text:
    No. 13,668.
    Willis Curl vs. Ruston State Bank.
    Syllabus.
    When a person has done or said something with intent to influence the dealings of another, and that other has acted upon the faith of it, the former oughr not to be permitted to change it to the injury of the latter.
    APPEAL from the Fourth Judicial District, Parish of Lincoln— Dawlcins, J.

      W. A. Vanllooh and IlalbeH & Barret for Plaintiff, Appellant.

      Graham & Pearce for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

In the matter of the “Ruston State Bank vs. S. A. Cameron et alsf’ the plaintiffs caused to be seized, under a writ of execution, a certain cotton compress situated in the town of Ruston; whereupon Willis Curl brought this suit, injoining the seizure, alleging that he is the owner of said compress, and praying for the perpetuation of said injunction. The bank, defendant in injunction, admits that the seizure was made'by its authority and proceeds to set forth at length its reasons for asking that the injunction thus issued be dissolved with damages, urging, among other matters, that the plaintiff in injunction is estopped to set up the present claim. The facts disclosed by the. record are substantially as follows, to-wit:

Some time in 1896, one S. A. Cameron visited Euston, in the parish of Lincoln, and entered into an arrangement which, we infer, was rather tentative than definite, with some of the citizens, having in view the removal to that town of a cotton press, of which he claimed to be the owner, and which he represented as being at York Station in the State of Alabama. The exact nature.of this agreement is not made apparent in the'record, but, in February, 1897, Mr. Cameron wrote, from York Station, where he was living, to a Mr. Thompson, of Euston, to the effect that he had raised $2500, himself, but'needed as much more to move, erect and equip his press, and asking Mr. Thompson to get the Bank of Euston to lend that amount, offering, as security, to “mortgage” the press and insure it, and also to place with the bank, as collateral, his “contract” with the citizens of Euston. One or two other letters were written to the same effect, and, on the 22nd of March (1897), Cameron wrote to Thompson that he had received a letter from the president of the bank, from which he was hopeful that the desired loan would be made. We infer, however, that the bank and the citizens who were interested decided, before going further in the matter, to make some investigation at the Cameron end of the correspondence. Mr. Thompson, therefore, went to York Station to see Mr. Cameron. Upon his arrival, and as he was going, as he understood, in the direction of Cameron’s house, he met an old man whom he did not then know, but who was, and is, Willis Curl, the plaintiff in the instant case and father-in-law of Cameron. Not being altogether sure of the location of Cameron’s residence, Thompson asked Curl for information on the subject, and as there was more than one Cameron living at York Station, he particularly mentioned the fact that he was looking for the Cameron who owned the compress. Curl thereupon directed him to the residence of his (Curl’s) son-in-law, S. A. Cameron, and said that “lie guessed that he would have no trouble making a deal with that gentleman.” Thompson then went to Cameron’s home and entered into an agreement with him, as a result of which, shortly afterwards, Cameron visited Euston and perfected arrangements for the raising of funds necessary for the removal of the press. Those arrangements were as follows, to-wit: A public meeting was held, at which it was stated that Cameron was the owner of the press located at York Station, Alabama, and the questions of the advisibility of removing it to Euston, and of the ways and means, were discussed,' with the result that an agreement was reached in accordance with which Cameron made a note for $2,620.14, dated July 7, 1897, payable to the order of the Ruston State Rank, January 1, 1898, which note was also signed by certain citizens of Ruston, as guarantors, and was identified with an authentic act, also executed by Cameron, which, after reciting that Cameron owes the bank $2,620.14, represented by the note already mentioned, proceeds thus: “The said S. A. Cameron further declares * * that in order <o secure to the holders of the aforesaid note the payment thereof, together with interest, J. J. Booles,. B. F. Thompson, A. A. Cann, “ Lewis & Co., Ltd., T. C. Standifer & Son, E. L. Kidd, W. L. Kendall, “ L. F. Marbury, J. Mack Smith, and Knowles Brothers, all residents of “ Lincoln parish, * * * have indorsed the said note, and made tiiemselves guarantors for the payment thereof. Now in order to “ secure the aforesaid indorsers, and to indemnify them against loss, in “ the event they shall have to pay the aforesaid note, or any part thereof, the said S. A. Cameron declares * * * that he does hereby pledge “ and pawn” certain property, which is described, including the cotton press in question, of which W. D. Turrentine was put in possession, as representing the pledgees. And, upon this security, the bank discounted the note and placed $2,500 to the credit of Cameron with the distinct understanding, as between the maker of the note and the guarantors, that the money was to be used exclusively for the purpose of removing the press from York Station to Ruston, and erecting and putting it in good running order in the latter place. The evidence justifies the belief that the greater part of the amount mentioned was used for the purposes indicated, for the press was taken to Rus ton and put in operation, with Cameron as manager, and his nephew, McElroy (who before that time had lived at York Station), as book-keeper. But, in accordance with an understanding between Cameron and the plaintiff (which really called for the payment of $1,500 to the latter), the plaintiff received $450 of the amount thus advanced by the bank, though the fact that he received that amount or that there was any reason for paying it to him was entirely unknown as well to Cameron’s guarantors as to the bank. Upon the contrary, during all this time there was no hint or suggestion that any one else than Cameron owned or was interested in the press. He represented, throughout the negotiations, that-he was the owner, and he acted as such; and Mr. Curl, his father-in-law, not only stood by and allowed him so to appear, but, as we have seen, directed Mr. Thompson to him as the Cameron who owned the press, and with whom Thompson would have no trouble in malting a deal concerning it.

Proceeding with the narrative; late in the year 1897, within a month or two after the press had been erected, and whilst it was being operated under the management of Cameron, with Cameron’s nephew, McElroy, as book-keeper, Curl paid a visit to Euston, and during the few days, or perhaps, week that he was there, as the guest of Mr. Cameron, spent the greater part of his time either at Cameron’s residence or at the cotton press. He, however, met and conversed with the president of the Euston State Bank and made the acquaintance of several other citizens. During the period of his visit, as at all other times, Cameron was openly playing the role of owner of the press. It was in that ostensible capacity that he had brought it from Alabama, and had pledged it to secure the money borrowed in Euston to pay the freight and charges incidental to its removal and re-erection, and it was in that ostensible capacity that he was managing it and holding himself out to the people of Euston, and to the world at large, so publicly and notoriously, that no man situated as his father-in-law was, i. e., an inmate of his house and a daily visitor and habitue of the press, could have failed to have become informed of his attitude in the matter. The evidence satisfies us that Mr. Curl said nothing in denial of the ownership thus openly asserted and acted on, but that, by silence, he acquiesced in the representations made, and that he left the people of Euston, as he had found them, believing, and with every reason to believe, that Cameron, and Cameron alone, was the owner of the press. But Cameron’s management of the business of the press during the first season was unsatisfactory, for the reason that it did not result in paying the debt of the bank. In 1898, therefore, Dr. Booles, one of the guarantors, representing the others, and with Cameron’s consent (given, as he says, reluctantly and with conditions), took charge of the business and thereafter conducted it. In the meanwhile, Cameron was not altogether idle. He sold a half interest in the press to one Andom, who, in turn, appears to have conveyed such interest to the Merchants and Farmers Bank of Shreveport. He also purchased some property, on credit, and gave his notes for the price; and one of these notes came into the hands of C. P. Cooper as collateral security for a debt due him by a third person. Cooper brought suit and obtained judgment against Cameron on the note in question and seized the press under an execution issued thereon. And then, for the first time, Curl appeared upon the scene as a party in interest. In April, 1899, he filed a suit claiming to be the owner of the press, attacking the seizure of Cooper, and the adverse claim funder the transfer to Andom) of the Merchants and Farmers .Bank, and praying judgment decreeing him to be the owner of the press. And judgment to that effect was finally rendered in this court, in April, 1900. (Curl vs. Sheriff et al., 52 Ann. 1052).

