author: Pochb, J.

text:
    No. 9600.
    J. H. Maury & Co. vs. Louis Ranger & Co.
    •Juusprudenoe has discarded the former stringent rule which made agents of foreign principals personally liable on contracts executed by them in that capacity, without any distinction whether they describe themselves in the contract as agents or nor.
    In suits against agents to make them thus responsible, courts must ©udeavor to ascertain from the nature and tenor of the contract, to which of the parties ceiit was given, and, they will be guided by the rule that the agent of a foreign principal is not, as a question of law, personally liable on every contract made for his principal. It is rather a question of fact in each case, to be ascertained by tbe terms of the particular contract and the surrounding circumstances.
    To avoid personal liability on a contract made for liis principal, the agent must disclose his agency as well as his principal, either at the time that the contract is entered into or when he is sued as personally liable thereon. •
    In a contract of affreightment which contains on its face the fact of the agency and discloses by its terms the priucipal for whom it is executed, the agent will be exonerated from personal liability.
    A PPEAL from tbe Civil District Court for the Parish of Orleans. Tissot, J.

      IPai-rar & Kruttschnitt for Plaintiffs and Appellees:
    1. The agents of merchants residing in a foreign country, or in another State, are personally liable, whether they describe themselves as agents or not in the contract. In such cases it is presumed that the credit is given exclusively to them to the exoneration of their employers j but the presumption maybe rebutted by proof that the credit was given to both, or to the principal only. Newcastle vs. Red River R. R. Co., 1 Rob. 147; Thorne vs. Tait et als., 8 Ann. 8; Adler vs. Shuchardt, 8 Am. L. R. 15; Wharton on Agency, secs. 514 and 791; Dos Passos on Stock Brokers and Stock Exchanges, p. 680; Story on Agency, § 268.
    » 2. Where an agent fails to disclose the name of his principal, he is bound personally. C. C. 3012; Bedford. Breedlove & Robeson vs. Jacobs, 4 N. S. 529; Nott & Co. vs. Papet, 15 La. 310; Parlange vs. Baures, 14 Ann. 444; Story on Agency, § 267; Kent’s Commentaries, 13th ed., vol. 2 (top paging), 631.
    3. If a person would excuse himself from responsibility on the ground of agency, he must show that he disclosed his principal at the time of making the contract, and that he acted on bis behalf, so as to enable the party with whom he deals to have recourse to the principal in case the agent has authority to bind him'. Defendants’ brief, p. 32.
    4. It is elementary in the law of carriers that the goods to be transported must be received by the carrier before his liability commences. Hunt & Macauley vs..Mississippi Central R. R. Co., 39 Ann. 446.

      D. G. <& L. L. Ldbatt for Defendants and Appellants:
    1. An agent^acting within authority, who signs bills of lading in his principal’s name, without any personal guarantee, and free from unfaithfulness, fraud or neglect, is not liable, personally, to the shipper, even for the admitted breach of such contract by his principals.
    2. Where a written contract of affreightment is entered into by the master of a ship, aud contains all the stipulations of tlio parties, conditioned on ber arrival at a named port, and the ship is prevented from reaching her wharf by “force mojeuro,” the contract is annulled, without liability for damages on either side; and a fortiori, the acknowledged agent of the ship, its consignee and husband, who was warranted by custom of the port in anticipating her arriual, and to prepare for her prompt dispatch by receiving the cargo on the levee, cannot be pursued personally for an alleged breach, simply because the principals are foreigners and reside “beyond seas.”
    3. An agent or consignee of a ship, duly authorized, whose owners are domiciled abroad, is no more personally liable for damages incurred by violation of a contract, than if he were the agent of a principal in another State of the Union, unless credit is exclusively given to the agent to the exoneration of theprincipal or upon the agent’s personal guarantee. But where he has disclosed the name of his principal in the contract, or at the trial, he incurs no personal liability. 15 L. R. 306; 15 Ann. 389; 14 Ann. 444 ; 4 N. S. 430-
    4. When a contract of affreightment or charter-party is annulled by vis major, the voyage is broken up and all parties are at arm’s-length, and the relation of the ship, master and owners, who, in anticipation of her arrival, received cargo on the levee, must be governed by the law of negotiorum gestor, and ipso facto they become agents of the shipper, to forward it at the best rate of freight obtainable, unless the agents can control another ship^of tbe’sameline nnder the clause of “liberty to tranship.”
    5. Where the cargo is forwarded by another steamer, of a different line, under the spur of the shipper’s request or instruction, but at a higher rate of freight than that of the ruptured contract, which the shipper knew, or was bound to expect, as the result of the “quarantine blockade,” the difference is a damage absque injuria, and must fall on the owner of the cargo, under the rule of tlres pcrit domino,” especially where all the charges, trouble and expenses of shipment were borne by the disabled ship, without reimbursement.
    6. Where the agent gives to the other party a substantial principal, who recognizes and ratifies the contract and properly discharges obligations resulting therefrom, with the best intentions and in the interest of the shipper, and without compensation, he is free from personal liability, and requires no express stipulation to relieve or to rebut the presumption that the contract was made with him personally. 7 Ann. 674.

      7. Such an agent cannot be field responsible personally, merely because bis principals are foreigners and reside “beyond seas,” or'in another State, in the face of a -written contract negativing the intention to bind themselves personally for its violation, or that credit was exclusively given to him to the exoneration of his principal. 15 L. R. 310 b and Story on A.gency, §§ 2G5, 267. ’

    8. The civil law of mandate in Louisiana cannot yield to the{‘ custom of trade in London, ’’ in specified transactions , the common law or the commercial law of other countries (in sales of personal property), if the agent discloses his mandate and designates his prin* oipals, by written contract, without personal guarantee.
    9. The shipper paying the freight by the substituted ship, is in no worse position than if the original ship had paid the freight in Liverpool on its delivery, and then sued plaintiff to reimburse tbe amount expended or incurred as “negotiorum gestor.” Plaintiffs only did what the law would have obliged them to do, and ought not to complain against anybody.
    10. The “liberty to tranship ” clause is not meant to obligate the master, owners or agent to ship by a vessel of another line, or incur loss;'but is a privilege inserted to earn freight, pro rataitinerU, or to forward by another vessel of the same liue. 23 Fed. Rep. Ro. 16, p 918, June, 1885.
   The opinion of the Court was delivered by

Pochb, J.

Plaintiffs seek to hold the defendants personally liable under a contract of affreightment which the latter had executed as agents.

The principal defense is that the defendants acted throughout the transactions which form the basis of this suit, merely as agents of the owners of the vessel in whose name they had signed hills of lading, and that they are not personally liable to plaintiffs under the contract declared upon. They prosecute this appeal from a judgment in favor of plaintiffs for the full amount of their claim.

The pertinent facts in the record are as follows:

In July, 1883, the defendants executed bills of lading to plaintiffs for 2709 bales of cotton, to be received on board of tbe steamer “ Gracia,” then on her way to this city, and consigned to Liverpool, England, at the rate of 19-64 of a penny sterling per pound. That under the effect of the quarantine then established by tbe State authorities at tbe mouth of the Mississippi river, the vessel “Gracia” was not allowed to reach the port of New Orleans, whereupon defendants, with the knowledge and consent of plaintiffs, shipped the cotton to Liverpool by the steamer Chancellor,” owned by a different line of steamers.

The hill of lading issued by tbe latter steamer was to tbe steamer “ Gracia,” but it called for freight at tbe rate of of a penny, which was exacted from tbe consignees at Liverpool before delivery of tbe cotton by the “ Chancellor.” It also appears that on delivery, some of tbe cotton was found damaged, for which the shippers were charged the sum of 118 pounds sterling.

The demand of plaintiffs is for the difference of freight charges on the cotton at the rate of 19-64 of a penny per pound and the charges exacted at the increased rate of -jj of a penny, and for the amount paid by them on account of the damaged cotton, the whole amounting in our currency to '$2,977.10.

Plaintiffs’ theory, which was adopted by our learned brother of the district court, under which they propose to make the defendants personally liable, presents two propositions of law:

1st. The agents of merchants residing in a foreign country, or in another State, are personally liable, whether they describe themselves as agents or not in the contract. In such cases it is presumed that the credit is given exclusively to them to the exoneration of their employers; but the presumption maybe rebutted by proof that the credit was given to both, or to the principal only.

2d. Where an agent fails to disclose the name of his principal, he is bound personally.

While our appreciation of the facts in this case would justify the conclusion that the defendants would be exonerated even under the stringent and narrow rule contained in plaintiffs’ first proposition, we prefer to rest our conclusions on other grounds, and to withhold our sanction of a principle which once prevailed in some English courts, but which has long since been repudiated by more progressive and enlightened jurisprudence, not excluding English tribunals.

The rule was formulated by Judge Story in his work on Agency, predicated on some adjudications in the jurisprudence of England, but he lived long enough to appreciate its harshness and its damaging effect on international commercial intercourse, which was subsequently encompassed in more liberal ties, and became in time immeasurably increased and facilitated by the application of steam to navigation on the seas, tiie invention of the electric telegraph, and the multiplicity of railroad communications. Hence, we find him in the revision of his work yielding a cheerful compliance with modern adjudications on the subject-matter, by the following material modification of his views as originally enunciated: “And probably the better rule is that the agent of a foreign principal is not, as a question of law, personally liable on every contract made for his principal. It is rather a question of fact in each case, a question of intention, to be ascertained by the terms of the particular contract and the surrounding circumstances.” Story on Agency, 6th ed., § 268.

In the next section, 268 “a,” the learned author adds another very wise and very significant qualification to the rule in the following words : “This presumption of credit being given alone to the agent, and not to the foreign principal, applies with the most force to purchases made by an agent for a foreign principal; but when a written contract is made, and expressed to be with a foreign principal and not with the agent, the latter is not liable, although the contract be signed by him, for and on account of the foreign principal.”

