author: Poché, J.

text:
    No. 1173.
    Succession of J. C. Taylor.
    Under the laws of Louisiana the only condition on which a null marriage can produce civil effects, is that it was contracted in good faith hy the parties or by at least one of them; in case of the latter, the civil effects can benefit only the party in good faith, and the children horn of the marriage.
    The good faith of the innocent party must he evidenced by circumstances which indicate a reasonable belief that both parties pretending to contract the marriage were able to marry. Good faith cannot be credited to a woman who marries a man who to her knowledge has a living wife, whom she has seen herself a few months beiore the pretended marriage, and hy whom she had been informed that no divorce had been pronounced between the spouses, and who had been informed a few days before the projected, marriage that the man was married aud not divorced.
    The presumption of good faith must yield to positive proof of the reverse.
    APPEAL from the Fifth District Court, Parish of Claiborne. MeOlendon, Special Judge.

      Allen Barksdale aud W. A. Vcmhook for Opponents and Appellants:
    fl. Persons legally married are, until the dissolution of the marriage, incapable of contracting another. C C. 93.

      % "Where a woman had full knowledge that the man she was marrying had a living wife she cannot claim the benefit of good faith based on the supposition that the man was divorced, especially when she failed to use the means immediately at hand to ascertain the truth.
    3. Neither party to a putative marriage being in good faith no civil effects are produced by the marriage. 24 Ann. 485.

      4. "When a divorce lias been decreed on account of adultery, a marriage between tbe guil'y party and bis accomplice in adultery is null and void, and no civil effects are produced* by suck a marriage. O. C. 161. Good faith does not come into a case based on this-
    Good faith in respect to marriages is not a mistaken belief as to the legal effect of one’s-actions or ignorance of tbe law itself, but consists in the erroneous though reasonable belief in the existence of facts that would make the maniage valid in the eyes of tbe law. A pardonable ignorance of the existence of facts that render tbe marriage null,, must exist at the time of contracting the marriage. Ignorance of the law will not-suffice.
    6. Ignorance is not pardonable when the truth is within easy reach of the ignorant parte, and she failed to avail herself of the means to ascertain the truth.
    7. The applicant in this case could easily have ascertained whether Taylor had beem divorced or not, and it was her duty to do so. 38 Ann. 198. Her failure to do so is destructive of her plea of good faith.

      J. A. Richardson, J. R. Phipps and J. W. Solbert for Applicant and Appellee:
    A marriage contracted in good faith produces civil effects: O. O. 117 and 118; O. N. 201 and 202; Bishop on Marriage and Divorce, vol. 1, secs 302 and 303.
    The burden of proof is upon the party alleging the nullity of a ‘marriage: 24 Ann. 298; 6* “Wallace TJ. S. B., p. 642; 30 Ann. 1297 and 1388; 1 Greenleaf, sec. 81.
    A putative marriage is converted into a real one by the removal of the disability; as if' there was a former husband or wife living, the marriage becomes good on such person’s death orfinal divorce: Bishop, vol. 1, sec. 302; 1 Ann. 98; 3H.S.438; GWallace, 642.
   The opinion of the Court was delivered by

Poché, J.

The issue presented by the pleadings in the case involve-the alleged illegality and nullity of the marriage of the deceased with widow P. J. McFarland, and the alleged illegitimacy of the children; born of that union.

Their claim to participate in the property left by J. C. Taylor is resisted on those grounds by four of the heirs, now of age, issue of his mar - riage with Sarah Castlebury, who is alleged to have been the only lawful wife of J. C. Taylor, who was living and undivoreed from him at the time that he pretended to contract marriage with the widow McFarlard, and to the latter’s knowledge. Opponents prosecute this appeal from a judgment which decreed Mrs. McFarland and the issue of her union with J. C. Taylor entitled to all the rights and privileges in and to this succession which appertain to the surviving lawful wife and to-the legitimate children of the deceased party.

The undisputed facts in the record are as follows :

J. C. Taylor and Sarah Castlebery were lawfully married in 1852,. and opponents are the issue of that marriage. In 1865 Taylor and his wife voluntarily separated, but both continued to live in the Parish of Claiborne, a few miles apart, the husband having retained the custody and control of the children.

In July, 1866, Mrs. Sarah C. Taylor instituted a suit for divorce against her husband on the ground of adultery, and in November of the same year judgment was rendered against her. In the meantime Widow P. F. McFarland, who lived and taught school in the same village in which Taylor resided, received the latter’s attentions as a suitor for marriage, and accepted his offer of matrimony. On the 9th of' .December, 1866, accompanied by two or three friends and by a minister of religion, all residents of the Parish of Claiborne, Louisiana,, they rode into the State of Arkansas, at a distance of about ten miles from Haynesville, the village in which they lived, where a marriage ceremony, purporting to unite them in lawful wedlock, was performed over them by the minister in question, in accordance with the laws of that State, where a marriage license was not a prerequisite to a legal marriage. From that day, saving an intermission of a few months, they lived together and cohabited as man and wife, and were treated as such by their friends, neighbors and acquaintances down to the-death of J. C. Taylor, in December, 1886.

In February, 1867, Mrs. Sarah C. Taylor brought a second suit for-divorce against J. C. Taylor, grounding her demand on the alleged, adulterous life which he was then leading-with his pretended wife under the Arkansas marriage ceremony, and in November, 1867, judgment was rendered in her favor, granting her a full divorce against. Taylor.

As, in the opinion of Mrs. McFarland, Taylor was completely liberated by that divorce, she called on him for a second marriage ceremony, which would legalize their union. But he either differed from, her, or he simply procrastinated, whereupon she became dissatisfied and left him, returning to her relatives in the State of Tennes see-where she remained from July to December, 1868. At Taylor’s-instance, she returned to him, and on January 24, 1869, a second marriage ceremony was performed over them, this time at their home in. Haynesville, and preceded or authorized by a license obtained and issued in accordance with the forms of law.

During the whole time which intervened between the voluntary separation in the summer of 1865 of J. C. Taylor from his wife, Sarah. Castlebery, to the date of the second marriage ceremony between him and Mrs. P. F. McFarland, the former constantly resided at her father’s, house, at a distance of six miles from Haynesville, where she occasionally went for .the purpose of seeing and visiting her children at J. C. Taylor’s house. It also appears that on several occasions, during Taylor’s absence, she remained at that house with her children until,. •his return, and for several days. All these facts and circumstances were well known to Mrs. McFarland, who met Mrs. Taylor on three distinct occasions, and who made her acquaintance with full knowledge ■of her true character and condition. The record shows that on one occasion the two met at Taylor’s own house, and while he was there ■himself, and that they had a conversation together. This last occurrence took place some few months previous to the Arkansas marriage ceremony. Mrs. Sarah Taylor is yet living and gave her testimony on the trial of this case.

As stated above, these facts are not denied or disputed by counsel for appellee, who concede also that the marriage ceremony of December, 1866, was an absolute nullity. But their contention is that the marriage, although null, was contracted by Mrs. McFarland in good faith, under the belief that at that time Taylor was divorced from Sarah Castlebery. Hence they claim protection under the provisions ■of articles 117 and 118 of the Civil Code, which read respectively as •follows:

“ The marriage which has been declared null produces nevertheless its civil effects as relates to the parties and their children, if it has been •contracted in good faith.”

“If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the chil•dren born of the ir arriage.”

They quote numerous decisions of this court, in which these two articles of the code were construed favorably to the claims of the issue •of putative but null marriages.

The purport of these decisions is to practically consecrate and apply the principle incorporated in the two articles of the code. Whenever the record showed that in such marriages one of the contracting parties honestly believed that both were able to contract, and was hon•estly ignorant of the incapacity of the other, the court invariably extended the protection of the law to the innocent party who had been •deceived, and to the still more innocent children born of the marriage. The question therefore resolves itself into an inquiry into the good faith with which Mrs. McFarland contracted the marriage of Decem-Iber 9, 1866, and suggests a special analysis of the reasons which she had to believe that Taylor had been divorced from his wife, Sarah ■Castlebery.

