author: Fenner, J. Boché, J.

text:
    No. 9644.
    Edward G. Schlieder vs. L. B. Martinez; S. Hernsheim Bros. vs. Same; C. E. Sarrazin & Co. vs. Same; Wm. Demesth vs. Same; Lewis Sylvester & Co. vs. Same. (consolidated.)
   On the Merits.

Fenner, J.

The various plaintiffs brought these suits against their common debtor, Martinez, accompanied by writs of attachment and sequestration, under which were seized the contents of a certain cigar store in this city, which, up to two days before the seizure, had been owned and conducted by Martinez.

John Rexach intervened, claiming ownership of the entire property by virtue of a notarial-act of sale passed on November 5,1885, two days before the seizure and on the very day when one of the notes sued on by the iirincipal plaintiff matured. By this act Martinez proposed to transfer to Rexach “ all and singular the contents and stock in trade of a certain cigar and tobacco store, established at No. 71 Camp street, together with the counters, fixtures and furniture therein contained, and all other matters and things thereto belonging, etc., as the whole is fully brought down on the inventory thereof attached to and identified with the act of sale.”

The ascompanying inventory was minute, with valuations attached to each item and footing up the sum of $4,040, which -was fixed as" the price of the sale, in payment of which the act recites that Rexach turned over unto said vendor a certain note drawn by Martinez for the sum of $2,000, dated July 1,1885, and payable on demand'; paid in cash the sum of seventeen hundred dollars; and for th© balance of said price furnished to said Martinez three certain notes dated Novembfer 5,-1885, one for $240 payable three months after_ date,[and the two others each for the sum of $500, payable at four and five months after date” —the notes being identified with the act of sale by the paraph of the notary.

Subsequently, Benito Lloverás and Francis Esteva intervened, claiming to be holders for valuable consideration before maturity of the last mentioned notes, and to be entitled to a vendor’s lien on the property seized.

Plaintiffs filed answers to these interventions, attaching the alleged title of Rexach as fraudulent and simulated, and charging fraud and collusion on the part of Lloverás & Esteva.

I.

The intervenor, Rexach, claims in argument in this Court, that inasmuch as he held under an authentic title valid upon its face and accompanied by possession, the plaintiffs were not authorized to disregard such title and possession and proceed by direct seizure, even upon allegations of simulation, but were bound to resort to a direct action en declaration de simulation.

Whatever be the merits of this proposition, as applied to transfers of movable property, on which we express no opinion, we consider that intervenor has precluded himself from urging it by his proceedings in the court a qua. .

It will be observed .' that Rexach had intervened after the seizure, had set up his title and prayed “ that he be decreed the'true and bona fide owner of theyproperty.”

Plaintiffs, thus invited, joined issue as to his claim, and charged that his title was simulated and in fraud of creditors.

When the case was called for trial, before any testimony was offered, the minutes show' the following proceedings: On behalf of defendant and intervenors a motion is made to strike out from the answers which have been filedJ;o the interventions the demand for the revocation of the act of sale made by the defendant Martinez to the intervenor Rexach, and to strike out all such pleadings, except those that go upon the pure simulation of the contract averred. Furthermore, they file now this demurrer to'the reception of any evidence upon this branch of the case, which is in the nature of a revocatory action.”

Ry this proceeding Rexach restricted his objection to the revocatory feature of plaintiff’s attack on his title, recognized their right to set up its simulation, and voluntarily submitted to the coxtrt the issue of simulation vel non. Upon that issue the case has been tried and decided, and it is now tooilate for Rexach to claim that the court below should have declined to entertain it.

II.

It is next contended that plaintiffs’ proceedings are defective because not charging the insolvency of Martinez, or that he had no other property for the satisfaction of their claims- But their pleadings do allege that this sale “-includes almost the entire property of defendant,” which, in connection with the considerable debts due these various plaintiffs, certainly implies inevitable injury to them, if the sale were sustained. .:

in.

A vast amount of oral testimony was taken in the case, and the judge reached the conclusion that the pretended sale from Martinez to Rexach was a mere sham and simulation. ....

We have reviewed the evidence with gxeat ciire: The fact that this ' was a sale omnium bonorum by Martinez, and entirely out of the usual course of trade; the intimate and peculiar relations which had existed between him and Rexach; the utterly improbable and absurd story by which Rexach attempts to establish his possession and custody of large” amounts of money which never went into bank, but ’were carried on his person, or concealed in the most exposed and uncommon places; his conduct at and after a fire/in which his pretended treasures were exposed to destruction; the unbusinesslike readiness with which'he professes to have lent Martinez $2000 of 'his hoard on a mere demand note without security; the utter carelessness exhibited by him in the mat-, ter of the sale, in which he accepted nearly $500 of accounts at a fixed value without the -slightest inquiry 'as to their validity or solvency, and in which he bought the good will of the store'without any transfer of the lease, 'and witliout-any examination or inquiry as to the 'character-and amount of the business; the many inconsistencies, contradictions and absurdities of the evidence given by the parties — these, with' their'Own statements to third persons and many other suspicious cir-' cumstan'ces, all combine to impress'our minds with the belief that 'the transaction', with • all its carefully arranged pretenses of reality,' Was ' nothing niore than a'mere simulation; " ■ " " ' '.

. Even if 'we had doubts upon the'subject they would not authorize ns to reverse' the conclusion of the learned judge a quo who saw and” heárd- the witnesses. - • ■ - ' '' • ■ — '

iv.

We-concur'.likewise in the conclusion of the judge that- Esteva' and "• Lloverás were not’real or bona fide transferrees of the notes'-préseñted ■'• byvthem. Esteva was a‘.witness'to the sale and,'we are-satisfied/a -•■ confederate in the fraud. He pretends to have-acquired-the" n'ote-^ shortly after the sale, by paying money in cash therefor, which he had in ready notes, without the necessity of drawing .on a bank,.......

Lloverás also is called on by'Martinez at a late hour of the evening, and, at his request, pretends to have paid him $725 in cash for two of the notes, which, likewise, he happened to have .in. hand and did .pot need to draw a check for. He. does not pretend to have made any ex•amination of the act of sale with which the notes were identified, and seems to have been content to advance this considerable sum of money on Martinez’s simple assurances, though the latter was then already in his debt.

. All the circumstances are unnatural and suspicious, and we cannot reverse the conclusion of the judge a quo that the transactions were unreal and fraudulent.

y.

- -Lloverás filed a separate and independent intervention, in which he claimed the ownership of a certain lot of cigars valued at $198, and of a mirror worth $50. Over this demand we have clearly no jurisdiction, and it was not considered in our opinion on the general motion .to dismiss filed herein, and is not concluded thereby.

Judgment affirmed.

On Application rob Rehearing.

Boché, J.

In our opinion on the merits of the cause, we declined jurisdiction of the claim of Lloverás to. the ownership of a mirror and of a lot of cigars, included in the attachments sued out by plaintiffs, but through inadvertence we omitted to dismiss his appeal, and affirmed the judgment in its entirety. We can and we shall correct that error without granting a rehearing-.

Appellants’ counsel suggest that we should make a similar correction in our decree as to the claim of Esteva and the other intervention "of Lloverás, but in this they are in error. As to those claims, which were for portions of the proceeds of the property attached, the test of our jurisdiction w.as in the amount of the fund to be distributed, with.ont regard to the amount therein claimed. (Const., art. 80.) Hence, . :we investigated the merits of that branch of the controversy, and disposed of it finally. . . . ...

We reaffirm our conclusions in that.respect, as well as on the merits of the main action, which a second examination has proved to be supported by the evidence in the record.

• - It is therefore ordered that our former decree herein be amended'so as to make it conform with the conclusions announced in the opinion, -and in so far as it purports to affirm the judgment rendered.on tlie intervention of Lloverás in his claim for the mirror and the lot of cigars, whose appeal in that respect is hereby dismissed; and that in all other respects our former decree remain ,undisturbed.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J. Fenner,'J.

license: Public Domain

text:
    No. 9533.
    Succession of John L. Sterry.
    The law authorizes oppositions to accounts rendered by succession representatives to recognized heirs, ordered to be put in possession of the estate.
    Such oppositions may be made either by the heirs themselves or “other claimants,” under the express provisions of the Code of Practice.
    The court before which the succession proceedings have been instituted Is seized of jurisdiction from the inception to the terjninationjthoreoi' and is competent to pass upon such oppositions.
    It appearing from the unambiguous language of a written compromise made the basis of a judgment, that the terms thereof did not embrace the thing demanded in a subsequent suit, the plea of res judicata is overruled.
    Amount of attorney’s foe fixed according to the circumstances of a particular case.
    A PPEAL from tlie Civil District Court for the Parish of Orleans. Tissot, J.