These principles are unqualifiedly sanctioned by respectable authority of other States of the Union; and in connection with the second proposition advanced by plaintiffs, they have been followed in several cases by our own Court. 33 Howard U. S. R. 49, Oelricks vs. Ford; Lyon vs. Williams, 5 Gray, 557; Bray vs. Ketell, 1 Allen (Mass.), 80; New Castle vs. Red River R. R. Co., 1 R. 147; 13 La. 20, Zacharie vs. Nash; 15 La. 306, Nott vs. Papet; 8 Ann. 8, Thorne vs. Tait; 14 Ann. 448, Parlange vs. Fanres; Spotts vs. Cowan, 9 Ann. 520.

In our examination of this case we have been guided by the jurisprudence thus established, and we conclude that the case is clearly witli the defendants.

In a contract of affreightment such as the one disclosed in this record, we find an apt illustration of the wisdom of the rule that, in determining the question of the presumption as to which of the parties credit is given, which is the vital issue in all such cases, courts must deal with the question of fact in each case, with the question of intention to be ascertained by the terms of the particular contract and the surrounding circumstances.

Now, in this case the record shows that defendants were (like plaintiffs) commission merchants and factors and dealers in cotton; and that as an appendage to ijfcheir main business they undertook the agency of a line of steamers known and designated as the “ Serra Line of Steamers,” plying between Liverpool and this port.

The nature of their connection with the steamer “ Gracia,” for whose account they entered into the contract under discussion, was made known to plaintiffs by the very freight brokers, Dobell & Bell, who negotiated the contract between them and the defendants, and was made manifest to them-on the very face and in every line of the bills of lading which were executed by the defendants, formally accepted and at once transferred by endorsement by the plaintiffs as a commercial security.

The heading of the bill contains the words: “Serra Line of Steamers,” “Louis Ranger & Co., Agents, New Orleans;” every stipulation in the bill is made in the name and for the account of the steamer, her commander and owners, and the contract is signed by the defendants as agents.

When, later on, circumstances prevented the literal execution of the contract through the steamer contemplated by the parties, plaintiffs were at once notified of the circumstance, and of the intention of the defendants to make the shipment by another steamer, the “Chancellor,” of the “Harrison Line,” and were requested to change their insurance accordingly; all of which was accepted without murmur or objection by plaintiffs. An d the record furth er shows that through a ‘ ‘ cable ” to the managers of the line at Liverpool, the defendants also notified them of the unforeseen disability of the vessel to carry out their contract with plaintiffs, and that the consent of said managers was obtained to operate the change of shipment to the “ Chancellor.”

When sued in this case, the defendants again reiterated in their answer a statement of their true character in the premises and of their real and legal connection with the contract, and they amplified their previous disclosure of their agency as well as the names of the managing owners of the line of steamers. They therein declared that they were the agents of the “Serra Line, J. T. Nickels & Co., of Liverpool, managing owners,” and defendants’ principals.

We must hold these acts as a substantial and sufficient compliance with the very rule invoked by plaintiffs themselves, and as affording ample legal and equitable grounds to exonerate the defendants from all personal liability in the premises.

We pretermit any expression of opinion as to the right of plaintiffs to enforce their claim against any other party to the contract, and under the views as herein expressed we eliminate all discussion of the merits of their claims against the steamer “ Gracia,” or her owners.

The discussion would involve questions of great interest and of attractive study, but it would answer no useful purpose in face of the conclusion which we have reached.

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 plaintiffs’ demand against defendants be rejected, and that their action be dismissed at their costs in both courts.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 9709.
    The State of Louisiana vs. Miles Bates.
    A former acquittal for the same offense cannot be urged aa newly-discovered evidence in support of a new trial. Such fact must have been known to defendant, and evidence to that effect could only have been offered under a special plea of autrefois acquit.

    Jurors cannot be heard to impeach their verdict; and when no objection is urged to the correctness of the judge’s charge, the allegation that the jury misapprehended its meaning, supported by the affidavit of a juror to that effect, cannot be sustained as ground for-a new trial.
    APPEAL from the First District Court, Parish of Caddo. Hicks, J.
    iif. J. Cunningham, Attorney General, for the State, Appellee.

      J. L. Hargrove for Defendant and Appellant.
   ' The opinion of the Court was delivered by

Fenner, J.

The onty complaint of error is embodied in a bill of exceptions taken to the ruling of the judge in refusing a motion for new trial, which was based on the following grounds, viz:

1st. That no evidence was offered on the trial-to show any value to the property alleged to have been stolen.

Iiow are we to determine whether such evidence was offered or not, or the sufficiency of the evidence offered? The judge does not substantiate the averment, and Ms refusal of the new trial must be taken as denying it.

2d. That defendant was surprised by the State’s withdrawing a witness without examining him on a certain point.

This is frivolous. If the defendant wished to carry the examination further, he had the opportunity of doing so.

3d. On the ground of newly-discovered evidence, the amount of which is that he has discovered since the trial that he had been formerly tried and acquitted for the same offense.

The proposition that he had been tried and acquitted for the same offense, without knowing it, is difficult of comprehension; and, if it were true, should have been urged in a special plea of autrefois acquit.

4th. That the jury misapprehended the judge’s charge.

It is not alleged that the judge’s charge was incorrect or was not clearly expressed. The attempt is made to support the ground by the affidavit of one of the jurors; but he cannot be permitted to impeach the-verdict. We know of no authority for_ granting a new trial on such a ground.

Judgment affirmed.


author: Manning, J. Watkins, J.

text:
    No. 9675.
    Succession of Joseph Anger.
    A sale cannot be annulled by an opposition to a distribution of tbe proceeds of tlie sale. "When a sale is real, a direct revocatory action must be brought for its annulment.
    Where there is opposition to the distribution of the proceeds on a bare allegation of fraud, collusion, etc., in making the sale, the Court will not delay the distribution until it shall suit the pleasure of the opponent to institute a proper action to annul it, unless hs has used some conservatory process to prevent the distribution.
    An error of calculation may be corrected by this Court upon an application for rehearing; but the rights of interested parties will be reserved.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      11. N. Barrow and S. Matthews for the Appellees.

      Q. L. Bright and Bead & Qoodale for the Appellants.
   The opinion of the Court was delivered by

Manning, J.

A provisional tableau of distribution of this succession was before us in 1884 on the opposition of Humble, tutor, holder of one of the mortgages, and our decision of the issue presented by him is reported in 36 Ann. 252. Of the two plantations of the succession, “Hermitage” had already been sold. “ Forlorn Hope ” has been sold in the interval, and the plan oí distribution of the whole assets is now opposed by sundry creditors.

The Gourriers hold the first mortgage and vendor’s lien on the undivided half of Forlorn Hope.

Graves holds the first mortgage on Hermitage and an undivided half of Forlorn Hope and the second mortgage on the other half.

McCan’s mortgage rests on both plantations, Humble’s on Hermitage alone, and Cousins’ on both, and all are primed by Graves.

Opposition oe Shakspeare, Smith & Co.

These opponents attack the sale of Forlorn Hope as fraudulent and collusive — the collusion being of the executrix and certain other creditors to reduce the appraisement and effect a sale for less than otherwise would have been possible, and the fraud being the consequent despoiling of the opponents. When they offered evidence to prove their allegations, objection was made that the sale could not be annulled in an opposition to an account, and the court sustained it and refused to hear the evidence.

The court ruled correctly. • The opposition is in substance an action to annul the sale, and such action cannot be instituted in the form of an opposition to the distribution of the funds arising from the sale. The sale was real and a direct revocatory action should have been brought for its annulment. Violett vs. Fairchild, 6 Ann. 193.

The opponents concede the correctness of that rule of law but urge that they should be permitted to prevent the distribution of the proceeds of a fraudulent sale. Their contention amounts to this, that on a bare allegation of fraud, etc., in a sale, made in an opposition to the distribution of the proceeds, the court must delay the distribution until it shall suit the pleasure of the opponent to institute a proper action to annul the sale. The lower judge, made the proper disposition of the opposition by dismissing it.

Opposition op B. Cousins.

The brief of this opponent- argues on the assumption that the executrix had given Humble priority over him in the distribution of the proceeds of Forlorn Hope, but his opposition is directed against the allowance of certain privileged claims and of other mortgage creditors. It is true, as he argues and as we have already stated, that Humble had no mortgage bn Forlorn Hope, while Cousins had. The tableau does not propose to distribute any of the proceeds of Forlorn Hope to Humble. ' On the contrary it classes Cousins quoad this mortgage next after Graves and, after paying Humble out of the Hermitage sale, distributes the residue of that sale to Cousins as well as the residue of Forlorn Hope after paying antecedent mortgages. The judgment amends the tableau by reducing the sum coming to Cousins, and as the items of privilege allowed cause in part that reduction, this opponent attacks them. We think they were properly allowed.

Opposition op Humble, tutor.

The complaint of this opponent was that our decree, rendered when the case was here before, had been disregarded in this, that the proceeds of Hermitage are by the tableau of distribution made to pay an undue j>roportion of the fees, taxes, costs, and other expenses of administration. His brief contains an arithmetical statement of what he thinks that proportion is, and seems to be fair. The principle we announced is that each plantation must bear the burden of its own taxation, and the general expenses of administration are chargeable to each proportionately. His brief says that the lower judge sustained the opposition and rendered such judgment as was believed carried out the decree of this Court on the Conner appeal.” He is not an appellant and filed no answer for an amendment, nor does his brief say that he desires any, and it would not suffice to procure amendment if it did.

Appeal op P. S. Graves.

This appellant, asks the correction of certain alleged errors in the judgment. His mortgage was first on the whole property save only the Gourriers on one-half of Forlorn Hope and there are funds to pay him. This contest is between the second mortgage creditors for the residue of the proceeds — “an issue,” he says, “in which the present appellant would have no concern had not the genius of blundering presided over the writing of the judgment, and caused a serious and unaccountable though seemingly clerical error as to the amount therein stated to be due him at the time of tliis new calculation.”