The claim thus made by Curl that he was the owner of the press, upon the basis of the ownership and pledge of which, in, and by, Cameron, the latter’s note had been indorsed, and $2,500.00 in cash had been obtained, was a startling development, and there were probably indications that the indorsers contemplated taking proceedings for their own protection. To allay their apprehensions, Mr. J. W. Ilolbert, whom Curl had appointed his agent and attorney in the matter, upon May .4, 1899, wrote to Dr. Booles, as follows, to-wit: “I am authorized by Mr. “ Curl, of York Station, Alabama, to say to you gentlemen who took “ the pledge on the compress property that he fully recognizes the “ pledge for the sum advanced, $2,500 (advanced on the strength of the “ pledge), and trust that you will not incur any further cost in the matter.” This was followed by a letter from Curl, himself, of date May 6, 1899, addressed to “Dr. J. J. Booles and others,” which reads: “! “ want you gentlemen to understand that I fully recognize the pledge “ you have on my compress. I authorized the property to be pledged to “ you gentlemen for $2,500. I, don’t think it would be honest in me to “ try to beat it, even if I could. I fully indorse your action in taking the pledge, and I shall carry out its terms.”

The bank, however, was dissatisfied with the outlook, and in July, 1899, brought suit against Cameron and his indorsers, upon the note held by it, and, Cameron having removed from the State, the proceeding was begun by attachment, and a curator ad hoc was appointed to represent the absent defendant. Cameron, nevertheless, appeared by his attorney, W. A. VanHook, Esq., and by way of exception, and as a defence to the merits, set up that J. J. Booles, representing both the bank and the pledgees, had taken charge of the press and had managed the business, and that the revenues therefrom had been more than sufficient to pay the note held by said bank; and that, upon an accounting, there would be a balance due. He, therefore, prayed for the rejection of plaintiff’s demand and for judgment, in reconvention, against the plaintiff bank, ,and against the pledgees of the press, for $2,400, or such sum as might be found due upon such accounting. Thereafter, there were some negotiations between J. W. Holbert, upon the one part, and Booles, or Judge Graham, upon the other, as representing- the bank and, also, as representing the indorsers, with a view to having the bank and the. indorsers suspend any active proceedings until the then pending suit arising- out of the seizure of the press by Cooper, should have been disposed of; and these negotiations resulted in a written- agreement, of date November 1st, 1899, which reads as follows, to-wit: “It is this day “ agreed between Willis Curl, herein represented by J. W. Holbert, his. “ agent, and Dr. Booles and others, indorsers upon ai certain pledged “ note of S. A. Cameron, for upwards of $2,600 (as pledge on a certain “compress and fixtures, etc.) witnesses; that * * * Curl hereby, “ and also S. A. Cameron, agrees to the following; recognizes all the “ transactions of Dr. Booles and the Ruston State Bank in the receipts “ and expenditures of the earnings of the press up to the beginning of “ the season of 1899. Also recognizes all the legitimate debts of the “ compress for all prior seasons to this and also the amount now due on “ the said pledge note, as is shown by the note on file in the suit of the “ Ruston State Bank vs. S. A. Cameron &t als. And it is further agreed “ that the press be run this season, or as long as profitable, and to hold “ up all proceedings in court in said suit for said time, and it is also “ agreed that a reasonable fee be allowed to the firm of Graham & “Pearce, attorneys, out of the earnings of the press. November 1, “ 1899.”

Judge Graham, explaining-, as a witness, the purpose of this agreement, says: “Mr. Holbert, before our agreement, assured us, in positive “ and unmistakable terms, that Curl had no resistance whatever to make “ to the bank’s debt, or to the pledgees, * * * the object of Mr. “ Holbert was to secure a suspension of the proceedings until he could “ have Curl’s case” (meaning the case in which Curl .claimed as against the Cooper seizure and the transfer to Andom)” decided in the Supreme “ Court, and we consented to it.” * * *

“I want to state further that if it had not been for that agreement we “ would have gone on and would have gotten a judgment against Cam- “ eren and the defendants in that case before the judgment was ren- “ dored, on the 2nd of April, in which the Supreme Court said that Curl “ was the owner. And, furthermore, we could, at any time, between the “20th of July, 1900, and the 28th of April, 1899, have made Mr. Cuil “ a party to this suit, and we did not do that on account of our confi- “ deuce in Mr. Holbert, and Mr. Curl, that they would keep their prom- “ isos, and offer no resistance to our claims.” This evidence is corroborated by that of Dr. Booles, and is entirely uncontradicted. Under the agreement to rvhich it refers, further proceedings in the suit which had been instituted.by the bank were suspended until April, 1900, (after the rendition in this court of the judgment in which Curl was declared to be the owner of the press), when the parties proceeded with the trial and there was judgment in favor of the bank and against Cameron and his indorsers, in solido, for the amount of the face of the note, $2,620.14, with interest, less two credits amounting in the aggregate to $1,472.43, together with attorney’s fees, and sustaining the attachment and rejecting the reconventional demand set up by Cameron, as in case of non-suit, with a reservation of his rights as against his co-defendants. And from the judgment so rendered no appeal appears to have been taken. When, however, the plaintiff undertook to execute said judgment, by a seizure and sale of the press, as the property of Cameron, Mr. Curl filed the present suit, injoining the sale, upon the ground that the property seized belongs to him and is not liable to seizure for the debts of the defendant in execution.

Before proceeding to announce any conclusion from the facts, as found in the foregoing statement, it is proper that we should notice what may, perhaps, be considered as attempts to controvert some of the facts as thus found. Thus, Mr. Curl undertakes to make it appear by his testimony, that, while visiting Ruston, he informed different persons that he, and not his son-in-law, was the owner of the press, but not a single witness was produced to corroborate this testimony, whilst the president of the Ruston Bank, and others who met him and were interested in the matter, testify that they never heard, until long’ after his visit and only when the press had been seized as the property of Cameron, that he claimed to be the owner. McEIroy, the nephew of Cameron, who had come from York Station and had been given the position of book-keeper in the press, says that Curl passed a good deal of his time at the press, but never hinted that he had any proprietary interest in it. Ilis testimony is as follows: “He was around there, I had a talle with him every few days while he was here. ITe came down there and sat around occasionally. Q. — What knowledge had you of any ownership of the compress on his part? A. — I did not have any. Q. — What inquiries did he make into the business affairs of the compress to indicate ownership ? A. — He did not make any into the press or the books, or any thing. Q. — Who did Mr. Cameron say was the owner of the press? A. — He said he was.” Mr. Curl also undertook to make it appear that he claimed to be the owner, and so acted, in the original negotiations and agreement for the removal of the press from York Station to Ruston. Thus, in testifying in the instant case, he says: “The reason why I permitted my compress to be removed to Ruston, Louisiana, was that it was a better location * * * The people of Ruston, Louisiana, made what I consider a good proposition to me for the location of it there, at the instance of Cameron, and I consented for it to be moved there and operated (I did not authorize Cameron to pledg-e it there, I pledged it there myself as part of the contract which I made with the people of Ruston to move it there and operate it). * * * * * -x-

“Cameron did not pledge the compress to the people of Ruston to raise the necessary funds to move it from York Station, Alabama, to Ruston, I did that, myself, in order to get the compress moved there. * * * I did not authorize Cameron to pledge it to anyone. * * * All the negotiations preparatory to having it moved were had with me direct by the people of Ruston, and I made the contract with them to have it moved there. All that Cameron had to do with the moving of the com’press, so far as I was concerned, was to suggest the proposition to move it and to bring this proposition to my attention in connection with putting the people of Ruston in communication with me in relation thereto. As I have said, the contract for moving the compress to Ruston was made by me on my own responsibility, on the representations made to me by Cameron and the people of Louisiana.”

