author: DeBlanc, J. Manning, C. J. Egan, J.

text:
    No. 656.
    State ex rel. Frank Vaughan, District Attorney pro tempore, vs. W. L. Richmond, Sheriff.
    The law which empowers judges to suspend sheriffs from office, on account of the latters’ neglect, or refusal to perform their duties, is constitutional.
    The office of district attorney pro tempore has not been abolished.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. May, J. .

      Frank Vaughan, District Attorney pro tern., for relator and appellee..

      Morrison & Farmer and Newton & Hall, for respondent.
   The opinion of the court was delivered by

DeBlanc, J.

On the thirteenth of June 1876, the defendant was, by a decree rendered by the judge of the fourteenth district, suspended from the discharge of his duties as the sheriff of the parish of More-house. That decree is based on a written statement filed by the district •attorney pro tempore, that said sheriff has willfully failed and neglected to execute writs and orders to him directed, and to make return of the same to the courts by which they were issued.

From that decree, defendant has appealed, and, as he did before the district judge, he contends here:

First — That the office of district attorney pro tempore has been abolished by the first section of act No. 44, approved on the ninth of March 1874, a,nd that, as it is not sworn to, the statement of Frank Vaughn, as •a private citizen, is insufficient.

Second — -That, if Vaughan was a district attorney pro tempore, he was without authority to act in this proceeding, because the district attorney was in attendance on the lower court, when the aforesaid statement was filed.

Third — That, so far as they relate to the suspension of sheriffs from office, sections 1177, 3592 and 3593 of the Revised Statutes of 1870, are unconstitutional and void, because — 1st: the object of the law is not expressed in its title — 2d: a sheriff can be removed from office but by the General Assembly.

First — On the twenty-fpurth day of February 1876, one Ingram Law killed B. A. Phelps. He was indicted for murder and a true bill found' against him. At the foot of the indictment, there is the following declaration, written by the district attorney. “ I refuse to sign this bill, for the reason,of my -relationship to the accused, and for other reasons.” It-was after that refusal that the indictment was signed by Vaughan, as-district attorney pro tempore.

Defendant’s counsel contends that the office of district attorney pro tempore was abolished by an act of the Legislature of the ninth May 1871. We believe otherwise. 26 An. p. 518; State ex rel. Thos. Farrar vs. H. A. Garret.

It is true, as a general rule, that district attorneys pro tern, can represent the State only where the district attorneys are absent; but they can certainly do so, when, though present, the district attorneys are unable or unwilling to act. In this case, we must and do presume that, as one of the principal causes of the proceedings against the sheriff, was his-failure to have arrested Law, the district attorney, for the reason which induced his first refusal, declined to attend to said proceeding and left-that task to his substitute. Far from being an irregularity, this course-was proper and commendable.

Second — In his able and exhaustive argument, the attorney representing the sheriff, contests the constitutionality of the law empowering the judge to suspend a sheriff. He maintains that .this suspension is a removal, and that a sheriff can be legally removed but by the General' Assembly.

What is a removal ? It is the act of permanently displacing one from an office or post. What is a suspension ? It is, exclusively, an interruption in the exercise of the officer’s duties, of his authority.

In every land, under every form of government, as a censure or as a-penalty, ministers and priests, civil and military officers have been suspended and deprived of their emoluments and privileges. In the armies-of the world, though an officer may have paid with his blood the right of wearing his sword, the power to suspend him has never been denied. Why then, if a sheriff has disregarded the duties imposed upon him by his commission, his oath and the law, hesitate to check his flagrant incapacity, and guard society against the danger of his criminal negligence ?

The delegation to a judge of the legitimate power to suspend a sheriff, when that sheriff has neglected or refused to perform his duties, is not prohibited by the constitution and not in conflict with any of its clauses. The exercise of that power is indispensable to the existence of a court, for it would be far better to have no court, than tó have one, the mandates of which' are ridiculed, despised and resisted.' Those mandates should ever be a terror to felons, and, to be a terror, they must be éxecuted.

Third — One question remains to be examined, and that is:

Has defendant, in his capacity of sheriff of the parish of Morehouse, discharged .the duties of his office? He has not.

Warrants were placed in’his hands for the arrest of four parties indicted for murder. Two of those parties, Kennedy and Law, were fugitives from justice. One of them left the parish of Morehouse, but soon returned there. Two or three demonstrations were organized by the sheriff, for the published purpose of capturing those fugitives, but those demonstrations were too transparent to deceive any one. They were false pretenses, forged letters of credit drawn on the public credulity, and a notice to those who had violated the law, not to be on the highway, at the store, the club-room or the church; and, for these vain displays, these farces, the people are to be taxed.

Mr. Wright, one of the defendant’s deputies, testified “ that Law had been at his house in Bastrop: he started, out three times with Richmond, to assist in arresting Law; the first time they went a mile out of town, the second time two miles and afterward three miles. Richmond wanted to go further, but the posse refused. It was raining and the posse thought the sheriff was drinking too much. He heard every morning that Law had been in town.

Mr. Rutledge said: Wright, the deputy sheriff, brought me a note, from Law, in which he asked me to come and see him.

Mr. Grant is a resident of Bastrop. Law was at his house, told him to inform Richmond that he had come to stand his trial and not to put himself to any trouble: that he did not want to surrender before the commencement of the jury session.

Richmond said: I do not think that those I summoned as a posse kept my movements secret. It seemed to be known all over town when I intended to go.

As to Kennedy, according to the declaration of McGowan, he has been in the parish of Morehouse, and about his father’s place since one year or more.

J. A. Ross, the principal deputy of Richmond, declared that, since the latter was sheriff, he had in hand many warrants against parties who were not arrested, and that he never made a return with an affidavit thereto attached.

One of the deputy sheriffs suggested to Judge Bussey that if a sufficient reward was offered, somebody would arrest Law. He inquired, from the judge, whether the son of Dr. Phelps was going to offer a reward or not.

McDowell .was arrested for rape: defendant’s deputy testifies that, while he was eaiing his breakfast, his prisoner got away. It took him by surprise, for in his own language: “ previous to the time of escaping, the prisoner liad made no effort to escape.

On the second of June 1876, Richmond was indicted and a true bill found against him, for having collected illegal fees; he was arrested and released on bond to appear before the district court.