      Ambrose Smdth and if. 0. Oage for the Executor and Heirs, Appellants :
    1. Judgment recognizing heirs as entitled to a succession and putting them in possession thereof, closes and terminates the succession, and the rights and obligations thereof are thereby transferred to the heirs. C. P. 1000 et seq.; 24 Ann. 114; 25 Ann. 56, 220; 28 Ann. 372; 30 Ann. 93,140; 31 Ann. 506; 33 Ann. 827.
    2. The account rendered by the executor to the heirs under the judgment putting them in possession of the'estate, is not subject to opposition by pretended creditors of the estate. Such account; is not required to be advertised, as are tableau of distribution; and no notice whatever to creditors, if any, is contemplated.^C. P. 100-3-4.
    3. ‘When the heirs have been so put in possession of an estate, and the same and its administration thereby ended, all actions for debts due from the succession must be brought by direct action before the ordinary tribunals against the heirs' themselves, or their legal representatives each for his virile share. C. P. 995, 996;'C. C.T422 et'seq., and citations in No. 1.
    4. Division A, of the Civil District Court, was incompetent to entertain or determine the demand of opponent as presented in or distinct from the succession proceedings proper. Its right to take cognizance of the claim as a prohate matter had ceased when the heirs were, by its own judgment, previously put in possession of the estate. Jurisdiction as an ordinary tribunal never legally attached in the mode and by the assignment and allotment prescribed by law. The court was, therefore, without jurisdiction. C. P. 996: 25 Ann. 225; 27 Ann. 686; 28 Ann. 372, on rehearing; art. 130, Const.
    5. The judgment rendered on June 14, 1884, amending the tableau of June 4, under the agreement herein between the opponent and heirs constitutes res adjudicata as to the demand of opponent. C. C. 2285-7, 3078.
    The agreement herein clearly covered.and included compensation for all services performed • and to be performed by opponent and must be so interpreted. C. C. 1945 ¿o 1962, inclusive.
    Compensation for services performed by opponent, if to be borne by the estate, must be estimated and fixed according to the real value of said services. The amount allowed opponent is largely excessive and should be reduced accordingly. 9 L. 284; 2 R. 406; 3 Ann. 503, 578; 8 Ann. 65; 21 Ann. 687; 29 Ann. 748.

      Andrew J. MtM'pliy for Opponent and Appellee.
   The-opinion of the Court was delivered by

Bermudez, C. J.

The opponent prays to be placed on the account rendered by the executor, under a judgment of court, to the heirs of the deceased.

His claim is for services rendered that functionary in a suit brought against-bim and the heirs, by one alleging herself to be the widow in community of the deceased.

Exceptions were filed to his opposition, resting mainly on two grounds:

1. ' Want of jurisdiction in the court.

2. lies judicata.

The exceptions were overruled, but with a reserve to urge them on the merits.

After trial, the court sustained the opposition, ordering the opponent to be piaced on the account for the amount claimed.

The parties concerned appeal from that judgment.

I.

The court was vested .with jurisdiction over the subject-matter of the succession of the deceased and all subjects growing out of it, from the moment that the case was alloted to it, in furtherance of constitutional requirements, and that jurisdiction continues exclusively in it from the inception to the final winding up of all proceedings necessary for a liquidation and transmission of its assets, .if any, to the heirs. Const, art. 130.

In the present instance, it is true that.the heirs have been recognized and ordered to be put in possession, but it is equally true that the executor has not been discharged and is still acting in his official capacity.

The accounts which he has rendered and which is opposed, is- that. which the court directed him to submit to the heirs under the provisions of art. 1003, -C. P.

That account, under the very terms of the following article, is open to opposition not only on the part of the heirs, but also of u other claimants.” . The word is broad enough to include all creditors, as well those of the deceased as those of his succession.

The opponent does not pretend to be a creditor of the heirs, for he does not aver that he was employed by them to defend the suit of the alleged widow in community. He distinctly asserts .that he was employed by the executor, who was. a party .to the s,uit and that he appeared.and defended it in the name of that official, who was and has not ceased to be the succession representative.

The rights which parties may have against such representatives are probate in character and determine only where the latter cease to have any legal existence and become fwncbi officio.

Such is the clear spirit and meaning of the several- articles of the Code of Practice under the title of “settlement of successions,” ranging from article 983 to article 996.

The exception to the jurisdiction was, therefore, properly overruled.

II.

It appears that the executor first filed a provisional account, on which he placed the attorney of the succession, for $2500, on account for his professional services; that the account was then opposed by the attorney, who, on averment of his services and of their value, prayed to be placed thereon for $13,000; that the controversy, having been compromised by the executor, the heirs and the opponent, the latter was recognized as entitled to $10,000, and was by judgment of court ordered to be put ón the account, but only for that sum.

It is that judgment which, is invoked in support of the plea of res judicata.

An examination of the written compromise and of the surrounding circumstances satisfies us that the allowance of the ten thousand dollars to the attorney was designed to be in full compensation for all his services, rendered and to be rendered, to the executor, with the •exception of those in the case of Howard vs. Sterry, for which provision was already made in the account.

The evidence establishes that, at the date of the compromise, the opponent knew that the suit of the alleged widow would to all appearances be instituted. ■ It shows also that the services which he rendered in that case to-the executor, who was a nominal party to it, as it was brought against the heirs, consisted in merely filing what is practically nothing but a denial of her pretensions, as having been the wife of the deceased, coupled with the assertion that, if she was ever such, she has ceased to be such because of the dissolution of the marriage, in due course of law, more than thirty years prior to the death of Mr. Sterry. It further shows that the suit was compromised and therefore was never tried, the services ending with the answer.'

The compromise and the judgment on the opposition to the first account debar the opponent from setting up the claim urged by his opposition to the final account rendered to the heirs'.

The defense of res judicata should have been maintained.

It is therefore ordered and decreed that the judgment appealed from be avoided and reversed, so far as it maintains the opposition thereto .and orders that the opponent be placed on the account for the'amount claimed; and.

It.is now ordered and decreed- that the exception of the res judicata to said opposition be sustained, and the Said opposition be rejected; the said judgment in .other respects to remain undisturbed, and the opponent to pay costs in both courts.

On Rehearing.

Fenner,'J.

The point upon which we have reopened this case is the ruling on the plea of res adjudícala, based bn a judgment of the Court enforcing a transaction or compromise which had been entered into between the parties. ■ ■

The executor of the succession, in due course of administration, had filed a tableau of distribution, on which his attorney, the present opponent, had been placed as a creditor for $2,500, on account of services. The attorney filed an opposition to this account, claiming $13,000 for his services and praying that the tableau be accordingly amended.-

Thereupon the opponeut, the heirs and the executor entered into the following written compromise : .

“Succession or John L. Sterry, etc. — It is agreed herein the account of the testamentary executor herein be amended so as to place W. S. Benedict, attorney for the executor thereon, for the sum of ten thousand dollars ($10,000) instead of $2,500 on account,’ as same now stands; said fee to embrace services rendered said estate to date, excluding ease of Howard vs. Sterry, for which a separate charge appears on said account, and to include services to discharge said executor on final decree placing heirs in possession.”

On filing this agreement, judgment was rendered amending the tableau in accordance therewith and hoinologating.it as thus amended.

Subsequently one Mary H. Parker, claiming to have been* the lawful wife'of the deceased, brought a suit against the-executor and the heirs, asserting that the entire estate, valued at nearly half a million of dol- - lars. belonged to-the community subsisting between herself and <leceased, and praying for a judgment putting her in possession of the whole property as owner of one-half and as usufructuary of the other half. ■

• It is for alleged services in this suit that opponent urges his present claim, against which the above compromise and judgment thereon are opposed as res judicata.

Amidst the conflicting statements of the parties concerned as to the objects and purposes intended to be embraced in the written compromise, and as to the oral statements attending its confection, the judicial mind can find repose only in adhering to the plain language of the writing itself. The literal terms exhibit unambiguously the services embraced therein to be: 1st, “services rendered said estate to date;” 2d, “ services to discharge said executor on final decree placing heirs in possession.”

It is very clear that services rendered in a suit such as that above described, only instituted after the date of the compromise, and having no connection with the usual proceedings “to discharge an executor on final decree placing heirs in possession,” are not included within either of the above categories. It follows that the plea of res judicata must fall for lack of the essential element of identity of the thing demanded with the object of the compromise and judgment. C. C. 2286.

II.

This necessitates a consideration of the merits of opponent’s demand. The heirs, of Sterry, as well as the executor, were made parties to Parker’s suit, and were represented bjr their own attorney. The estate was very large and owed no debts except expenses of administration. Manifestly the heirs were the only persons interested in the suit, and they appeared and defended in their own behalf.

The evidence satisfies us that the executor did not intend to assume the defense of the suit or to charge his attorney with the responsibility thereof, but intended to leave that matter to the heirs. When the papers were served on him in the latter part of June, not anticipating that an answer would be due before the succeeding November term of the Court, he did not.deliver them to his attorney or consult him on the subject. Learning, however, that a default had been taken in the case in October, he called at his attorney’s office and, not finding him, left a written memorandum directing him to file an answer of general denial and to notify the heirs to defend the suit. The answer was filed accordingly and the executor had no further consultations with and gave no other directions to his attorney about defending the case. These statements are specifically made by the executor and opponent has not contradicted them. No further proceedings were had in court, the heirs having effected a compromise of the claim for $15,000, against the advice of opponent. It appears, however, that opponent knew of the bringing of.the suit and considered.himself-as emploj'ed under his general retainer, even before he received directions to file the answer. It further appears that before, at the time of, and after filing answer, the attorneys for the heirs had sundry consultations with him touching the case. These attorneys, who were opponent’s juniors in the profession and occupied seats in liis office,-claim that these consultations were of slight importance and only such as they would have felt at liberty to have with him touching any business whatever confided to their charge. The view of opponent was different.

On the whole, the evidence satisfies ns that the services actually rendered by the opponent were not laborious or important, and it appearing that it was not the intention of the executor or heirs to charge him with the responsibility of attending to this weighty suit, we think, under the peculiar circumstances of this case, that a fee of five hundred dollars will satisfy his just claim.