The statements thus made are repeated by the witness over and over again. And yet, whereas, for the purposes of this ease, he says that he “did not authorize Cameron to pledge” the press; not many months before, in the suit in which he claimed the press as against Cooper, and the transferree of Andom, entitled Curl vs. Sheriff ei als. (appealed to this court, and reported in the 52 Ann., 1052), referring to the press, he had sworn as follows: “When the said property was moved from York Station, Alabama, to Ruston, Louisiana, I gave S. A. Cameron the right and power to pledge it to the people of Louisiana, to secure the payment of a loan for $2,500, which sum of money was advanced by the bank at Ruston, Louisiana;” and there was introduced into the case on behalf of the plaintiff, an instrument purporting to be a written grant of authority from the plaintiff to Cameron authorizing the latter to pledge the press, which instrument, although bearing date August 5th, 1897 (about the time of the removal of the press from York Station), had never been acted on by Cameron, had never been heard of in Louisiana, and was thus produced, in 1899, to support the claim, then set up for the first time, that Curl was the owner of the press, which, for two years, Cameron had been allowed to deal with as his own. Curl swears, in the instant case, “Cameron did not pledge the compress. I did that myself;” and yet we have in the record. Curl’s written authority to Cameron to pledge the press; the written, authentic, act of pledge, executed by Cameron; the sworn acknowledgment of Curl that Cameron did pledge the press and the written ratification of the pledge, as thus made, by both Curl and his agent or attorney. He swears that the people of Ruston negotiated directly with him with regard to the removal of the press from York Station, but he does not give the name of an individual wlio ever spoke to him on the subject. He does not pretend ever to have visited Ruston before the press was erected at that place, or to have had any correspondence with any one living there before that time. And there is no suggestion in the record that any one' from Ruston, except B. F. Thompson, ever visited York Station upon that, or any other, business. And Thompson testifies positively, and without contradiction, that Curl then directed him to Cameron as the man who owned the press, and who would deal with him concerning it, and that he deak with Gan eron, and Cameron alone, and in this ho is entirely corroborated by Cameron, and by “all the people of Ruston,” who had interested themselves in the matter of the removal of the press, and who were' called on to testify; the fact being that the note held by the Ruston State Bank was executed by Cameron and indorsed by the citizens of Ruston immediately after a town meeting at which Cameron had represented that he was the owner of the press. The palpable contradictions and gross mis-statements in the sworn testimony of the plaintiff, which have thus been noted, may find their explanation in the fact that the witness is past eighty years of age, and is, possibly, suffering from impaired memory, as an infirmity attendant upon the weight of years. Be that as it may, his testimony is of little or no value. No doubt, he owned the press at one time, as is shown by documentary evidence. But it is equally beyond question that he either made the title over to Cameron, who had married his daughter, or else that, without a formal conveyance, he placed the press at Cameron’s disposal to make use of as his own, and that he held Cameron out, and allowed him to hold himself out, to be the owner, from the beginning of the negotiations, which led to the removal of the press to Ruston to the moment when he found it necessary to make a claim as against the seizure by Cooper and the transfer to the Shreveport Bank.

In view of these facts, the defendant in injunction now urges that, the plaintiff having held Cameron out, and having acquiesced in his appearing and acting, as the owner of the press, and having thereby enabled him to borrow the money which the defendant is seeking to recover, is estopped now, and in order to défeat such recovery, to deny the truth of that which, by his declarations and conduct, he had thus previously asserted and acquiesced in. And defendant further urges that the plaintiff, in order to obtain a delay of legal proceedings on the part of this defendant, having admitted the correctness of the claim as sued on by this defendant, and having admitted that the press is liable for said claim, is estopped at this time, and after having obtained such delay, to deny the correctness of said claim, or the liability therefor of said press.

We find no answer to these contentions either in the record or in the argument of plaintiff’s counsel. By plaintiff’s own categorical admissions, notwithstanding his denials under oath, he authorized Cameron" to pledge the press in order to borrow from the Euston State Bank, defendant herein, the money needed for the removal and equipment of said press. And, from his declarations and conduct, equally expressive, when considered in connection- with the declarations and conduct of Cameron, the conclusion is inevitable that he intended that, in so pledging and borrowing, Cameron should stand towards the bank as the principal in the transaction and as the owner of the property to be pledged. As a matter of fact, Cameron did stand towards the bank as the principal, and only party in interest, and as the sole owner of the press, and in that capacity, and mainly upon the faith of that ownership, obtained from the bank, defendant in injunction, the money which it is now seeking to recover.

It is true that the press is pledged directly to the guarantors of the note executed by Cameron in acknowledgment of the loan made by the bank. And by reason of this circumstance the counsel for the plaintiff in injunction argues that the purpose of the pledge having been to indemnify the guarantors in the event of their being compelled actually to pay the note, the guarantors alone have the right to resort to the pledge, and this only after they have paid the note. The answer to this is that, from the first, the press was held out as the property of Cameron which would afford security to the bank for the loan which it was asked to make. Tn Cameron’s first letter to Thompson, asking him to assist in obtaining the loan from the bank, he wrote: “I want you to do me the special favor to see the bank and see if they will lend me the remaining $2,500, so I can go to work at once removing my press. I will give them mortgage on press and will carry insurance to cover this amount.” Subsequently, when the loan was made and the notarial act was executed by Cameron, said act not only embraced the specific pledge of the press to the guarantors of the note, to indemnify them in the event of their being compelled to pay their said note, but it also included the recognition and acknowledgment of the debt to the bank as evidenced by said note. In fact, this latter is the first, and, it may be said, the principal, declaration in the act. It is not surprising, therefore, that, when the agent of the plaintiff, who is also his counsel, and the attorneys for the bank, some two years later, entered into the agreement which had been referred to, the following language should have been used, to-wit: “It is this day agreed between Willis Curl, herein represented by J. W. Ilolbert, as agent, and Dr. Booles, and others, indorsers of a certain pledged note of S. A. Cameron, for upwards of $2,600 (as pledge on a certain compress and fixtures, etc.) * * * that the * * * Curl and also S. A. Cameron, agree to the following; recognizes all transactions of Dr, Booles and the Ruston State Bank in the receipts and expenditures of the earnings of the press up to the beginning of the season of 1899. Also recognizes all legitimate debts of the compress for all prior seasons to this and also the amount now due on the said pledge note, as is shown by the note on file in the suit of Ruston State Bank vs. S. A. Cameron et als. * * * ” This agreement indicates, as the language which we have italicized plainly shows, that the notarial act, executed by Cameron, was regarded not only as intended to indemnify the guarantors of the note, but as securing the note in the hands of the holder by whom the money had been loaned. Whether, technically speaking, it could be held to operate as a pledge to the bank as well as to the guarantors, is immaterial. It is sufficient for the purposes of the present question that it shows that, in the estimation of all parties, the press, as the property of Cameron, was regarded as securing' Cameron’s note in the hands of the holder. And. for the reasons which have been stated, it does not lie in the mouth of the plaintiff in injunction, at this time, to assert the contrary.

The same reasoning is applicable to the attitude which the plaintiff in injunction now assumes when considered in connection with the agreement of November 1, 1899, from which the foregoing quotation has been made. It will be remembered that Cameron had made a title to an undivided half interest in the press to one Andom, who had transferred the same to the Merchants and Farmers Bank of Shreveport; 'and Cooper, having obtained a judgment against Cameron, had seized the other undivided half interest under execution. Curl; the plaintiff •now before the court, had then disclosed himself and, asserting that he was'the owner of the press, filed a suit against Cooper and the Shreveport Bank, in which he prayed that he be so decreed. Thereupon the present defendant filed suit against Cameron and his guarantors, and it was in order that proceedings in the suit thus filed should be suspended until the question of Curl’s claim as against Cooper and the Shreveport Bank should be determined that the plaintiff, Curl, through his agent, made the agreement in question, as the result of which the defendant suspended the prosecution of its suit until Curl had obtained a final judgment 4n his favor in the suit which he had instituted. When that had been accomplished, however, the defendant proceeded, obtained judgment and seized the press, whereupon the plaintiff' instituted the present proceeding, injoining the seizure upon the grounds that the property seized belongs to him, and not to the defendant in execution: “that he owes the plaintiff bank nothing, and never made or entered into any contract with said bank whereby he became liable to it in any amount whatever. * * * That the said plaintiff bank has no pledge or privilege of any nature whatsoever on the said property herein claimed by your petitioner,” etc. These averments are entirely irreconcilable with the declarations and admissions previously made, upon the faith of which the defendant in injunction had been induced to stay proceedings. As for instance the following, to-wit: “Also recognizes the amount, now due on the said pledge note, as is shown by the note on file in suit of Euston State Bank vs. S. A. Cameron et als. to be found in the agreement of November 1st, 1899.” And the plaintiff is therefore estopped to urge such averments, upon the “principle of natural justice, that when a person has done or said something with intent to influence the dealing of another, and that other has acted on the faith of it, the former ought not to be permitted to change it to the injury of the latter.”