After quoting from our opinion in this case in 36 Ann. 252, his brief proceeds:

. “The difficulty then presented to the court was this, should the entire proceeds of Hermitage go to Graves, the second mortgage on Hermitage would be worthless, while the second mortgage on Forlorn Hope would be of perhaps face value. Should the mere accident of the priority of the sale of Hermitage ruin the security of one creditor and enhance the value of that of another? And yet, the proceeds of Hermitage belonged to Graves, and as to him the court could not touch them; accordingly, the court decided, in substance, that while the proceeds of Hermitage should be given to Graves as fast as converted into cash, yet, whenever Forlorn Hope should be sold there should be a fictitious marshaling of the assets of both places, and the surplus remaining after paying in full the first mortgage creditors should be distributed between the second mortgage creditors, just as though both places had been sold together.

“Graves and the other first mortgage creditors might at this future date have been settled with, or they might not; it mattered not so far as the instant issue was concerned. The theory of the new problem was to be, that no payments whatever had been made to them. All the funds and all the debts were to be marshaled anew, merely to see how these second mortgage creditors should fare in reference to one another.”

The following extract from our opinion will shew what was really decided. Humble had asked that the proceeds of Hermitage be held and distribution of them be deferred until the other property was sold and we said we could not do that, but “we shall effect the same purpose so far as the rights of the opponent (Humble) are concerned by reserving and recognizing his right, when Foriorn Hope and other property shall be sold, to require such a distribution of the proceeds as will award him the same amount in satisfaction of his claim as he would have received had the proceeds of Hermitage been present for simultaneous distribution.”

Obviously this means, when the property has all been sold and the whole proceeds are ready for distribution, the claims of the various creditors shall then be paid according to their rank, and no one shall be injuriously affected because the exigencies of the situation had compelled the sale of one plantation before the other.

But this marshalling of the assets now to be made is not to ignore payments that have been made to any creditor. Graves’ contention is that for the purposes of this distribution the payments made to Mm are to be ignored, and the interest on his claim is to be calculated regardless of the payments and of the interest on them. The correct sum due him can be ascertained only by computing interest and applying payments in the usual way, and this was done by the amended account and the judgment. His brief says, “,all we ask for is an interpretation of the judgment that accords with the pleadings, the law, and the facts of the case, and this gives Graves the amount very nearly as set down in the last account.”

The matter is certainly very complex, but a pains-taking examination has not revealed to us any cause for disturbing the judgment.

Judgment affirmed.

On Applications por Rehearing.

Watkins, J.

With the principles announced in 36 Ann. 252, in which the previous account of same executrix underwent an examination, we are perfectly satisfied; and we find no occasion to disturb the recent decree, in so far as the oppositions of B. Cousins, Humble, tutor, or Shakspeare, Smith & Co., are concerned; but upon a careful examination of the provisional account filed February 4,1885, and the supplement thereto filed on the 14th of April, 1885, we feel satisfied that the judge a quo made a clerical error in Ms decree, in making a deduction of the sum of $6,075.10 from that of $12,999.58, which is the true amount due P. S. Graves.

We adopt the following as a correct calculation, viz:

Principal of Graves’ debt.................................$16,000 00

Interest to March 3, 1883................................. 1,436 44

Amount.............................................$17,436 44

By amount paid March 5, 1883.............. 3,000 00

New principal.......................................$14,436 44

Interest to maturity first Hermitage note.................. 1,187 99

Amount..............................................$15,624 43

By first Hermitage note......................$2,850 00

By cash.................................... 600 00— 3,450 00

New principal........................................$12,174 43

Interest to date of sale of Forlorn Hope, February 7,1885... 825 13

Balance due......................................$12,999 56

And to this sum he is entitled, to be paid out of the proceeds of the sale of the Hermitage and Forlorn Hope plantations, bjr preference recognized by the judgment of the district judge.

It is therefore ordered, adjudged and decreed that the former opinion and decree herein rendered, and that of the court a qua, be so amended as to conform to the aforesaid calculations; and that same remain in all other respects undisturbed; and that all costs of appeal be taxed against the succession — the right of any interested party to apply for a rehearing, upon the points herein decided, within the legal delay, being reserved.

On Second Application for Rehearing on the Part of the Executrix and B. Cousins.

In order to make our former opinion and decree plainer, and leave no room for doubt as to its true intent and meaning, we amend and alter the same so as to read as follows, viz:

It is ordered, adjudged and decreed that P. S. Graves is entitled to be paid and shall receive from the net proceeds of the sale of the one-half of Forlorn Hope plantation, not subject to the Gourrier mortgage, and the proceeds of the sale of the Hermitage plantation, the net bal anee of $12,999.56; and if the proceeds of the sale of the Hermitage plantation, viz:

Amount paid on first account..............................$3,000 00

Amount first Hermitage note...............................' 2,850 00

Amount cash............................................. 600 00

Aggregating the sum of..............................$6,450 00 have not been paid as stated in the account and judgment appealed from, same shall be paid him with rank and preference as a first mortgage creditor.

And as thus explained our original judgment remains undisturbed.


author: Watkins, J.

text:
    No. 9750.
    The State of Louisiana vs. Isaac Bird.
    1. A cbaige of tbe judge, in a capital case, that is not reduced to writing, and to wbicb no bill of exceptions was taken at tbe time, cannot be examined upon an application by accused tor a new trial. 34 Ann. 106,1213; 35 Ann. 543, 773.
    2. An objection that tbe verdict of tbe jury is contrary to law and tbe evidence is bad. 33 Ann. 313; 11 Ann. 478.
    3. An objection, raised for the first time upon an application for a new trial, that one of the jurors who tried the case was an unnaturalized citizen, comes too late; it should have been urged when tbe juror was offered to be sworn. 8R. 590; 13Ann.276, 21 Ann. 546, 257; 26 Ann. 383.
    4. A juror cannot be beard to impeach bis own verdict. 3 Ann. 435; 6 Ann 653; 35 Ann. 1032.
    A PPEAL from the Ninth District Court, Parish of Concordia. _iA Young, J.

      M. J. Cunningham, Attorney General, and Hugh DwlKs, District Attorney, for the State, Appellee.

      G. Lemle and 0. 8. Dulce for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The accused was indicted for the murder of one John Stephenson, and from a verdict of guilty without capital punishment, he has obtained this appeal.

He relies upon a bill of exceptions reserved to the refusal of the trial judge to grant his application for a new trial; and upon one taken to the rejection by tbe court of certain testimony on the trial of that application.

I.

The grounds upon which accused predicates his motion for new trial are in substance as follows, viz:

1st. The verdict is contrary to law and evidence. •

■2d. The court erred in not instructing the jury, at its adjournment for dinner, after the evidence had been closed, and before the argument of counsel, not to speak about the case, or refleet on the evidence that had been adduced, or form an opinion in the case, until they had heard the argument of counsel and the law hearing on the case.

3d.. That, during the adjournment of court for dinner, and prior to the argument of counsel, several jurors expressed themselves on the cáse.

4th. The district attorney erred in not reading to the jury the statute of the State under which the party was tried.

5th. The court erred in not instructing the jury as to the penalty attached to their finding the prisoner guilty of murder, without capital punishment.

6th. In consequence of said error of the court, many of the jurors were misled with regard to the term of his imprisonment in case the accused should be convicted.

7th. That if the jury had not entertained this opinion, they would have found a different verdict.

8th. That he believes one of the jurors who tried the ease, by the name of Fritz Barmd, was not a naturalised citizen of the United States; and that the accused was not aware of the fact before going to trial.

II.

In State vs. Beard, 34 Ann. 106, we said: “Although in writing, the judge’s charge was not excepted to: we held in State vs. Ricks, 32 Ann. 1098, that when the charge was in writing and embodied in the record, we would notice errors, under proper assignment thereof, although not presented by bill of exceptions. While not overruling this opinion, which, however, is contrary to prior authority (10 Ann. 450), and therefore, to be strictly construed, we deem it proper to say that it is preferable that charges should be excepted io when given, in order that the judge may have an opportunity of explaining and correcting his charge at the time; otherwise, the defendant would be at liberty to take his chances of acquittal on the charge as delivered, and, if convicted, to urge his objection in subsequent proceedings. Only in case of gross and unambiguous error will we sustain objections to the charge, not made and presented by bill of exceptions at time of delivery.”

In State vs. Curtis, 34 Ann. 1213, this Court adhered to its ruling in the last cited case.

In State vs. Sheard and Smith, 35 Ann. 543, this Court said: “When in a criminal case no objection is made by the accused, or bis counsel, to the charge delivered in writing, when given, and no bill of exceptions is taken thereto, and there is no proper assignment of errors, etc., the matter will not be reviewed by this Court, nor the sentence disturbed.”

This ruling was approved in State vs. Riculfii and McClung, 35 Ann. 773; State vs. Chopin, 10 Ann. 458; State vs. Mangum, 35 Ann. 619. This record fails to disclose that any such charge -was requested at the time of trial and that same was refused by the court. Certain it is that there is in the record no written charge to the jury.

The correctness of the assumed misdirections of the judge in his charge to the jury cannot be heard and determined by way of motion for new trial.

This disposes of the second, third, fifth, sixth and seventh grounds of objection by the accused.

in.

Tlie objection urged that the verdict of the jury is “ contrary to law and evidence,” is not good, as its determination necessarily involves, questions of fact.

These were grounds of complaint that addressed themselves peculiarly to tlie discretion of the-lower judge. 33 Ann. 313, State vs Breckinredge; 11 Ann. 478; 8 R. 543.

IV.