It is, therefore, ordered that our former decree herein be annulled and set aside; and it is now ordered, adjudged and decreed tha,t the judgment appealed from be amended by reducing the amount allowed to opponent therein to five hundred dollars, and that, as thus amended, said judgment be now affirmed, opponent to pay costs of this appeal.


author: Poché, J.

text:
    No 9728.
    Succession of Kate Townsend vs. Troisville Sykes et al.
    The testamentary executor of the will of a deoedent, who has been judicially recognized, and who has qualified as such, and who is also universal legatee under the will, cannot at his option shift his position without the sanction or authorization of the court and assume or exercise rights of ownership of the property of the succession.
    Hence a sale of succession property made by such executor under such circumstances, transfers nothing and no rights to the purchaser, and is null and void.
    The holder of the property under such a title must account for rents and revenues of the samé during the whole time of liis possession.
    APPEAL from the Civil District Court for the parish of Orleans. Monroe, J.

      Breaux ■ & Rail for Plaintiff and Appellee.

      H. O. Oage and A. J. Murphy, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

This is an action by the dative testamentary executor for the purpose of annulling and setting aside the sale of a.valuable piece of immovable property, which has ostensibly been sold by the defendant Sykes, who had been appointed testamentary executor and universal legatee by the last will of the deceased.

The purchaser, who had called'Sykes and his. mother in warranty, and the warrantors have taken this appeal from a judgment which annuls the sale, and decrees the..property to -belong-to the succession, as though no sale thereof had been made or-.attempted.-

The record shows that Kate Townsend died on the 3d of No vember; 1883, and that her last will was presented for probate-by Sykes on-the 6th of the same month; and that- on the 12th of the month the.will was ordered to be probated by the court. .

. The order contained the following qualification or restriction: It is further ordered that no application on the part of Troisville Sykes .to be put in possession of the estate of the decedent be granted until after a petition and citation be served on the- attorney of absent-heirs and public administrator, and.a due hearing of the matter before this court be had.” •

Acting on the order as an entirety, Sykes qualified as executor, and continued Ms functions as. such until the 27th of April, 1885, when he was removed from the executorship by a decree of this court. 37, Ann. 405, succession of Kate Townsend.

In the meantime Sykes appeared before Andrew Hero, Jr., a notary public, and declared his intention of accepting purely the legacy contained in the will of the decedent, in his favor, and proceeded to take possession of - all. the property depending .upon the succession.

This act, which was executed on the 29th of November, 1883; had been preceded by another act before the same notary, under date of November'6th,-in-which Sykes had made a transfer "of all the immovable property left by Kate Townsend to his mother, in consideration of $1000 *’ * and of the love and affection which he .entertained for her. .It then appears that on the 27th- of November, Sykes and Ms mother joined in an act, before the same notary, for the purpose of transferring one of the pieces of immovable property, inventoried in the succession of Kate Townsend, to Leon Lamothe, 'th'e principal'defendant in this suit.

From the foregoing recital of the salifent facts and'procéedingá'wkick have a direct bearing on the issue, presented by the. pleadings, it appears that Sykes has never applied for, or obtained from the court, any order recognizing Mm as the universal legatee of the decedent and placing Mm in possession .of any of the property of the succcession.

It therefore appears that Ms only, connection with the succession, under judicial orders, was as testamentary executor,- and that, .without seizin of the property,, as shown by. the restriction contained in the decree which ordered the probate of the .will of the decedent, and- recognized Mm as testamentary executor.

We must note that in this,suit, the right .of Sykes to be-recognized as universal legatee is seriously contested, for reasons which we need - not enumerate here, as that issue was not tried, and is not decided'in the judgment now on appeal.

The issue which we must consider is thus restricted to the question of the right of Sykes, who had accepted the trust of, and had qualified-as executor, to dispose of .the property of the succession as universal legatee under the will, for his own advantage, regardless of the condition, rights or status of‘the succession. -' •

It is elementary in our law and jurisprudence that the -duly qualified executor under-a will, becomes the officer of the court, for'the admin-" istrátion of the property of the succession, and that lie can perform no' legal or binding acts touching such property, without the sanction of the court having jurisdiction over the estate ; and that an' executor who has accepted the' trust, and qualified as such, and who-is-at the ; same time universal legatee, cannot, at will, and witwout the sanction or' authorization of the court, shift his position, abandon the trustj accepted a-t the hands of the court, and assume the character and exercise the rights of owner, as universal legatee. C C. 3480, Bird vs. Succession of Jones, 5 Ann. 643; Succession of Frazier, 35 Ann. 382; Succession of Kate Townsend, 37 Ann. 405.

In the last case qnoted, the very issue herein presented was discussed in connection with the removal of Sykes as executor of this succession, and our disposal of it in the following language :

“ As to his defense that he is the universal legatee of the deceased; that he has taken possession as such of the assets of the succession, which was thereby so effectually closed that the court ceased to have any further jurisdiction over the matter, it suflices to sajr that'it is untenable. . •

“ An executor who has qualified, and who is, at the same' time, universal legatee, cannot, by any act purely his own;-cease to be-executor and represent himself as the sole heir. He cannot be permitted to deny his capacity as executor by setting up that he has - accepted unconditionally as universal legatee and holds the estate, not as executor, but as owner.”

Thése considerations lead to the conclusion in-this "case that-SykeShad no legal right or authority to dispose, as he attempted to do, of the immovable property of the succession of Kate Townsend, and that Leon Lamotbe acquired no title or ownership to the property in suit, which has never ceased to belong to, and to 'form part'of, said succession. ' '

Plaintiff had joined to his action a demand for the Tents and revelines of the property "from the 14th of December, 1883, until it be restored to the succession, and the record shows that the property rents for $75 a month.

The district judge allowed rents at that rate from the date stipulated, but only to the”date'of the institution of this suit.

But the'yents,'"which in the meantime continue to run, are surely the property of the succession, hence appellee’s motion for an amendment-of the judgment in that particular, must be favorably considered, as a decree conforming thereto will obviate the necessity of a separate and additional suit for the recovery of rents from the 4th of May, 1885, when this suit was instituted, up to time at which the succession will be restored to its lawful possession of the property.

It is therefore ordered that the judgment appealed from be amended so as to condemn the defendant Lamothe to.pay to the succession rent at the rate of $75 a month .from December 15, 1883,.until he delivers the property to the succession, and that as thus amended, said judgment be affirmed with costs in both courts.


author: Pociíff, J.

text:
    No. 9729.
    Succession of Kate Townsend vs. Troisville Sykes et al., and Clark & Meader vs. Thomas Duffy, Civil Sheriff, et als. [Consolidated.]
    Syllabus — Same as in case No. 9728, in the maiu action.
    Pending an action involving the title of immovable property, which is rented under a pro* vious contract of lease, tbe tenant, from whom the rents are adversely claimed by the parties, may be authorized to deposit the same aa they mature, subject to the final decision of the cause, in a bank selected as judicial depository.
    A BPEAL from the Civil District Court for the Parish of Orleans. Jr.L Monroe, J.

      Brecmx & Mall and J. Ad. Bonier for Appellees.

      A. J. Mwphy, M. Benshaw, B. McOloskey and W. 8. Benedict for Appellants,
   The opinion of the Court was delivered by

Pociíff, J.

The object of this action, instituted by the dative testamentary executor, is to annul and set aside a sale of a piece of immovable property inventoried in the succession of Kate Townsend, purported to have been made by Troisville Sykes, the universal legatee under tlie will, at the same time that he was administering the estate as testamentary executor with the approval of the court, under whose order he had qualified as executor.

The pleadings, the facts and other incidents as well as the judgment appealed from, contained in this-record, are substantially the same as in the case of' the Succession of Kate Townsend vs. Troisville Sykes et al., No. 9728, this day decided hy this Court.

- Hence the conclusions reached and the judgment to he rendered must he the same, under the law which alike governs both cases.

In this case Clark & Mender, the tenants of the property in suit, filed an action against the Civil Sheriff et als., for the purpose of screening themselves from a suit or suits for rent, and from' the payment of interests on their notes, for a lease of five years,’falling due monthly. Alleging that, as the same rents were claimed hy the sheriff, the dative testamentary executor and the ostensible owner of the property holding under his purchase from Sykes, they stated that they had made a monthly deposit in hank intended to cover the amount due each month on their notes at their respective maturity.

In his judgment the district judge decreed that the ownership of the notes followed that of the leased premises, and that they were the property of the succession, which was entitled to the funds which were ordered to he deposited in a designated bank as judicial depository until the final decision of the cause.

We think that the order of the judge is wise and legal, and understanding that on the affirmance of his judgment in the main cause, he will order the payment of the funds thus deposited to the legal representative of the succession, we approve of Iris order and ratify that feature of his judgment.