It may be remarked that, in the suit brought by the defendant in injunction against Cameron and the guarantors of the note, Cameron was represented by the same counsel who represented him in the suit, to which he was party defendant, brought by Curl against Cooper and the Shreveport Bank, and who is also one . of the counsel representing Curl, as plaintiff in the present action. On behalf of Cameron, in the suit in which the present defendant was plaintiff, he made quite a vigorous defence, and the judgment rendered reserved to his client certain rights. In the suit in which Cameron’s father-in-law was plaintiff, he accepted service, waived citation, and co-operated with the plaintiff in the obtention of his judgment. These facts are noted as indicating that Cameron, as the principal actor in the matter, speaking for himself and as owner of the property involved, has had a fair opportunity to present any defence to the claim of the defendant in injunction of which he was advised, and that he has availed himself of that opportunity. As to the plaintiff, now before the court, he is a stranger to the defendant in injunction, quoad the issues and the property involved; and, for the purposes of this suit, is estopped to intermeddle with either. The fact that, in another suit, between other litigants, presenting other issues and different facts, he was held to be the owner of such property, cannot affect the determination of the questions which are presented here. From this point of view, it would be illogical to hold him liable, upon the reconventional demand set up by the defendant in injunction, as the principal obligor quoad the defendant’s claim. The judgment appealed from dissolves the injunction, recognizes the right of the defendant in injunction to proceed with its execution and cause the press, which is the subject of the controversy, to be sold in satisfaction thereof, and condemns the plaintiff in injunction to pay $50 in the way of damages for attorney’s fees. Considering the prayer of the defendant’s answer and demand in reconvention we are of opinion that the judgment meets the requirements of the case. It is therefore affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Niciiolls, O. J.

license: Public Domain

text:
    No. 13,773.
    State of Louisiana vs. Alphonse Joseph.
    APPEAL from the Sixteenth Judicial District, Parish of St. Landry Lewis, J.

      Walter Guión, Attorney General, and B. Lee Gaifand, District Attorney (Lewis Guión, of counsel), for Plaintiff, Appellee.

      O. F. Garland for Defendant, Appellant.
   Statement op ti-ie Case.

The opinion of the court was delivered by

Niciiolls, O. J.

Defendant having’ been convicted of an assault with intent to commit rape and sentenced to imprisonment in the penitentiary for seven years has appealed.

The transcript contains no bill of exceptions; no motion in arrest of judgment, and no assignment of errors. We, of ourselves, see no error in the proceedings.

The judgment appealed from is affirmed. (See State vs. Powers, 52 Ann. 1255, and authorities therein cited.)


author: Blanchard, J.

text:
    No. 13,665.
    State ex rel. Alcee Fortier et al. vs. Paul Capdevielle et als.
    Syllabus.
    The constitutionality of a statute is to be presumed, and ii a reasonable doubt arise it must be solved in favor of the legislative action and the act sustained.
    A constitutional provision and an act of the Legislature, in their relation to each other, are to be so interpreted and applied as to give the legislative act validity and force rather than to avoid it, if it be found practicable to do so within the limits of a reasonable construction of the constitutional provision.
    3. The exception, as to the subjects embraced within its scope, of that part of Article 48 of the Constitution of 1898, placing an inhibition upon the passage of statutes creating corporations, or amending their charters, unfetters the General Assembly, and it has authority to enact laws relating to the charters of the cities and larger towns of the State without previous publication of notice of intention to apply for such legislation having been made.
    4. The Board of Civil Service Commissioners for the city of New Orleans, established under the Act of 1806, was protected in its official tenure by paragraph 5 of Article 325 of the Constitution only in so far as that its term of office could not be shortened prior to the general State election of 1900. After that date it is held that it was competent for the General Assembly to repeal the law which gave the Board its tenure, and after such repeal the Board ceases to exist.
    APPEAL from the Civil District Court, Parish oí Orleans — St. Paul, J.

      Fenner, Henderson & Fenner (Eugene D. Saunders and Edgar H. Farrar, of counsel) for Plaintiffs, Appellants. ■

      Samuel L. Gilmore, City Attorney, for Respondents, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

The question the ease propounds for determination is, the constitutionality vel non of Act 89 of the Acts of 1900.

The title of this statute is “An Act to provide a Civil Service for the City of New Orleans, to repeal all acts inconsistent or in conflict therewith, and especially Sections 38 to 67, inclusive, and Section 110 of Act No. 45 of the Acts of the General Assembly of the State of Louisiana for the year 1896.” It was approved July 10, 1900.

It creates a Board of Civil Service Commissioners for the city, prescribing as members thereof the Mayor, the Treasurer, the Comptroller and two citizens to be appointed by the Mayor, by and with the advice and consent of the Council, who are to hold office during the term of the Mayor and Council appointing them.

The act then goes on to outline a system of civil service and prescribes the duties of the Board, etc.

By its terms it is made to take effect in all its parts immediately upon its promulgation, and it repeals all conflicting laws on the same subject matter, especially that part of the Act No. 45 of 1896 (city charter) relating to the establishment of civil service for the City of New Orleans.

Pursuant to the direction of the statute the Mayor appointed and the Council confirmed II. II. Hodgson and J. B. Vinet as citizen members of the Board, and thereupon the Board organized and entered upon the discharge of its duties.

Following this, relators brought the present action, which is described by them to be a quo wan'anio' and injunction proceeding, instituted under the authority of Articles 867 and 868 of the Code of Practice, tn test the title of respondents to the offices of Civil Service Commissioners of the City of New Orleans.

Relators claim to be, themselves, the Board of Civil Service Commissioners and deny the right of respondents to be such Board, or to exercise its functions.

The object, then, of the suit is to have determined the rival claims of the contending parties to the offices mentioned.

There is no doubt that the later act of the General Assembly, under which respondents hold, by its terms repeals, does away with and supersedes the earlier act under which relators claim.

But the latter deny the constitutional right and power of the General Assembly (1) to pass the act in form and manner as it was passed; (2) to thus set aside relators as the Board of Civil Service Commissioners and establish respondents as such Board in their place.

Relators’ claim to the office rests upon Sections 38 to 65, both inclusive, of the act incorporating the City of New Orleans, approved July 7, 1896. and upon the fifth paragraph of Article 325 of the Constitution of 1898.

Their contention is that, pursuant to the provisions of the Act of 1896 aforesaid, they were appointed in January, 1897, to the office of Civil Service Commissioners by the then Mayor, one for trie term of four years, another for the term of eight years, and the third for the term of twelve years; and that for and during their terms aforesaid they are entitled, each, to receive from the City of New Orleans a specified annual salary.

They aver that they entered upon the discharge of the duties of the offices aforesaid, fulfilled and are fulfilling the same, and that they have never been legally removed from said office.

With regard to the Act of 1900, upon which rests the tenure of respondents, relators assert the same to be null, void and of no effect (1; because it was passed in violation of Article 50 of the Constitution of 1898, and (2) because the said act, in so far as it attempts to legislate relators out of office, violates paragraph 5 of Article 325 of the Constitution.