Assuming the rule to be that her good faith must be presumed, and that the.burden of proof is on opponents to rebut that presumption, the record shows to our entire satisfaction that Mrs. McFarland knew •at the time that Taylor had a living wife from whom he had never been divorced, and that therefore she did not contract that marriage in good faith. We have made a thorough examination and a careful •study of all the cases in our jurisprudence which have a bearing on the question herein discussed, and we find that the facts presented in •all the cases in which relief was granted under the provisions of articles 117 and 118 of our code were strikingly different from the circumstances disclosed by the record in this case.

In the case of Clendenning vs. Clendenning, 3d New Series Martin Reports, p. 438, there was no proof that the woman who contracted the putative marriage had any knowledge of the pre-existing marriage, and much less of the existence of the first wife, who lived in the St ate of Tennessee, at a time when communications and mail facilities between that State and Louisiana were not equal to those of the present day. The only suspicious circumstances shown against the second wife’s good faith was-the testimony of a single uncorroborated witness, who stated that he had been introduced to the wife by the husband as being acquainted with the latter’s wife in Tennessee, but as it was shown that the introduction was made in a language which the wife did not understand, the testimony carried no weight in the minds of the judges of the court.

In the case of Patton vs. Philadelphia et al., 1 Ann. 98, the assailed marriage had taken place during the Spanish Colonial Government in Louisiana in the year 1799, between Eleonore Hook, a resident of the -colony, and Abraham Morehouse, who represented himself as the wid. •ower of Abigail Young, whom he had married in New York in 1790; and there was no proof that Eleonore Hook had any reason even to -suspect that the wife of Morehouse was living at the time that she consented to marry him. At that time the means of communication between New York and the then District of Ouachita were not as easy :as they are now between New York and Europe.

The case of Abston, 15 Ann. 137, presented the instance of a third marriage by a man whose first wife was yet living in the State of Alabama, and whose existence was unknown to his third victim.

In the case of Navarro, 24 Ann. 298, the court had to deal with the effects of a marriage contracted by a man who had a living wife in Italy, with a woman who was entirely ignorant of his previous marriage, and much more of the existence of his wife in Europe. Our immediate predecessors, in the case of Barfield, 30 Ann. 1297, gave civil effects to a marriage contracted between a man who had a wife living in the State of Mississippi and a resident of Louisiana, who had never heard of the previous marriage, and who believed in the validity of her marriage with a man who had lived at her father’s own house as a single man, and who was reputed to be such.

Greatly different are the circumstances with which Mrs. McFarland was surrounded on the 9th of December, 1866!

She was the teacher of some of the children of Sarah Castlebery and J. C. Taylor, whom she had seen but a few months before with-their mother in Taylor’s own house. She knew that Sarah Castlebery was living at a distance of but a few miles from her own residence,, and on the records of the court of the parish in which she lived there stood a judgment denying the coveted divorce between Taylor and his-wife. No one of the numerous witnesses, all residents of the village, who testified in the cause had ever heard even a rumor that Taylor-had been divorced from his living, legal wife, and the only reason which appellee holds out in support of her belief in a divorce was-derived from the assurances of Taylor himself. But even as to that her own testimony is not conclusive. Her statement in that connection is as follows: “When he proposed to go to Arkansas to marry,. I asked him if he was all right, referring to the divorce he had told me of, and he answered yes, or lie would certainly have made no such propositions.” Confessedly she received no such information from anybody else, and her case depends upon the legal conclusion that such-a circumstance is sufficient to show her belief in good faith in the-existence of a divorce. If such trust can be placed m the declaration of the man who seeks to deceive a woman into a reprobated marriage, it would be difficult to conceive of a case in which the woman could nor. be held to have acted in good faith. Such a conclusion would-' open the flood-gates of legalized concubinage, and the courts in their eagerness to protect the innocent offspring of null marriages would thuR lend a helping hand to the destruction of the respectability of' society by sapping the only safe foundation of the purity of the family..

But the record discloses more recklessness on the part of Mrs. McFarland in her matrimonial venture. In her conversation with Mrs.Sarah C. Taylor, in the summer of 1866, at Taylor’s own house, she-inquired of the latter about the divorce, and she was informed that-the marriage had not yet been dissolved. Can a stronger case be imagined? Was not that information more than sufficient to make it her imperative duty to seek for reliable information before yielding her consent to marry Taylor?

But without any efforts on her part, the information came to her through two of her lady friends, who both cautioned her against sucln a step. One of. those friends told her that Taylor was not divorced, and the other conveyed the very significant information that Taylor had been refused a license for the projected marriage on the ground ■that he was not a single man or able to contract a legal marriage; and both communications were made to her but a few days preceding the matrimonial trip to Arkansas. And we are satisfied that that was the motive and the sole reason of the trip to that State, in company with, the minister who could otherwise and so easily have performed the marriage ceremony at her own home, and in the midst of her neighbors and Meads.

We conclude from the record that Mrs. McFarland’s conduct in marrying J. C. Taylor in Arkansas, in December, 1866, was not characterized by good faith in law, and that in cohabiting with him there-after she became his accomplice in adultery.

Hence we conclude that the pretended marriage between them in January, 1869, was stricken with the nullity pronounced in article 161 of the Civil Code, which reads:

“In case of divorce, on account of adultery, the guilty party can never contract matrimony with his or her accomplice in adultery, under the penalty of being considered and prosecuted as guilty of the crime of bigamy, and under the penalty of the nullity of the new marriage.”

It follows therefore that neither of the pretended marriages between Taylor and Mrs. McFarland could produce any legal effects, and that the judgment appealed from is manifestly erroneous.

In their opposition appellants have prayed for the appointment of an administrator in the event of the recognition of the asserted rights •of Mrs. McFarland and her children, and the District Judge had made an order to that effect. Under our conclusions that order must be vacated.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed, and it is now ordered that the application of Mrs. P. F. McFarland in her own right, and on behalf of her minor children, to participate in the property belonging to the succession of J. C. Taylor be rejected and dismissed, at her costs in both courts, and that the order of the lower court appointing administrators for said succession be vacated at the costs •of the applicants for said administration.

Judgment reversed.


source: Caselaw Access Project

author: Puché, J. Todd, J.

license: Public Domain

text:
    No. 1189.
    John B. Lallande vs. Mrs. Julia Trezevant and Husband, and G. W. Montgomery.
    In an action for damages on an iii.jnnntion and a forthcoming bond, apnellee cannot urge in (liaiUHsal of appeal, that eletn- nta of damages da med on either of the bonds should be eliminated as fictitious because no recovery could be had under such bond. Suehan argument is a beg ring of the very question, as it can only be adjudicated on a consideration of the merits.
    The pr.ndpal and the security on an injunction bond and on a forthcoming bond, by means of whii h the principal arrean d the sale and obtained tile pnssessio and enjoyed the use of walking animal'» seized bv •» parts, will be held m «olido for the deputation in value of «aid animals as a lesult of bad treatment while in the possession of the principal on such bonds.
    APPEAL limit the Eighth District Court, Parish of Madison. Delony, J.

      Stone & Murphy for Plaintiff and Appellant.

      Ji. O. Montgomery anti A. L. Shtek for Defendants and Appellees.
   The opinion of the Court was delivered by

Puché, J.

Plaintiff claims damages in tlie sum of $2,531.58 against-Mrs. Trezevant, as principal, and G. W. Montgomery, as security, on an iiijiiiic'iou bond and on a forthcoming bond, by means of which Mrs. Trezevant had ariested the sale and obtained the temporary possession of some twenty mules, which had been seized at the instance of plaintiff as the property of d fendant’s husband, as appears from a case entitled Tn zevant vs. Sheriff ct als., reported in 38 Ann. p. 147. In the dt cisión of that case this comt dissolved the injunction taken out by Mrs. Trezevant and reserved the rights of Lallande to claim the damages occasioned to him by said injunction. The ground of the motion to dismiss is want of jurisdiction rationce materias, for the reason that the elements of damages set up by plaintiff are, in the main, fictitious, and intended manifestly to create an appellate interest which does not in reality exist.

