manner, malicious threats to do almost any imaginable bodily harm on another.

4th. The fourth intention is to punish the offense of threatening to maliciously burn, or otherwise destroy or damage the building or other property of another. The proposition to punish an offender for sending threateniug letters, contemplates an offense as distant from that of maliciously following another person as murder is from arson or burglary; it is also distinct from a threat to do bodily harm to another person, and it is not at all similar or kindred in its essence to that of threatening to burn or destroy the building or other property of another person. And, on inspection, it appears that the three other offenses denounced in the statute are essentially different and distinct from each other, and that each forms a separate subject or object of legislative enactment.

The reasons for such a constitutional provision as that now under discussion, have been considered by this Court in the opinions herein-above cited, and need not here be repeated.

But the present statute, in the attempt of its framer to provide in one act for the punishment for threats of committing nearly all of the offenses denounced in our Revised Statutes, under the headings of offenses against persons and against property, would be strongly suggestive of the necessity of such a provision, if the same had not been inserted in the Constitution. We conclude that the statute is glaringly unconstitutional, and that it is nought but a dead-letter in the statutes of the State.

Judgment affirmed. &


author: Poems, J.

text:
    Mrs. Dora Lambeth, wife, etc., vs. G. W. Sentell et als., and the Sheriff.
    The Supreme Court will take judicial cognizance of its own judgments in tbe trial of causes involving executions predicated thereon.
    In executions under writs of fi. fa., excessive seizure is not a legal ground of injunction of tbe execution ; tbe remedy is to apply for reduction of seizure under art. G42, Code of Practice.
    The seized debtor has not the right to point out property to be seized when the creditor who prosecutes the execution of the judgment has a privilege or mortgage on the debtor’s property.

      The seizure ol‘immovable property is not invalidated by the failure to serve notice of seizure on tho tenants. Pipkin vs. Sheriff, 36 Aim. 782, affirmed.
    Patties who abuse the writ of injunction to stay execution of moneyed judgments against them should bo mulcted in damages.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Blackman, J.

      J3. T. Merriclc and A. V. Coco, for Plaintiff and Appellant.

      Thorpe & Peterman for Defendants and Appellees:
    1. Excessive seizure is no ground of injunction against fieri facias. Bagley vs. Tate, 10 It. 45; Powell vs. Hayes, 31 Ann. 789; Burgess vs. G-oidy, 32 Ann. 1297; Gusman vs. EePoret, 33 Ann. 333.
    2. Seizure of rented immovable property under fieri facias need not bo accompanied by notice to tenants. Carroll vs. Chaffe, 35 Ann 83; Pipkin vs. The Sheriff, 36 Ann. 782.
    3. When the creditor has special mortgage upon a part of his debtor’s property, he may seize the mortgaged portion under tho usual form of fieri facias, without, specifically, describing tho same in the body of the writ. Dunlap vs. Sims, 2 Ann. 239.
    4. Where the creditor, having special mortgage upon a part of the debtor’s property proceeds by fieri facias against that part, the debtor has not the right to point out other property to be seized by the sheriff. C. P. arts 646 648.
   The opinion of the court was delivered by

Poems, J.

This appeal is prosecuted by plaintiff from a judgment dissolving an injunction taken to arrest the execution of a judgment held by the defendant Sentell, with two per cent per annum interest on the amount of the judgment enjoined and damages in the sum of one hundred and fifty dollars in solido against herself and her sureties on the injunction bond. The grounds of her injunction were in substance as follows:

1st. That the amount of property seized was excessive, and that in an execution not resting on a special mortgage, she was denied the legal right to point out to the sheriff the property which she desired to he seized and sold first.

2d. That the sheriff could not seize any immovable property until he had commenced by seizing movable property.

3d. That there was no actual or legal seizure of the property for the reason of the sheriff’s failure to have notified the tenants on the immovable property.