We pass unnoticed the minor details.

Defendant was charged and stands convicted of a gross, manifest and unjustifiable negligence in the exercise of his duties as sheriff — of a negligence which amounts to a moral complicity with men indicted for murder. As remarked by Mr. Justice Martin, “ those who minister in the temple of justice, from the highest to the lowest, should be above suspicion and reproach. None should serve at its altar, whose conduct is at variance with his obligations. Surely he, who can give his aid and sympathy to screen offenders, should not be trusted to take any agency in their prosecution.” 2 N. S. p. 703.

The restricted lines of a parish' or of a State should not place, beyond the reach of a warrant, those who are charged With murder. Those lines should be crossed, the murderer pursued, tracked and arrested. Until he accounts for the blood he has spilled, he should, in no corner of the world, be allowed to stop and to rest, much less should he be permitted to prowl, heedless and defiant, in the immediate vicinity of the temple of justice and the grave of the victim.

With as careless a sheriff as defendant was, the nefarious deeds of assassins and robbers would be encouraged and multiplied, for, they could, without apprehension, trample under their feet the laws of the State, of society and of God, the rights, the flesh and the lives of those who have been brought to trust to those laws for their protection.

In so far as it orders the suspension of defendant, as sheriff of the parish of Morehouse, there is no error in the decree appealed from, and that decree is affirmed with costs.

On Application eor, Rehearing.

The opinion of the court was delivered by

Manning, C. J.

An application for rehearing has been made by the respondent’s counsel. Thp zeal of the advocate has nearly betrayed him into indecorum. It would be justified if the consequences, imagined and depicted by him, could legitimately ensue from our decision. His argument is that because the constitution has provided specific modes of removing certain officers, therefore a judge cannot suspend a subordinate officer of his court.

Disciplinary power belongs to a court from its constitution, and the purpose of its creation. The judge impersonates the law. He represents its majesty, its dignity, its authority. The officers of his court are necessarily under his supervision. If either of them grossly neglect or violate his duty, as by contemning his authority or refusing to obey his legal orders, he should punish him for contempt. But when the officer contemns the law itself, when he puts its mandates at defiance, when he wilfully neglects or refuses to serve the process by which a criminal is to be arrested, and thus mocks at and despises the law which prescribes his official conduct, it is proper that the exercise of his functions should be suspended. The power to protect itself is inherent in a court. It dare not permit the arm of the law to be palsied by the contumacy of its executive officer.

The constitution directs how certain officers shall be impeached, and also that all civil officers shall be removable by an address of the General Assembly, except those whose removal is otherwise provided for by the same instrument, (art. 106.) Thus much for the mode of removing. Then follows the provision to prevent an interruption of the.public business because of a vacancy, (art. 122.) All officers shall continue to discharge the duties of their offices until their successors shall have been inducted into office, except in cases of impeachment or suspension. So then the suspension of any officer, so far from being discountenanced and abhorred by the constitution, is expressly mentioned in it. Such a thing may happen. The constitution foresees that it will happen.

The Legislature therefore provided for the particular case, where the court from its inherent power would have a right to suspend, and proceeded to guard it with restrictions. The act of 1868 prescribes the formal proceedings through and by which the sheriff or his deputy, or the coroner or a constable who has failed to make an arrest, may be brought before the court. The prosecuting officer of the court must bring the delinquency of the sheriff or other executive officer, to the knowledge of the judge by a written statement, and any other person may do this if he swears to the statement, and upon hearing all parties, the power of suspension is conferred. (Acts 1868, p. 161) The next section opens with these words: — it is the spirit and intention of this act that the several judges in this State shall have á general supervisory control over the officers appointed by the law to execute the writs issuing from, and the orders of the courts — and this is but the enunciation of that power that courts must have, and must exercise if need be, unless their authority is to be reduced to impoteucy, and their personation of the vigor of the law to be transformed into a mere simulacrum.

The respondent says that a suspension sometimes may operate as a removal, as for instance when made near the close of the term of office. The enforcement of many laws produces effects not contemplated by the law.

And he adds, this power is liable to abuse. So is all power. But the exercise of this power under this law is surrounded with formalities and deliberation of proceeding that guard against rash action, and secure to the officer a fair hearing. The very presence of this appeal before us shews that the judge cannot act arbitrarily to the detriment of the officer, without the latter’s right to have the causes of the suspension inquired into. And we have confined ourselves to the consideration of the suspension of an executive officer of a court by the judge of that court.

Behearing refused.

Dissenting Opinion.

Egan, J.

I regret that I have not been able to present fully the reasons which induce me to dissent in this case from the conclusions of the majority of the court. I, however, reserve the right of doing so hereafter. I do not believe that under pretext of mere disciplinary power such as is necessarily and properly lodged in the courts for their own protection and efficiency, the sheriff, a constitutional officer, elected by the people, and whose term of office is fixed in the constitution itself, can be either suspended or removed from office in any other manner than that pointed out by the constitution. I do not think the Legislature could itself exercise such power in any other manner than by address, and it can not confer it on other officers. I concur fully in the general sentiments of the opinion prepared by Mr. Justice DeBlanc as the organ of the court. Such a record of official misconduct could only have come to us as the outgrowth of the disordered condition of things in this State under usurping governments too feeble and too little respected to enforce authority.

fi Happily, we are now emerging from that unfortunate condition and may again look for the restoration and preservation of law and order through the aid of courts sustained by an energetic executive and a supporting public sentiment. There is, in my opinion, no longer excuse or occasion for such legislation as ihat invoked in this case. Every judge has the power independent of it, to punish the officers of his court for contempt of his authority or 'disobedience of his mandates. This may "be repeated as often as occasion may require, and once assurance is felt that this power will be exercised whenever necessary, its exercise will' seldom become necessary. Meanwhile the business of court need not stop, as in case of inability of the sheriff to act, the law provides another -officer, the coroner, to act in his stead, and, indeed, the sheriff’s deputies might act none the less while he himself is undergoing punishment for contempt. This disciplianary power was always found sufficient, during the many years of normal government of the State, to the enforcement of all proper authority. In my opinion it will be found now to be soagain without a resort to the extraordinary legislation relied upon .in this ease, neither the origin nor probable objects of which can be ■commended. However richly deserved, I do not think the suspension •of the defendant was authorized by the constitution.