Appellees’ principal argument is the alleged admission of plaintiff in his petition that the mules had been returned to the sheriff after the rendition of our judgment, and the admission resulting therefrom that the purposes or the forthcoming bond had been fulfilled and exhaused, and that therefore no action could be maintained on that bond now defunct. Hence her counsel contend that the demand must be restricted to the bond of injunction, which was only $1,475. They also contend that as our judgment condemned Mrs. Trezevant to the costs of his injunction, the demand by plaintiff of the sum of $577.18 for costs incurred in the injunction, and for the subsequent sale of the mules, cannot be entertained, as in that case Mrs. Trezevant could be twice condeinned to pay the same costs.

The position is absolutely untenable, and the serious argument' ■which counsel for appellees have been driven to in order to support the contention that no claim could be made out ou the forthcoming bond is very conclusive proof that the claim predicated thereon is not absolutely fictitious, and.that it forms an important element in plaintiff’s real demand.

While it is true that our judgment has condemned Mrs. Trezevant to pay costs in her injunction suit, it is equally true that the surety is. not included in the judgment, and that a portion of the costs presently claimed by plaintiff have been incurred since the dissolution of the injunction and partake of the nature of damages resulting therefrom. It also appears that in a supplementary petition, which appellees’ counsel have apparently lost sight of, plaintiff corrected his previous allegation in which he had acknowledged that two of the mules had died of a natural death, and that the eighteen others had been turned over to the sheriff and by him sold under the original writ. In his supplementary petition, plaintiff charges that the two missing mules had not died, but that they had been illegally retained by Mrs. Trezevant, who was responsible therefor, together with her surety on the forthcoming bond. It therefore follows that the damages claimed by plaintiff, even if not justified under the law and the facts of the case, are at least not so fictitious as to affect our jurisdiction, which is made apparent on the face of the pleadings.

The motion to dismiss this appeal is therefore dismissed.

On the.Merits.

Plaintiff’s main demand is predicated on the difference between the value of the mules when they were first seized, which is alleged to be $3,000, and the price which they brought at the sale, which was $1,276.75, and he appeals from a judgment which allowed him only $200. Our examination of the evidence has satisfied us that during the possession of Mrs. Trezevant, the mules were overworked and badly treated to such an extent that when delivered to the sheriff and sold they were too thin and too weak for serious work. Hence it follows that animals which she herself had appraised at the value of $2,200, brought only $1,276.75, at the sale. We therefore hold that on the score of that element of damages plaintiff is entitled to recover $500.

Now, assuming as suggested by counsel, that the sum of $200 allowed by the District Court was for attorneys’ fees, on which we are in accord with him, we find evidence in the record sufficient to entitle him, under the law, to recover the following additional sums :

For costs of transcript in injunction suit...................... $85 00

For costs paid to witnesses in injuction suit.................. 168 32

For costs of Clerk of Supreme Court in injunction suit........ 19 80

For costs of printing briefs in injunction suit................. 40 00

For cost of sale of 18 mules.................................. 156 38

Total...............................................$469 50

Adding this to the sum allowed by the District Court, and to tli.e sum of $500 hereinabove allowed by us, we foot up the amount of •damages which fdaintiff should recover at $1,169.50. In thus concluding, we liquidate in precise figures the amount of costs to which Mrs. Trezevant had been condemned in our decree in the injunction suit. And it must be understood as making part of our present decree that these items include all the costs which can be taxed against Mrs. Trezevant as resulting or flowing from her injunction suit.

■ • It is therefore ordered, adjudged and decreed that the judgment of ■the District Court be amended by increasing the amount therein allowed to plaintiff from two hundred dollars to eleven hundred and sixty-nine dollars and fifty cents, and that, as thus amended, said judgment be affirmed at the costs of appellees in both courts.

Mr. Justice Todd dissenis from the decree on the Motion to Dismiss, ■and takes no part on the Merits.

Dissenting Opinion.

Todd, J.

The defendant, Mrs. Trezevant, enjoined the sale of twenty mules, seized under executory process, together with a plantation, as the property of her husband, George T. Trezevant, claiming to be the owner of the same.

During the pendency of the injunction suit, she was permitted to take possesion of the mules and retain the same until the final decision of the cause. Her injunction was dissolved by a decree of this court. After this decree eighteen of the mules were delivered to the sheriff and by him sold.

The present suit was then brought by the plaintiff against Mrs. Trezevant and G. W. Montgomery, the surety on her injunction bond, to recover the damages caused by the injunction — the bond being for the amount of $1475.

The damages set forth in the petition were:

1. For the difference in the value of the mules when seized and the amount for which they sold after the injunction was dissolved.

2. For the costs of the injunction suit and those incurred in the sale of the mules after the dissolution of the injunction.

3. The attorneys’ fee in the injunction suit.

These damages are set forth in the petition as amount ’g to $2,531. The appellees in the motion to dismiss charge that tlu • claims are largely fictitious, and only asserted to give jurisdiction i nis court; that, for instance, the large sum claimed for costs and ,;o -at to be recovered as damages, were covered by the judgments ¡rich dissolved the injunction wherein Mrs. Trezevant was condemned to pay these costs, and that there could not be a separate suit and a second judgment for this same charge.

As confirmatory of this view, and of the proposition embraced in the motion to dismiss and urged by the appellees’ counsel, we need only refer to the brief of the plaintiff and appellant's counsel, in which he-sums up his actual demands, and all that he now claims he should have judgment for, thus :

The plaintiff had judgment in the lower court for $200. In addition thereto his counsel claims $873.25, the loss on tire mules, certain items of costs stated, the whole amounting, according- to his calculation, to $1,502.75, which is the total amount he claims to be entitled to, and for which only he asks that judgment shall be rendered.

This statement plainly shows to my satisfaction that this court has no jurisdiction of the cause, even as to Mrs. Trezevant, the principal cn the injunction bond, but the want of jurisdiction of this court as to the demand against the surety, Montgomery, is still more conspicuous. The full amount of the bond is $1475, and for all damages caused by the injunction the full limit of his liability is that amount, the amount of his obligation. Beyond that he cannot be held under the law. On the delivery bond on the face of the petition he cannot be held except for the value of two mules not delivered, $220. Add this to $1475, making $1725. So that to this sum there is an absolute limit to his liability. Certainly all beyond that can only be held as purely fictitious.

For these reasons I dissent from the opinion to dismiss, and thus dissenting take no part on the merits.


author: Fenner, J.

text:
    No. 1177.
    State National Bank vs. Monroe Cotton Press Company et al. Same vs. L. D. Allen et al. L. D. Alexander & Co. vs. L. D. Allen, Jr., et al.
    (Consolidated.)
    A contract by wbicb. an insolvent debtor, in fraud of creditors, transferred to a creditor in satisfaction of bis debt, a number of notes and ac ounts, and paid tbe difference in cash, if subjected to revocation, must be revoked as a wbole, and tbe payment made, though of a “just debt in money ” being part and parcel of tbe illegal contract, must fall with it.
    The evidence establishes that part of tbe money delivered consisted of tbe identical bank notes and cash wbicb tbe debtor, in bis capacity as treasurer of a corporation, bad received from stockholders thereof, and wbicb be bad set aside in a particular drawer by itself as tbe property of the corporation. Held, as to such moneys that they were the property of the corporation, which the treasurer was bound to deliver and the corporation bad the right to receive, and that such delivery is not subject to revocation.
    Under Article 1977, C. C., a creditor cannot, by tbe simple fact of being the first to bring a revocatory action, exclude other creditors from joining in tbe attack and participating with him in tbe benefits of tbe judgment.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      Ludeling & Stillman for Plaintiffs and Appellants.

      Stubbs & Russell, and F. G. Hudson, and O. J. <& J. S. Boatner for Defendants and Appellees.