Tlie belief of the accused that “one of the jurors who tried the case” was an unnaturalized citizen, and that he was not aware of it, comes with poor grace from the accused, after he has taken his chances of acquittal by tlie jury of which this person was a member.

It was long ago held that an objection to a juror, for want of residence, should be made when he is offered to be sworn.

Such an objection comes too late on a motion for new trial. 8 R. 590, State vs. Kennedy; 13 Ann. 276, State vs. Nolan; 21 Ann. 546, State vs. McLean; 21 Ann. 257, State vs. Parks; 26 Ann. 383, State vs. Brown.

V.

The question remaining for discussion is, whether a petit juror can be permitted to impeach his own verdict. Repeated decisions of this Court, and of its predecessors, have steadily maintained the negative of that proposition. 3 Ann. 435, State vs. Caldwell; 6 Ann. 653, State vs. Butler; 35 Ann. 1032, State vs. Cheshire.

VI.

Altogether, the motion of accused for new trial is without merit, and we find no ground of objection to tbe trial judge’s conduct of the case; and it is therefore ordered, adjudged and decreed that the verdict of the jury and judgment of the court appealed from be affirmed, with costs of botli courts taxed against the appellant.


author: Bébmudez, C. J.

text:
    No. 9732.
    The State ex rel. Citizens’ Bank vs. Judge of Seventh District Court, Parish of Catahoula.
    Ejectment proceedings are summary in character.
    A prayer that the defendant he cited is not a conversion of such proceedings into ordinary ones. The word used is that found in the statute.

      Mandamus is the appropriate remedy to compel the trial as summary, of such suit, where the district judge has on that account ruled as a question of practice, or procedure, that it has ceased to he such and had been converted into an ordinary action.

      ^IMPLICATION for Mandamus.

      Flam & Luce for the Relator.

      F. L. Richardson for the Respondent.
   The opinion of the Court was delivered by

Bébmudez, C. J.

This is an application for a mandamus to compel the district judge to try summarily a suit brought by the relatrix bank to eject a tenant from a plantation.

The judge returns, admitting his refusal to proceed in a summary manner, for the reason that the relatrix has resorted to the ordinary process and that the defendant, even then, was entitled to the usual delays before the case could legally be fixed, which delays were not given before the fixing.

The plaintiff in the ejectment suit prayed that the defendant, Lid-dell, be cited. The citation issued on the 2d of March, ult, allowing eleven days to defend. It was served on the following day. On the 11th, the court fixed the case for trial on the 15th, at a stated hour.

The defendant then opposed the trial because the proceeding was one via ordinaria, and because the case was prematurely fixed.

It cannot be claimed that the plaintiff converted this case (which the law declares shall bo tried in a summary way) into an ordinary one, because she aslced for citation against the defendant.

The very law which provides for a summary trial, directs that the defendant shall be cited. R. S. 2155, 2156; see also, R. C. C. 2718. .

It was in strict compliance with that law that citation was asked and issued.

We have no concern with the correctness of the proceeding in fixing the case before the expiration of the delay allowed by the citation to appear and defend the suit.

The judge refused to try the suit as a summary case, because it had been converted into an ordinary one, and the object of the present proceeding is to compel him to try it summarily.

Having reached the conclusion that the plaintiff, by asking that the defendant be cited, has not altered the character of the suit, it is the clear dutv of the district judge to hear and determine it as eueh.

The remedy sought is appropriate. 34 Ann. 1178; 32 Ann. 543, 597, 774; High on Ex. Rem. §§ 151, 250.

It is therefore ordered that the alternative mandamus herein issued be made peremptory, as prayed for.


author: Poché, J.

text:
    No. 9703.
    The State of Louisiana vs. George Harrison.
    A party wlio has been arraigned, even though it be on the very day of his trial, and who goes to trial without objecting to the lateness of the time at which he was arraigned, cannot take advantage of the alleged irregularity after trial, by means of a molion for a new trial.
    The order of the trial judge separating the witnesses during the trial, falls within the legal discretion vested by law in trial courts, and a modification of the same by the judge, within reasonable bounds, will not be disturbed on appéal.
    A. PPEAL from the First District Court, Parish of Cadclo. /A Hides, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      C. C. Henderson and J). T. Land, for Defendant and Appellant.
   The opinion of the Court was delivered by'

Poché, J.

This appeal is taken from a sentence of death on a conviction of murder.

It brings up two points, by means of a bill of exceptions and a motion for a new trial.

The latter complaint involves an alleged error in having the accused arraigned on the very day of his trial. As the record shows that he was arraigned, it follows that issue had been joined between the State and himself; hence, it cannot be argued that no issue had been joined. State vs. Epps, 27 Ann. 227.

The complaint is therefore restricted to the lateness of the arraignment. If the accused felt injured by that course, he should have then objected to going to trial, and after a showing of the alleged injury, he should have taken a bill from the ruling of the judge refusing a postponement of the trial.

That objection is similar to a motion for a continuance, and it cannot avail as a motion for a new trial, in the absence of a timely application for further time before trial. An accused who has been arraigned and has thus joined issue with the State, though it be on the very day set apart for his trial, and goes to trial without objection and without requiring further time after arraignment and before trial, cannot be heard on a motion for a new trial, to urge that alleged irregularity.

In all the cases in which our reports treat of the question of the proper time of arraigning the accused, it appears that objection was made before going to trial.

In his bill the accused charges error in the ruling of the trial judge, who overruled an objection to the competency of a State witness, for the reason that the witness had remained in court during the examination of the other witnesses, in violation of the order of the court sequestering all the witnesses in the case.

It appears from the hill that the witness was an officer of the law and had made the arrest in the case, and that he was not aware, and that the district attorney himself was then ignorant of the fact that his testimony would be needed in the case. Under these circumstances, the judge would have erred in excluding the testimony of the witness. State vs. Gregory, 83 Ann. 737.

In rulings involving similar questions, which properly belong to the proper discipline of their courts, the discretion vested by law in district judges will not be interfered with, except in extreme cases, rarely to occur, of arbitrary rulings operating great wrong to either party. State vs. Watson, 36 Ann. 148.

An almost identical point was presented in Ford’s case, 37 Ann. 463, and in disposing of the argument thereon, we said:

“ The order to separate witnesses is not one of right, and its modification by the judge, within reasonable bounds, will not be disturbed on appeal.” See also Bishop Crim. Procedure, 2d ed., vol. 1, secs. 1086, 1087, 1088; and State vs. Revels, 34 Ann. 383.

The record discloses no error to the prejudice of the accused, who can therefore obtain no relief through his appeal.

Judgment affirmed.


author: Todd, J.

text:
    No. 9605.
    The State of Louisiana vs. Mary Griffin.
    Objection to an indictment based on tbe ground that a member of the grand jury that found the bill was disqualified, must be urged before trial, and cannot be taken advantage of by motion for new trial or motion in arrest.
    "Where there are two judges in the same/listricfc clothed with equal powers and jurisdiction and authorized by statute tojprovide rules for the regulation of their courts*and fix the terms thereof, and under this authority theyLliave fixed their respective terms, it does not vitiate the proceedingsjuecause an accused has-been tried and convicted at a term of the court which the judge presiding thereat,‘was i’only^authorized to hold in the absence of or iriabilityjof the other judge to attend, to whom such term was regularly assigned under the rules, where such absence or inability is shown by the record.
    APPEAL from, tbe Twentieth District Court, Parish of Assumption. Beattie, J.
    Jf. J. Oiwminghcm, Attorney General, and B. A. Sullivan, District Attorney, for the State, Appellee.

      Walter Onion for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant appeals from a sentence of life imprisonment for murder.

Among other defenses, she urged in the court below and again before this Court:

That one of the members of the grand jury that found the bill against her was not a citizen of the United States, and that such fact was not ascertained till after verdict.

She made this a ground of a motion for a new trial, and on the trial of that motion proved the fact alleged.

There is no doubt but that an indictment of a grand jury, one .or more of whose members labors under such a disqualification as the one mentioned, is invalid. All authorities agree on this point. Wharton Criminal Practice and Pleadings, secs. 345, 346; 8 R. 513, 616; 21 Ann. 251.

The question of difficulty on this point is whether such disqualification can be urged after arraignment and plea or after conviction. Upon this point the authorities are divided.

In the case of the State vs. Parks, 21 Ann. 251, it was held that such disqualification was fatal to the indictment and could be urged in a motion for a new trial.

The judge a quo overruled the motion for a new trial on the authority of the case of State vs. McGee, 36 Ann. 207, which he-claimed overruled the doctrine of the previous decision in the Parks case referred to.

It is claimed in the brief of defendant’s counsel that the decision in this Parks case has been approved in several decisions rendered by the present Court, and he refers us to the cases of State vs. Washington, 33 Ann. 896; State vs. Washington, 1404; and State vs. Rowland, 36 Ann. 193.

In the first of the above cases, among the errors assigned was one to the effect that the grand jury that found the bill was incompetent because drawn by commissioners unknown and without legal authority to act. It was held, “that such objection, urged only after plea and trial and on motion for a new trial, comes too late;” and further, “that if it had been seasonably made before trial it would have been fatal;” the Parks case being mentioned only to distinguish it from the case then under consideration.

In the next case (Washington) the disqualification of the grand jury was sought to be taken by a motion in arrest of judgment. That was the precise issue, and it was held that it could not be done.

In the case of Rowland (36 Ann. 193), the issue touching the disqualification of- a grand juror, was raised by a motion to quash, and the motion was sustained, the Court only deciding in accordance with settled jurisprudence on the point that.the objection was seasonably made and was fatal where urged by this mode after indictment but before arraignment.

From this brief review it will be seen that this Court is not committed to the doctrine of the Parks case. On the contrary, we believe that the principle enunciated in the McGee case, 36 Ann. 207, is correct. That decision is amply sustained by the preponderance of authority, as shown by the precedents cited in the decision.