No provision is made in that instrument for the'suspension of sheriffs •at all. They may, however, be addressed out of office. The suspension in the present case was a practical removal by the. mere order of the judge. When specific modes of proceeding are provided by law, especially in a matter so important, they must be strictly pursued.

This I understand to have been the uniform current of the decisions ■of this court.


source: Caselaw Access Project

author: Manning, C. J.

license: Public Domain

text:
    No. 708.
    Succession of C. L. B. Bofenschen.
    .An. opponent of an administrator’s account can contest no item of the account which he has not in specific, or in general terms, opposed.
    The law of this State prohibiting an individual from doing business under a firm name, does not affect a person residing in another State.
    "To maintain his privilege on property sold by him. as to third persons, the vendor must record the sale.
    ’The proceeds of a policy of life assurance taken out by the husband in favor of his wife, does not become a part of the community, but belongs exclusively to her and her heirs.
    j^PPEAL from the Parish Court of Ouachita parish. Slack, J.

      Cobb & Gunby, Franklin Garrett, and Robert J. ■Caldwell, for opponents.

      R. W. & R. Richardson; for administratrix.
   The opinion of the court was delivered by

Manning, C. J.

Charles Boffenschen died intestate in March 1876 .leaving a. widow and six minor children. His widow was appointed administratrix of his succession, and-after inventory had be¿n made, ;She obtained an order of sale to pay debts. Part of the movables were sold for cash in June of same year. The other movables and a lot with brick building (offered at first sale and appraisement not having been bid) were sold on twelve months credit in July. In the next month the other real estate was sold, and on the 26th of that month, the administratrix filed her final account and tableau of distribution, charging herself with sum total of sales as cash, less $23.20, a bid that was not paid, but taking care to charge herself with $5.25 of the same bid subsequently realized. The assets are proposed to be distributed among the privilege and mortgage creditors, and are nearly consumed by them. The ordinary creditors oppose on various grounds.

Many items are opposed in oral argument and brief which are not specifically mentioned in the oppositions, nor is there a general clause in them under which the intention to oppose such items might be included. The representative of a succession is bound to prove each separate item of his account whether opposed or not. The opponent is a defendant or respondent. His opposition is an answer. If it does not contain a general clause indicating opposition to the whole account, (which may be assimilated to the plea of the general issue) the opponent will be confined in his contestation to those items specifically mentioned.

One of the opponents excuses the absence of specific objections, alleging that the administratrix made no tableau shewing who were creditors, or how she had converted the property into money, or by what authority she had paid debts, but had merely furnished a balance sheet, debiting herself with so much cash on the one side, and crediting herself with the sums paid or proposed to be paid to creditors on the other. This allegation is not sustained by an examination of the account.

It has been a widely-adopted practice in this State to file what the profession have called a tableau of debts i. e. a statement of the name, amount, and rank of all the admitted claims against the succession, preparatory to and in advance of their payment. The Code of Practice nowhere seems to require it, but such tableau serves many useful purposes. That Code does require that persons holding claims against successions shall present them to their representatives for recognition, who shall write that recognition upon the back of the claim or on an annexed paper. Arts. 984 — 7. This was done in this case. The opponents are recognized as creditors. The tableau that the Codes require is one of Distribution (C. P. arts. 988. 993. Civil Code, arts. 1168 et seq. new no. 1180 et seq.) which differs from an account technically in this, that such tableau is a statement of the manner .in which the representative of the succession proposes to distribute the funds in hand, shewing what claims either of privilege, mortgage, or ordinary kind he is prepared to pay with their rank, while an account is what its name imports, i. c. a. statement of the moneyed assets which the representative has received, debited to himself, and on the opposite side, a similar statement of the moneys he has actually paid out, credited to himself. It is in short an exhibit of his gestión so far as it has gone, and such account is intended by the law to be filed annually, and when it is a final account, the gestión is completed. When therefore a creditor alleges that he has not been paid, and complains that he has not been placed on an administrator’s account and opposes it therefor, the allegation of non-payment contains within itself the reason why he has not been placed on the account. It is because he has not been paid that he was not placed on the account, since that shews only the amounts which the administrator has paid.

In the present case, the account shews the moneys received from sales, giving date and amount of each separately, so that the correctness of each item may be at once verified by examination of the proces-verbaux thereof, and on the other and opposite side is a statement or list of the claims paid, or proposed to be paid, to the officers of Court, for burial expenses etc., taxes, privileges, mortgages, commissions, each in its order, shewing a balance of $25.35 for distribution among the ordinary creditors.

A specific opposition, so far from being impracticable, was easy to be made, e. g. the taxes due the State, and those due the town of Monroe, are both placed under the head of privileges separtely, and any opponent can perceive the rank assigned them, amount, the year payable, etc.

The opponents claim that the administratrix should be charged with $43.65 for inventoried property not sold, but do not specify what articles ■ are meant. They also insist that she should be charged with $17.05 the difference between the bid which was unpaid, and the sum that she collected from the delinquent bidder afterwards. She acted discreetly in . receiving the small sum on the bid rather than burthen the succession with the expense of a re-advertisement of the articles which were appraised originally at $23.20. It appears she neglected to sell the ‘sign’ of .the deceased, hung over his door or attached to the store, and which was appraised at $4.50. She has been charged with this sum.

If there were no graver matters than these complained of touching proceedings that are exceptionally regular in form, and pains-taking in accuracy, we should have little trouble in disposing of them, but the rank and priority of mortgage is involved, and also the right of the creditors to include the life insurance Policy of deceased among his succession effects. ■ '

D. E. Conover & Co. holds a note of deceased secured by mortgage upon a lot with brick store upon it, which was recorded October 28th, 1875. Thos. N. Conner holds a judgment against the deceased upon a .claim for building the store, in which his privilege as contractor, builder. and furnisher of materials is recognised, dating from 29th. Nov. 1869, and which privilege had been recorded on that day. He also holds anote for materials furnished in repairing the store, which had been recorded July 21st. 1875. Conner’s two privileges have precedence therefore over Conover’s mortgage upon the proceeds of sale of that property, and the administratrix thus ranked them.