      M. J. Liddell, W. H. Potts and F. Garrett for Intervenors and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

L. D. Allen, Jr., engaged in the banking business in Monroe, under the style of the Bank of Monroe, failed and closed the doors of his banking-house on June 21, 1886, under circumstances which need not be detailed, but which undoubtedly affected the parties concerned here, with notice of his insolvency.

Allen was, at the same time, treasurer of the Monroe Compress Company, and in that capacity was indebted to the company in the sum of nearly five thousand dollars, a considerable portion of which had been paid into his hands by stockholders in the days immediately preceding his failure.

On the day of his suspension the officers of the Compress Company pres..'-.' him for a settlement of Ms indebtedness as treasurer, and succeede in bringing about such a settlement by which Allen turned over to the company nine hundred and forty-five dollars in money and a number of bills receivable amounting to $3981 40.

The plaintiffs, judgment creditors of Allen, brought this suit to annul and revoke this transfer as made in fraud of creditors.

Certain other judgment creditors of Allen intervened and joined in the demand for revocation, and prayed a pro rata participation with plaintiffs in benefits of the judgment.

Judgment was rendered in favor of the plaintiffs and intervenors, setting aside the transfer of the notes and accounts, but refusing to interfere with the money payment, and making a pro rata distribution of the proceeds among the plaintiffs and intervenors.

From this judgment plaintiffs alone have appealed.

They urge two complaints :

1. Error in not revoking the payment in money.

2. Errorin allowing the intervenors to participate with them in the benefits of the judgment.

I.

In so far as the money delivered was, properly speaking, a payment with Allen’s money, we think the complaint of appellants is well founded. It was an integral portion of a reprobated transaction, and tainted with the illegality which infected the whole. It was not such a “ payment of a just debt in money ” as is exempted from the revocatory action under Art. 1986 C. C. It was part and parcel of an unlawful contract, and must fall with it. But the evidence is positive and uncontradicted that of the money delivered, seven hundred and sixty dollars consisted of the identical notes and cash which had been paid to Allen, as treasurer, by stockholders of the Compress Company, and had been set apart in a drawer by itself as money of the company.

We think this money was the property of the company, which it was the plain duty of Allen to turn over, and which the company had the right to receive.

Plaintiffs should have liad judgment for the rest of the money paid, -viz: $185. And as intervenors have not appealed, our judgment for this amount will enure to the exclusive benefit of plaintiffs.

II.

We think the claim of plaintiffs to a preference over intervenors, on the ground that their attack was prior in time, is unfounded.

This Court has heretofore construed Art. 1977 (formerly 1972) of the Code, using the folio wing language : “We think the fair and equitable meaning of the article is that when creditors commence the prosecution of their rights about the same time, and use proper diligence afterward, one should not have an exclusive privilege on the property simply because his suit was first commenced. It would be an unjust interpretation to give the law in many cases. The case might be different if it were apparent that one of the creditors had slept upon his rights and neglected to assert them with reasonable diligence.” Walton vs. Bemiss, 16 La. 144.

The same authority recognizes the right of other creditors to intervene in the first revocatory action.

The case establishes the principle that other suing creditors are not subordinated to the one first bringing the revocatory action, simply by reason of the latter’s priority, and leaves it to the discretion of the courts to determine whether the former have been guilty of such laches as to conclude their rights.

We are not prepaied to say that intervenors in this case should be debarred from asserting their rights, and approve the judge a quo's ruling on this point.

It is, therefore, ordered adjudged and decreed that the judgment appealed from be amended by adding thereto a judgment in favor of plaintiffs and against the Monroe Cotton Press Company, for the sum of one hundred and eighty-five dollars, with 5 per cent interest thereon, from July 3, 1886, the same to be applied exclusively to the debts of plaintiffs, and that, as thus amended, the same be now affirmed, the Monroe Cotton Press Company to pay costs of this appeal.


author: Watkins, J.

text:
    No. 1187.
    Helen Stafford and Curator ad litem vs. Succession of W. S. McIntosh.
    (Consolidated with)
    Oppositions to Account of Administrator.
    I'li© fees of an attorney for services rendered in the defense of suits against a tutor, on account of debts of a minor’s parents, are a legitimate charge against the succession of the parents.
    When the proof shows that an administrator has used an honest endeavor to protect the interest of the succession and the heirs, the maxim contra spoliatorem omnia presumuntur does not apply.
    Unless it has been shown that a succession representative has neglected his duty and has not used an honest effort to collect rents, he cannot be mulcted in damages therefor, but he must account for all he has received.
    APPEAL from tbe Twenty-Seventh District Court, Parish of Rich-land. Williams, J.

      David Todd for Plaintiff and Appellant.

      Tí. Q. Gobb and J. II. Toler for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

The historical facts of this controversy will be more easily understood by a recital of them in the narrative form, in so far as'they exercise a material bearing thereon.

I. Q. C. Stafford, surviving husband of Margaret Stafford, resided, and did business as a country merchant, in Richland parish, for several years, and, his affairs becoming embarrassed, the latter obtained a judgment of separation of property against him in January, 1871, and he made to her, in satisfaction of her claims, a datíon en gaiement, among other things, of his undivided one-half interest in the stock of merchandise of the firm of Stafford & Co., of which he was a member.

This firm was subsequently dissolved, and she assumed control of the business in her own name and continued it up to the date of her death, on the 10th of August, 1872.

Helen Stafford —the present plaintiff — then a minor, was called to her succession, as her sole surviving issue and heir at law; and her father was at once qualified and confirmed as her natural tutor.

The inventory he caused to be taken showed the total value of the estate of M. Stafford to be $31,295 86, subject to debts, $14,649 17;” and of the total value of assets, the rights and credits represented the sum of $23,906 11. These consisted of ordinary mercantile accounts, that appear to have been wholly unsecured, and, though manifestly of little value, were appraised at their face.

The stock of goods was put at $1200; personal property at $1869 74 ; and the real estate at $4820. The last item consisted of eighty acres of woodland, appraised at $4 per acre, and which was subsequently sold for a much smaller sum; the White-store ” and one acre of land, appraised at $1500, was worth in 1876 only $500; the Helen plantation, valued at $2000, worth in 1876 $1500; and a strip of 190 acres of land, adjacent to the White-store,” valued at $1000. During the administration of Stafford, tutor, the improvement known as the “ Stafford Mansion ” was erected upon this last mentioned tract of land, and twenty acres were segregated therefrom and attached thereto, and in 1876 it -was valued at $3000.

He also acquired during his administration, in the name of the minor, the Beret place and a half interest in the Cherry-Bluff place, b oth of which are valued at about $600. A policy of life insurance adds to the value of the minor’s estate $1400, and altogether an increase is shown, in the value of the minor’s estate, of $2065 25; yet it did not equal the actual depreciation in other real estate, in the meanwhile.

In the interval between the date of his qualification and that of his death, Stafford, tutor, became involved in various law suits, many of which were brought by the commercial creditors of the plaintiff’s deceased mother — and by which he was greatly harassed and annoyed, and through the instrumentality of which, in a great measure, the affairs of the estate he represented were left, at his demise, in a crippled and embarrassed situation. Appreciating the great difficulty of it, Stafford made an informal will, in which he requested W. S. McIntosh,— a highly respected citizen of the vicinity' — -to undertake the care of his, then, infant daughter, and the administration of her estate, and in pursuance thereof the latter applied for and was appointed to those trusts in August, 1876.

He caused two separate inventories to be taken. That ttf the separate acquisitions of the minor amounted to $2017 25, and that of Mrs. M. Stafford amounted to $7596 93. Taken together they show a loss in value of $21,681 68.

His respective administrations continued until the 21st of December, 1883 — the date he surrendered the real estate and the residue of personal property to the agent of the plaintiff, by a notarial act — though he departed this life on the 11th of March, 1884. The only account McIntosh ever filed of his gestión was the one he presented on the 28th of August, 1882, in obedience to an order of court provoked by her curator.