The defense to the action, in brief, is that the Act of 1900 repealed those portions of the city charter (Act of 1896) under which relators were appointed to and hold the offices of Civil Service Commissioners, and that relators were, thus, dispossessed of said offices. In this connection, it is averred by respondents that the Act of 1900 is constitutionally valid in all its parts, and that they form the Board of Civil Service Commissioners provided for by the act.

The judgment below rejected the demands of relators and they prosecute this appeal.

The issue presented is one of law only. All the allegations of fact made in relators’ petition are admitted of record to be true.

Act 89 of 1900 is an amendment of the city charter. Of this there is and can be no dispute.

Is this statute a local or special act, and if it be such, is it unconstitutional because not advertised prior to its introduction into the General Assembly, and because containing no recital that it was so advertised, as required by Article 50 of the Constitution ?

Courts are not lightly to pronounce laws unconstitutional. Under some circumstances it may become their duty to declare what the Legislature has assumed to enact is void, but only upon the safest and surest grounds, and where it is unavoidable, can there be justification for this. The task is always a delicate one and only to be entered upon with reluctance and hesitation.

The constitutionality of a law is to be presumed, and if a reasonable doubt arise it must be solved in favor of the legislative action and the act sustained.

Cooley Const. Law., Chap. VII.

Whenever an act of the Legislature can be reasonably so construed and applied as to avoid conflict with the Constitution and give it the force of law, such construction will be adopted by the courts. People vs. Blodgett, 13 Mich. 162.

So, too, a constitutional provision and an act of the Legislature, in their relation to each other, are to be so interpreted and applied as to give the legislative act force and validity, rather than to avoid it, or render it nugatory, if it be found practicable to do so within the limits of a reasonable construction of the constitutional provision.

Bringing these principles and general observations to bear upon the instant case, its difficulties are rendered less formidable.

I.

By Article 48 of the Constitution of 1898 the General Assembly is prohibited from passing any local or special law * * * “creating corporations, or amending, renewing, extending, or explaining the charters thereof.” But right here a proviso is attached declaring that this inhibition “shall not apply to municipal corporations having a population of not less than twenty-five hundred inhabitants.”

The intention of the proviso beyond doubt is that, so far as cities and towns having a population of 2500, and over, are concerned, the Legislature has full authority to pass any and every law it may seem proper to that body to enact -relating to the incorporation of same, or to extending, renewing, explaining, changing or amending their existing acts of incorporation. In other words, as to the cities and larger towns in the State, the Legislature is again possessed of the same authority over them in respect to- their charters (except as restrained by other articles of the Constitution than Articles 48 and 50) as was possessed by that body prior to the adoption of the Constitution of 1879, which was the Constitution where limitations upon the legislative power in this regard first appeared.

Even if, as contended by appellants, a statute relating to the municipal government of a city or larger town be a “local or special” law, then is the enactment of such a local or special law within the powers of the General Assembly by reason of its express exclusion from the operation of the article prohibiting- local or special laws on certain specified subjects ?

Article 50 by its terms has applicability only to local and special laws on subjects not enumerated in Article 48. It permits the General Assembly to enact local or special laws relating to subjects nob enumerated in Article 48, if notice of the intention to apply therefor shall have been first published for thirty days in the manner directed by the article.

“Creating corporations, or amending-, renewing, extending or explaining the charters thereof’’ is one of the prohibited subjects enumerated in Article 48, and, therefore, as to the same, Article 50 does not apply.

With or without the notice prescribed by Article 50, the General Assembly is denied authority to pass local or special laws relating to the subjects mentioned in Article 48.

This is the general rule and it is subject to but one exception which the article itself makes, and that is that its inhibitions do not extend to the subject of the larger municipal corporations of the State. As to these, the Legislature is left free to act as it sees fit.

Now, does the fact that before quitting the subject of prohibitions as" to local and special laws, the Article 48 expressly excludes from its operation statutes relating to the government of the cities and larger towns, have the effect of bringing- laws of that character within the g-rasp of Article 50 ? In other words, the declaration of Article 48 that municipal corporations of a certain class are excepted out of its provisions, does this bring that class within tho requirement of Article 50, viz: — that laws with reference to the same must be preceded by the published notice required by that article, under pain of nullity?

We think not.

That part of Article 48 of the Constitution under discussion creates a classification of corporations as well as prescribes ail exception as la one class.

It contains the enumeration of two classes of corporations, the first of which includes all private corporations and the smaller political corporations (the charters of towns and villages whose population is under 2500), as to which the Legislature is permitted to deal only through general laws applicable to all of that class; the second of which includes the larger political corporations (the charters of cities and towns whose population is 2500 or over), as to which the Legislature is left to deal, if it see proper, directly through laws which affect them singly.

But both classes are “enumerated,” dealt with; the general rule of prohibition established by the article applied to one, excluded from the other.

Being- thus “enumerated,” classified and dealt with they are lifted out of the grasp of the succeeding Article 50. That article has naught to do with laws on the subjects named in the prior article.

We hold, then, that the exception of Article 48 as to one class of corporations therein enumerated does not have the effect merely of removing the excepted corporations from the reach of that article and sending them to be grouped with the subjects falling within the purview of Article 50.

The exception, as to the subjects embraced within its scope, completely unfetters the General Assembly, and it has authority to enact laws relating- to the charters of the cities and larger towns of the Stale without previous publication of notice of intention to apply for such legislation having been made.

That this, too, is the legislative interpretation of the two articles of the Constitution, is shown by the fact that various bills incorporating cities and towns, or amending their charters, have been passed in the two sessions of the General Assembly held since the adoption of the Constitution of 1898, without antecedent notice of intention to apply for same,

II.

The second contention of relators is that Act 89 of 1900 is unconstitutional because it violates paragraph 5 of Article 325 of the Constitution, which provides that:—

“All officers, executive, legislative and judicial, State, parish and municipal, who may be in office at the adoption of this Constitution * * * shall hold their respective offices until their terms shall have expired, and until their successors are duly qualified, as provided by this Constitution, unless sooner removed, as may be provided by law; and shall receive the compensation now fixed by the Constitution and laws in force at the adoption of this Constitution, except as herein otherwise provided.”

The argument is that relators, being- in office at the time of the adoption of the Constitution of 1898 as the Board of Civil Service Commissioners for the City of New Orleans, fell within the category of “municipal” officers who, under the constitutional provision quoted, are entitled to hold over until their terms expire and to continue to receive the compensation fixed by the law of their appointment in force at the adoption of the Constitution.

vv e have already seen that they were appointed for the terms of four, eight and twelve years respectively. So that, under the construction contended for, they (being willing) must hold office and perform the functions of a Board of Civil Service Commissioners and draw the salaries attached to the positions during all those years, notwithstanding a change of policy in respect to the matter of civil service may be deemed advisable by the law-making power of the State.

In other words, the hands of the legislature are tied. It cannot repeal the Civil Service law of 1896, change or modify it.

Though that law was enacted by one Legislature, though relators in their official capacity are the creatures of an act passed by a former Legislature, the proposition is that the present Legislature — a subsequent one — cannot abrogate it, cannot recall the mandate issued to relators as Civil Service Commissioners, cannot affect a change of public policy in respect thereof.

We cannot adopt such a construction. It is not the “common sense” of the situation.

It is not considered to be within the intendment of the constitutional provision.

Article 325, which is the “schedule” of the Constitution, was never intended to be so far-reaching in its effect.

That this is so, is apparent from the opening sentence of the article, which reads:—

“That no inconvenience may arise from the adoption of this Constitution, and in order to carry this Constitution into complete operation, it is hereby declared:”

Then follow declarations to the effect (1) that all laws in force at the time of the adoption of this Constitution, riot inconsistent therewith, shall remain in force until altered or repealed by the General Assembly.; (2) that all pending writs, actions, prosecutions, etc., shall continue in full force and effect; (3) that all laws inconsistent with the Constitution shall cease upon its adoption; (4) that all recognizances, obligations and other instruments, fines, taxes, penalties, etc., shall remain unaffected by the adoption of the Constitution; (5) that all officers, executive, legislative and judicial, State, parish or municipal, who may be in office at the adoption of the Constitution, shall hold their respective offices, etc.; (6) that the Constitution of 1879 and amendments thereto are superseded by the new Constitution except as specified; (7) that the courts provided for by the new Constitution shall be construed to be the same courts, etc., as those of the same name existing under the Constitution of 1879; and (8) that the new Constitution shall be in full force and effect from and after the 12th day of May, 1898.