Conover & Co. claim also a privilege as vendor upon the jewelry which formed part of the stock of deceased. The note which is secured by mortgage is the same that was given for the jewelry, it is alleged, but it is not so expressed, and if it had been, it was not recorded. Recording a mortgage upon the brick store and lot cannot be considered a preservation of a privilege upon a lot of jewelry, nowhere expressed either in the note or mortgage. Nothing was of record to connect the jewelry with the note, and the creditor permitted it to be sold with a mass of other movables.

One of the opponent's contests the right of Conover & Co. to appear in court to claim anything, because David E. Conover is the only person who composes that firm. It is sufficient answer to this to say that David E. Conover resides in Philadelphia, and does business there under the style of D. E. Conover & Co., and the prohibitory law invoked by opponent does not assume to control the assumption of such business name outside of the jurisdiction of this State.

The mortgages of Tounge and others were paid out of the fund arising from the sale of the property specially mortgaged to them except $127.59 which was properly ranked as an ordinary claim. The rent demanded of the widow for four months occupation of the marital domicil was properly rejected under every aspect. Civil Code, art. 2391 new no. 2422.

The deceased had insured his life for four thousand dollars in favor of his wife and children. The widow collected the amount of the Policy, and did not include it among the effects of the succession when she filed her account. The opponents allege that the sum thus received by her belongs to the succession — that the premiums paid by the husband on this policy were from the community fund, and the amount of the policy when collected must belong to the same fund — that the husband cannot transfer or donate to the wife community property to the prejudice of the creditors of the community — and if she acquired it by the stipulation pour autrui, it is null because forbidden.

The point has been twice before this court. In Hearing’s case (26 Annual 326.) there was an alleged separation of property between the spouses, but in that of Clark (27 Annual 269.) as in this, there was a community of acquets. The facts of this last ease present the decision in bolder relief' than is likely to again occur. Clark and his wife died on same day. His death was a few hours before hers. The husband or in other words, the community owed rent for the house in which himself and his wife lived. He had but little property, no£ enough to pay his rent. He had insured his life in his wife’s behalf. His lessor, unable to realize the rent from his scanty effects, sought to make this life-policy answerable for it. It was held that the money derived from his policy belonged to his wife’s succession, and it was decreed to her legatees. The objections made by the opponents in the present case are the same as those considered in these cases, and pronounced untenable. The policy on the decedent’s life issued to his wife for the benefit of herself and children. The premiums were paid by the husband out of community funds, over which he had control as head and master thereof. The most that could be claimed would be the reimbursement of the premiums to the community, but we do not think that cláim well founded.

The parish court amended the account by increasing the balance for ■distribution among the ordinary creditors by a small sum.

It is ordered, adjudged, and decreed that the judgment of the lower ■court is affirmed tho costs of appeal to be paid by opponents.


author: Spencer, J. Egan, J.

text:
    No. 698.
    The State vs. Joseph Colbert.
    The admission by tho plaintiff that an absent witness of defendant would, if present, swear to certain facts, will not debar the plaintiff from disprgving the facts.
    What a witness has deposed in a previous examination, in the samo case, is admissible to rebut his testimony.
    In a criminal ease tho judge may, even after the evidence is closed, reopen the case at any tipie before the argument begins.
    The juries in criminal eases, as a rule, should not be permitted to take with them to their places of consultation any part of the evidence that may be in writing. They must rely on their recollection of the evidence.
    APPEAL from the Eleventh Judicial District Court, parish of Union, Trvmble, J.

      Robert J. Vauglm, District Attorney, for the State.

      J. 8. Toung, for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

The defendant was indicted, tried and convicted of the larceny of a hog and sentenced to two years in the penitentiary.

Before trial he filed an affidavit for continuance on account of the absence of one Joe Mays and two other witnesses, whose testimony he swore was material, stating the facts he expected to prove by them.

The district attorney admitted that the witnesses named, if present, would swear to the facts stated. The defendant thereupon announced his readiness for trial, without requiring the State to admit the truth of the facts stated in,th.o affidavit, as he might have done.

Eor the purposes of the trial, therefore, the three absent witnesses wore to be considered as having been put upon the stand, and as having testified as stated in the affidavit which was accordingly read to the jury by the defendant’s counsel as part of his evidence.

The district attorney thereupon offered the testimony of said Joe Mays, taken contradictorily with the accused, on the preliminary examination, and also the testimony of one Hudson, in rebuttal, and as impeaching the statements of the witnesses as sworn to by the accused and admitted by the State. This evidence on part of the State was admitted by the court after the district attorney had announced that he had closed. To this evidence the accused by his counsel objected—

Eirst — That the statement of the testimony of the absent witnesses as given in the affidavit can not be contradicted.

Second — That after announcing that the testimony was closed, the district attorney could not offer further evidence.

Third — That the testimony taken before the committing magistrate was not admissible unless the witness was dead or absent from the State, which was not shown.

In answer to the first and third objections, it suffices to say that the statements of the affidavit were, for the purposes of the tried, taken and considered as the evidence of the absent witnesses, and therefore could be contradicted or discredited in precisely the same ways that their testimony, if actually given, could bo.

One of the modes of discrediting a witness is by showing that he had sworn differently on a previous examination; and this fact would be best proved by the record of that examination. If the objection had been that the State had not laid the foundation for its admission by asking the witness if he had ever previously sworn differently, it would have been.perhaps good, but that objection was not made, and we can not supply it. '

As to the second objection, it was a matter to be left to the sound discretion of the judge, whether he would, after the State announced that it had closed, and before argument began, allow further evidence. We see no reason to suppose the judge abused this discretionary power in this case.

The counsel of accused further asked the judge to permit the jury, on retiring to consider their verdict, to take with them his affidavit aforesaid, stating the facts that it was admitted the absent witnesses would swear to. The judge, we think, properly refused. The affidavit had been read to the jury, and constituted only part of the evidence submitted to them. The evidence in criminal cases is to a "great extent oral, and never reduced to writing. It would not be proper to give the jury part of the evidence. They must rely upon their memory; and it is not the practice in criminal cases to allow the jury to take written evidence offered with them to the jury room. Oases might arise when the judge in his discretion would permit it to be done, as where it was necessary for a jury to compare handwriting or other similar instances, but the present case does not fall within the classes referred to.