The other ground of resistance relied on by the defendant is the alleged want of jurisdiction or power in the judge who presided in the trial of the case. The facts relating to this point are these:

The appeal comes from the parish of Assumption, where the accused was tried and convicted. Assumption is in the twentieth judicial district, in which district there are two judges, Judges Beattie and Knobloch. Among the rules adopted by these officers for the regulation and performance of their judicial functions is one to the effect that the terms to be held by each judge and the months for holding same were specified; and it is urged that the trial took place before Judge Beattie at a term of court which, under said rule, should have been held by Judge Knobloch.

It may well be questioned, in view of the fact that the court before which this trial took place and all the proceedings were instituted and conducted had complete jurisdiction of the offense with which the accused was charged ratione materia, whether an alleged irregularity such as we are now considering, growing out of an infringement of a rule agreed on by the two judges, could be of such gravity as to vitiate the proceedings in question. But be that as it may, we find another of these rules adopted by the judges is in the following words:

It is further ordered that the said judges may by agreement among themselves interchange the holding of these terms, and that either of them may, in case of the absence or nonability to preside of the other, hold the terms provided to be held by his colleague.”

The record shows that in conformity to this rule, Judge Knobloch called, on Judge Beattie to preside at the term to be held by him in the month of November, for the reason of his inability to be present at that term. Accordingly the term was held by Judge Beattie, when the defendant was tried and convicted.

Tlie rules referred to were not violated but fully complied with, and therefore the irregularity charged did not exist.

The accused was legally tried and convicted and sentenced, and there is nothing in the record to afford him relief.

The judgment is therefore affirmed.


text:
    No. 8261.
    The State ex rel. Josiah Fisk vs. Police Jury of the Parish of Jefferson, Left Bank.
    X. In a case wherein tlie judgment of this Court lias been reversed by tlie Supreme Court. of the United States, and remanded “for further proceedings to be had therein not inconsistent ” therewith, this Court is fully competent to judge of all facts not set forth ' in that finding, and decree as in its opinion justice may require. 91 U. S. 423, JEx parte French; U. S. H. S. 709, and authorities cited.
    2. The failure of an appellee to request an amendment of the judgment of the district court, and an increase of the tax levy ordered therein, deprives him of remedy therefor in this Court.
    0 N MOTION and Suggestion of the Relator to Execute the Decree of the Supreme Court of the United States.

      Chas. Louque for Plaintiff and Appellant.

      S. S. Carlisle and James I>. Oolemani for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

It appears from a re-examination of the record herein that the relator avers that defendant parish was indebted to him in the sum of $4,454 (in capital), which with costs and interest added, aggregates the sum of $5,411, and which is evidenced by sundry judgments enumerated, that “were to enforce contracts which were made duriug the years 1871, 1872, 1874, 1875, 1876 and 1877. That during that period of time the limit of taxation for parochial purpose was 100 per cent of the State tax for any year. That during said years the rate of taxation was as follow's: For 1871,-; for 1872, 21i- mills; 1873 to 1876, inclusive, 14i mills; 1877, 13 mills. That during that period of time, the rate of taxes levied by the police jury was 10 mills on the dollar with the exception of 1876, when the rate was increased to 14-J mills. The assessment rolls of the police jury of Jefferson, left bank, amounts to the sum of $594,719, and it is necessary to levy a tax of ten mills thereon.

“ That it is made the duty of the police jury to levy the taxes, and no other person has the right to exercise that power.”

He further alleges that his sole remedy is by mandamus to compel the police jury to levy a tax sufficient to pay said judgments, and he prayed for an alternative writ of mandamus against the police jury, and the sheriff and ex officio tax collector, to compel the one to levy and the other to collect, “a tax of 10 mills on the dollar of all assessed property within said parish, left bank, to pay” said judgments; and to apply the same when collected to the payment of same.

He also alleged that said judgments evidenced protected contracts, in the sense of Article 10 of the United States Constitution.

The preliminary writ was granted. To this petition the defendant police jury aver that they have exhausted their power of taxation, and levied the highest rate authorized by law; and “that during the years from 1870 to the present time, inclusive, the several police juries exhausted their powers and limit of taxation that was authorized by law,” and they pray for the rejection of defendant’s demands.

On the trial it was “admitted that the rate of taxation, both for State and parish, is as stated in the petition filed m this suit, and for the years therein stated, and that the police jury has never passed any ordinance to levy a tax to pay the judgments mentioned.” There was no counter-ruling evidence adduced by defendant.

The district judge assigned as one of his “reasons for judgment,” that it appeared from the evidence that relator is a contract-creditor of the defendant parish, and that at the time “his judgments were rendered Act 69 of 1869, reenacted in the Revised Statutes of 1870 as Sections 2628, 2629, 2630, 2747, 2748 and 2749. was in full force and effect, and constituted a part of the contract, as well as of the judgments.” 4 Wallace, 535; 31 Ann. 747, Moore vs. City of New Orleans.

But the district judge limited his decree to relator’s judgments Nos. 4032, 4102 and 1337, and rejected and disallowed judgment No. 4302, on the sole ground that same appears to have been rendered after the repeal of the Act of 1869.”

The judgment appealed from ordered the defendant police jury to budget said first three judgments, and to levy “a tax of six mills on the dollar of the assessed property of the parish to pay the above judgments, interest and cost;” and that the sheriff and ex offieio tax collector be ordered to collect said tax and apply the proceeds thereof to relator’s judgments pro tanto.

From that judgment the defendant appealed; and in this Court, relator, in .his answer to the appeal, prays “ that the judgment of the lower court be amended so as to include in the mandamus judgment No. 4302, for $2,107.31, interest and cost, and as amended that the judgment appealed from be affirmed with cost.”

This Court reversed the judgment of the lower court and refused the mandamus prayed for, at relator’s cost.

The relator applied to the United States Supreme Court for a writ of error, and upon trial therein the judgment of this Court was reversed and remanded for “further proceedings to be had therein, not inconsistent with the opinion of” that Court, the mandate whereof was filed in this Court on the 9th of April, 1886.

It is proper that we should state that we feel ourselves restricted to directing a levy of six mills tax by reason of relator’s failure to request this Court to amend the judgment of the district court which limited the tax levy to that rate.

It is therefore ordered, adjudged 'and decreed that the judgment appealed from be affirmed in so far as it orders defendant police jury to budget relator’s judgment in suit No. 1432, for $150, with five per cent per annum interest from the 20th of April, 1874, until paid, and sheriff’s and clerk’s cost, aggregating $112.75; and the amount of judgment in suit No. 4102, for $1,833.37 and clerk’s cost, aggregating $16, and five per cent interest per annum from the 20th of April, 1874, until paid; and the amount of judgment in suit No. 1337, for the sum of $364, with five per cent per annum interest from March 1, 1875, until paid, and clerk’s and sheriff’s cost, $8.50.

It is further ordered, adjudged and decreed that said defendant police jury levy an additional tax of six mills on the dollar of all the assessed property of the parish to pay the above judgments, interest and cost; and that the sheriff and ex ojjieio tax collector proceed to collect said tax, and same, when collected, to pay relator in satisfaction of said judgments pro tanto.

It is further ordered, adjudged and decreed that said judgment and decree be annulled, avoided and reversed in so far as it rejects and disallows relator’s judgment No. 4032, for $2,107, with five per cent per annum interest from the 18th of March, 1878, and clerk’s and sheriff’s cost, $50.

And it is now ordered, adjudged and decreed that said sum be included in, and covered by, the budget and levy the defendant police jury are herein required to make; said sum to be included in said six mills tax therein ordered to be levied, assessed, collected and applied to relator’s judgments; as well as the cost of suit in the Supreme Court of the United States, and specified in the annexed mandate; as also the the cost' of this Court and that of the court a qua, taxed against the defendant.

It is finally ordered, adjudged and decreed that the alternative writ of mandamus prayed for be made peremptory — fully reserving relator’s right to an additional tax if six mills levy proves inadequate.


text:
    No. 8363.
    Josiah Fisk vs. The Police Jury of the Parish of Jefferson, left bank.
    The plaintiff and. appellee having failed to make the police jury party to rule on sheriff and assessor, to assess the tax demanded, this Court cannot afford him relief.
    Proceedings by mandamus are strioti juris, and must conform to Code of Practice.
    ON MOTION and Suggestion of Plaintiff to Execute the Decree of the Supreme Court of the United States.

      Olías. Louque for Plaintiff and Appellant.

      8. 8. OarKsle and James D. Oolemam for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

It appears from the record herein that .plaintiff, on suggesting to the district court that he had two judgments against the defendant parish, Nos. 1291 and 1292, in which the court rendering the same ordered a tax to be levied to pay said judgments, prayed an order of the court requiring the “sheriff and ex officio tax collector, and the police jury of Jefferson, left bank, to show cause on Monday, the 4th day of April, at 11 o’clock a. m., why a mandate should not issue from this court ordering said sheriff to collect a tax sufficient to pay said judgments in accordance with the terms thereof.”

To this proceeding defendant excepted on the grounds, viz:

1st. Because said motion and rule are defective and insufficient in their grounds.

2d. Because said judgments are absolutely null and void, etc.

3d. . Because plaintiff’s proceeding for mandamus herein is not by petition and oath, as required by C. P. 829.

Subsequently, a similar rule was taken on the assessor, and a like exception taken; and thereafter said exceptions were overruled, and a judgment rendered requiring “that the State assessor, P. A. Bienvenu, be ordered to assess a parish tax at a sufficient rate per cent upon the assessment roll of the current year 1881, of all assessed property within said parish of Jefferson, left bank, to pay said judgments;” and requiring the sheriff and ex officio tax collector to collect and apply the same to their payment.