4. That the seizing creditor had caused to be reinscribed a mort gage intended to secure a sum of 14400, which has long since been paid, the intention of the seizing creditor being, thereby to swell the amount of his claim with a view to destroy competition at the sale, and to thus obtain the seized property at a sacrifice.

The motion to dissolve the injunction was predicated on the ground that plaintiff’s petition disclosed no cause of action.

i.

The error of law and of fact which plaintiff has fallen into as to the true character of the claim sought to be transferred against her has doubtless prompted the first ground of her injunction, and it has pervaded throughout the whole case, from the pleadings to the argument of her counsel ou appeal.

Having alleged in her petition that the judgment in execution did not import or involve a special mortgage,, she resisted, on trial, the introduction of any evidence, including the mandate of this court affirming the judgment enjoined, and the original petition. To an adverse ruling of the court a bill of exception was reserved and is pressed on our attention.

That evidence was utterly unnecessary, and for two reasons:

1st. This court has the undoubted right to take judicial cognizance of its own judgments and decrees, especially in an injunction intended to affect any of its mandates. Minor vs. Stone, 1 Ann. 283; Carroll vs. Chaffe, 35 Ann. 83.

Now the writ of fi. fa. herein enjoined and annexed to plaintiff’s petition informs us that it was issued' in execution of a judgment of the District Court of Avoyelles, rendered in the case of G. W. Sentell et als. vs. Dora Lambeth, wife of T. O. Stark, the identical parties herein, and turning to our reports in the 37th Annual, page 679, we find that the judgment was brought on appeal to this Court last July, and that our decree affirmed it, with recognition of the special mortgage claimed by the creditors in their original petition.

2. But in the zeal of counsel they seem to have lost sight of their' own pleadings, for their own petition contains the same information.

After describing the identical suit which we had disposed of on appeal, and reciting that the judgment therein rendered was for the sum of $8,000 with interest of eight per cent per annum from March 3, 1875, jdaintiff’s petition contains the following averment:

“She shows that, in the act of mortgage executed May 5, 1875, your petitioner granted a mortgage on her property in addition to the eight thousand dollars (the italics are ours) for the sum of $4,400 as security for that sum for her sister,” * * * and by the brief of one of her counsel, we are informed that that mortgage covered all of her property.

It is thus demonstrated that the claim in execution was secured by special mortgage; and that therefore the rights of the seized debtor are to be controlled by art. 648 and not by art. 646 of the Code of Practice, as contended for by her counsel.

Art. 648 reads: “ The debtor shall not have the right of pointing out to the sheriff the property which he wishes him to seize when the debtor who prosecutes the execution of the judgment has a privilege or mortgage on part of his property,” * * *

• The fact that this article is found under the heading of the execution of judgments, and that the provision applies in terms to the “execution of a judgment” is a sufficient answer to the fallacious argument of plaintiff’s counsel that the right of the debtor to point out property for seizure, is unexception ally secured in all executions via ordinaria.

We therefore conclude and hold that, in this case, the seized debtor could not claim the right of pointing out property.

We note in this connection a point made by one of plaintiff’s counsel in his brief, but not included in the pleadings, which is made to rest on art. 650, Code of Practice, which provides :

“Nevertheless, the debtor whose land shall have been seized, shall always be entitled to demand that a portion only, which he shall designate, shall be sold, if that portion is sufficient to satisfy the judgment, but if it be insufficient, a sale of the other portions shall be made.” The name of the counsel Who makes this point is not appended to the petition, with which he is apparently not familiar. Hence, he has fallen into the error of supposing that that ground had been adopted by his associate. In this, however, he is mistaken. But be that as it may, there is no force in the contention, and it is, to say the least, entirely premature, for the record does not show that the seized debtor has as yet made any demand touching th'e mode of effecting the sale. Prom the text of the article it appears that the remedy which it contemplates, has no reference to the seizure, which is the only bone of contention contained in the record.