Soon after the death of McIntosh, D. T. Chapman was qualified as the administrator of his estate, and Helen Stafford — having been emancipated and joined by a curator ad litum — filed this suit; rather, she inaugurated the proceedings, which have brought up for review Dr1 McIntosh’s tutorship and administration, of very nearly seven years. She makes claim for the large sum of $30,000, and the principal part of this is on account of the supposed large value of the rights and credits that are mentioned above, as having only a nominal one. The proof in the record fully establishes that this demand is entirely groundless. Indeed there seems to have been a strong probability of Mrs. Stafford’s succession having been brought to- the verge of insolvency during the administration of his predecessor. Befóte his death, McIntosh surrendered to the agent of plaintiff all of the real estate mentioned in each of the two inventories he had taken. During the period of liis administration, he diligently addressed himself to the settlement and adjustment of those claims .and suits which hud so embarrassed, and well-nigh bankrupted the estate under the administration of Stafford, tutor ; and, by his assiduous efforts, and unremitting zeal, he succeeded in relieving the estate from those complications and satisfied most all of the complaining creditors, and enabled the minor, upon her emancipation, to go into peaceable possession of a fair inheritance.

Instead of the evidence disclosing reckless disregard of the rights of the minor, and the maladministration of her estate, it is in proof, by-witnesses of high character and of unimpeachable veracity, that Dr. McIntosh’s administration was, at all times, and in every respect, characterized by an honest and earnest desire to protect and defend the best interest of his ward, to the uttermost. This was the result 'and general effect of his gestión. An examination of his accounts shows that the taxes have been paid; the minor was sent to Nashville, Tennessee, and educated at a good school; the rents upon some of her property have been regularly collected and accounted for, and some valuable property acquired for her account, and of which she is now in the enjoyment and possession. During the term of his administaation he succeeded in restoring to the estate the Helen plantation — one of its most valuable properties — that had, by means of certain irregular proceedings, passed into the possession and apparent ownership of certain creditors of Stafford, tutor; and, in the accomplishment of which he expended $635, for which he is entitled to credit, in reimbursement.

The plaintiff challenges the correctness of the McIntosh accounts, mainly on the following grounds, viz:

1. She claims that he has failed to charge himself with the rents of the Helen plantation for any part of the time it was under his administration, and on that score he is chargeable with the amount thereof, $3000, with interest.

2. She opposes the allowance of the item for gin-stand, press and fixtures placed on the Helen place, $369.

3. Also fees due to Cobb & G-unby for services rendered by them during two last years of the administration of Stafford, tutor, and by them retained out of collections made by them, $500.

4. Dees of same counsel for opening the succession of M. Stafford, and having Melntesh qualified, and the inventories taken, $500.

5. Other fees aggregating $600, in different independent suits during last administration.

She likewise objects to various smaller items of credit that appear on his accounts, but which need not be detailed particularly.

1. There is nothing charged on the accounts against McIntosh for the.rents or revenues of the Helen plantation during his administration of it, which terminated on the 81st of December, 1882. The rents for which he may be chargeable are those of 1877 to 1882.— say six years. The plaintiff’s opposition only claims that there are one hundred acres of open land on the place, and the property is situated on Bayou Bamf. The proof shows that the administrator collected the rents for only a portion of the time, and that $200 per acre would be a fair rental, approximating $150 per annum. We have been unable to arrive at any exact figures, or to make any positive estimate of the amount'due, but are of the opinion that $150 per year, for three years, would be a just and proper allowance on .that score.

2. With regard to this item of $3G9 for the gin-stand, press, etc., we do.not regard plaintiff’s claim equitable or well founded. The administrator seemed to have used his best endeavors to keep the plantation in good shape, and this small investment was well intended and well directed, and doubtlessly inured to the benefit of the plantation.

3. The $500 charged for attorneys’ fees in various suits — about twenty in number, some in the parish, and others in the district court ■ — does not seem unreasonable in amount; and the testimony is in keeping with the statement. It is true that those fees were incurred in litigation that was carried on during the administration of her father j but we think it is fairly shown that if he had not resisted the torrent of litigation that set in upon him, the debts of her mother — and which are mentioned on the first inventory of her estate — would have swept all the property away ; and she is the sole beneficiary of the results.

That item must be allowed.

4. The fees of same counsel for services rendered McIntosh, administrator, for opening the succession and superintending the taking of the inventories, appears to us tobe excessive, and should be reduced to two hundred dollars.

5. The remaining fees charged in the different suits mentioned are not objectionable.

We do not feel disposed to be critical in casting up the accounts of an administrator who has acted in such perfect good faith, and has fulfilled the trust confided to him by the plaintiff's father, in conformity to his best interest.

The demands of defendant for an increase of judgment in his favor cannot be listened to nor allowed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended and increased, in favor of the plaintiff, in the sum of seven hundred and fifty dollars, and that as thus amended same be affirmed with costs against the succession of M. Stafford.

Mr. Justice Todd takes no part in this opinion.


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    No. 1182.
    The State of Louisiana vs. Clement Colly.
    In a prosecution for obtaining money or piopeity by false pretences, tbe indictment must contain averments that the accused made false representations of a state of things past or present, and it will not be good if the alleged false representations refer to the future only.
    A. promise is not a pretence within the meaning of the statute, oven when the party making the same does not intend to keep it.
    Hence an indictment charging the defendant with falsely offering or promising to procure • the release on bail of a person in actual custody, by means of which he obtained money, does not disclose an offence covered by the statute.
    APPEAL from the Twenty-sixth District Court, Parish of St. Charles. Host, J.

      Gervais Leche, District Attorney, and Okas. A. Baquie, for the State, Appellee.

      James I). Augustin for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

This appeal is from a conviction under a charge that the accused “ feloniously, unlawfully and knowingly did falsely pretend to one Turner Wilson that he, the said Clem. Colly, would, for and in consideration of the sum of twenty-five dollars, procure the release upon bail of one Manuel Billup, then in custody charged with murder j by which said false pretence he, the said Clement Colly, did unlawfully obtain from the said Turner Wilson $12.50 in cash money, and was then and there entrusted with a certain horse in pledge for the remaining balance of $12.50, with intent to defraud, whereas, in truth and in fact, the said Clement Colly, at the time he so falsely pretended, as aforesaid, well knew said pretences to be false.”

The information was framed under section 818 of the Revised Statutes, which reads:

“ Whoever by any false pretence shall obtain, or aid and assist another in obtaining, from any person, money or any property with intent to defraud him of the same, shall on conviction be punished by imprisonment at hard labor or otherwise not exceeding twelve months.”

Among other complaints, the defendant urges in a motion in arrest of judgment that the information filed against him cannot sustain a conviction, for the reason that it does not contain the charge of an offence known to the laws of-Louisiana.

The offence denounced by section 813 of the Revised Statutes as construed in conformity with the common law of England (Sec. 976 R. S.) contemplates a false statement by the accused of a past event or of an existing fact, and it excludes any representation in regard to a future transaction. Wharton, American Criminal Law, secs. 2085, 2087, 2096, 2112; Bishop on Criminal Law, vol. 2, secs. 397, 400, 401.

Hence it follows that a promise is not a pretence, and that a promise which a man makes and which he does not intend to keep, does not fall within the scope of the legal definition of a false pretence.

In the case in hand, it is not denied that the person whom the accused offered or promised to have released on bail was then in actual custody on a charge for murder; on the contrary it is admitted and made the basis of an argument, hence the representation of the existing fact” was true and made no part of the alleged false pretence by means of which the defendant obtained the money and the horse of the prosecutrix. But the false pretence is alleged to rest on the promise made by the accused, and which he is charged to have known to be false.

Manifestly such a representation, which has reference to the future only, and not to the past or to the present, is not a pretence within the meaning of the statute.