Erom this judgment the defendant appealed to this Court, and they decided that: “ The judgment orders the assessor to assess a parish tax to an amount sufficient to satisfy plaintiff’s judgments. No such authority as that imposed upon the assessor, i. e., the levying of a tax, is authorized by law. Taxes for parochial purposes, or to settle parochial indebtedness, can only be levied under the conditions established by the legislative will — by the police jury. This levy must first be made by the proper authorities, without which the assessor and the sheriff are powerless to extend on the roll the amount of the tax, or to collect the same.

“As we have said before, in order to enforce the law (since repealed) which was in existence at the time the debt was contracted and the judgment rendered, it must be shown that the repeal of the law was inoperative, because impairing the obligation of a contract, and that the judgment was based upon a contract. No such evidence is afforded b3>- the record herein.”

Erom this judgment a writ of error was prosecuted to the United States Supreme Court, and upon trial therein the judgment of this Court was reversed and remanded to this Court “for further proceedings to be had therein not inconsistent with the opinion” of that Court.

Referring to the opinion on file herein, we find this expression, viz: “ These cases are brought before this Court by writs of error to the Supreme Court of Louisiana. As they involve the same questions, between same parties, they may be decided together.” The Court then proceeds to discuss the ground of their jurisdiction to review these judgments, viz: whether “they are founded on a law of the State which impaired the obligation of his contract, to wit: the contract on which he procured the judgments already mentioned,” and held that plaintiff’s judgments evidenced protected contracts in that sense, and the constitutional provision invoked as limiting the power of the defendant police jury in levying taxes was in plain violation thereof, and inoperative so far as they are concerned.

But that decree did not alter, amend or revise the other portion of the former decree of this Court to the effect that the assessor had no power to levy a tax — hence that part of same remains in full force and effect.

It is therefore ordered that former decree of this Court remain undisturbed, and that all costs of the district court and of this Court be taxed against the plaintiff and appellee- — without prejudice, however, to his right to enforce his judgments against defendant by such other and further proceedings as he may be entitled to under the decree of the Supreme Court of United States.


author: Manning, J. Fenner, J

text:
    No. 9554.
    Succession of R. F. Theurer. On Petition for Nullity of Will.—Opposition to Account, etc.
    Abstracts of inventories recorded to preserve the mortgage of minors are not evidence of the validity of the minor’s claim, much less are they conclusive against the tutor as to tbe amount appearing on them to be due the minor.
    And as the general mortgage created by recording these abstracts is not fixed in amount by such recording merely, so a special mortgage on a particular piece of property, executed under permission o± the court to replace that general mortgage, does not irrevocably fix the sum stated therein as the sum secured to be the sum due the minor.
    And hence it follows that where a special mortgage has been given by a natural tutor to se cure to his son and ward the one-half of the community property as it appears on the inventory without deduction of the community debts, and in subsequent proceedings in settlement of the succession it is claimed that the sum secured in the mortgage is reducible by the debts that have been paid, evidence of such payment and of the condition ot the succession when it fell to the heir is admissible in order to ascertain what was the actual value of the succession at that time.
    This does not abrade the general doctrine that protects the sanctity of jndicial declarations and authentic acts. These acts of a tutor are required to be done in certain contingencies to accomplish certain purposes, and the law that required the performance of them fixes their meaning and limits their effect and consequence.
    In the interpretation of wills the principal aim must be to discover the intention of the testator and the first duty is to give effect to thar intentiou unless the law reprobates it. To accomplish this, conflicting clauses must be harmonized or if they are irreconcilable, the last disposition must prevail over those that precede it. Courts will presume that a testator meant to dispose of his property as the law permits him to do rather than that he intended to do what was unlawful, and will construe his disposition accordingly.
    There is not a prohibited substitution in this disposition of property by last willI give and bequeath to my wife all the property movable and immovable which I leave at my death but in usufruct only, and after her death said property is to be divided equally betwe9n my son and the heirs of my said wife, and for that purpose I give her in full ownership one-half of what I may leave, and the other half to my said son to be by him enjoyed after the death of my said wife.”
    Construed to mean that one-half of the estate was bequeathed to the wife in full ownership and the other half to the son, but as the testator could give to his wife no more than one-third of his estate, the son being of a previous marriage, her bequest was reduced to one-third.
    APPEAL from tlie Civil District Court for the Parish of Orleans. Monroe, J.

      Brauglm, Bucle, JDinlcelspiel & Han't for Plaintiff and Appellee.

      White & Saunders, Semines & Legendre and JE. J. Wenclc for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The first wife of R. F. Theurer died in 1869 leaving a son sole issue of her marriage. The only asset of her succession was her share of the community, and the inventory shewing the appraised value thereof to be $37,897.81, oiie-half of that sum was certified, by the clerk as the appraised value of the minor’s property. The property consisted of a stock of goods appraised at $24,897.31 and the residue was the appraisement of the real estate. No mention of debts appeared on the inventory. Shortly after the wife’s death the husband applied for the adjudication to himself of her share of the community and after the usual proceedings the adjudication was made. The husband then applied for permission to substitute a special mortgage in lieu of the general one that resulted from recording the abstract of the inventory and permission having been given, a special mortgage was given by him for $18,948.65 the full amount of the inventoried value of one-lialf of the community property.

Theurer married again shortly after his first wife’s death. This second marriage lasted about fifteen years but there was no issue of it. He died in 1884 leaving his second wife surviving and the son of his first marriage as his only heir. His will was probated and contains this disposition of his property;—

‘‘I give and bequeath to my wife Wilhelmina Henrietta Theurer all the property movable and immovable which I leave at my death, but in usufruct only; and after her death said property is to be divided equally between my son and the heirs of my said wife, and for that purpose 1 give her in full ownership one-half of what I may leave, and the other half to my said son to be enjoyed by him after the death of my said wife.”

Mrs. Theurer was appointed executrix in the will, qualified, and filed a provisional account which was opposed by C. W. Theurer the son, the opposition being based mainly on the claim asserted by him to be recognized as a creditor of his father’s estate for $18,948.65, the inventoried value of one-half of the community between his father and mother, with interest from the date of his mother’s death. Pending this opposition he filed a suit against his step-mother to annul his father’s will and demanded a partition,-which she answered denying that he was a creditor on the ground that the community of the first marriage was insolvent, and averring the validity of the will but admitting that the disposition in her favour was reducible to the disposable quantum. This suit and the opposition to the account were tried as one and the court sustained the opposition, declared the will to be valid, interpreted it as giving to the second wife the usufruct of one-half of the estate and reduced it to one-third.

Two questions are presented for adjudication ;—

1. Whether it is permissible to receive testimony of the insolvency of the first community in the face of the judicial proceedings whereby the wife’s share thereof was adjudicated to the surviving husband and a mortgage executed to secure the amount thereof to his son and him.

2. Whether the will is valid and if valid, what was the meaning and intent of the testator.

The widow offered in evidence an act of sale from Caspar Tlieurer to R. F. Tlieurer of date Aug. 18,1868, of the stock of goods, the price being $25,000 payable in two equal instalments one and two years from date — also these two notes which she proposed to prove were paid after the dissolution of the first community, and she offered further to prove the payment of other debts of the first community such as law charges, revenue taxes, etc. On objection by the son the court excluded the evidence on the ground that it contradicts the judicial admissions and declarations of the testator and the adjudication made to him of the community property at a stated price and the judgment homologating and accepting the special mortgage to secure that price.

The first wife died June 12, 1869. The first maturing note for the purchase of the goods was not due until Aug. 18, 1869. It is therefore certain that the whole of the purchase price of the goods was unpaid when the first wife died, and that price constituted two-tliirds of the appraised value of the community property. If evidence to shew this condition of things is legally inadmissible, it is not difficult to foresee what incalculable injury may ensue from the establishment of such a principle, and how a second set of children and their mother a surviving widow may be put at the mercy of those by a first marriage.

It would do violence to the spirit as well as the letter of the enactments providing for the recording of abstracts of inventories in the interest of minors to hold that they were conclusive of the sum due them. A natural tutor cannot be confirmed until this abstract has been recorded. Rev. Stats, sec. 2360, and to wait until the debts have been paid and the residuum of the estate ascertained before recording would leave the minor for years sometimes without any protection, while on the other hand if the immediate or speedy recording of the abstract is to irrevocably bind the parent to the payment of the sum appearing thereon, he is seriously injured and his resources perhaps fatally crippled. The legislature therefore has ex industria declared that the recording of any instrument of this kind shall in no manner be evidence of the validity of the debt or claim. Rev. Stats, sec. 2365.

And' if the recording an abstract of the inventory for the purpose of creating a mortgage upon the general property of the tutor is in no manner evidence of the validity of the debt that such mortgage secured, how can the execution of a special mortgage by the tutor upon a particular piece of property for the purpose of lifting this general mortgage be regarded as conclusive proof of the existence as weil as the amount of the debt. One and perhaps the chief object in permitting a tutor to give a special in lieu of the general mortgage upon all his property was to prevent a mass of property being put out of commerce, but this would be wholly defeated if a tutor shorrld wait until the residuum of an estate should be ascertained and the minor’s-share fixed, and wait he must if it is established as law that when he gives this special mortgage he is forever bound by its recitals of the-sum due.

While there has been no express adjudication on the question now raised the judicial mind was manifestly penetrated by the same-thoughts we have now expressed, for in Vascocu v. Smith, 2 Ann. 828, the court say “adjudications of common property to the surviving-parent are generally made without taking into consideration the charges of the succession of the deceased and their gross amount does-not of itself make proof of the shares of the heirs, but if it did, the father in this case is the warrantor of the defendant so far as the assets left by him will go,” and in Massey v. Steeg, 12 Ann. 78, the court say “the heirs of the deceased it is perfectly clear can only claim one-half of the price of the adjudication in right of their mother, after deducting therefrom the debts of the community which may have been extinguished or payment effected by their father and natural tutor,, and the costs incurred in the proceedings relative to the administration of the estate and adjudication of the property to him.” This Court has-held that a special mortgage given by a tutor does not import a confession-of judgment for any specific sum, and that executory process can not issue thereon unless there has been a settlement of accounts or a statement of them shewing the actual indebtedness. Ritter v. Faessel, 34 Ann. 416.