As to the alleged excessive seizure the record shows that, as soon as complaint thereof was made, the sheriff was ordered to release all bur the property specially mortgaged, and that the same has been so released. But the real answer to that complaint is to be found in arts. 652 and 653 of the Code of Practice, which point out the only and the exclusive remedy of the seized debtor in such an emergency. It is no longer an open question in our jurisprudence that such a complaint is not a legal ground for an injunction of the execution. Commenting on these two articles of the Code this Court has said: “It is evident that in contemplation of law, the amount of the seizure never exceeds the amount of the writ.” Buisson vs. Staats, 9 Ann. 236; see Bagley vs. Tate, 10 Rob. 45; Powell vs. Hayes, 31 Ann. 789; Burgess vs. Gordy, 32 Ann. 1297; Gusman vs. DePoret, 33 Ann. 333.

ii.

The complaint that the sheriff could not seize immovable before movable property, could, be entertained only in a case where the party prosecuting the execution of the judgment has no privilege or mortgage, and it is already shown that the very reverse is the feature of the case in hand.

III.

If, as alleged by plaintiff in her third ground of injunction, the sheriff has not made an actual or legal seizure of her property, we are at a loss to appreciate her complaint in this particular. To prevent a seizure seems to be the “consummation most devoutly to be desired” by herself and her numerous able and zealous counsel. Gusman vs. DePoret, 33 Ann. 338. She is apparently in a predicament similar to that of plaintiff in the case of Calderwood vs. Prevost, 9 Rob. 182, to whom this Court addressed the following consolation: “In relation to the advertisement of the plaintiff’s watch and chain for sale, without being seized or taken into possession by the sheriff, such a proceeding is undoubtedly irregular and illegal; but we are at a loss to perceive what injury the plaintiff has thereby sustained. He has the free use and enjoyment of these jewels, and it will be time enough for him to complain when he is disturbed in his possession of them. If, however, in the meantime, he is anxious to cure this irregularity in the proceedings of the sheriff, he can do so by placing his watch and chain in the hands of that officer.”

The record shows that notice of the seizure was given to plaintiff, and if her tenants who have not been notified of the same, continue to pay rents to her, what right has she to complain ? But the notice was not required by law on the tenants. Pipkin vs. Sheriff, 36 Ann. 782.

IV.

Our great respect for plaintiff’s counsel will not permit us to believe that they are serious in presenting their fourth ground of injunction. What injury can befall a seized debtor through such a harmless pastime as the reinscription of a defunct mortgage, in connection with the seizure of Ms property? The experience of counsel will doubtless suggest several easy modes, if their client so desires, of brushing away these cobwebs.

A thorough examination of this case has left on our minds the painful impression that plaintiffs recourse to this injunction was ill-advised, and is a reprehensible abuse of the solemn process of a court to impede the administration of justice.

Our sense of duty under that impression is to consider favorably the defendants’ demand for an increase of damages. They have been retarded in a manner unwarranted by law, justice or fair dealing in then-legal efforts to collect a lawful and just claim, and they must be compensated therefor.

The judgment appealed from is therefore amended for the purpose of increasing the damages of two per cent per annum interests, on the amount enjoined to ten per cent per annum on the same, and the judgment as thus amended is affirmed at plaintiff’s costs in both courts.


text:
    No. 1162.
    Simon Black vs. Remi Bordelon, Tutor, et al.
    Where a- judgment creditor resorts to a revocatory action to annul a sale made by his debtor, on the ground of fraud, such debtor and vendor in the contract assailed is a necessary party to the suit.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Blachnan, J.