Judgment affirmed with costs.

Dissenting Opinion.

Egan, J.

I dissent from so much of the opinion read by Mr. Justice Spencer, as the organ of the court, as sustains the ruling of the court below in admitting, against the objection of the counsel for the accused, the deposition of a witness taken on the commitment trial to contradict the admissions made by the counsel for the State embodied in the affidavit of the accused. I think this was error. The State by making the admission induced the accused to go to trial on the faith and assumption that the statements of fact in the affidavit should be taken as the evidence of the witness and contained no basis for the subsequent introduction of evidence of different statements at another time, the right to inquire into which had, I think, been waived by the State by the admission of the affidavit. As independent evidence, the deposition was liable to the objections made. It must be supposed to have influenced the verdict. The court should not have allowed the case to be reopened to receive this evidence, and could not control its effect. A new trial should be ordered.


author: Egan, J.

text:
    No. 695.
    The State vs. Tod Johnson.
    A auestion put to a witness in a criminal proceeding which suggests the answer, is not the less leading because propounded in the alternative.
    A verdict of guilty on the offense charged, when a different offense only has been proved, should bo set aside by the court a <jua.

    If the description of stolen property, in an indictment, is too general, it may, by permission of the court, be amended.
    ÁRPEAL from the Fifth Judicial District Court, parish of East Feliciana. Mo Vea, J. Trial by jury.

      J. H. Lamon, District Attorney, for the State.

      W. F. Kernan, for defendant and appellant.
   The opinion of the court was delivered by

Egan, J.

The defendant was tried, convicted, and sentenced to fifteen months imprisonment at hard labor in the penitentiary, upon the charge of larceny of “ an animal of the co.w kind,”, After an ineffectual motion for new trial, and an equally ineffectual motion in, arrest ,of judgment he has appealed. . „ :

' The first ground of error assigned is that the court permitted the district attorney to ask one Guy, his own witnessj and not shown to be hostile to him or the prosecution, or reluctant to give evidence, the leading question, •“ did or did not accused acknowledge to you that he had marked the calf ?”'the said question being-leading and suggestive of the answer. We think this was error, and the fáet that the question was put in the alternative form does not remove the objection. Such form of question was not allowable at common law; nor here, under the statute which adopts the common-law rules of evidence in criminal proceedings. 1 Greenleaf, 5434 Phillip’s Ev. vol. 2, p. 888; same page, 888, n. 572.

The propriety of this rule, is the more manifest because the question asked appears from the record to have elicited the principal, if not the only, evidence on which the accused was convicted, and that, too, in the shape of admissions made to a witness-under such circumstances that the fact could not be contradicted.

The second ground of error assigned is that the court erred in ref using-a hew trial, because the only offense proved against the accused was that of ‘‘marking a calf,” which does not constitute'larceny.'

That such is the law is beyond question, and a bill of exceptions in the record makes it almost certain that altering the mark of a calf, the property of another, which is of itself a substantive and distinct offense, was the extent of that proved against the accused. But whether so or not, that fact was elicited improperly, as we have seen, under the first head, and we must suppose that it materially influenced, if it did not altogether induce, the verdict of the j ury.

The third ground of error is that the information is bad, for not specifying the particular animal of the cow- kind charged to have been stolen.. It is certainly very loose pleading to charge simply the larceny of an animal of the cow kind, and is too uncertain to be encouraged. This was, however, one of tnose things which, under section 1047 of the Revised Statutes, the court might have permitted to be amended, it being, in the language of the statute, “the name or description of a thing named or described ” in the information. While, however, we are not disposed to encourage so- loose pleadings, we are not prepared to arrest the judgment for a matter which might have been, and ma.y yet, under-leave of the court, be amended under the view we have -taken of the case otherwise. It may be as well, however, to remark, that this information is loosely drawn, and we recommend, in the public interest, more careful, pleadings in such matters in future.

For the reasons assigned, it is ordered, adjudged, and decreed that the verdict and sentence appealed from be annulled, avoided, and set aside, and that this case be and it is hereby remanded to the court below, to be proceeded with according to law and the principles herein announced.


author: Spencer, J.

text:
    No. 557.
    John T. Ludeling vs. Mary H. Felton and Husband.
    A discharge in bankruptcy, like proscription, does not expunge, but merely bars the recovery of debts, and ii not specially pleaded, will not be noticed.
    Neither a decree of separation of property, nor her husband’s discharge in bankruptcy, will relieve the widow from liability for one half the community debts, should she accept the community.
    The widow who sells a part of the community property for her own beneflt, thereby accepts the community.
    The liability of the widow for her share of community debts is prescribed in ten years from her acceptance of the community.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J.

      G. T. Bun, for plaintiff and appellant.

      Todd & Brigham, for defendant.
   The opinion of the court was delivered by

Spencer, J.

This suit is against the defendant to make her liable for the debt of her former husband, James G. Felton, upon the ground alleged that she had accepted the community which it was stated existed between her and Felton at the time of his death, by using and disposing of the community property.

The answer contained in substance:

First — A general denial.

Second — An allegation that previous to Felton’s death, defendant had obtained against him, in 1869, a judgment separating them in property and dissolving the community.

Third — That Felton became a bankrupt in 1868 and surrendered what little property he had in bankruptcy. And that at his death he left no estate whatever.

Fourth — It was alleged that no legal judgment was ever rendered against Felton in favor of plaintiff as alleged. That after his surrender he was never legally represented in the proceedings.

Fifth — That after Felton’s death, she had made a declaration before the recorder showihg the above facts in regard to Felton leaving no estate and no property, and the previous dissolution of the community, with, a view of relieving herself of any suspicion of having accepted the community, or of there being any community to accept.

Sixth — She denies that she was in any manner liable for the debt sued for, or for any of Eelton’s debts.

Seventh — She pleaded against the demand the prescription of one, three and five years.

Counsel on both sides have lengthily and exhaustively discussed the second and third grounds of defense; but under the view we have taken of this case, we do not consider either ground as materially affecting its conclusion and decision.