This being so, and it must be so if the laws touching the descent of' property and the settlement of successions are regarded, how are heirs to be restricted to their shares if evidence is excluded by which alone-the shares can be ascertained. The minor child of Theurer was only entitled to his mother’s half of the community, and that half cannot-be ascertained until its debts are paid. If evidence of the debts is-excluded there can be no just conclusion reached of the sum really due him.

We apprehend it is not disputed as a general proposition that the heir is entitled only to the residuum of an estate after its debts are-paid, but it is argued tlie rules of evidence vigorously forbid proof ■offered, as this is alleged to have been offered, to contradict judicial admissions and recitals in an authentic act.

In ruling that the evidence tendered by the widow should have been received, wo have no idea of abrading the general principle that protects the sanctity of judicial declarations and authentic recitals, nor ■do we think that principle at all involved iu the present discussion. We but give effect to an express law when we say that recording an inventory is no evidence that any sum is due a minor, and we deduce the corrollary that as that act is done for the purpose of creating a general mortgage, the substitution of a special mortgage in lieu of it no more concludes the parties as to the amount of the debt than does the recording of the inventory. They are each and all particular acts required to be done in certain contingencies to accomplish certain purposes, and the law that required the performance of them fixes their meaning and limits their effect and consequence.

The will is attacked as containing a prohibited substitution. Undoubtedly it does, if one clause is to be read to the exclusion of another, or if a part of a clause is to be read omitting other significant parts of it.

Modern jurisprudence has long imperatively demanded that the intent of a testator must be extracted from his language however obscure, if it be possible, and that effect must be given to that intent unless the law reprobates it, and therefore apparently conflicting clauses must be harmonized or if they cannot be, one must prevail over another. Words are accordingly construed in their common acceptation rather than by their technical meaning. Succ. of Burnside, 35 Ann. 708.

There was a time when the courts, saturated with a blind subservience to forms and dominated by a haughty determination to make men speak in the language of legal formulas, would not tolerate the use of any other than those formulas. The common-law lawyers with their vigorous notions of the sacramentality of certain words would sacrifico an estate to save a definition, but the common sense of the profession and the liberal spirit that animates it revolted from this bondage and an emancipation from the slavery of technical construction began.

Our Code textually instructs the courts to endeavor to ascertain the intention of the testator as a principal aim, Rev. Civ. Code, art. 1712, and this Court has often repeated its recognition of that duty, and has said it must in cases of doubt presume that the testator intended to do that which was lawful rather than that which was prohibited hy law, •and it must carry into effect his will unless it clearly violates some prohibition of the legislature. Roy v. Latiolas, 5 Ann. 552,

The first clause of the will gives the wife the usufruct of all the property, and the second gives to her one-half of it in full ownership ■and to the son the other half subject to the wife’s usufruct of that half.

The lower court held there was no substitution, maintained the validity of the will, and construed it as giving to the wife the usufruct of one-half of the property and reduced it to one-third under the Act of 1882. Sess. Acts, p. 10.

The first part of the judgment is right. The second is error. The wife takes one-tliird of the estate in full ownership.

It is obvious there is no substitution. The first disposition is : — I .give and bequeath to my wife all the property movable and immovable which I leave at my death but in usufruct only, and after her death said property is to be equally divided between my son and the heirs of my said wife.

Standing by itself this would be a bequest to the wife of the usufruct of the whole property, and a bequest of the property to the son and the wife’s heirs in equal parts.

The succeeding clause is in part inconsistent with that disposition, modifies it, and being last controls it. Rev. Civ. Code, art. 1723; Suc. Boone, 7 Ann. 127. It begins significantly “and for that purpose,’» that is to say, in order to carry out my real intention and to prevent ■misconception of that intention I now proceed to say what I mean ;— for that purpose I give her (the wife) in full ownership one-half of what I may leave, and the other half to my said son to be by him enjoyed after the death of my said wife.

And that meaning thus expressed is that his wife should have the usufruct of the whole estate and full ownership of one-half, and that the son should have the ownership of the other half subject to the wife’s usufruct thereof, but as the testator cannot give to his wife ■either in full property or in usufruct more than one-líúrd of his estate, the bequest is reducible, to the full ownership of one-tliird and the residue goes to the son.

It is often difficult to ascertain the real intention of a testator because of the want of precision of the water of his will. We do not encounter in the will before us the difficulties that the counsel for the ■son thinks are insuperable, but if they were greater than they appear to ns we should feel our duty to he to reconcile conflicting dispositions-unless irreconcilable, to extract from crude expressions and ill-arranged sentences their real meaning, to give effect to the testator’s intention-however inartistic his language, and to annul only so much of his testament as is reprobated by law or is contrary to its express enactment. Aubry v. Cajus, 8 La. 43; Clark v. Preston, 2 Ann. 580.

We conform to these cardinal rules for the interpretation of wills in-our decree, but as the evidence of the debts of the first comnmnitywas excluded the case must be remanded to admit and consider it.. Therefore

It is ordered and decreed that the part of the judgment of the lower court that sustains the validity of the will is affirmed; that the part that construes the will as bequeathing to the widow Theurei only the usufruct of one-third of the estate is amended, and that she is adjudged and decreed to lake under the will one-third of the estate in full ownership; that the part that recognizes the son Charles W. Tlieurer as a creditor for over eighteen thousand dollarsfis avoided and reversed, and that the cause is remanded for the purpose of admitting' the testimony which we have declared was improperly rejected and for trial of any issue arising thereon in accordance with the views expressed in this opinion, the costs of this appeal to be paid by C. W. Thenrer and those of the lower court to await the final decision of the-cause.

On Application por Rehearing.

Fenner, J

The final clause of article 331, R. C. C., has no application to a special mortgage given to secure the value of the entire interest of the minor in the property of the deceased parent, said interest having-been adjudicated to the surviving parent at its appraised value according to law. In such case there is no liquidation, and no necessity for-liquidation of the minor’s rights which can only be ascertained after settlement of the community.

The mortgage being, by its terms, given only to secure the rights of' the minor, “up to the sum of $18,948.65,” that sum is the limit, but. not the measure, of the amount secured, which latter amount is the-eventual right of the minor. See Linn. vs. Dee, 31 Ann. 217.

We see no reason to disturb our opinion or decree.

Rehearing refused.


text:
    No. 9576.
    R. H. Browne et al. vs. City of New Orleans et al.
    ‘No injunction lies to restrain tlie enforcement of a municipal ordinance which has been abandoned and become inoperative, whether that fact is brought to the knowledge of the court of the first instance or on appeal.
    APPEAL from tlie Civil District Court for tlie Parish of Orleans. Tissot, J.

      F. H. Farrar, B. H. Browne, W. W. Some, Ghs. F. Schmidt and F. D. White for Plaintiffs and Appellants.

      W. II. Bogers, City Attorney, for Defendants and Appellees.
   The opinion of the Court was delivered by

Watkins, J.

The plaintiffs, alleging themselves to be residents and taxpayers of the city of New Orleans, join in this suit for the purpose •of resisting the enforcement of a municipal ordinance known as No. 1214, Council Series, appropriating $5,000 for the purpose of defraying the expense of returning the Liberty Bell to the city of Philadelphia, and directing the comptroller to warrant on the treasury in payment ■of this appropriation.

They aver that this appropriation is ultra vires and void, and that the city council has no power or right to take money of the taxpayers of this city for any such purpose; and they pray for an injunction, but same was refused and petitioners appealed.

In this Court the mayor of the city has filed his affidavit, in which he -states that said ordinance and appropriation have been abandoned and have become inoperative, and that the Liberty Bell has been returned to Philadelphia and the cost of its transportation has been paid by private contribution and nothing remains for this Court to decide.

In this state of the case there is no real issue before this Court, and the suit must be abated.

It is therefore ordered that this be stricken from our docket, and all .costs taxed against the appellants.


author: Watkins, J. Pociié, J. Watkins, J.

text:
    No. 9604.
    Successions of Madeline Azema Byrne and John Bligh Byrne. (Consolidated.) In the Matter of the Rule of Charles H. Byrne et al. vs. Jules Cassard, etc.
    1. A consent to take up a case for trial that lias been fixed for a different day, is not such a consent as will vitiate a judgment, although a minor he a party thereto.
    2. Members of a family meeting bave the right to waive tbo three clays delay allowed by law for their citation, and convene at an earlier date. B. O. C. 285; 9 Ann. 560, G-asson» vs. Palfrey.
    3. A judge has at all times the right, upon proper proceedings and proof, to correct, clerical errors that occur in interlocutory orders, or chambers decrees he has granted, on giving duo notice to interested parties.
    4. To relieve a purchaser of real property from compliance with the terms of his hid at a • judicial sale, ,he must show that there is a cloud upon the title of the vendormere irreg. ularitios in proceedings in sale will not avail him, as he is protected by the decree under which the sale is made, and his right to restitution, in case of loss or injury thereto.
    APPEAL from the Civil District Court for the Parish of Orleans. Lamms, J.
    A. Goldthwaite for Plaintiff and Appellant:
    A judgment is conclusive of every fact necessary to uphold it, whether the final adjudication resulted from tedious litigation or from a suit in which obstacle was presented. Freeman on Judgments, sec. 330; 2 Howard IT. S. 340; Succession of Hebrard, 18 Ann. 485.
    A judgment is not a consent judgment when prepared by one of the attorneys and submitted to the court as a proper judgment, and adopted by the judge as the judgment of the court. 20 Ann. 276; 12 Ann. 426; 28 Ann. 713.
    When a court has jurisdiction of the subject-matter and tlie proper parties are before it, its decree will protect purchaser at a probate sale fi om all informalities which may have preceded it in the absence of any charge or proof of fraud. 21 Ann. 505 j 1 Clifford C. O. 437; 14 Ann, 622; 11 .La. 156 ; Borer on Judicial Sales, sec. 479; 1 Wallace, 634.
    Buie may be taken contradictorily to amend proceedings, mine pro tunc. 31 Ann. 530.