      Cullom & Gooo for Plaintiff and Appellant:
    1. In a revocatory action it is not necessary to make the original debtor party to the suit, where the debt has been previously liquidated by judgment. He then becomes a party without interest. C. G. 1972 and 197C; 1 L. 503; 15 -L. 470; 1 JR.. 256 , 10 B. 399; 28 Ann, 928,
    2. Hot only contracts but all acts done by the debtor in fraud of his creditors maybe avoided by the revocatory action. C. C. 1989; Cross on Pleadings, p. 252, and the many authorities he cites.
    3. The heir’s seizin is a legal fiction which becomes a reality only when he accepts unconditionally. In the case of minor heirs, the law accepts for them the succession with the benefit of an inventory. They nor their tutors for them can accept unconditionally. 4 L. 202.
    4. They cannot sue for the price of any specific property of the community, where a previous liquidation thereof does not show gains to be divided. 1 B. 378; 2 Ann. 30.
    5. The immediate rights of an heir remain in abeyance until he decides whether he accepts or rejects the succession. Beneficiary heir has but a residuary interest which can only be determined when the succession has been duly administered. O. G. 947, 1033, 1073; 17 Ann. 38.
    6. Heirs who accept with the benefit of an inventory have no right to be put in possession of the property until the administration thereof is closed. 27 Ann. 351.
    7. With major heirs the doctrine is different. 33 Ann. 584.
    8. Minors being beneficiary heirs by operation of law, cannot sue for a partition before tlie closing of the administration. There can be no presumption that no debts exist. 19 Ann. 293. It is necessary that they first provoke a settlement of their mother’s estate. 25 Ann. 215.
    9. Asale oí the succession property for the purpose of effecting a partition among the heirs is not an act of administration, .although it be made by an order of court through the administrator, and the sureties of the administrator cannot be held liable therefor. 22 Ann. 308.

      10. Any other but a judicial partition oi‘ minor’s xirooerfcy is a contravention of aproliibi" tory law, is contrary to public policy and is a nullity ab initio.

    11. The release of a debt without payment, to defraud a creditor, can be avoided by the revocatory action. C. C. 1989.

      Joffrion & Bordelon and Thorpe & Peterman for Defendants and Appellees :
    1. In a revocatory action based upon allegations of fraud, the burden of proof is upon tho plaintiff.
    2. In such, an action the debtor is a necessary party and must be cited. 6 R. 21; 31 Ann. 259.
    3. Judicial proceedings can be annulled for irregularities or error only by appeal. They can be attacked by independent action only for fraud, deception or ill practices upon the court in the proceedings themselves. C. P., Art. 564, 607.
    4. Partition of community, though subject to payment of community debts, may be made between surviving spouse and lieirs of deceased, whether or not the community have been previously settled. 23 Ann. 637; 31 Ann. 572; 32 Ann. 848, 968; 33 Ann. 584.
   The opinion of tlie Court was delivered by

Todd, J.

The plaintiff, a judgment creditor of Bemi Bordelon, brings a revocatory action — the present suit — to cause to be annulled a certain order of court and the sale made under it, by which, it is charged that the said Bordelon fraudulently procured the title to all his property to be placed in the names of the defendants, his minor children.

These children were alone made parties to the suit through their tutor.

There was an exception filed to the effect that all tlie parties in interest were not made parties to the suit; that the suit was being prosecuted against tlie defendants, and that Bordelon, the judgment debtor charged with the fraud of procuring the transfer of his property to his Uiinor children to secure it from the pursuit of his creditors, was not joined in the suit. This exception was overruled by the court a qua. On the merits there was a verdict and judgment in favor of the defendants, and the plaintiff has appealed.

The counsel for defendants in his oral and written argument calls our attention to the ruling of the judge a quo ou the exception, and insists that it was erroneous and asks that the same be corrected.

The appeal brings the entire proceedings in the case before us for review. It is tlie province of this Court to revise all errors relating to the action and rulings of tlie lower court to be found in the proceedings. Levy vs. Roos, 32 Ann. 1033.

Under this view we shall, therefore, first address ourselves to the consideration of the exception mentioned and the ruling of the court thereon.