A surrender in bankruptcy does not operate, or have the effect of, a payment. Payment extinguishes absolutely the obligation, both morally and legally. Bankruptcy is' simply a bar to the enforcement of it. If bankruptcy extinguished a debt, then when the principal obligor thereof took its benefit, the surety of that debt would be discharged. In other words, the very contingency (to wit: insolvency of the debtor) which necessitates and occasions suretyship would extinguish it. The discharge or bar resulting from bankruptcy not extinguishing the debt, but leaving the natural and moral obligation to pay in all its force, it follows that unless pleaded in defense by the debtor it is waived; and that a judgment rendered against a bankrupt who does not plead his discharge in bar of the action, is just as valid as a judgment against a debtor on a prescribed debt, where prescription is not pleaded. . ,

Wo see no reason therefore to doubt the validity of plaintiff’s judgment against James G. Felton.

Nor do we understand or see the force of defendant’s argument as-to the effect of the bankruptcy of James G. Felton on the wife’s liability for community debts, if she be held to be a partner. If she accepted the community either expressly or tacitly, his discharge would not protect her from pursuit for her half of the debt. As wo have seen a discharge in bankruptcy is not a payment. When her husband went into bankruptcy, the debts of the community were not thereby paid or extinguished: and if afterward, by the happening of. the necessary conditions, to wit: dissolution of the community and its acceptance by her, her liability for those debts became absolute, she could not plead his discharge in bar of an action against her; no more than could one joint or solidary debtor, plead the bankruptcy of his eo-debtor. So we see it is matter of no moment in this case whether James G. Felton went into bankruptcy and was discharged or not, if it is true as alleged by plaintiff that his debt was a community debt — -that on the dissolution of that community, whether by death or judgment, defendant accepted it.

Nor is it material to the decision of this cause, whether the community between Felton and the defendant, was dissolved by a judgment or by death.

The important' question is, after it ivas dissolved, did she accejot it, either expressly or tacitly ? Happily we are all agreed that in one or the other way, it was dissolved. We are equally agreed that the acceptance may be express or tacit — by words, or by deeds only — and that having accepted in either way, the wife is liable for one half of the community debts.

The only difference between the eases where the dissolution is by death, and where it is by judgment, is that in the former the wife is presumed to accept rinless she renounces, and in the latter, she is “ supposed ” to renounce unless she accepts. But the effect is the same in both cases, when she has accepted. See C. C. 2410, 2413, 2414, 2415 — 2420— 12 An. 77, 13 An. 470.

That the wife has the right and power to accept the community when it is dissolved by judgment, is clearly and explicitly shown by article 2430 of the Civil Code, and that that acceptance may be express or tacit is equally indisputable. See cases above cited. If therefore it is shown that plaintiff’s debt is one of the community, and if defendant has accepted expressly or tacitly, she is certainly liable to pay one half of it, unless barred by prescription.

There is no pretense that she ever expressly accepted the community, but it is urged that she did so tacitly, by taking possession of its effects and disposing of them for her own benefit. There was a mass of testimony taken on this question, and it would be impracticable for us even to attempt its recapitulation. We have read and considered it with care, and must say that, (aside from the legal presumption that the effects found in the possession of the parties at its dissolution belong tó the community) the proof satisfies us that there were at least four or five mules and perhaps other effects belonging to the community, and that the defendant sold and disposed of them for her own benefit. This act was a tacit acceptance and notwithstanding any “ supposed ” renunciation resulting from her silence after judgment of separation, “makes her liable as a partner.” 12 An. 77; 13 An. 470; C. C. 2418.

But her liability as a partner is only for one half of the debts. True she would be responsible to the administrator or heirs of her husband for the amount of the value of his half of the community effects so disposed of by her. But in this case there is no proof in the record which enables us to determine that value. We do not agree to the proposition that we can take judicial cognizance of such values. Besides if the crops-of 1870 be held to have been community, it is shown that it was absorbed by the expenses of making it and perhaps other privileged claims against the community may have been paid by the widow. Besides we are not prepared to say that a mere creditor of the estate of the husband, can recover in such a demand- — because she only owes the amount-/ of the value of the husband’s share of the common effects. She owes that to the estate of her husband and not to any particular creditor thereof.

The plea of prescription of one three and five years interposed by the defendant can not bo sustained. She accepted the community in 1871 and this suit was brought in 1874. Her obligation to pay half of the debts of the community flows from a quasi contract, from an assumpsit implied by law from her act of acceptance. The prescription applicable to such an action is that of ten years. C. C. 3544.

It is therefore ordered adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered and decreed that John T. Ludeling have and recover of the defendant Mary H. Eel-ton, four hundred and sixty dollars with five per cent interest thereon .from first of January, 1808, and costs of both courts.


text:
    No. 617.
    Sarah L. Lay et al. vs. Succession of Elias O’Neil.
    The homologation of a tutor's accounts, oven when had contradictorily with tlio under-tutor, is not conclusivo on minors, who may, after majority, contest the accounts.
    Tlio citation of an heir, by tlio tutor, to oppose an account rondored by the tutor after the heir is of age, puts at issue all of the accounts rendered by the tutor while the heir was a minor, and the latter must then and there oppose all of those previous aeeounts, or be concluded by them.
    Pending the existence of a civil war, any government that may arise capable of enforcing obedience, within certain territorial limits, is entitled to exact it, and no person, under the sway of such government, can be prejudiced in any manner for yielding it obedience.
    A tutor who has done all, in the management of a minor’s property, that a prudent administrator could do, can not bo held for more than the revenues actually yielded by the property, and the actual proceeds of its sale.
    A PPEAL from the Parish Court of Bossier parish. Fort, J.

      J. D. Watkins, for plaintiffs and. appellees.

      Land & Taylor and J. A. Snider, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

Isaac Lay died in Bossier parish in -1859, leaving, an ;estate and several minor children. Elias O’Neill was appointed administrator.of the. succession, and satisfactorily closed his administration .by final account, duly homologated August 4,1860. , He was then appointed tutor to the minors, and between that date and his death in April 1871, he filed eight accounts of his tutorship. His widow is his executrix, and is defendant in this suit.

About six months after his death, the children of whom he had been tutor sued his succession to recover one hundred and thirty thousand dollars, due them for alleged maladministration. That suit- was before the District court of Bossier parish, and on appeal in 1873, our predecessors dismissed it on a plea to the jurisdiction. Lay v. O’Neill, 25 Annual, 608.