It is therefore ordered, that the judgment appealed from he affirmed in all particulars with costs in both courts.


author: Todd, J.

text:
    No. 9713.
    G. Jacquet vs. His Creditors.
    Delivery of the thing pledged1 is essential to the validity of the contract of pledge.
    "What constitutes delivery depends on the nature of the object pledged and on the circumstances of the ease.
    The pledgee need not always,have manual corporeal possession of the thing pledged.
    A third person may be detainer of it hy agreement between the parlies. C. C. 3162.
    The pledgor may have possession of the thing pledged for account of the pledgee. He occupies then the position of trustee or.possessor.ad- hoc. . •

    Under a cession of property the creditors of the insolvent do not acquire a right off owner-skip in tbe property surrendered, but only tbe riglit of possession and the power of administration. The ownership remains in the.insolvent. C. C, 2178,2182.
    If among the assets of the insolvent there be a thing pledged, the possession of it does not pass to tho creditors, being vested in the pledgee. No man can transfer a greater right than he himself has.
    The obligation of pledge is contractual. It vests in the creditor the right of possession and of privilege on the thing pledged. The light of detention being as much a part of the sécurity as the things pledged are a part of the guaranty, the creditor cannot be deprived of same by the voluntary act (bankruptcy) of his debtor nor by the insolvent laws of the State. The obligation of contracts cannot be impaired.
    Notwithstanding tbe pledgor’s insolvency, the pledgee can proceed to sell the pledge in the way stipulated by tbe contract.
    A power of attorney, coupled’'with an interest, is not revoked by the deatli or bankruptcy of the principal. Article 3027 of the Civil Code applies to a gratuitous mandate.
    APPEAL from the Civil District Court for the Parish of Orleans, Rightor, J-. .

      T. J. Semmes & Legendre for Plaintiff and Appellant:
    Delivery of the thing pledged is essential to the validity of the contract of pledge.
    What constitutes delivery depends on the nature of tho object pledged and on tbe circumstances ot the case.
    The pledgee need not always have manual corporeal possession of the thing pledged.
    A third person may be detainer of it by agreement between tbe partios. C. C. 3162.
    The pledgor may have possession of the thing pledged for account of the pledgee. He occupies then the position of trustee or possessor ad hoc.

      • Pothier Pandectes, V. Till, p. 360; O. N 2076; Story on Bailments, 299; 96 IT. S. 476 ; 32 Adh. 1252 ; 33 Ann. 973; Jones on Pledges, §§ 35, 37.
    Under a cession of property the creditors of the insolvent do not acquire a right of ownership in the property surrendered, but only the right of possession and the power of administration. The ownership remains in the insolvent. C. 0. 2178, 2182 ; 3 Ann. 387; 4,Ann. 49.
    If among the assets of the insolvent there he a thing pledged, the possession of it does not pass to the creditors, being vested in the pledgee. No man can transfer a greater right than he himself has. 5 Ann. 274,
    The obligation of pledge is contractual. It vests in tho creditor the right of possession and of privilege on tho thing pledged. The right of detention being as much a part of the security as the things pledged are a part of the guaranty, the creditor cannot be deprived of same by the voluntary act (bankruptcy) of hjs debtor nor by the insolvent laws of the State. The obligation of contracts cannot he impaired. U. S. Const., Art. 1. sec. 10; State Const., Art. 155. . .
    Notwithstanding the pledgor’s insolvency, the pledgee can proceed to sell the pledge in the usual way, 94 U S. 73, Jerome vs. McCarter; 16 Wallace,’557; 95 U. S. 764, Yeatman Savings Bank; 1 Ann. 31, Basok vs. His Creditors; 67 Ala.. 168.
    A power of attorney, coupled with an interest, is not revoked by the death or bankruptcy of the principal. Article 3027 of the CivirCode applies to a gratuitous mandate. Story on Agency (ed. 1862), secs. 164, 173, 477, 483, 489; Livermore on Agency (ed. 1818). sec. 30; 1 Bell’s Comm, on'Agency, see. 413 (4th edition); Addison on Contracts, Yol. 2, p. 609 (ed. 1876); 34 N. Y. 24, Hutchins vs. Hibbard; 54 Maine, Goodwin vs. Burden r 91 U. S.-521, Eyster vs. Gaff et al.; 8 Wheaton, 174, Hunt vs. Bousmanier’s Adm’s,'the leading case on the subject; 60 Tex. 680, Bray.vs, Aiken; 118 Mass. 554, Hall vs. Bliss; -34 Ann,.1187; 2 Ann. 624. * ' . ’ . '■ . .

      A creditor cannot liave tlie contracts of his debtor annulled unless he proves fraud or injury. Courts will not annul the title of property when the party seeking their interposition cannot possibly take relief from the granting of the remedy invoked. H. 0. Ins. Ass. vs. Labranche, 31 Ann. 840; Copeland vs. Labatut, 6 Ann. 61; Barrett vs. Emmerson, 8 Ann. 603; Bay vs. Koseberry. 8 Biss. 102; 9 Ann. 639; 11 B. 633; 9 Ann. 602; G Ann. 301

      A.J. Murjphy for Defendant and Appellee.
   The opinion of the Court was delivered l>y

Todd, J.

Tlie facts of this ease are briefly these:

E. B. Curtis was a creditor of Jacquet & Vallette for $1,400. As security for this debt they executed a pledge by private act on the 21st of June, 1884, of certain machinery used for the manufacture of tobacco, at No. 44 St. Peter street, of this city, consisting of boilers, engines, cutters, etc.

By the terms of the contract, the pledgee was specially authorized to sell the property if tlie debt was not paid at its maturity. It was not paid, and on the 8th of April, 1885, tlie property was sold at public auction after proper advertisement, and bought in by William P. Curtis.

On the SOtli of March, 1885, Jacquet & Vallette went into insolvency. On the 18th of May, 1885, the syndic of the insolvents obtained an order for the sale of all tlie property belonging to the estate, and among the property advertised for sale was tlie machinery, etc., pledged to E. B. Curtis as stated. W. P. Curtis, the purchaser of the property, on the 8th of April, as mentioned, enjoined the sale, claiming that, the property belonged to Mm under his said purchase.

Tlie answer of the syndic embraced substantially the following defenses to the action:

1 st. That the property at the date of the cession of the insolvents belonged to them, and by the effect of the cession the title thereto passed to tlieir creditors.

2d. It was denied there was a legal pledge of the property, for the reason that it remained in the possession of tlie insolvents until their surrender.

3d. The sale to W. P. Curtis was charged with nullity on the ground that no legal sale could have been made after tlie cession, except under the order of the court.

There was judgment in favor of tlie syndic, dissolving the injunction and dismissing the suit, and W. P. Curtis has appealed.

We find in the record no reasons assigned by the district judge for Ms judgment, and we have not been favored with any argument, oral or written, by the appellee’s counsel. >

I.

That the title of the property at the date of the surrender was in the insolvents, is true, but it is not true that the effect of the cession was to convey their title to the creditors. On the contrary, by positive provision of our law the insolvent debtor “ preserves his ownership of the property surrendered.” The possession passes to the creditors when there is no legal obstacle to its transmission. C. C. 2178, 2182; 3 Ann. 387; 4 Ann. 49.

II.

The contract of pledge stipulated that the property pledged was placed in the possession of one Joaquin Polet, as the agent of the pledgee, and he (Polet) intervened in the act for the purpose, as expressed, “of accepting the trust;” and it is shown by the evidence that to him was delivered the key of the building containing the machinery, etc., pledged. He (Polet) testified that he exercised control over the property for about ten months, and took care of it and cleaned the machinery. He was paid for his services as keeper. It is shown that by permission of the keeper and consent of Curtis, Jacquet & Yallettc used the machinery at times in their tobacco business, and that Polet was one of their employees. We do not think, however, that these facts derogated from the validity of the pledge. The possession of the property by the pledgee, as shown, was sufficient. C. C. 3162; Weems vs. Moss Company, 33 Ann. 973. In fact, the property pledged may be left in the possession of the debtor himself, provided his possession is precarious and clearly for account of the creditor. Conger vs. City, 32 Ann. 1250.

III.

Was the pledgee authorized to sell the property pledged after the cession of the insolvents?

It is true, as a general rule, that a mandate is terminated by the death or failure of the principal. C. C. 3027. Where the mandate is gratuitous this is undoubtedly so, and a mandate is presumed, under our law, to be gratuitous unless the contrary appears by the terms of the mandate.

Tn this instance the contract of pledge, under which the authority of the pledgee is granted to sell the property if the debt was not praid, shows that the mandate was coupled with an interest — that is, that the mandatory was put in possession of the property' to secure a debt owing him, and authorized to sell and receive the proceeds of sale to pay the debt.

In the case of Rasch vs. His Creditors, 1 Ann. 31, it was expressly held that a pledge is left intact by' the insolvency of the debtor, and tlie right is still possessed by the pledgee to cause the sale of the property pledged and the proceeds applied to the extinguishment of the debt. See, also, Hoey on Agency, secs. 164, 178, 477, 483, 489; Hunt vs. Rousmanier’s Adm., 8 Wheaton, 174. In the case of Jerome vs. McCarter, 94 U. S., it was decided that, after the assignment of tho debtor and pledgor, the pledgee could proceed and sell the pledged property in accordance with the terms of the coutract.

We think this is the correct doctrine, and hence it follows that the sale made by Curtis, the pledgee of the property in this instance, was a legal one, and that the jilaintiff acquired the ownership of same under his purchase at said sale.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed, and that the plaintiff, William P. Curtis, be declared owner of the machinery at No. 44 St. Peter street, in the city of New Orleans, consisting of boilers, engines, cutters, etc., bought by him at auction sale on the 8th of April, 1885, and that the injunction taken out by him be perpetuated, and that Jno. C. F. Waldo, syndic of the insolvent estates of G-. Jacquet and E. M. Vallette, pay costs of both courts.


author: Fenner, J.

text:
    No. 9740.
    J. J. Healy vs. Rev. P. F. Allen.
    1. The appointment of plaintiff «ns sexton of St. P«atrick’s cemeteries was a contract for personal service. The nosition has no feature of a franchise or public office, and even if assimilated to a private office such as held by an officer of a corporation, those.officers are ordinarily regarded as servants or agents and subject to discharge for cause.
    2. Injunction is not allowed as a remedy to enforce, or prevent tho breach of, contracts for personal service.
    3. To authorize the application of injunction, in any case, to prevent the breach of a mere personal contract, the following are ‘ essential conditions: (1) that the injury appre* bended should not be susceptible of adequate compensation in damages; (2) that the contract should be clearly established, its terms free from doubt, and plaintiff’s construction of it clear and certain; (3) that plaintiff should show complete performance on his part of his obligations under the contract.
    These conditions are not established, to our satisfaction by the evidence in this case and, without precluding the parties as to any questions in a proper action, the injunction is set aside and the parties are remitted to ordinary remedies.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      James Timomj for Plaintiff and Appellee.