That all parties in interest should be joined in a suit and made parties thereto where that interest was directly involved, would seem axiomatic. Especially would we be impressed with the truth of this proposition in a case where it was charged that a contract, to which there were two or more parties, was null because they were guilty of fraud in making it. It would seem highly unjust, if not impossible, to investigate and determine the fraud charged, and even annul the contract — the subject of it, when only one of the alleged wrong-doers was before the court, and the other not heard at all, and no opportunity given him to be heard. So far from this seeming requirement being observed in the case before us, we find that those who are not charged as participants in the fraud complained of, and in no light to be viewed other than the mere innocent beneficiaries of the same, are alone sued, whilst the one who is accused of planning and consummating the fraud, and who inaugurated and conducted the proceedings by which its purpose was accomplished, is left entirely out of the case, neither sued nor cited.

This, then, might seem on general principles a strange case, except that it is plausibly, and with some color of authority, claimed that the omission referred to and the course of proceeding adopted is specially authorized by provisions of the Civil Code and a corresponding construction by several decisions of this Court.

These provisions are those contained in Articles 1972 and 1975 of the Code.

The first (1972) reads as follows : “It (the revocatory action) cannot be exercised by individual creditors until their debts are liquidated by a judgment, unless the defendant in such action be made a party to the suit for liquidating the debt brought against the original debtor in the manner hereinafter directed.”

Article 1975: “The plaintiff in the action given in this section may join the suit for annulling the contract to that which he brings against the original debtor for liquidating his debt by a judgment; and in such suit either of the defendants may controvert the demand of the plaintiff.”

It is clear to our minds that the true intent and meaning of these articles is this:

That a creditor only can exercise the revocatory action, and his debt must be conclusively established, that is, by a judgment; but to favor such creditor and perhaps save needless delay, he is permitted to couple the action for the annulment of the obnoxious contract with an action to liquidate his debt by the required judgment, so that the two causes may bo proved pa/vi passu, so that a judgment against the debtor and a judgment annulling the contract assailed may be pronounced at the same time.

The new disposition or character of this action, as given by the Code, necessarily implies that both parties to the contract must be joined in the suit for its nullity.

Article 1978, C. C., declares: “No contract shall be avoided by this action but such as are made in fraud of creditors, and such as, if carried into execution, would have the effect of defrauding them. If made in good faith it cannot be annulled, although it prove injurious to the creditors; and although made in bad faith, it cannot be rescinded unless it operate to their injury.”

How can it be determined whether, for instance in a contract of sale, it was made in fraud of creditors or in good faith, and whether in good or bad faith, that it was not injurious to creditors, when the vendor was not before the court? Could such vendor with any color of justice be condemned in these important respects without a hearing? It seems that such a course would not only be violative of a fundamental right, but would necessarily work oftentimes the grossest injustice.

The theory of making only the purchaser of the sale attacked a party, can rest alone on the principle that the judgment against the vendor in such contract, for the debt, is his complete and absolute condemnation on every question of fraud and wrong involved in this kind of an action.

We have carefully reviewed all the decisions to which we have been referred by plaintiff’s counsel as sustaining their contention, and, in fact, have examined our entire jurisprudence on the subject, and find none that give auy strong support to their position on this point. They are unsatisfactory. The direct issue embraced in the exception under discussion, we are convinced, has either not been squarely presented or, if so, not been fairly met.

Our views on this point are supported by the decision of our immediate predecessors in the case of Miltenberger vs. Weems’ heirs, 31 Ann. 259, and to some extent by the authorities therein cited. * * *

This case in the lower court should not have proceeded farther than the trial of the exception, which should have been sustained and the suit dismissed.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and'reversed, and proceeding to render such judgment as should have been rendered, it is now ordered, adjudged and decreed that tlie exception filed in the court below relating to the non-joinder of the necessary parties to the suit and considered in the opinion, be and the same is hereby sustained, and the suit dismissed at the plaintiff’s costs in both courts.


text:
    No. 1267.
    Succession of Melany Foreman.
    1. When separate funds or property of the husband, have been used to benefit and enrich the community, it will constitute a debt of the (onnnunity in favor of the husband to the amount of such fund or the value of such property. But the evidence must establish, with reasonable coitainty, that the funds were thus used or the property 11ms em. ployed.
    2. The community of acquets and gains includes, at its dissolution, presumptively, everything found in the succession of the deceased spouse, and without reference to the amount brought into the marriage by the respective spouses.
    APPEAL from tlie Twenty-fifth District Court, Parish of Lafayette. DeEaillion, J.