Wharton and Bishop both refer to a case in which the defendant was charged with obtaining money by the false pretence that he could tell to the owner of certain animals which had strayed, where they could be found; the con viction was set aside because the false pretence referred to the future; it was held that the indictment should-have stated that the defendant had pretended that he knew where the animals were.

Thus in the instant case the indictment would have been good either if the statement that Manuel Billup was in custody had been untrue or if the accused had been charged with falsely pretending that he had already procured the release of the prisoner on bail.

Our conclusion is that the motion in arrest of judgment was well founded and that it should have been sustained.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, that the verdict of the jury be set aside, and that the case be remanded for further proceedings according to law.


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    No. 1178.
    State National Bank vs. C. J. & J. S. Boatner.
    Garnishment process is a method of seizure and not a bill of discovery, Interrogatories should be confined to matters tending to disclose indebtedne^ to, or possession, or control of property belonging to the debtor.
    Garnishees have the right to except to impertinent questions and to withhold answers thereto until such exception has been ruled on.
    When such exceptions have been taken, failure to answer before ruling thereon cannot be ground for judgment pro confesso.

    When answers to proper interrogatories unequivocallv disclose that the garnishees have owed nothing and had no possession or control of any property of the debtor, since the garnishment proceeding, and such answers have not been traversed, garnishees cannot be required to answer other interrogatories touching the disposition and whereabouts of property which may have been in their possession at some time prior to the garnishment. Such inquiries could be proper only under a traverse.
    A PPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      John T. Ludeling for Plaintiff and Appellant.

      Millsops & Sholars for Defendants and Appellees.
   The opinion of the court was delivered by

Fenner, J.

Plaintiff having obtained a judgment against L. D. Allen, caused execution to issue and then filed a petition making C. J. & J. S. Boatner, attorneys-at-law, garnishees, and propounded to them the following interrogatories :

“1st. Have you now in your hands or possession or under your control any notes, accounts or other obligations belonging to L. D. Allen, Jr.1? If yea, please state explicitly what notes, accounts or other obligations. Describe them fully, giving dates, time when due, amounts and names of obligors.

“2d. Have you in your possession now and have you had under your control or in your possession since the garnishment process was served on you, * * any note or notes, due bills or accounts in favor of or belonging to L. D. Allen, Jr., against the following parties or any of them and calling for the following sums or thereabout1?” [Followed by a list of particular obligations.] “ If you, have had control or possessionof any of said notes and haven't them now, xohere are they ? What has become of them. ? What did you do with them and when did you part with them ? If so, please describe the obligations and give the residences of the debtors.

“3(1. Are you indebted to L. D. Allen, Jr., in any sum whatever? Have you any moneys in yoor hands or in your possession or under your control belonging to L. D. Allen, Jr. ? Do you owe him as much as the amount of this judgment? Have you in your possession property or effects of any description belonging to Allen sufficient to satisfy the judgment, etc.”

The garnishees filed answers distihctly negativing any indebtedness to Allen or the possession or control of any notes, bills or other property belonging to Allen, either at time of answering or at any time since service of garnishment process, except that they qualify their negative answer to the last interrogatory by this statement: “I am almost certain that wre have a note of Mrs. Grayson for $200, which was sent to us by Mr. Allen for the purpose of settling two small debts due by him. We cannot give the date or maturity of this note for the reason that we cannot presently find it, and have no memoranda showing it. I will make search for the note and if we have not returned it, will amend our answer and give the exact dates.” They also qualified their answer to the third interrogatory by the statement: “ We have a note of M. J. Liddell for $305, sent us by the Laclede Bank of St. Louis, who claim that they own the same by transfer from L. D. Allen, Jr. We do not, however, hold the same as the property of L. D. Allen, Jr., nor for his account.”

Garnishees, however, filed on the same day with their answers an exception to that portion of the second iuterrogatory which we have italicised above, on the grounds that it is impertinent to the question of their liability as garnishees, and that it calls for disclosure of facts, knowledge of which w7as acquired in the course of professional employment. Under this exception, they failed to answer this portion of that interrogatory.

Plaintiff then filed a motion to have a judgment pro confesso entered against the garnishees “for the claims and amounts stated in the interrogatories which they have failed to answ'er.”

Obviously this motion presented no issue except as to the sufficiency of the answers, which must be decided on the face of the papers. Nevertheless, the judge permitted the introduction of certain evidence over the objection of defendant. This evidence was immaterial and irrelevant to the issue and should not have been received. There was no traverse, in any form, of the answers, and the only question was their sufficiency and responsiveness.

Counsel for plaintiff contends that garnishees had no right to except to the interrogatories, but were bound to answer or take the consequences of failure in case tlieir excuse therefor should be held not good.

The contrary practice, recognizing the right to except and withhold answer until the exception has been ruled on, has been repeatedly recognized by this court. Maduel vs. Monseur, 28 Ann. 691; Shaughnessy vs. Fogg, 15 Ann. 330; Laville vs. Hebrard, 1 Rob. 435; Samory vs. Hebrard, 17 La. 555.

If his exception were overruled, he would then be ordered, and have opportunity, to answer.

In this case, however, the judge a quo sustained the exception, and the plaintiff complains that this is error. Even if it were error, its correction would, in no manner, tend to support the motion of plaintiff to have the interrogatory taken for confessed. The utmost effect would be to order the garnishee to answer; and the plaintiff’s motion would, in any event, be denied. We take occasion, however, to say that, considering the unqualified denial in the- answers of the garnishees that they had any possession or control of the notes and bills referred to at any time since the garnishment herein, the questions referred to seem utterly irrelevant and impertinent. Wliat difference can it possibly make, as to the effectiveness of this seizure, where these bills now are, or what was dene with them, and ivhen, in view of the untraversed answers that they have not been in the possession or under the control of the garnishees at any time since the garnishment hereinu? The code of practice is very explicit in declaring the purpose for which garnishment is allowed and the object and scope of interrogatories to be propounded.

Thus art. 246 authorizes the citation of a garnishee to declare on oath what property belonging to defendant he has in his possession, or in what sum he is indebted to defendant.” Art. 247 authorizes interrogatories <fas to the nature of the property belonging to the defendant-which may be in his possession, and as to the amount of the sums for which he may be indebted.” And the act of 3839 authorizing garnishment under execution now added to C. P. 246, only authorizes interrogatories touching “ indebtedness ” and “property and effects, in the possession or under the control” of the garnishee. The process of garnish-' ment is a method of seizure ’and not a bill of discovery. No interrogatories are proper except such as have for their object the disclosure of indebtedness or of property in the possession or under the control of the garnishee and thus seized in his hands. When answers to such proper interrogatories, not traversed, unequivocally negative such indebtedness, possession or control, the garnishee cannot be required to answer other interrogatories as to property which may once have been in his possession, but which had passed therefrom before the seizure. If the plaintiff wishes to go into such questions, he should first traverse the answers and he may then, under propor contestatio litis, show any fact tending to establish the effectiveness of his seizure.

This renders it unnecessary to consider the validity of garnishees’ objection based on ground that the knowledge of the facts referred to was acquired in the course of professional employment. The allegation is duly sworn to, and it would be a delicate matter to enforce such disclosures.

We have considered the authorities quoted by plaintiff’s counsel (18 La. 479, 20 Ann. 188 and 15 Ann. 330), but they do not, when properly scrutinized, affect our conclusions in this case.

Plaintiff contends, however, that judgment should have been entered for the Grayson and Liddell notes under the special answers in reference to them heretofore quoted. We do not see how this is possible. He might force further disclosures touching the Grayson note, and might traverse the answer touching the Liddell note, but on the face of the answers, as they stand, there is no ground for judgment against the garnishees.

We think, however, the judgment of the court, in ordering the garnishees to be discharged, went too far. It may be that the time allowed for traversing the answers has passed, but certainly the plaintiff has notl ost his right to further disclosures as to the Grayson note. At all events, the only question submitted to the court was under the motion of plaintiff to have the interrogatories taken for confessed; and a denial of this motion was the only judgment called for.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from in so far as it discharged the garnishees be annulled, avoided and reversed, and that in lieu thereof there be judgment in favor of garnishees and against plaintiff, denying and refusing the latter’s motion for judgment pro confesso, plaintiff to pay costs in the lower court and defendant those of this appeal.