      T. Gilmore <& Sons for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The substantial allegations of plaintiff’s petition are to the effect “that on October 2, 1876, he contracted orally with Rev. Patrick F. Allen, for the price and sum of two thousand dollars, that lie, petitioner, was to be appointed sexton of St. Patrick’s cemeteries Nos. 1, 2 and 3 of this city ; * * that, by virtue of the stipulations of said contract, petitioner was to have and enjoy said office of sexton for the period of twenty-five years or during his natural life; that he. entered upon the duties of said office of sexton, and has faithfully discharged all the duties and enjoyed all the emoluments and privileges of said office ever since, and has paid the two thousand dollars as agreed; that said Rev. Patrick F. Allen has lately attempted to deprive petitioner of said office and has appointed another, viz: one Patrick Philbin to said office, and that petitioner believes that said Allen will employ force and fraud to eject him from said office and to deprive him of its privileges and emoluments, to his irreparable injury if not prevented by a writ of injunction,” for which he accordingly prays against both Allen and Philbin.

The preliminary injunction was accordingly issued.

Defendants moved to dissolve the injunction on the ground, amongst others, that the petition disclosed no cause of action ; and, reserving the benefit of this rule, defendant Philbin answered by general denial; and defendant, Allen, in addition to such denial, specially denied the contract set up and payment alleged, and averred “ that he hired the services of plaintiff as a laborer and mechanic of the cemeteries, to do the work usually done by a sexton, but that said Ilealy so neglected the same and so misconducted himself on divers occasions towards respondent and persons owning lots in said cemeteries that respondent found it necessary to discharge him.”

The rule to dissolve having been dismissed, the case went to trial on the foregoing issues, and judgment was rendered in favor of plaintiff perpetuating the injunction.

From no point of view, under the evidence in this case, can the relation between the parties herein be regarded as other than a contract for personal service. Plaintiff is not the owner nor the lessee of the cemeteries; he is simply charged with certain duties in the administration thereof, for the proper performance of which he is necessarily answerable to his superior. The position of sexton is not a franchise which can only emanate from governmental authority ; nor is it a public office, whicli must have a like origin.

Even if it were assimilated to a private office, sueli as an office of a corporation, that would not exempt the holder of it from the character of being an employee or destroy the right of the employer to discharge him for cause. Such officers are ordinarily subject to the direction and control of the corporation, and hence are regarded as their servants or agents and subject to amotion for cause. We have heretofore considered this question and maintained the general principle of the right and necessary power of corporations to remove their officers. State ex rel. Behan vs. Judges, 35 Ann. 1075.

If it were true, as alleged by plaintiff, that owing to incidental advantages accruing to him in his trade of marble-cutter, he had paid for the privilege of being appointed to the place for a term of years, that would not relieve him from the relation of an employee subject to the control and direction of his employer in the discharge of his duties with the consequent right of removal for cause.

The reasons for the recognition of this power are two-fold: 1st., that the employer is responsible for the wrongful acts of his employee; 2d., that the employer has the right to have his business properly transacted and that the only adequate security for this lies in the power of discharge, subject of course to legal responsibility in case the discharge is wrongful or without cause.

Hence the wise and universal rule that injunction is not allowed as a remedy to enforce or prevent the breach of contracts for personal service.

This principle has been applied by this court in a case where the owner of a plantation liad contracted with another, in writing, to take charge of his plantation for a term of eight years, to reside thereon with his family, and to have exclusive control and direction of all the business affairs appertaining thereto during said term. Alleging that the owner was about to supersede and forcibly dispossess him, and to remove his family, without cause, and before the expiration of the stipulated term, the plaintiff invoked the remedy of injunction, but this court said : “ We are not aware of any right the plaintiff has under the contract to be maintained in the possession and control of the defendant’s plantation against his will. If the latter think proper to violate his engagement with the plaintiff, he would thereby subject himself to damages.” Seiler vs. Fairex, 23 Ann. 397.

Even, however, if we were to take a more liberal view of plaintiff’s rights under the peculiar contract alleged by him, he would yet encounter other fatal obstacles to the allowance of the remedy by injunction.

Courts proceed, with great caution, in applying such a remedy for the enforcement of mere personal contracts, and act only in clear cases of legal right and for the prevention only of irreparable mischief,

Hence the rule is established that, to support such a remedy “ the contract itself must be free from doubt, and the injury apprehended from its violation must be of such a nature as not to be susceptible of adequate compensation in damages. And a doubt a.s to the correctness of the construction of the contract on which the injunction is asked is sufficient ground for refusing to interfere.

And if the contract is uncertain and vague in its provisions, the relief will be withheld.” High on Injunction, § 1107.

We are unable to discover any injury to plaintiff from the threatened discharge, which could not be adequately compensated by damages , and, moreover, the contract, and the correctness of plaintiff’s construction of it are very far from being free from doubt.

We have never seen a more conspicuous instance of the painful conflicts of evidence which so frequently arise since the law removed disqualifications of interest and admitted the testimony even of the parties themselves.

The contract between the parties was oral and without witnesses. Their own statements as to its terms contradict each other diametrically, and each gives a contrary interpretation of various facts and circumstances which are invoked as corroborating either theory. We are not called upon, in this case, to weigh and determine the preponderance of testimony, but content ourselves with saying that the case, on the evidence adduced, has not that clearness and certainty of proof which would make it proper for the application of the remedy of injunction.

We say this without precluding either party on any question which may arise in an ordinary action for breach of contract.

Another inflexible rule as to injunctions in such cases is that “lie who seeks to enjoin the violation of an agreement, or for the protection of his contract rights, must himself come into court with clean hands, and must have carried out, as far as possible, his own part of the contract.” High on Injunction, § 1119.

The evidence in the record seriously impugns the conduct .of plaintiff in the discharge of his duties, and, without deciding its sufficiency as a cause for discharge, we consider it a sufficient bar to relief by injunction.

Although these questions of law have been slightly referred to by counsel on either side, the importance of the case as a precedent has made it our duty to consider them, and to establish the principles applicable in such cases.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that there be judgment in favor of defendant, dissolving the injunction and rejecting plaintiff’s demand at his cost in both courts.


author: Watkins, J

text:
    No. 9625.
    Edgar Hincks et al., Commissioners, vs. George T. Converse et als.
    1. It is unnecessary that all joint obligees interested in the enforcement of a joint obligation, should be joined as plaintiffs in a suit to enforce it. Anyone may sue and recover thereon to the extent of bis interest in it.
    2. The rule with regard to the books of a merchant being inadmissible in his favor, does not apply to those of corporations.
    3. The testimony of witnesses on a former trial of same suit, may be used by either party on a second or subsequent trial thereof, if the witnesses are dead or, for other cause, cannot be then produced.
    This rule is applicable to evidence offered on such former trial and admitted without objee* jection, in pursuance of a previous agreement of parties, when that rejection of same would occasion the party offering it either injury or surprise.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      W. 8. Benedict for Plaintiffs and Appellees.

      Percy Boherts and B. B. Moise for Defendants and Appellants.
   The opinion of the Court was delivered by

Watkins, J

The plaintiffs, as commissioners of the Workingmen’s Bank, claim to represent the successors and assigns of the Workingmen’s Accommodation Bank and the individual members thereof, and to be éntitled to recover of defendants $11,373.78, on the bond of Converse.

They aver that there were certain informalities in the act of incorporation of the Workingmen’s Accommodation Bank, and that the individual members thereof and their assigns, incorporated said banking-association under the name and style of the Workingmen’s Bank, and that said act of incorporation was thereafter recognized and approved by the legislature.

They claim to be the legal successors, assigns and transferees of all the assets, rights and credits of said Accommodation Bank and of the individual members thereof j and particularly of all the rights, titles, claims and demands of same, against defendants, on the bond.

They further claim that, in confirmation of their said rights, the individual members and former stockholders of said bank, and the owners of its property, rights and actions held in its name, did expressly recognize them, and waive and remit any formal transfer thereof to the Workingmen’s Bank.

When this case was last here, this Court decided that neither the act of incorporation nor the legislative enactment conferred any of the rights of the former association upon the Workingmen’s Bank “except of those who assented to the proceedings.”

It said that, “under the pleadings, the plaintiffs claim that the bank was the assignee of the rights in the bond of the original owners.

“ It had the right to prove such an assignment, and to the extent of such proof is entitled to recover.

“The membership in the Accommodation Bank was represented by 3,434 shares of stock belonging- to various persons. It is claimed that the Workingmen’s Bank has acquired the ownership and direct representation of these, and evidence is found in the record tending to establish the claim.

“This evidence has not been passed upon by the judge a quo.

“It consists, in large measure, of the books of the Workingmen’s Bank itself, which the judge admitted over the objection and exception of the defendants. This was error.