      J. A. Ghargois for the Administrator.

      M. JE. Girard for Opponents and Appellants.
   The opinion of the Court was delivered by

Watkins, J.

Melany Foreman died intestate on the 6th of September, 1880, her husband, Edward Hoffpauir, surviving her, and having no forced heirs to her estate, which consisted principally of an undivided one-half interest in the community property.

On the 15th of December, 1881, Garland Foreman, one of the collateral heirs of the deceased, applied to he appointed administrator of her estate, hut same was successfully opposed by her surviving husband, who was duly appointed and qualified on the 16th of March, 1882, having previously caused an inventory to be taken of the property of her estate, which was valued at $1,588.05 — including $70 in cash.

On the 1st of June, 1882, the administrator caused the property to be sold, and tbe sale yielded the sum of $2,067.10; and on the 11th of May, 1883, filed Ms final account on which he. charged himself with the oregoing sums aggregating $2,137.10, and credited himself with expenditures in discharge of debts of the community $1,183.50 and $401.57' expenses of administration. lie makes an allowance in favor of liis deceased wife of $204.25 on account of her separate estate, part of which was brought by her in marriage and the remainder was inherited from the estate of her mother. He also enters a claim in his own favor for.$3,303 as the value of a lot of cattle, horses, sheep, hogs and cash he owned at the date of his marriage with the deceased “ and which were expended for the benefit of the community.”

Casting up these accounts he shows his wife’s succession to he indebted to him the sum of $2,521.07.

The homologation of this account is opposed by the collateral relations of the deceased upon the ground that, at the death of Melany Foreman, there was on hand about $6,000 in cash, and of this $900 in gold; an amount due to the community and afterwards collected by Edward Hoffpauir, $1,899 ; and property by him sold, $1,559.50; all of which is unaccounted for. Also a lot of stock sold, and the proceeds thereof by him applied to his own use, $1,400.

Opponents also allege, that the estate does not owe and is not chargeable with any of the items carried on the tableau under the head of the passive mass; and they specially object to the item of $3,303 charged in favor of Ms separate account.

In an amended opposition, they charge the administrator with two hundred panels of fencing, ond one horse disposed of by him, and the same is unaccounted for in the account opposed.

The judge a quo rejected the account presented and restated same as follows, viz:

Dn.

To amount cash and sale..................................$2,137 10

Cr.

By debts paid.................................... $953 60

By expenses administrator....................... 401 57

By due E. Hoffpauir by community............... 405 00 — 1,760 17

Balance due community.............,................$ 386 93

And, as thus reformed, the administrator’s account was homologated and opponents have alone appealed.

II.

The judge a quo disallowed the entire demand of Edward Hoffpauir for value of his separate property, for the reason that same was not shown by the evidence to have fallen into the community; hut he allowed “all hills and accounts paid, as shown by receipts.”

In the decree appealed from, no disposition is made of the counter demand of opponents; but they may be considered as inferentially disallowed.

An examination of the record satisfies us that the following items placed on the account and allowed by the judge a quo should be and ■are rejected and disallowed, viz:

Amount paid D. W. D. White..............................$132 00

Amount paid Isaac Wise................................... 7 85

Amount paid Dr. M. L. Lyons.............................. 30 00

Amount paid Mrs. Willis................................... 43 75

Amount contingent expenses................................ 40 00

Aggregating.........................................$253 60

and that all others should be and same are approved and allowed.

III.

Edward Hoffpauir states as a witness, in respect to his own claims, that he was married to the deceased, Melany Foreman, about fifty years ago, and that at that date he was branding sixty-six calves— wild cattle — and had about twenty head of wild horses and mares and four gentle horses, also about thirty head of sheep and fifty head of hogs, and $200 in cash; and that he subsequently received $500 in cash.