Evidently, what the framers of the Constitution had in view and intended, in enacting this Schedule Article, was to make provision against any disorder or disarrangement in the government of the State, or its political subdivisions, as the result of the supersession of the old Constitution by the new. The machinery of government, ils running-gear, was to be preserved while the old Constitution was slipped from its place as the organic law and the new substituted.

It could not have been intended to declare it the public policy of the new Constitution, as insisted on by relators, that the General Assembly could not, at its will, after a certain time, abolish subordinate municipal offices, existing as the result of previous legislative action.

If that had been the purpose why wait to so declare it in the Schedule of the Constitution — the last chapter of that instrument — where, by common understanding, we only look to find the usual provisions for the transference of the government from the dominion of one organic law to that of another.

The whole history of the calling, election of members and convocation of the Constitutional Convention of 1898 shows that while the people of the State desired and determined to have a new Constitution, it was equally their purpose that there should be no disturbance of the official tenures of the then existing officials of the State, or its political subdivisions, until the general State election next ensuing thereafter.

This was made part of the act providing for the submission to the people of a proposition to hold a Convention and to fix its powers.

Thus, in the first section of the Act (No. 52 qf 1896) is a declaration that the “Convention shall be and is hereby prohibited from enacting, ordaining or framing any article or ordinance * * * whereby the terms of office of the General Assembly or any of the present State, district, parochial or municipal officers, whether elected or appointed, shall be reduced or shortened, or the salary thereof reduced or diminished, prior to the first Tuesday after the third Monday in April, 1900.”

This was the date of the then next general State election.

The people, when they voted for the holding of the Convention, voted for it to be held “in accordance with Act No. 52 of 1896,” thus instructing their delegates, elected at the same time, to observe the limitations placed upon the power of the Convention by the act of the Legislature.

Paragraph 5 of the Schedule Article 325 of the Constitution, upon which relators rely as sheilding them from legislative action abolishing their office, must be read in the light of the above provision quoted from the act providing for the holding- of the Convention.

The members of the Convention, in the adoption of paragraph 5 of the article, were carrying out the mandate of the people — that there should be no disturbance of the State, district, parochial or municipal officers, then in power throughout the State, prior to the General Slate election next thereafter to be held.

And it is not considered that the Convention intended to go further than this in declaring- for the retention of existing officials in office, save, of course, as to those judicial officers whose terms as fixed in the Constitution extended beyond the date of the then next general State election.

So that, it was competent for the General Assembly, subsequent to the general State election of April, 1900, to enact Act 89 of that year, whose constitutionality is assailed in this suit.

By so doing- it abridged none of the rights reserved by the Constition of 1898 to relators as the Board of Civil Service Commissioners for the City of New Orleans. That Board was protected by-the constitutional provision only in so far as that its term of office could not be shortened prior to the general State election of 1900. Its tenure to that extent was fixed in the Constitution. Thereafter it was competent for the General Assembly to repeal the law which gave the Board its tenure, and after such repeal the Board ceased to exist.

Judgment affirmed.

Mr. Justice Monroe concurs in the decree.


author: Breaux, J.

text:
    No. 13,774.
    State of Louisiana vs. Henry Atkinson.
    Syllabus.
    There was no impropriety in receiving tire verdict of tlie jury when they were ready to present it on the morning of Thanksgiving day, as it had not been possible for them to deliberate on the case and find a verdict in the short time they had before the adjournment of the court the day previous.
    The judge, with the other officers of the court, met the jury, received the verdict, and adjourned the court to the next day. These were lawful acts which did not prejudice the defendant.
    As relates to the absence of his counsel, the polling of the jury (not ordered on that account, as averred,) is not cause to set aside the proceedings. The court must presume that the finding was, as it appears of record, that of the whole jury. No motion was made to poll the jury, whether owing to the absence of the counsel or not can, under the circumstances, be of no consequence. The failure of the defendant to avail himself of the right cannot present a ground upon which he can obtain relief.
    The judge, in the presence of the accused and his counsel, had notified the jurv that he would return and open court and receive their verdict if they found the verdict on a dies non. - By the notice, the defendant was left without cause to complain.
    APPEAL from the Sixteenth Judicial District, Parish of St. Landry —Lewis, J.

      Walter Guión, Attorney General, and R. Lee Garland, District Attorney (Lewis Guión, of counsel) for Plaintiff, Appellee.

      O. F. Garland for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

On the 24th day of October, 1900, a true bill was found against the defendant for murder. On the 28th of November, following, he was put on his trial. The evidence was heard, the counsel argued, and the judge charged the jury that day, and the jury retired to the chamber of deliberation. Near the hour of 12 o’clock P. M. they had not agreed upon a verdict. They were conducted, by order of the presiding judge, into the court room, and he, after proper inquiry, was informed that they had not agreed upon a verdict. He gave proper instructions for their remaining together during the night, and his instructions to them were that if they agreed upon a verdict during the night, the next morning to notify him by ringing the courthouse bell; that he would return, open court, and hear their verdict. After these instructions had been given, he adjourned the court to November 30th.

The next morning, however, at half-past nine, the bell was rung. The minutes show that after the ringing of the bell, the presiding judge delayed opening court until ten o’clock, as neither the district attorney nor the attorney for the defendant had appeared.. In their absence, the court was opened for the exclusive purpose of hearing the verdict; the prisoner was brought into court, and the. jury rendered their verdict, “guilty of manslaughter.” He was, on a subsequent day, sentenced to imprisonment in the penitentiary for the term of ten years. From the verdict and sentence defendant prosecutes this appeal.

His counsel urges, on his behalf, that the verdict rendered against him was found on Thursday, November 29th, 1900, Thanksgiving day, a dies non. The defendant insists that the return of the verdict and the action of the court were judicial acts which could not be performed on the day before mentioned, and were, in consequence, null. The defendant now urges as error the fact that liis counsel was absent when the jury came into court and handed in their verdict, and that he was, in consequence, denied the right to have the jury polled. The judge of the District Court passed upon these objections and overruled them.

We take up for review the grounds urged on appeal, the first being that the jury’s verdict and the proceedings in court on a legal holiday were illegal and void. The question is not of first impression in this State. It has been decided in two different appeals. In the first decision in the order of date, it is true that the record shows that the verdict was received before midnight, but it was ordered to be recorded a few moments after that hour. The court, in that case, approvingly quotes from Bishop as follows: “Though Sunday is a dies non juridicus, wherein no judicial act is valid, but ministerial acts are, a verdict received on Sunday is good, yet not a judgment on a verdict.” State vs. Ford, 37th Ann. 466.

The question was again considered in State vs. Canty, 41st Ann. 587, and the court tersely said, through Mr. Justice McEnery: “There was no judgment entered on the verdict on that day. The receiving of the verdict was only a ministerial act.” True, the Lord’s day is not a day, for legal proceedings; it has always been held Dies Dominions non est dies juridicus. Yet it has been decided in a number of jurisdictions that the mere ministerial act of entering a verdict may be performed on Sunday, and the jury may. be discharged and the court adjourned.

An interesting decision is published upon the subject in the 7th Vol. L. R. A., p. 327. The court holds in the cited case that it is carrying out the purpose of the Sabbath in receiving the verdict of the jury and permitting the jurors to return to their homes, and, if they choose, to attend divine service. We quote from the decision: “There is now very little conflict in the courts of this country upon this question. The great and decided weight of authority is in favor of receiving verdicts on Sunday.”