“The books of that corporation may be very good evidence of the ownership of its own stock; but we cannot see how they can be received to establish the acquisition of the interests of the members of the former concern.

“It is useless to decide this case by piece-meal, or to comment upon other evidence.

“The task devolving upon the plaintiffs is to establish, by competent evidence, the extent to which they own or represent the owners of the stock of the Workingmen’s Accommodation Bank. To the extent of the interest so established they may maintain an action on the bond, and recover their proportion of defendants thereon.” 37 Ann. 489.

This full quotation is made from the former opinion for the purpose of bringing discussion of the issues involved within proper limits.

I.

The first question propounded by the defendants’ counsel is : “Can any one stand in judgment for the debt, except all of its original owners appear together, or some one showing himself to be assignee of all of them. 7”

They have cited no decisions of this Court- supporting that theory, but place reliance solely upon the French jurisprudence.

We find various decisions of this Court hearing on the question, and we quote a few of them.

In Duchamp vs. Nicholson, 2 N. S. 672, the right of single individual to sue upon an auctioneer’s bond for an injury suffered was recognized.

In Henderson vs. Montgomery, 2 N. S. 422, it was held that an “ injured person may bring suit in his own name upon an U. S. Marshal’s bond.” 4 N. S. 523, Dick vs. Reynolds; 5 O. S. 321, Mayor vs. Baily.

In Musson vs. Richardson, 11 R. 37, it was held that an individual stockholder in a liquidated corporation, had a legal right to sue to annul a judgment against it. 2 R. 570, Quinn vs. Moyes.

It is a settled principle that the pledgee of a negotiable promissory note, may sue upon it and recover “ to the extent of Ms debt.” 29 Ann. 549; 21 Ann. 3; 28 Ann. 419; 7 Ann. 225.

In 32 Ann. 303, Martinez vs. Succession of Vives, our immediate predecessors held that an attorney-at-law, having an interest in a judgment for Ms fee, might sue to have it revived.

In 32 Ann. 431, Robins vs. Brown, it was held that a “ sheriff has a cause of action in damages, or otherwise, to protect himself from liability ; but, Ms right of action is limited to the degree of responsibility which may result, should the property seized be withdrawn.” 33 Ann. 146; 12 R. 563; R. C. C. 2081.

The only case directly opposite is Alling vs. Woodruff, 16 Ann; 6, which decides that “in case of a joint obligation as to the obligees, there arises in their favor only a joint right of action, which can only be exercised by a suit jointly instituted by them.

“ The law does not permit a multiplicity of suits on an obligation joint as to the obligors; nor does the law allow a multiplicity of actions for the enforcement of a contract joint as to the obligees.”

That decision is unsupported by the citation of authority, and it rests, presumably, upon the provisions of R. C. C. 2085, which are to the effect that “in every suit on a joint contract, all of the obligors must be made parties, etc.”

But this article is strictly confined to suits against obligors.

There is no similar requirement contained in R. C. C. 2081, which relates to contracts in favor of joint obligees-, or those which “ create obligations joint in favor of obligees.”

But Act 103 of 1870, Acts of 1871, p. 19, so alters the law as to no longer require all joint obligors to be cited, in order to maintain an action on a joint obligation.

This statute fully answers the argument employed in Ailing vs. Woodruff, or rather pursuing that course of reasoning, a ready answer is given defendants here.

Their exception cannot be maintained.

II.

Plaintiffs offered in evidence all the books of the Workingmen’s Bank that' were offered on last trial; and also the books of the Workingmen’s Accommodation Bank, which were not offered on previous trial. All of them were admitted over defendants’ objections and exceptions.

They argue the same objection then proferred is good now.

They admit, as a general rule, that the declarations contained in the books of a corporation are good against it; but they claim that they are, as to third persons, res inter alios acta.

Defendants’ counsel cite 34 Ann. 605, (Gordon & (Gomilla vs. Mechler, as authority on this question.

It is to the effect that a bank cannot extinguish a credit of one of its depositors by compensation, and that it is essential to the validity of its by-laws that they be consonant with the general law; and they cannot interfere with the rights and privileges of third persons.

•In this case the execution of the bond sued on is not denied.

The only question of fact left in contention is — quoting from defendants’ counsel’s brief — “Has anj^ one or more of the original owners of the debt assigned his interests in it to the Workingmen’s Bank1? If so, how many 9”

The books were not offered or received for the purpose of establishing or increasing the liability of defendants on the bond, but as proof, or the commencement of proof, of the transfer or assignment to the Workingmen’s Bank of the stock in the former association.

The authorities quoted apply to the rule laid down in R. C. C. 2248, to the effect that “ the books of a merchant cannot be given in his favor,” and are not applicable to the question at bar.

Plaintiffs claim to be the owners and representatives of the owners of all the shares oi stock in the Workingmen’s Accommodation Bank. They aver that the stock certificate book of that bank, and the certificates of stock themselves, show that the holders of 510 shares of its stock are surrendered by them to the Workingmen’s Bank, and they accepted in lieu thereof the stock of that bank; and the subscription ledger of the Accommodation Bank shows that 134 shares had been subscribed, but for which certificates had not been issued at the time of the liquidation; but the owners of said shares took certificates of the Workingmen’s Bank, and received its stock in equal amount in lieu of their stock subscription in the old association.

They also claim that of the stock remaining 170 shares were held by other persons who took part in the organization of the bank, as the Workingmen’s Bank, their stock in the old association having been exchanged therefor.

They further claim that the books of the Workingmen’s Accommodation Bank are the identical ones used by the Workingmen’s Bank, or, in other words, the latter continued to use the books of the former.

These announced purposes are in strict keeping with the plaintiffs) cause of action set out in this opinion.

Of many of those facts these books would, in the nature of things, furnish the best evidence, and leave nothing behind in the possession or under the control of plaintiffs, other than secondary evidence.

Those books should furnish a full and complete record of all the transactions of the association, and particularly of its issuance of 'stock certificates; the pledge, assignment or transfer thereof; the subscription of stock, and generally all the proceedings of the concern.

If any part or all of the stock of this association has been absorbed by the Workingmen’s 'Bank, the latter issuing to the holders thereof new certificates, the books of the Accommodation Bank would necessarily form a connecting link in the chain of evidence thereof.

It is of first importance to know the amount of stock in the Workingmen’s Accommodation Bank, either subscribed for or issued; into how many shares same was divided; the amount of each share; to whom they were issued ; and by whom same are held and owned.

Proof “tending to establish this claim” was administered upon the former trial, but was not evidenced by tlie books of the Workingmen’s Accommodation Bank.

It did consist, “in large measure of the books of the Workingmen’s Bank.”

They were held to be competent evidence of the ownership of its own stock. For the same reason, the books of the Workingmen’s Accommodation Bank are competent evidence of the ownership of its stock.

The Workingmen’s Bank had the right to issue certificates of stock to its subscribers in such manner and style as the by-laws thereof provided. It had the right to issue them to members of the old association, and accept in lieu thereof or in payment therefor the certificates of stock held by them in the Workingmen’s Accommodation Bank. Those certificates of stock had a value to the extent of the respective interests of the holders thereof in the bond sued on ; and, in order to realize this value, and to reimburse itself for certificates of new stock issued, the Workingmen’s Bank have a cause of action upon the bond of defendants, as well as for the value of other stock differently acquired. We think defendants’ exception was properly overruled.

III.

On the last trial of this cause the defendants objected to the introduction by the plaintiffs of certain depositions that were introduced on the former trial, under a written agreement of previous date, witliout’objection.

The testimony of witnesses in a previous suit between same parties for the same cause of action, when there has been an opportunity for. cross-examination, may be used by either party, if the witness be dead, or for other cause cannot be produced. Hen. Dig., p. 506, No. 2.

It was stated in argument, and not denied, that some of those witnesses are dead ; and it nowhere appears in the record that any one of them could have been produced by the plaintiffs, for cross-examination by defendant’s counsel.

If they did not have that opportunity, on the former trial, it was due to their tacit acquiescence in its introduction without it.

Relying, doubtless, upon the agreement, coupled with the fact that, upon the former trial, no objection to its introduction was urged, the plaintiffs had no expectation of same being met with objection upon the latter one; and to maintain it now would prejudice plaintiff’s case when he is not at fault.

We think it is in keeping with the spirit of the agreement that the evidence should be received, and therefore approve the ruling of the judge a quo.

IV.

On the merits the evidence has fully satisfied us, among others, of the following facts, viz:

1st. That there were subscribed for, and issued, by the Workingmen’s Accommodation Bank, 3434 shares of stock.

2d. That of these the Workingmen’s Bank acquired by transfer, and was the owner, at the date of its liquidation, of 972 shares.

3d. That of those subscribed and partly paid for before, and actually issued subsequent to the 27th of September, 1873, the Workingmen’s Bank, by transfer,'had become the owners of 440 shares.

4th. That of the shares represented by the owners, who signed the agreement authorizing institution of suit on the bond, there are 899 shares.

5th. That there are owned and held by parties who signed the act of organization of the Workingmen’s Bank, and who became stockholders-therein, and are directly represented by the plaintiffs, to the extent of 859 shares.

6th. That of the said shares there had been surrendered and reissued as stock in the Workingmen’s Bank, 124 shares.

Hence the plaintiffs own and represent 3294 shares of the stock in the Workingmen’s Accommodation Bank, and there are remaining-140 shares, of which they have no control.