Says he was a cow-boy, and was twenty-two years old when he married, and thereafter lived happily.

Nathan Hoffpauir corroborates his brother’s statement. But neither of these witnesses disclosed, if they knew, what disposition was made of any part of this property. It is quite certain that they do not state that same was used by the community of acquets and gains thereafter existing between himself and deceased, and hence it was not legally chargeable with the value thereof; and the claim thereto of Edward Hoffpauir was properly rejected by the judge a quo. 26 Ann. 605, Blair vs. Dominguez; 2 Ann. 44; 11 Ann. 297; 10 R. 181, Stewart vs. Packwood; 6 R. 508; 10 R. 18; 30 Ann. 275, Denegre vs. Denegre; 15 Ann. 597.

IV.

With regard to the demands and counter claims urged by opponents, we find the followiug items supported by sufficient evidence, and same are therefore allowed,-viz :

Amount paid Ed. Hoffpauir by George Morgan since death of

Melany Foreman.................................... $ 200 00

Amount paid Ed. Hoffpauir by Elijah Green................ 500 00

Amount paid Ed. Hoffpauir by Isaac Foreman.............. 99 00

Amount paid Ed. Hoffpauir by Garland Foreman........... 1,100 00

Aggregating.......................................$1,89.9 00

There is some evidence in the record to the effect that, at the .death of Melany Foreman, there was a field or pasture that was enclosed with a picket fence, and that same was removed or disposed of after-wards, presumably with the consent or knowledge of her surviving husband; and also that certain stock, hack, wagon and horses were likewise disposed of, and for which he should be held responsible on his account; but it is entirely too disultory and unsatisfactory to support a judgment. The amount, nor value of same, is not fully proven, and it does not appear clearly that same were disposed subsequent to Melany Foreman’s death; yet the testimony on this point is confirmatory of her husband’s other indebtedness.

V.

From a careful scrutiny of the testimony of the numerous witnesses that were interrogated, we conclude that the account as restated by the judge a qno should be canceled, and same is hereby amended in ihe following particulars, viz:

Dr.

To amount cash and sale . $2,137 .10

To amount debts collected 1,899 00

$4,036 10

Cr.

By amount of expenses and by debts paid 1,506 57

Balance due community between deceased and administrator, $2,529 53

To one-lialf of this sum the opponents are entitled, inasmuch as the surviving husband has married a second wife and has thereby lost the usufruct of same; but we will not adjudge the administrator 1o pay interest as the date of his second marriage is not fixed by the evidence.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended, and the administrator’s account as restated be approved and homologated and made the judgment of the court, and the appellee pay all costs.

On Application por Rehearing.

An application for rehearing has been made by opponents and appellants, an examination of which has convinced us that the debit items of the account as recast in original opinion, need some correction; though the opponents are in error in placing “the amount of expenses and debts paid at $1,331.47 in lieu of $1,506.57, as announced in opinion.”

The item of “amount due E. Hoffpauir by community, $405, allowed in the account, as restated by the judge a quo, is in error, because all the claims allowed him were rejected by us; and we neglected to deduct from the community assets the amount of the paraphernal claim of deceased, which was shown to he $284.25, and this sum we failed to allow to the opponents.

Adjusting these balances and again restating the account, we have the following, viz:

Ur.

To amount cash and sale...........'.......................$2,137 10

To amount debts collected................................ 1,899 00

$4,036 10

Or.

By amount of expenses and debts paid in course of administration .............................................. 1,101 57

By amount to balance.....................................$2,934 53

Less paraphernal claim of tlie deceased..................... 284 25

Balance due community...................................$2,650 28

One half due opponents................................... 1,325 14

Also deceased’s separate claim............................. 284 25

Total due opponents..........................$1,609 3!)

And it is therefore ordered, adjudged and decreed, that the opinion and decree herein previously rendered be and the same is hereby amended and corrected so as to conform to the views herein expressed, and that as thus amended and corrected, our original opinion remains undisturbed.

Rehearing refused.