      W. L. Lancaster, attorney for absent heirs, on the same side.
    P. E. Tliéard & Sons and Braughn, Bucle, Dinlcelspiel <& Hart for Defendants and Appellees:
    ^. The judgment ordering the partition is a nullity. A judgment rendered by consent of the parties inter set and without evidence, cannot bind third persons. All parties must, he before the court. In judicial partitions, all formalities must be strictly pursued. 16 Ann. 157; 3 Ann. 35; 5 Ann. 499; 15 Ann. 225, 697; 28 Ann. 715 (dissentii g opinion); 4 Ann. 260, 261, 50; 19 L. 36 ; 17 L. 348; 25 Ann. 531; 32 Ann. 97, 0:*5; 30 Ann. 898 ; 26 Ann . 445; 27 Ann,198; H Ann. 388; 34Ann.969; 18Ann.882; B. U. C. 1339, 2275, 2440.
    2. The formalities required for the sale of the share of the minor were not complied with - The curator of-the minor was not sworn. The judgment against the minor may be rescinded. The family meeting was not held .according to law. The deliberations-thereof were not homologated in time. The error in the name of the minor in thehomologation order is fatal. The advertisement was not published during thirty days 27 Ann. 463, 32 Ann. 956; 5 Ann. 208 j 12 Ann. 153; 15 Ann. 697; 9 E. 545; B. C. C. 285, 334, 341,1167, 1339,1341; C. B. 411, Marcacló, vol. 2, p. 211; C. P. 615.
    3. A purchaser is not bound by additional terms imposed by the auctioneer, not contained in the decree of the court, and which increase the price. Custom cannot supersede the law or change an order of court. The law requires also the reading of the mortgage certificate at the time of the sale. B. C. C. 21,1963, et seq.t 3010; 11 Ann. 46.
    4. Bo evidence can be offered after rendition, signature and execution of a judgment, especially where it is shown that the evidence was taken or procured after the execution of the judgment. The adjudication having dispossessed the owners, they could make bo alterations thereafter. The evidence offered after the adjudication cannot bind the purchaser. Even if admissible, the evidence offered is still insufficient to protect the purchaser. 32 Ann. 97; 18 E. 351.
    5. Bo one is required to take a propeity subject to encumbrances. Plaintiff should have produced a clear certificate from the mortgage office on the trial of the rule.
   The opinion of the Court was delivered by

Watkins, J.

On the 11th of April, 1885, in the matter of the partition of the real estate belonging to the successions of Madeline Azema Byrne and John Blight Byrne, the lot of ground and three-story briclc building, forming the southeast corner of Canal and Carondelet streets, were adjudicated to Jules Cassard, now deceased, and herein represented by Adrien, Augustus, Jr., and John E. Cassard, as his surviving legatees, and who have appeared and made themselves parties to this appeal.

Tlie purchaser declined to pay the amount of his bid, and the plaintiffs in the partition suit took a rule on him, on the 1st of June, 1885, to show cause on the §th of same month why he should not comply with the terms of sale and accept a title to the property.

To this rule the purchaser answers, and assigns various objections to the judgment in the partition suit, and the sale thereunder, which he avers to be sufficient to exonerate him from compliance with the adjudication made thereof.

They may be summarized thus:

1. The judgment is a nullity being by consent.

2. The share of the minor, Thomas Byrne Seller, was not sold according to law.

8. The terms of sale, as advertised, do not conform to tho judgment.

4. The proceedings taken and evidence offered after the adjudication cannot bind the purchaser.

5. The property sold is not free from encumbrances, and certificate of mortgage was not read.

6. The property was not advertised for thirty clear days.

7. The proceedings of the family meeting recommending terms of sale of tho interest of the minor, Thomas Byrne Seller, were not homologated until the property had been advertised for sale for several days.

We need not argue these objections separately:

The complaint made of these partition proceedings is that they were had by consent and not contradictorily, and hence same could not have the force and effect a judicial partition, and a sale effected thereunder would not confer a valid title on the adjudicatee.

The following facts and circumstances attracted our attention, viz: That the partition suit, though regularly fixed for trial on the 2d day of March, 1885, was taken up fo'r trial and judgment rendered-on the 26th of February previous, and by consent of parties.

The minor, Thomas Byrne Seller, having an interest in the property ■of one-seventh of one-third of eleven-eighteenths, was represented by a curator ad hoc; all the other interested parties being majors, and present or represented.

The judgment was signed on the 6th of March, 1885, regulating and fixing the shares of the different heirs, ordering a partition of the property by licitation, and directing that a family meeting be convened for the purpose of advising and recommending the terms of sale of the interest of Thomas Byrne Seller, the only minor.

Upon the same day the family meeting was convened and recommended sale upon like terms as were provided in the. judgment with reference to the majors.

These deliberations were not homologated by the judge until the 11th of March, 1885 ; but the sale was regularly advertised in the New Orleans Picayune and Bee, on the 8th of March previously, and continued until the 11th of April, 1885, the day of sale and adjudication.

On the 26'tli of May, 1885, plaintiff, in the partition suit, ruled the defendants to show cause on 29th of May following, why certain affidavits should not be filed on the record nunc pro tuno as of February 18, 1885, and also why the certified copy of an act of sale from Citizens’ Bank to John Bligh Byrne should not be likewise filed nunc pro tunc.

Upon the same day, a like rule was taken to show cause why “a clerical error” in the order of the judge of the 11th of March, 1885, homologating the deliberations of the family meeting, mentioning the interest as that of John Bligh Byrne in lieu of that of Thomas Byrne Seller, should not be corrected.

Upon same date, a like rule was taken on same defendants to show cause why the testimony of certain experts, which through inadvertence of counsel, had not been filed at the time should not be filed mine pro tunc as of the 18th of February, 1885.

On the 29th of May, these rules were called for trial and made absolute and thereupon this appeal was taken.

The nullities or irregularities of which respondent complains, are •not absolute, but relative and could be cured by the prescription of ■five years or a monition.

I.

The fact that the partition suit was not tried on the particular day upon which same had been fixed for trial, is not such a consent as will vitiate it, notwithstanding one of the parties be a minor represented Try a special tutor. 9 La. 276, Cooley vs. Seymour.

II.

The judgment and decree of the court directing that a family meeting be convened for the purpose of recommending the terms of sale, was regular and proper, and the officers and members thereof had the Tight to waive the three days delay provided by law, and convene immediately as they did.

“The family meeting maybe held at an earlier day by consent of 'the members composing the family meeting.” R. C. C. 285; 9 Ann. 560, Succession of G-asson vs. Palfrey, is quite a similar case.

III.

We do not attach any importance to the fact that the sale of the property was advertised prior to the homologation of the deliberations of the family meeting.

1st. Because the family meeting recommended lilee terms of sale for -the interest of the minor, as those fixed by the judgment of the court respecting those of the majors.

2d. Because the month of March carries thirty-one days, and hence there were twenty clear days of that month remaining after the 11th thereof, when the judgment of homologation was signed; and there --are ten clear days of April preceding the 11th thereof, the day of sale.

IY.

The fact that a certain affidavit, act of sale, and testimony of experts were permitted to be filed nune pro tuno by the judge a quo did not witiate the partition proceedings^, and judgment previously signed

The judge was satisfied that same properly formed a part of the -evidence adduced on the trial; and even if same had not been, in point of fact, so adduced, this Court would assume that his decree was based upon sufficient testimony until the contrary is legally established.

Y.

The judge a quo has at all times the right, upon proper proceedings .-and proof, to correct the clerical errors that may occur in the interloe • utory judgments lie lias rendered, or chambers orders he has granted, on giving due notice to interested parties. 3 N. S. 392; 6 Ann. 548.

We do not regard the alleged irregularities in the partition proceedings of such a character as to cast a cloud upon the title of Madeline and John Illigh Byrne in the sense of 9 Ann. 560, Gasson vs. Palfrey, and 16 Ann. 420, Succession of Webber, cited. Indeed, the respondent urges no complaint of their title at all; his complaints are of irregularities in the partition proceedings alone.

It was stated by counsel for successions in argument before the court, and not denied by counsel for the respondent, that the minor has attained his majority; and, hence, it will be necessary for him to-accept the purchase price pro tanto, and that would estop any.complaint on his part, and all of which are personal to himself.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided, annulled and reversed; and jiroceeding to-render such judgment as should have been rendered by the judge a quo, it is ordered, adjudged and decreed that the rule taken in behalf' of Charles H. Byrne on the purchaser, Jules Cassard, now deceased,— and heroin represented by Adrien, Augustus J., and John E. Cassard, residuary legatees- — requiring him to comply with the terms of the sale and adjudication of the property in controversy, and pay the purchase price in conformity with the terms specified in the judgment of the court and the recommendations of the family meeting, and accept title-thereto, be made absolute, and that all cost of both courts be taxed against the respondents and appellees.

Dissenting Opinion.

Pociié, J.

I dissent from the opinion and decree of the majority in. this case, and will file my reasons at some future time.

On Application eor Rehearing.

Watkins, J.

Upon a careful consideration of the application for rehearing presented by counsel for residuary legatees of the purchaser, we have reached the conclusion that our original opinion and decree should be so amended as to dispense the purchaser from the payment of all taxes due upon the property sold at the date of sale, April 11, 1885;, and as thus amended, said opinion and decree remain undisturbed.

Poché, J. As I adhere to my dissent, I take no part in this decree..