The evidence further satisfies us of the defalcation of George T. Converse, as alleged, and of the defendants liability, according- to the terms and tenor of the bond ; but the judgment rendered against E. K. Bryant must be reduced so as to allow plaintiff the sum of §|-||ths of $5000, with interest; and that against the heirs of William P. Converse, Jr., must be reduced so as to allow plaintiff the sum of f|||ths of $2500, with interest.

And it is therefore ordered, adjudged and decreed that, as thus amended and reduced, the judgment appealed from be affirmed, the plaintiffs and appellees paying cost of appeal.

Judgment amended and affirmed.


author: Watkins, J.

text:
    No. 9799.
    The State of Louisiana vs. Emanuel Dreifus.
    1. There is an essential difference between a judicial and non-judicial oath. A judicial oath is one taken before an officer in open court; and a non-judicial oath is one taken before an officer ex parte, or out of court.
    2. Incase perjury is assigned on a judicial oath, it is sufficient that the person acting is one of a class of officers having prima facie authority, and does .administer the oath with due formality and solemnity, in the presence of the court, it having jurisdiction of the proceedings.
    3. In case perjury is assigned on a non-judicial oath, it is insufficient to maintain a conviction, if the person administering the oath was not legally authorized to administer that particular oath.

    4. Being sworn by a clerk, in the presence of the court, is being sworn by the court; and an oath administered by an officer, though incompetent, in presence of the court, is regarded as administered by the court.
    0. The power to administer an oath is a ministerial one.
    6. This Court has no power to pass upon and decide whether there was a variance between the proof administered and the indictment when presented in connection with a motion for new trial for the first time.
    7. An objection that witnesses who tostifiod at, or jurors who sat upon the case, were sworn by an officer without any legal authority to administer an oath, comes too late after verdict against the accused; and objection to same cannot be entertained for the first time on application for a new trial.

      APPEAL from the Criminal District Court for the Parish of Orleans. Balter, J.

      M. J. Cunningham, Attorney G-eneral, and Lionel Adams, District Attorney, for the State, Appellee:
    1.If an officer is not competent to administer an oath in a criminal trial, objections should have been made at the time witnesses or jurors were offered to be sworn by such officer. An accused will not be permitted to take the chances of an acquittal and failing of success secure a new trial by deferring action as to such officer’s incompetency until after conviction. 36Ann.20G; 37Ann.215; 3G Ann.864; Whar. Cr. P. and P. 801, 804, 876, 877.
    2.A minute clerk of the Criminal District Court of Orleans parish is a deputy clerk, and as such is competent to administer an oath in the presence of and under the direction of the Court. Act 30 ©f 1880; Act 130 of 1880.
    3.Act 30 of 1880, does not create a new office. It confers no powers with reference to the minute clerk but regulates the duties of that officer whoso pre-existing jjowers arc recognized by the act.
    4.Administering an oath calls not for the exercise of either judgment or discretion. It is a mere formality, hence it is a ministerial act. High Ext. a Leg. Hem. § 81.
    5.A deputy clerk may act for his principal in the performance of all ministerial acts. He is an officer known to the law. 15 L. 41; 3 Ann 247; 27 Ann, 507; 10 M. 48; C. P. 782 ;
    6.An oath administered hy a deputy clerk in the actual presence of the court and under his direction is valid. 7th Circ. (Mich.) 1845, U. S. vs Hichols, 4 McLean, 23.
    7.The x>ower to administer oaths is conferred upon deputies in C. P. 782; secs. 3 and 12 of Act 56 of 1855; secs. B. S. 462, 483 and 2550 ; Act 78 of 1868, and the last clause of Act 30 of 1880; see Gerald vs. Gerald, dissenting opinion of Justice Slidell. 5 Ann. 246.
    8.Where the power to administer oaths by deputy clerks has been recognized with judicial unanimity from the organization of our government unto the present day, the maxim “ Communis error facit jus ” is applicable.

      C. S. Lugenberg and Morns Maries for Defendant and Appellant:
    Authority to administer an oath is a judicial function. State vs. McCroskey.
    Authority to administer an oath is a material allegation in an indictment for perjury or subornation of perjury, and the administration must he proved as alleged. 2 Buss on Cr. P.; Morrell vs. People, 32111. p. 502; 3 McCord, 308.
    In prosecutions for perjury or subornation of perjury, the party charged with bhepeijury must he lawfully sworn. 3 Inst. 166 ; 1 Johns, B. 498; 9 Coweu, B. 30; 3 McCord, B. 308; 4 McCord, B. 165: 2 Buss on Cr., 520; 3 Carr & Payne, 419; S. C., 14 Eng. Com. Law. Bep. 376 ; 2 Chiit. Cr. Law, 304j 4 Hanks, 182; 1 H. and M., 546 ; 3 McCord, 308 ; 2Hayw., 56 ; 8 Pick., 453; Bouvier’s Law Diet, verb Perjury, 331; Wendell’s Blackstone, vol. 4,137; Cr. C. C. (7th ed.) 626 ; 3 Camp, 432 ; Wood’s Inst. 435.
    Authority to administer an oath is an express delegation of authority and cannot be exceeded or delegated to another. Bex. vs. Mary Hanks, 3 Carr and Payne, 419; TJ. S. vs. Curtis, 107; H. S. B. 671; Sandeman vs. Deake and Willard, L7 La. 203; Begina vs. Hallett, 5 Cox’s Criminal Cases, 238; Stewart vs. State, 6 Texas Court of Appeal, 384 ; Bex vs. Punshon, 3 Camp., 96 ; McGragor vs. State, i Ind. B. 232.
    ‘•Practice cannot give' authority to administer an oath.” Bex. vs. Verelst, Esq., 3 Campbell's B., p. 432; Begina vs. Henry Marshall Stone, English Law and Equity Beporfcs, XXII, p. 593.
    In this State no one is authorized to administer an oath except those to whom the power has been expressly delegated. B. S. sec/1936, as to district judges; secs. 462, 483, 498, 488 (parish of Orleans excelled), as to clerks of district courts ; 512, as to clerks of district courts in parish of Orleans and notary public; 529, as to oaths under Acts 216 and 217, C. Pr, before any clerk of court; 2576, as to foremen of grand juries; 2579, as to Secretary of State; 2561, as to Auditor; Acts of 1877, Ho. 7, as to notaries public; 3543, as to sheriff.
    The minute clerk of Section B, of the Criminal District Court of tho parish of Orleans, is a constitutional officer. Const, of 1879, Act 138.
    He has not been invested bv either the Constitution, or any statute, with authority to administer an oath.
   Tlie opinion of the Court was delivered by

Watkins, J.

The accused prosecutes this appeal from a conviction of subornation of perjury, and a sentence to six years’ imprisonment in the State penitentiary.

For a reversal of the judgment and discharge from the sentence, he relies upon several hills of exception, a motion for a new trial, and a motion in arrest of judgment.

In this court his counsel assign as error in the record and proceedings, that there is manifest error in that it appears from the record “that tlie perjury, for tlie subornation of which tlie defendant; was indicted, was perjury alleged to have been committed by one, Susan McMahon, on the trial of tlie case of the State vs. Thos. J. Ford, et als., in Section B of the Criminal District Court for the parish of Orleans, after she liad been sworn as a witness by Richard D. Scriven, minute clerk of Section B of the Criminal District Court for the parish of Orleans.

“This defendant maintains that said Richard D. Scriven, minute clerk aforesaid, had no authority whatever to administer the oath as a witness to the said Susan McMahon on said trial.”

The foregoing is the substantial repetition of the averments made in the motion in arrest of judgment.

The indictment sets out with precision that the perjury, for the subornation of which tlie accused is prosecuted, was perjury committed by Susan McMahon on the trial of tlie case of the State vs. Ford et als., in Section B of the Criminal District Court for the parish of Orleans, and that “tho said oath having been administered to the said Susan McMahon by Richard D. Scriven, minute clerk of the said court, etc.”

As this objection to the indictment involves its validity and that of all subsequent proceedings, we will dispose of it first.

I.

The oath lawfully taken is an essential to tlie indictment and consequent conviction for perjury; and every person who is guilty of subornation of perjury by procuring another person to commit the crime of perjury, as aforesaid, shall be punished in the same manner as for the crime of perjury. Whar. Crim. Law, sec. 2176.

The statute under which the defendant is prosecuted declares that “whoever shall wilfully commit perjury or shall, by any means, procure any person to commit wilful and corrupt perjury on his oath or affirmation in any suit, controversy, matter or cause depending in any of the courts of this State, or in any deposition or affidavit taken or made pursuant to its laws, upon conviction, etc.?’ R. S. sec. 857.

Upon the face of the statute, there are two general classes or kinds of oaths, within its contemplation, on either of which perjury may be committed. One of them is an oath taken “ in any suit, controversy, matter or cause depending in any of the courts of this State; ’’ and the other is an oath made or taken “in any deposition or affidavit * * pursuant to the laws of the State."

If in either case the oath taken is false, wilful and corrupt, the crime of pei-jury is committed.

One of these has been denominated a judicial and the other a nonjudicial oath.

In the ninth edition of Dr. Wharton’s work on criminal law, this distinction is made. Ho says : “ It is essential to constitute the offense that, if the oath be non-judicial, it be taken before the proper officer; or, if it be judicial, before the court having jurisdiction of the proceedings.

“If, in case of a non-judicial oath, it appears to have been taken before a person who had no legal authority to administer it; or, in case of a judicial oath, before a court which had no jurisdiction of the cause, the defendant must be acquitted.