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    No. 1188.
    The State ex rel. J. C. Wickliffe, District Attorney, vs. W. F. Balckman, Judge of Twelfth Judicial District.
    Under tlie law s of Louisiana tlie accused in a criminal prosecution hag no right to exact a list of the State witnesses. Hence the District Attorney canuot be required by the court to furnish such a list as a condition precedent to a trial of the cause.
    An order to that effect by a District Judge cannot be justified as resting on his judicial discretion, and not being sanctioned in law it must be rescinded.
    REPLICATION for Mandamus.

      J. O. WieMiffle, District Attorney, Belator.
    Bespondent in pro per.

   The opinion of the court was delivered by

Poché, J.

Belator’s complaint is predicated upon the following facts:

When the case entitled “The State vs. John Clements,” then pending in respondent’s court, was called for trial according to previous assignment, and after the District Attorney announced that he was ready for trial, the accused moved for a continuanee of the case for the main reason that the names of the State witnesses were not written on the back of the indictment, and had not otherwise been disclosed. Whereupon the judge entered an order requiring the District Attorney to disclose the names of the State witnesses, and on the latter’s refusal to comply with said order, he continued the trial of the case “ until such time as the District Attorney disclose name of prosecuting witness.”

In his answer the respondent admits that, under the law, the omission of the District Attorney to endorse the names of the State witnesses on the indictment is not fatal, and that the call on behalf of the accused for information on the subject is not a matter of right or of law, but he contends that, as the law is silent on the subject, his order in the premises is within the scope of his judicial discretion.

A careful consideration of the question has led us to the conclusion that our learned brother of the District Court is in error and that his order cannot be sustained in law.

If, as he concedes, the law does not require, as a matter of right, the disclosure of the names of the State witnesses, the court cannot coerce the District Attorney to comply with an order which is not supported by law; and if, on tbe other hand, the court can at its discretion insist on a compliance with such an order as a condition precedent to a trial of the cause, it is clear that the State can thus be deprived of her right to prosecute offenders, or to enforce her own laws in her own courts.

A discretion which would lead to such a confusion or chaos has certainly no claim to he considered as a sound judicial discretion :• hence it becomes the dnty of a judge to recede from a position which would produce such effects, unless he is -sustained by a clear and mandatory law.

The question therefore hinges upon a proper consideration of the requirements of the law in the premises.

The controversy was set at rest by this court in the case of Kano and Hunter, 36 Ann. 153. In that case the defendants urged in a motion in arrest, error through the omission of the prosecuting officer to endorse the names of the State witnesses on the indictment. The court, after a thorough review of the common law, as adopted and modified by our statutes, concluded that the common law provision which conferred that right to the accused had been ex industria omitted from our statute on the subject, sec. 992, Revised Statutes; and that the omission of the District Attorney in that regard had deprived the accused of none of his rights. It requires no argument to justify the conclusion that a formality which is not essential in law to the legality of a criminal trial cannot be imposed by the court, as a condition, precedent to the trial.

It is therefore ordered that a peremptory writ of mandamus issue to the respondent judge, directing him to rescind his order continuing the trial of the case of the State vs. John Clements, now pending in his court, until such time as the District Attorney disclose the names of the prosecuting or other State witnesses, and to proceed to such trial without requiring the District Attorney to disclose the names of the State witnesses, and that the costs of these proceedings he taxed against the respondent.


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    No. 1179.
    The Simmons Hardware Company et al. vs. J. E. McGuire, Sheriff and Tax Collector.
    A law of a State canuot impose license taxes upon persons passing through, or coming into it merely for a temporary purpose, especially if connected with interstate commerce; nor can it impose such taxes upon property imported into it from abroad, or from another State, and not yet become part of the common, mass of property therein.

      A State cannot enact any law or establish any regulation effecting interstate commerce. Same would be an unauthorized interference with the power given to Congress over the subject.
    Interstate oommerce cannot be taxed at all by a ¡State staiut>\ even though t/¿e same amount of tax should be laid on domestic eommeice, or that which is carried on solely within the State.
    The negotiation of sales of goods, which are in another State, for the purpose of introducing them into the State, int) which said negotiation is made, is interstate commerce.
    That part of sec. 12 of act 101, of 1836, which declares that *k all traveling agents offering any species of merchandise in this State for sale, or selling same by sample, or otherwise, shall pay * * a license of 830,” is repugnant to paragraph three, section 8, article 1, of the United States Constitution, which declares that Congress shall have power to regulate commerce among the several States, and same is unconstitutional, and in so far as such traveling agents may represent principals’ domiciled in other Slates are concerned, the tax is null and void.
    APPEAL from the Fifth District Court, Parish of Ouaelnta. Biehardson, J.

      John T. Ludeling for Plaintiffs and Appellants.

      Thomas O. Benton for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

Plaintiffs are merchants domiciled and doing business in the City of St. Louis, State of Missouri, and in the prosecution of same, they are and have been importing their goods and wares into this State for sale in unbroken packages, through their traveling agents, or drummers, who travel therein soliciting customers and making sales by samples.

They aver that they have paid all licenses and taxes required of them as merchanjs in the State of Missouri, and the City of St. Louis, and claim the right to thus sell and dispose of their wares and merchandise, without the payment of any other license or tax, in this State.

They aver that defendant, as the sheriff and tax collector of the Parish of Ouachita, lias demanded of their traveling agent, or drummer, a payment of $50 license for selling their goods as aforesaid, and upon his failure to pay the same, he has seized their property in satisfaction thereof.

In seeking to collect said tax, the defendant is acting under the authority of section 12, of act 101, of 1886, and this statute, plaintiffs insist, is repugnaut to paragraph third, section 8, article 1, of the Constitution of the United States, which declares that Congress shall have power to regulate commerce with foreigu nations, and between the States; and same is unconstitutional, and the license tax void.

The sole question presented for consideration is the constitutionality vel non of the statute in question.

The chief reliance of the plaintiff’s counsel is upon the recent decision of the Supreme Court in the case of Sabin Robbins vs. The Taxing District of Shelby County, Tennessee, not yet reported.

The facts of that case are that Robbins was engaged at the City of Memphis, in the State of Tennessee, in soliciting the sale of goods for the firm of Ross, Robbins & Co., of the 'City of Cincinnati, Ohio, who were dealers in stationery, and exhibited samples for the purpose of effecting sales.

There was a statute of that State which declared that “ all drummers, and all persons not having a regular licensed house of business in the taxing district, offering for sale or selling goods * * therein by sample, shall be required to pay to the county trustees the sum of $10 per week, or $25 per month, for such privilege.” Robbins failed to pay the $10 license, and was prosecuted therefor, and convicted, and on appeal to the Supreme Court of that State the sentence was affirmed. Thereafter the case was taken to the United States Supreme Court upon the ground herein assigned for the unconstitutionality of the statute of this State.

On this state of facts and upon the strength of various authorities that were cited, that court held that the following principles are established, viz.:

1st. That the Constitution having given to Congress the power to regulate commerce among the several States, that power is necessarily exclusive.

2d. That where the power of Congress to regulate is exclusive, the failure of Congress to make express regulations indicates its will that the subject shall be left free from any restrictions; and that any regulation of the subject by the States is repugnant to such freedom.

3d. The only way in which commerce between the States can be legitimately affected by State laws is when, by virtue of its police power, and its jurisdiction over persons and property withi/n its limits, it provides for the security of life and property, or imposes taxes upon persons residing within the State, or belonging to its population, or upon avocations pursued therein, not directly connected with foreign or interstate commerce.