They then instituted suit in the Parish court of Bossier for one hundred and four thousand dollars, in currency and about twenty-six thousand dollars in gold, and in 1875 on appeal, that suit was dismissed by sustaining an exception to the form of the action. 27 Annual, 643.

In the autumn of that year the present suit was commenced, alleging the tutorship, the maladministration, the rendition of eight accounts and .the objections to them, the death of the tutor, the qualification of his widow as executrix, and praying that she be ordered to render an account to the plaintiffs of her testator’s tutorship of them. The order was made, and she obeyed it.

The defendant, complying with this order, made the eighth annual accounts a part of her answer, and averred that the fifth of them included and recapitulated the balances embraced in the first four, and that it was homologated contradictorily with Elizabeth Lay, one of the plaintiffs, and her husband Joseph Robertson, as well as with the under tutor -of the other heirs on 15th. of June 1866. After the rendition and homologation of the sixth and seventh accounts contradictorily with the under tutor, the same process was gone through with the eighth on Oct. 14, 1869, and contradictorily with Sara Lay and her husband, Boykin. The defendant pleads these judgments as res adjudicata, and that under art. 149 of the present constitution, they are conclusive against all parties to them upon all matters embraced in them, and finally pleads prescription to the action.

The plaintiffs, four in'number, viz’ the two above mentioned, and Nancy, who became Mrs. Swann in October 1869, and Eranldin, all opposed the account, and the matter now before us is the Account, rendered for O’Neal’s tutorship, and the Opposition thereto. The various 'objections set forth in the opposition will'appear as we proceed.

The first account-of the tutorship was filed.in May.1861, shewing a balanc'e dué the tutor óf 16118.85. He gives the reason for this -in' his petition’ accompanying that account. “’ There wás á large debt due 'the minor'heirs of Benjamin Lay which was about to be sued on,'and.which bad it-been'done, would have been ruinous to them' and knowing which 'and having money of his'own and feeling'great personal interest in the 'welfare of his wards,-he-advanced the money .for the payment of the same.” The verity of this declaration is nowhere impugned. After citation to the under tutor, this account was homologated Aug. 3 1861.

The 2d account, after citation, was homologated March 7,1863.

3d account Was filed, and publication made thereof April 6 1864

4th account was filed and published April 29 1865

5th account was homologated June 15 1866

6th account was homologated June 6 1868

7th and 8th accounts were homologated Oct. 14 1869

No attempt appears to have been made to take any order on the 3d and 4th accounts, except for publication of the notice that the3’ were filed, and no explanation of that omission is needed when the respective dates of their filing is observed. The 5th. account is a resume of all that preceded it, and includes also the additional receipts and disbursements since the last, and shews a balance in favor of the minors of $5,347.63. By this time one of the heirs, Elizabeth, had married, and both herself and husband, as well as the under tutor to the other heirs, were cited personally. On July 12,1867 this heir executed a receipt to O’Neill her former tutor in full of all moneys and balances due her on account of his administration as tutor, and her husband Robertson signed the receipt with her.

The 6th. 7th and 8th accounts are presented by O’Neill as the tutor of the three other heirs (Mrs. Robertson having no interest in the fund to be accounted for) and though the last two accounts were homologated on same day,-the 7 th. was filed and published-June-16 1868, and the 8th. on Sept. 9 1869. Before this last date, Sara had become Mrs. Boykin, and she and her husband were cited personally as well as the under tutor of-the remaining two minors. .

After the 5th account had been homologated, the property was sold to effect a partition in December 1866, and on the 31st of that month, Mrs. Robertson received six thousand three hundred and seventy nine dollars and 62 cents in gold as her share of the proceeds of that sale.

Between March 5th. 1869 and March 21, 1871 Mrs. Boykin was paid' seven thousand four hundred and fifty-four 48-100 dollars, which was in excess of the sum shewn to be due her. Separate accounts had been kept with each heir after the 5th.

Nancy or Addy Lay, as she is called in different parts of the pleadings had married W. M. Swann, and between Dee. 8 1867 and March 21,1871 had .received four thousand two hundred and forty five 95-100 in gold,, 'and, three thousand four hundred and fifty eight 07-100 in U. S. currency, and this is.in excess of her share according to the account.

Franklin Lay had received two thousand and ninety nine 02-100 dollars after the filing of the 8th. account, which was nearly the balance due him as stated thereon. His share, of the proceeds of the sale of Dec. 1866 is not included in this, nor commissions oí tutor. A summarized ■statement in figures will be clearer than the recital.

Tutor in Account with Eranlein Lay.

Dr. To-bal. due on 8th. account..........................§2,377.65

“ share of sale of 1866 ............................ 6,385.52

§8,763.17

■Or. By payments............................§2,099.02

“ coins, thereon............................209.90

“ assets delivered to new tutor..............2,741.49 §5,050.41

apparent sum due Eranldin Lay................•........§3,712.76

'The sum overpaid Mrs. Boykin is........................§3721.07'

and that overpaid Mrs. Swann is........................444.89

§4,165.96

and as this is larger than the sum apparently due their brother, the counsel for the O’Neil succession ask us to deduct the one from the other, and thus relieve the tutor’s estate.

The plea of prescription to the action of the Lay heirs is not good. It is argued that the ‘ action against the tutor respecting the acts of the tutorship ’ means technically a suit for an account, like the present, which was not instituted until more than four years after the two eldest had attained majority, and hence as to them it was prescribed. The suit first instituted was against the tutor, respecting the acts of the tutorship. It alleged an indebtedness resulting from his tutorship, and was such a demand as prevented the acquisition of prescription. It was followed by the second which renewed the demand. Service of process in these two suits brings the heirs within the time when they may have their action against their tutor.