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“ Being sworn by a clerk in the presence of the court, is being sworn by the court.” 2 Whar. Crim. Law, sec. 1257.

Again: “When the court has jurisdiction of the subject-matter of enquiry, it is not necessary that proceedings should be strictly regular. But if for want of some essential condition, no jurisdiction attached, perjury cannot be maintained.” Ibid, secs. 1258, 1262.

There is a precise and clear distinction made between a judicial and a non-judicial oath.

Perjury charged to have been committed on a non-judioial oath cannot be maintained if the person who had administered it had no lawful anthority j but perjury alleged to have been committed on a judicial oath can be maintained unless the coivrt was without jurisdiction of the cause.

No de facto title by the officer administering the oath will sustain an indictment for perjury. But perjury may be assigned on an oath erroneously taken while the proceedings in which it was taken remain unreversed.

“And an oath administered by an officer (though incompetent) in presence of the court is regarded as administered by the court.” Ibid secs. 1263, 1313.

Again: “At common law the name and office of the person or court administering the oath must be given, and a variance in this respect is fatal.

“It is, however, enough to allege, swearing before a court, and proof of swearing before an officer of coiu-t, in presence of court, will sustain an allegation of swearing before, or by the court.” Ib., sec. 1287.

“But, as a general rule, the principle of the statute (28 Geo. C. 11), has been accepted among us as virtually a part of the common law, though it must appear from the indictment that the officer administering the oath was of a class authorized by law to act in such capacity.

“ Beyond this, specification need not be pushed.” Ibid, sec. 1288.

Again: “ It is not necessary for the prosecution to prove the appointment of the officer who administered the oath, if a prima facie case of authority is made out, and (if the court will not judicially notice it), that the person lawfully exercising the duties of that office had authority to administer an oath in such a case. And the officer may be called to prove that he was acting as such.

“Swearing before a clerk in open court is equivalent to swearing before the court. Ib. sec. 1315. * * s * Proof that an individual has acted notoriously as a public officer is prima facie evidence, of his official character, etc.”

In the sixth edition of Bishop’s Criminal Law a similar precept is given.

“An oath administered by a clerk is, ordinarily, the same as administered by the judge; subject, perhaps, to statutory modifications in some localities.” 2 Bishop Crim. Law, sec. 1020.

But the learned counsel for the defendant insist, in argumeut, that Bishop and Wharton are not common law authors, and attract our attention to the provisions of the act of May 4th, 1805, which is to the effect that “ all crimes, offenses and misdemeanors * * shall be taken, intended and construed according to the common law of England.”

“ Russell on claims ” is a valuable treatise, of which Sir William Russell, once Chief Justice of Bengal, was the author and compiler, and which was subsequently revised by Charles Greaves, an English barrister. It is received authority in the courts of this country.

That learned judge sa.ys : “It is sufficient io support the averment that the party administering the oath had competent authority for the purpose by showing, in the first instance, that he acted as a person having such authority.

“ Thus, upon an indictment for perjury before a surrogate in the ecclesiastical court, it was ruled, that the fact of the person who administered the oath having acted as surrogate, was sufficient prima facie evidence of his having been duly appointed, and having authority to administer an oath.

“And Lord Ellenborough, C. J,, said: ‘I think the fact of Dr. Parsons having acted as surrogate is sufficient prima facie evidence that he was duly appointed, and had competent cmthoriiy to administer oaths.” 2 Russell on Crimes, p. 659.

This may be, perhaps, a new question in our jurisprudence, but all the text writers appear to be in perfect agreement on the principles herein announced.

On their authority we conclude that the following propositions are established, viz:

1st. That there is an essential difference between a judicial and a non-judicial oath ; and that a judicial oath is one taken before an officer in open court; and a non-judicial oath is one taken before an officer ex parte, or out of court.

2d. That in case perjury is assigned as having been committed on a judicial oath it is sufficient that the person acting is one of a class of officers having prima facie authority, and does administer the oath with due formality and solemnity, in the presence of the court — it having jurisdiction of the cause.

3d. In case the peijury is assigned on a non-judicial oath, it is insufficient to maintain a conviction, if the person administering the oath was not legally authorized to administer that particular oath.

4th. Being sworn by a clerk, in the presence of the court, is being sworn by the court; and, an oath administered by an officer, though incompetent, in presence of the court, is regarded as administered by the court.

Richard D. Scriven was minute clerk of section B of the Criminal Court. He acted as clerk when he administered the oath as a witness to Susan McMahon,

She was sworn as a witness on behalf of defendants, during the progress of the trial of the State vs. Ford and others, a prosecution at that time depending in said Criminal District Court, and which court, had jurisdiction thereof.

We regard the minute clerk as a constitutional officer, possessing such powers as are delegated to him by law.

Article 138 of the Constitution of 1879 provides that his “ duties shall be regulated by law.”

Act 30 of 1880 declares that “ they shall, under the supervision of the judge” perform certain duties which are enumerated, “and such other duties as said judge may direct.”

Defendant’s counsel argue that the power to administer an oath is not a ministerial, but a judicial one, and cannot be delegated ; or, in other words, the constitution authorized the Legislature to regulate the duties of the minute clerk, and could not empower a judge to authorize this officer to discharge duties not enumerated in the legislative mandate.

But we are not ready to concede the power to administer an oath to be a judicial one.

Art. 133 of the Constitution of 1868 declares that “ no judicial power shall be exercised by clerks of courts.

Under that constitutional inhibition the Legislature could not confer upon clerks of court any judicial power; yet they were certainly authorized to administer oaths.

Art. 122 of the Constitution of 1879 conferred upon the Legislature power “ to vest iu clerks of court authority to grant such orders, and do such acts as may deemed necessary for the furtherance of the administration of justice,” etc.; but in the act of the Legislature conferring on clerks certain judicial powers, the power to administer oaths is not enumerated. Act 106 of 1880.

As the clerk had, and exercised the power of administering oaths under the constitution of 1868, it was clearly a non-judicial one, and ex necessaria ccmsa “those powers and duties” that were conferred upon clerks embraced the power to administer oaths, and it was a purely ministerial one.

Whether the presiding judge of Section B of the Criminal District Court-had ample authority, under the act of the Legislature quoted, to confer upon the minute clerk thereof the power to administer oaths or not — and we need not decide that question ; an oath was administered by the minute clerk to the witness, Susan McMahon, in open court, in the presence of said judge, and in the apparent exercise of a rightful and legal authority.

The assignment of perjury on that oath, in a cause depending before that court, and 'which was in due progress of trial therein, and of which cause said court had competent jurisdiction, is maintainable under the indictment; and the defendant’s motion in arrest of judgment was correctly refused.

II.

Our attention is called to the fourth and fifth grounds in defendant’s application for a new trial:

The fourth is predicated upon the theory that no evidence was spoken or read to the jury in the case, verifying the statement in the indictment that Susan McMahon was sworn as a witness on the trial mentioned, by Richard D. Scriven, minute clerk.

In support of this motion the affidavits of two persons are annexed to it, and they state, substantially, that no such evidence was introduced.

But the trial judge, in his assignment of reasons, appended to defendant’s bill of exceptions, makes a clear and succinct statement to the contrary. He sets out a detailed statement of the evidence, and enumerates the witnesses who gave the evidence, and concludes by saying : “ To my mind the evidence on this branch of the case was clear and positive.”

We feel constrained to accept this statement of the trial judge rather than the merely negative declarations of two disinterested by-standers.

But it is further argued that “the extract from the minutes of court ” of the Ford case “show that Susan McMahon” was sworn “by the clerk,” and there is therein no mention made of Richard D. Scriven, minute clerk, etc., and that this record evidence discloses a fatal variance between the indictment and the proof received under it.

To pass upon this question would necessarily involve an examination of evidence which went to the jury, and upon which we had no power to decide.

Defendant’s counsel should have requested the trial judge to charge the jury that the jiroof as to the person who administered the oath to Susan McMahon, must correspond with the averments in the indictment, else the variance would be fatal, and they must acquit the prisoner; and if the judge had declined to give such a charge, he should have reserved a bill of exceptions to his ruling. 33 Ann. 1016, State vs. Hipolite Polite; 37 Ann. 41, State vs. Tony Taylor.

In Wharton’s Crim. Pl. and Pr., sec. 760, it is said: “That when an averment which is necessary to support a particular part of the pleading, has been imperfectly stated and a verdict on an issue involving that averment is found, and it appears to the court, after verdict, that unless this averment were true, the verdict could not be sustained — in such case the verdict cures the defective averment, which might have been liad on demurrer.” 1 Bishop Crim. Pro., sec. 707 a.

III.

The fifth ground for a new trial assigned is to the effect that each and all the witnesses who testified and jurors who sat upon the case, were sworn by Richard D. Scriven, minute clerk, a person not authorized to administer oaths, and he has thereupon been tried “without due process of law.”

Such objections should have been made at the time the jurors or witnesses were sworn, to have been of avail to the accused. This competency cannot he raised for the first time upon an application for a new trial. 36 Ann. 864, State vs. Frank Wilson; 36 Ann. 206, State vs. Jos. McGee; 37 Ann. 216; State vs. Victor Pierce.

IV.

We have attentively and carefully examined the various grounds of the defendant’s motions for new trial and arrest of judgment, as well as the authorities cited in their support, and have reached the conclusion that said motions were not well taken and same were correctly overruled.

Judgment affirmed.