The defendant, through his' counsel, complains of the adjournment as made, that is from the 28th to 30th of the same month, and that in consequence of this, his counsel, thinking that the verdict could not be returned before the date last mentioned, was absent on the 29th, and when the verdict was entered, he, defendant, was deprived of his legal right to have the jury polled.

In view of the fact that in the presence of the accused and of his counsel also, the trial judge announced that he would receive the verdict-on Thanksgiving day, the defendant is left with scant ground for complaint. The defendant was present when the verdict was returned. We do not think that we should assume that the verdict rendered was not the unanimous verdict of the jury.

The facts upon which we have grounded our opinion, in so far as it was necessary to consult the facts on this point, are all made evident by the minutes of the court, and for the purpose of determining the question, we have deemed proper to consider them before the court. But counsel’s absence is not established as required, nor does it appear in the minutes he was absent. But granted that counsel was absent, as doubtless he was, we do not find ground in that one fact for setting-aside the proceedings. The defendant may ask that the jury be polled, and the right is not to be denied when he chooses to avail himself of it, but the absence of counsel cannot be taken as good ground to sustain the position that if he had been present he would have made the request of the court. We do not think that, on this score, defendant presents a question of judicial error entitling him to relief.

We are not of the opinion that any of the acts performed and of which defendant complains were judicial acts, as they consist of the oral rendition of the verdict by the foreman of the jury, the entering of the verdict, and the adjourning of the court to the next day, to which the court had already been adjourned.

Having reviewed all the grounds presented by the defendant in his defence, and not having found that the proceedings affected defendant injuriously, it only remains for us to affirm the verdict.

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


author: Nicholls, O. J.

text:
    No. 13,674.
    Succession of William F. Weeks; Rule of Sarah Collins vs. Gilbert L. Hall, Administrator.
    Syllabus.
    1. Where the administrator of a succession has qualified as such by giving a bond, based upon an inventory of the succession, from which certain property has been omitted, he can be made to furnish additional security for one-fourth over the estimated value of such omitted property — shown by a supplemental inventory.
    2. The right of a creditor of a succession to require proper security from its administrator is not tested by the amount of his claim.'
    3. The amount of the bond to be furnished by the administrator of a succession is measured by the value of the property of the succession, not by the amounts of the claims against it.
    4. After the amount of the bond of an administrator has been once fixed, it may be increased under certain circumstances, but it cannot be reduced by showing at a particular date that the property of the succession has been sold at prices less than their inventoried value; that the assets have been reduced by the payment of debts, and that the debts presently due do not require for their payment a bontl as large as that furnished. An administrator’s bond being a continuing one to cover the performance of duty until final discharge, is an entirety and cannot be partially cancelled before the end of the entire gestión. If the inventory of the succession includes property not belonging to it, or is made on a wrong legal basis, it can be corrected and made to conform to the law and the facts.
    Where the surety upon an administrator’s bond is not iusolvent, but simply insufficient, she should not be released and a new bond given. The administrator should be made to make the suretyship sufficient and a judgment of court to that effect should decree to what extent the existing suretyship is deemed sufficient. In testing the solvency of a surety, incorporeal rights owned by her are to be considered if within the State and liable to seizure.
    PPEAL from the Nineteenth Judicial District, Parish of Iberia-

      Walter J. Burke & Bro. for Plaintiff, Appellee.

      Voorhies & Voorhies for Respondent, Appellant.
   Statement op the Case.

The opinion of the court was delivered by

Nicholls, O. J.

Mrs. Sarah R. Collins, alleging herself to be a creditor of the Succession of William E. Weeks, and so recognized to be by its administrator, prayed the court to rule the said administrator t ■> show cause why he should not be ordered to furnish a new and additional bond in a sufficient amount.

The application was based upon averments that several years had elapsed since the administrator had furnished bond as is required by law. That the bond which he had furnished having been insufficient do initio, became doubly so because of the many incumbrances upon the properties of the sureties, one of whom was the wife of the administrator.

That, under the provisions of Article 1195 of the Civil Code and other provisions thereof, she was entitled to require the furnishing of new and additional security within such time as the court should prescribe.

The rule to show cause having issued, the administrator, on July 24, 1900, answered that it should be denied and discharged, because plaintiff therein did not state the nature and amount of her claim, which was an ordinary one, and because her claim was subject to reduction by reason of the pro rata distribution of the funds nf the estate, said pro rata being necessitated by the insufficiency of said funds to meet the liabilities of the estate, as would be made to appear by the tableau of distribution and classification of the debts and assets thereof which appearer had been ordered to file on the 15th day of September, next, by the court. Because plaintiff in rule does not allege that her interest as creditor of said estate are jeopardized either because of the insolvency of the sureties on appearer’s judicial bond, or because of the maladministration of respondent as administrator of the estate.

Because all the privilege and mortgage debts of the estate had been paid by appearer, save that of the Citizens’ Bank, appearer representing that that claim is, however, secured by special mortgage on the property owned personally by the surety on his judicial bond, and donated to her by Wm. F. Weeks, by donation inter vivos; that said property forms no part of the assets of the estate; and that although said bank was a creditor of the estate as holder of notes subscribed in its favor by Wm. F. Weeks, those notes are secured by mortgage on that property as set forth; that that claim being secured to the extent of the value of said property, which was fully worth ten thousand dollars, plaintiff’s claim was thereby made doubly sure whatever might be the amount of that claim as fixed hereafter by judgment of court.

That the Citizens’ Bank was, furthermore, secured by twenty thousand dollars of stock of the Myles Salt Mine Company, which it holds as collaterals for said claim; that the absolute protection thus afforded by the special mortgage aforementioned, and the stock held as collaterals, completely secured the bank’s claim which was the only claim really existing against the estate.

Because the surety on his bond was absolutely solvent, owning and having in her own name property immovable, as well as movable, exceeding in value all her liabilities, including her responsibility as surety on his bond, by at least ten thousand dollars.

That, for these reasons, plaintiff’s demand for an additional surety was unreasonable and countenanced neither by law nor by the facts.

In view of the premises, he prayed that plaintiff’s rule to show cause be denied and discharged at her costs, and for relief.

The court rendered judgment ordering the administrator to furnish new bond with additional security for an amount one-fourth over and above the sum of thirteen thousand nine hundred and seventy-five dollars and fifty cents. It held that the amount of the inventory should have been thirteen thousand nine hundred and seventy-five 50-100 dollars, instead of thirteen thousand, eight hundred and 50-100 dollars, as property to the amount of one hundred and seventy-five dollars had been left out; that the amount of bond being for seventeen thousand two hundred and thirty-one dollars, was insufficient in amount and it should be for seventeen thousand four hundred and sixty-nine 37-100 dollars. That the valuation of the property of both sureties on the bond would, at a fair valuation, be amply sufficient for the security of the bond, but that it had been shown that one of the sureties was the wife of the administrator and not a competent surety. That this would necessitate the giving of additional security as the tangible property of the other surety, after deducting the amount of mortgages, was not sufficient alone to secure the bond.

The administrator appealed.

Opinion.

On the first of July, 1898, an inventory was made of tbe property of tbe Succession of W. F. Weeks; it disclosed property to the value of thirteen thousand eight hundred dollars and fifty cents.

Gilbert L. Hall qualified as administrator of the succession, executing a bond of seventeen thousand two hundred and fifty-one dollars.

It having been ascertained that certain property had been omitted from the inventory, a supplemental inventory was made fixing the value of the omitted property at one hundred and seventy-five dollars.

Had this property been included in the original inventory, the total value of the property of the estate would have been appraised at thirteen thousand nine hundred and seventy-five dollars and fifty cents ($13,975.50).

The security to be given by every administrator is ’ordered by Article 1048 of the Civil Code to be one-fourth beyond the estimated value of the movables and of the credits comprised in the inventory, exclusive of the bad debts.

The administrator of this particular succession should properly have executed a bond for seventeen thousand four hundred and sixty-nine dollars and thirty-seven cents ($17,469.37-100).