The court say: “But in making such internal regulations, a State cannot impose taxes upon persons passing through the State, or coming into it merely for a temporary purpose, especially if connected with interstate or foreign commerce; nor can it impose such taxes upon property imported into the State from abroad, or from (mother State, and not yet become part of the common mass of property therein; * * and no regulations can be made directly affecting interstate commerce. Any taxation, or regulation of the latter character would be au unauthorized interference with the power given to Congress over the the subject.”

The court then proceeds to discuss the facts of the case, and apply the principles of law enumerated, and then says: “ To deny to the State the power to lay the tax, or require the license in question, will not, in any perceptible degree, diminish its resources, or its just power of taxation. It is very true that if the goods, when sold, were m the State, and part of its general mass of property, they would be liable to taxation; but when brought into the State in consequence of the sale they luill be equally liable ; so that, in the end, the State will derive just as much revenue from them as if they were there before the sale. * * But to tax the sale of such goods, or the offer to sell them, before they are brought into the State, is a very different thing, and seems to us clearly a tax on interstate commerce itself.

“It is strongly urged, as if it were a material point in the case, that no discrimination is made between domestic and foreign drummers— those of Tennessee and those of other States — that all are taxed alike. But that does not meet the law at all. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the State.

*- * * -t- iff iff * $ *•

“ The negotiation of sales of goods which are in another State for the purpose of introducing them into the State in which the negotiation is made is interstate commerce.

“A New Orleans merchant cannot be taxed there for ordering goods from London or New York, because, in the one case it is an act of foreign and in the other of interstate commerce, both of which are subject to regulation by Congress alone.

“ If the selling of goods by sample, and the employment of drummers for that purpose injuriously affects the local interests of the State, Congress, if applied to, will undoubtedly make such reasonable regulations as the case may demand. And Congress alone can do it; for it is obvious that such regulations should be based on a uniform system, applicable to the whole country, and not left to the varied, discordant, or retaliatory enactments of forty different States. The confusion into which the commerce of the country would bo thrown by being subject to State legislation in this matter would be but a repetition of the disorder which prevailed under the articles of confederation.”

These copious extracts from this luminous and most important decision of that enlightened tribunal show it to be of the greatest consequence to commercial relations between the States. It is upon this theori, exclusively, that it proceeds. It draws a line of demarcation betn ot n the persons and property over which a State has jurisdiction to evcrciso the taxing power and those over whom she has none. If the icrson sought to bo taxed, or of whom a State license is requm-d, be one who is merely passing through the State, or one coming into it for the temporary purpose of selling by samplo goods to be imported from another State; or if the goods, the sale of which is thus negotiated, are imported into the State from another State, and not yet become a part of the mass of property therein, neither the person or property have become subjected to the taxing power of the State; and any State law imposing such a license tax is repugnant to the Federal Constitution, and void.

They say that this is no unjust restriction upon the taxing power of the States, but merely the subjection of the States to the Constitution of the United States in the matter of interstate commerce. It meets the objection that the law makes no unjust discrimination between domestic and foreign drummers — and that is perfectly true, iu this instance — but that all are taxed alike, by announcing the underlying principle to be that interstate commerce cannot be taxed by the States at all, even though the same amount of tax or license should be laid on each class, or on that business which is carried on exclusively within the State. It is the negotiation in one State, by sample, of sales of goods in another State that cannot be taxed. The State license, or tax, is treated as being an unconstitutional restriction upon the business or calling of introducing into one State the goods and wares that are manufactured in another. The power of the State to tax interstate commerce was considered the leading and prominent feature of the law of Tennessee; and the statute of this State under consideration is very similar, if not an exact parallel.

On all questions appertaining to the construction of provisions of the United States Constitution and laws of Congress decisions of the Supreme Court are paramount to our own, and we regard it our duty to follow them. Hence under the interpretation it has placed on the Tennessee statute, and the constitutional power of Congress to regulate interstate commerce, we feel constrained to pronounce that part of section 12, of act 101, of 1886, which declares that “all traveling agents offering any species of merchandise in this State for sale, or selling same by sample, or otherwise, shall pay a license of $50,” repugnant to paragraph three, section 8, article 1, of the Constitution of the United States in respect to the plaintiffs ; and that the license tax demanded of them is illegal.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled,• avoided and reversed; and it is further ordred, adjudged and decreed that the plaintiffs’ demand be sustained, their injunction reinstated, and perpetuated, and all cost be taxed against the defendant and appellee.


author: Pociié, J.

text:
    No. 1180.
    H. W. McLeod vs. A. C. Simonton et al.
    In a suifc for the liquidation of a partnership, to which the suing partner engrafts a demand against a third party, for the ownership of certain property, as an alleged asset of the partnership, the test of jurisdiction is the value of the property in dispute.
    In such a case there is no demand for any portion of a fund to be distributed.
    The Supreme Conrt can allow no damnges in an appeal not within its jurisdiction. The only judgment it can render is one of dismissal.
    PPEAL from the Fifth District Court, Parish of Ouachita. Biehardson, J.

      O. J. & J. 8. Boatner for Plaintiff and Appellent.

      B. M. Graham and Thos. A, Garrett for Defendants and Appe ! - os.
   The opinion of the Court was delivered by

Pociié, J.

The original purpose of this suit was to liquidan- and settle the commercial partnership of “ Simonton, Kidd & McLeod,” heretofore engaged in the construction and repair of levees.

As an incident of the main demand, plaintiff claimed for the firm the ownership of a judgment obtained by A. C. Simonton, personally, against L. D. McLain, in the sum of nine hundred and fifty dollars and interest, and rendered by this conrt in the case entitled Simonton vs. McLain et al, reported in the 37th volume of our annual, p. 663.

Pending this litigation, in which the question of the true ownership of that judgment was involved, D. P. Ford, of the Parish of Lincoln, who held a judgment against A. C. Simonton, rendered by the district court of the latter parish, issued execution thereon and levied on the judgment standing in the name of Simonton against McLain.

That seizure was enjoined in the district court of Ouachita by McLeod, plaintiff in this suit, on the ground mainly that the judgment being the property of the firm of “ Simonton, Kidd & McLeod,” could not be applied to the payment of Simonton’s personal debts, and for other reasons not necessary to mention herein. This appeal is prosecuted from a judgment sustaining an exception by D. P. Ford, the defendant in injunction, to the jurisdiction ratione materias et personen of the district court.

As stated by appellant’s counsel, the only question which this appeal presents to us is that of the disputed jurisdiction of the district court. From this proposition follows another equally clear, and it is that the only issue before the district court, as between McLeod and Ford, was the contested right'of ownership or control of the Simonton ji dgment against McLain, amounting, as stated, to the sum of $950.

Hence we conclude that appellee’s suggestion that we have no jurisdiction of this appeal ratione materia is well founded, and that the same must be dismissed.

In his attempt to engraft his injunction proceedings against Ford to his main suit for a liquidation of the partnership of “Simonton, Kidd & McLeod,” plaintiff cannot succeed to change the issue which he clearly tendered to Ford. This is not a matter in which our jurisdiction is to be tested by the amount of the fund to be distributed. As far as the record shows, there is yet no fund under control of the court, or in the hands of any one for distribution. That branch of the action which seeks to assert the ownership of the firm to the McLain judgment is simply an effort to secure an asset which would constitute the first element of a fund to be distributed. And even that would not be equal to the lower limit of our jurisdiction. La. W. R. R. Co. vs. Hopkins et al, 38 Ann. 806.

The issue presented in McLeod’s demand against Ford is precisely that which would be involved in an action by an executor, administrator or syndic for the recovery in behalf of the estate which he represents, of a claim, or of property, of the value of $950.

In such an action as in the present controversy, the amount in dispute is the true test of our jurisdiction, and under that test the present apX>eal cannot be sustained.

We note appellee’s prayer for damages as in case of a frivolous appeal. But having no jurisdiction of the appeal, we cannot look into its merits, even with the view of determining its character. Damages cannot be allowed in an appeal over which the court has no control for want of jurisdiction. Thomas vs. Guilbeau, 35 Ann. 927.

It is therefore ordered that the present appeal be dismissed at appellant’s costs.