It is the duty of administrators, executors, curators and syndics, at least once in every twelve months, to file a full account of their administration. Hall, administrator, having failed to render such an account, Mrs. Sarah A. Collins, a creditor of the succession, ruled him into court to show cause why he should not furnish new, additional security for the faithful performance of his duty.

■ This application was based upon Sections 3695, 3697 and 3698 of the Revised Statutes.

The administrator resisted the application, but the court made the rule absolute, and the administrator appealed.

■ lie urges in this court that since his bond was executed, the property of the succession has been sold and the assets greatly reduced by payments of privileges; that the debts presently due by the succession do not reqiuve for their full security any greater amount of bond flian was furnished. That Mrs. Collins holds a small claim which is amply secured; that his surety, Miss Harriet Weeks, has property more than sufficient to make her a competent security.

He further urges that even if he should furnish new or additional security, the judgment is uncertain and insufficient as it does not inform him what amount of security he should furnish.

The right of a creditor of a succession to call for additional security is not determined by the amount of his claim. Any creditor has the right to make this demand, if the facts of the case, independently of any consideration of the amount of his claim, are such as would justify it. (Succession of Duffy, 50 Ann. 798; Succession of Mary Hardy, 46 Ann. 1312; Succession of Frazier, 33 Ann. 594).

The inventory is, by law, made the basis for the security; this, of course, means a correct inventory. (Succession of Levy, 48 Ann. 594; Calhoun vs. McKnight, 36 Ann. 417). If it includes properties not belonging to the succession, made upon a wrong legal basis, it may be made to conform to the facts or the law, and the bond fixed accordingly.

To a certain extent, as stated in the Succession of Levy, there exists some judicial discretion in the original fixing of the amount for bond. After it is once fixed, it may be increased under certain circumstances, but it-is not to be diminished upon a showing made that, at a particular date, the value of the property in the owner’s hands had decreased, the assets sold at prices below that shown by the inventory, or the money in his hands had'been disbursed to a certain extent by payment of succession debts. That might, perhaps, have been legally done in the case of the prolongation of the executor’s or curator’s term as at one time fixed for one year, and after the executor’s or curator’s account had been filed and homologated. Under such circumstances, the prolongation of the term would be in the nature of a new appointment; when, however, the term ab initio is to be a continuing one to cover the faithful performance until final discharge it is an entirety and is not to be cancelled in part until the whole gestión is complete. (Succession of Stone, 31 Ann. 314; Schneider vs. Burns, 45 Ann. 875; Major vs. Creditors, 46 Ann. 370). It would not do to have the bond constantly varying and altering by reason of the situation of the succession at any particular intervening date.

The application in the present case is not to have the amount of the bond increased beyond that which could have been required originally from the administrator, and there is no reason for discussing whether Article 1129 of the Civil Code has been modified or not by special statutes, or still retains its full original force and effect, and, if so, whether it applies to an administrator’s as well as a curator’s bond.

Appellee contends that the right of a succession creditor to exact new or additional security from an administrator, who has failed to file an animal account, is an absolute right which courts are without authority to deny; but the closing words of Section 10 of the Revised Statutes declare that a creditor’s demands for new or additional security is to be granted “if the court may judge it to be necessary.”

It is urged that the court having immediate jurisdiction over the succession has declared it to be its opinion that new security should bo given and that this court should not interfere with the exercise by it of its discretion.

We recognize, as have done our predecessors (McComas vs. Ronquilo, 4 Ann. 123; Calhoun vs. McKnight, 36 Ann. 416), that “our law looks with favor on all proceedings looking to investigating the official conduct of administrators, and to securing the fidelity of their administration, and the rights of creditors and of other persons interested,” but we cannot concede that the conclusions of the district judge, as to the propriety or necessity of an administrator’s furnishing new or additional security, are final.

The evidence shows that the sureties on the administrator’s bond were Mrs. Lily Weeks Hall, the wife of the administrator, and her sister Miss Harriet Weeks, the heirs of the deceased W. F. Weeks. That it is insufficient in amount and that it should have been for an amount equaling the fourth above the sum of thirteen thousand nine hundred and seventy-five dollars and fifty cents. The court ordered that the administrator furnish new bond corresponding in amount with its doci'po, with additional security, on or before October 1st, 1900.

The court in the present instance, as did that which rendered the decision in Calhoun vs. McKnight (36 Ann. 416), “did not state on-what basis of calculation or authority by law, or upon what reaosning it had reached its conclusions, and it is therefore very difficult to know whether it erred or not from its own standpoint.” As the judge had to pass upon the values of the different pieces of property under very conflicting testimony, and as he had to make calculations as to the amount of the indebtedness of Miss Harriet Weeks, it would have greatly assisted this court had he given it the benefit of his conclusions as to the value of the different properties and declared what was his estimate of the amount of the indebtedness of Miss Weeks, and also that of the mortgages upon her property, instead of sending the record up with the simple ultimate conclusion reached by him that the “tangible property of Miss Harriet Weeks, after deducting mortgages, was not sufficient in value alone to secure said bond.”

We are by no means satisfied with the correctness of that conclusion and of the judgment. It is not pretended that Miss Harriet Weeks is insolvent and that the administrator should be forced by reason of that fact to replace her. (C. C. 3043).

She is undoubtedly a good surety to a certain extent, and the administrator is entitled to have her retained to that extent. The court below should (if it deemed her suretyship insufficient to some extent) have announced to what extent it held her good or bad as a surety, and have required the administrator to give new suretyship only up to the amount necessary, under the law, to have sufficiently secured the faithful performance of his duties.

Tinder the judgment, as written, the administrator is not informed to what extent he is required to give new surety. lie cannot be held to furnish an entirely new bond. In Calhoun vs. McICnight, 36 Ann. 417, in which a supplemental inventory of property of a succession which had been omitted from the original inventory was made, the court ordered the administrator “to furnish a bond to be in lieu and stead of the original bond, or at his option a bond which, added to the bond already issued, would equal the amount of the bond required.”

We do not think that the present surety should be replaced by another or released from her present obligations, but that a new bond' should be furnished for an amount of one-fourth over the sum of one hundred and seventy-five dollars plus such an additional amount as taken in connection with the present bond, and the peculiar ability of Miss Harriet Weeks'to satisfy the same as surety, will render the faithful performance of Gilbert L. Hall’s duties, as administrator, secured to the legal amount and by proper, sufficient sureties.

The wife of the administrator should not have been accepted as a surety on the original bond. We imagine that the particular persons who were offered as sureties, being the heirs of the deceased, were selected with the object of attempting to bring the bond, as to the amount, under the decision in LaBranche vs. Trepagnie, 4 Ann. 558, as a bond to be given exclusively for the security of creditors and the heirs by signing as sureties evidencing their willingness, so far as they were concerned, to have the succession administered without bond.

The issues in that case were directed more as to the parties who were entitled to the benefit of the bond than it was as .to its amount. The party in the present litigation is a creditor and not an heir, and insists upon bond being given in amount strictly in conformity to the law. The law has thought proper to make the amount of the property of the succession the measure of the bond instead of taking the amount of the claims against it. We cannot change the basis. (46 Ann. 1312).

It does not contemplate a prior investigation (if that were possible) 'of the claims against it before fixing the amount for which the amount of the bond should be fixed.

We judge from the language of the judgment appealed from that tlie court considered in reaching a conclusion as to the competency of Miss Weeks as a surety, her real estate only, and excluded a consideration c£ the incorporeal rights which she owned. In this there was error. There is no law authorizing the latter to be excluded in determining the competency of a surety if they are in this State and liable to seizure. If they be merely difficult to be reached for the purposes of seizure, they are none the less available for the purposes of paying debts. (Acts Nos. 24 and 67 of 1876).

Eor the reasons assigned, the judgment appealed from is hereby-annulled, avoided and reversed and the cause is remanded to the District Court to be there proceeded with in accordance with views herein expressed.

Breaux, J., having been called upon to testify as a witness and as an expert, and having testified in the cause, recuses himself.