The judgments, homologating the several annual accounts, are provisional merely, and do not conclude the minor, who has a certain time after the termination of his pupilage to object to them, even though his under tutor may have been cited and appeared for him. Stafford v. Villain, 10 La. 329. Bry v. Dowell, 1 Rob. 111. Succession of Tucker, 13 Annual, 464. But after the pupilage-is terminated, and the heir is cited, he is bound to take notice of the account to which the citation refers, and of all others previously filed to which that is a.pendant, and to object to it and oppose its homologation, under penalty of being concluded by the judgment. The plea of res judicata, opposed by the executrix in this case, so far as it is based upon the judgments upon-the annual «accounts after citation of the under tutor, can not be maintained. . But some of these accounts were final as to some of the heirs. As each one-attained majority or married, and was cited, and settled with, the judgment thus rendered may not only he pleaded as the thing adjudged, but the settlement or payments made under the judgment may well be pleaded in bar .of .any. future action. Yet more. It is questionable-whether the heir can be permitted to file an opposition to the final account of his tutor, with whom he has settled the affairs of the tutorship, and to whom he has given a receipt and acquittance, before he has attacked the tutor by a direct action to. annul his receipt. Haydel v. Poursel, 1 Annual, 38. Kellar v. O’Neal, 13 Annual 172.

The opponents repudiate the payments to each of them after the rendition of the accounts, and after each one, successively marrying, had been cited,. and .take shelter, under art. 355 of the Code (art. 361 of the Revisal). which annuls agreements between tutors and pupils unless entered into after rendering a full account &c., which must be made to appear by the receipt of the pupil ten days previous thereto. It would be a reproach, if the Code furnished a shelter to those who seek to do an injustice by repudiating payments made to them in discharge of their tutor’s liability. And that this article was not thus intended, has been, long ago ruled by this court, even when the liability of the tutor was discharged, not by the payment of money, but by the delivery of property, its equivalent in value. Chapman’s Case, 13 Annual, 228.

Great reliance is placed by the counsel for the tutor’s succession ons -the effect of art. 119 of the constitution of 1868. They contend that-under it, the judgments of homologation rendered between January 1861 and 1868 are valid and final, and they argue on the basis or theory, that judgments rendered during the late war between the States, in a locality that was under the sway and subject to the jurisdiction of the Confederate States, would not have been valid without ‘an act of graco,’ such as-that Article of the present constitution.

This is not the theory that pervades the juridical history of the world. Every country that has suffered the calamity of intestine strife, and that has witnessed one portion of its subjects or citizens armed in hostile array to another, has acted upon the theory, that a government was entitled to obedience if it had the power to enforce it, and judicial tribunals-have uniformly acted upon and applied this principle. As merely an abstract proposition it is so wise, and its application practically to human affairs has been found so salutary, that it is not to be supposed the-framers of the constitution of 1868 were unmindful of its existence, or that they intended art.-149 to be more than a recognition of a rule that .'.the experience'of mankind; illumined by the gleam of centuries, has found necessary for its peace. '

In the fifteenth century, and within so small a territorial area as England, two hostile governments disputed with varying success for supremacy, and acquired or lost the possession of tracts of country with frequent alternations. During these wars of the Roses each government enforced the obedience of the inhabitants under its territorial sway, and they who rendered such obedience, whether it was enforced or voluntary, were not held to suffer for it. Blackstone thus exhibits the practical necessity for this doctrine, and its early recognition. “ When therefore an usurper is.in possession, the subject is excused and justified in obeying and giving him assistance: otherwise, under an usurpation, no man could be safe: if the lawful prince had a right to hang him for obedience to the powers in being, as the usurper would certainly do for disobedience.” Comm. Book 4 marg. 78.

Nor are there wanting decisions of the highest court of our own country upon the extent of temporary sovereignty. In 1814 the port of Castine was captured by the British forces, and remained under their command and control until after the ratification of the treaty of peace. During this period, the British government exercised all civil and military authority over the place, and established a customhouse, and goods were imported under regulations prescribed by itself. Some of these remained at Castine until after it was evacuated by the enemy, and upon the reestablishment of the American government, the collector claimed a right to American duties on the goods. The- court say — by the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over the place. The sovereignty of the United States over the territory was of course suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. Bythe surrender, the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognise and impose. From the nature of the case,'no other laws could be obligatory upon them, for where there is no protection, or allegiance, or sovereignty, there can be no claim to obedience. Castine was therefore during this period, so far as respected our revenue laws, to be deemed a foreign port, and goods imported into it by the inhabitants, were subject to such duties only as the British government chose to require. Such goods were, in no correct .sense, imported into the United States. U. S. vs. Rice, 4 Wheaton 246.

The judgments of homologation of these accounts have the force and effect that any other judgment upon a like account rendered before 1861, would have and no more. The art. .149 does not impart to them the quality of finality and irrevocability, as supposed by the counsel for the accountant, but they are governed by the same laws and the same adjudications that regulate all accounts of a tutor with his pupil.

Mrs. Bobertson’s receipts to her tutor after the fifth account, which was a final account as to her, and which was homologated after personal citation of herself and her husband, bind her, and discharge the tutor from any furtner claim of hers growing out of the tutorship. The judgment upon the eighth account, which was final as to Mrs. Boykin and Mrs. Swan, is equally conclusive as to their pretensions, and their over payment entails upon them the liability to refund.

We should not have to proceed further but that Franklin Lay did not attain majority until Nov. 3. 1874. after the death of his tutor O’Neil. The several accounts of his tutor are therefore open to his attack. The grounds alleged for opposition are elaborate and manifold. ' We shall be able to review only the most important, but have considered all.

The close of the war revealed an unprecedented situation. O’Neal had in charge the plantation of his wards, and had been so fortunate or so •discreet that he had preserved their team, and implements of husbandry, and had corn and pork sufficient to last through the year. He convoked a family meeting to take advice, and it advised that he should hire laborers and work the plantation at the expense of the minors. •O’Neill’s special occupation or calling had been that of overseer. The family meeting recommended'that O’Neill should live on the plantation, and give his personal attention to its cultivation, and should receive one fourth of the products for his services. He had suggested in his petition of convocation that the property should be leased, but it appears the relatives and friends of the minors who composed the council had great confidence in O’Neill’s management, and desired to ensure his own personal services. O’Neill would not accede to their request. I-Ie could not control the labor necessary for successful planting. The freedmen were prejudiced against him, and were averse from entering into engagements with him. He leased the property to one Carter for the year 18GG.

That year opened upon a people, who had been stunned and dazed by the sudden and sweeping subversion of their whole system of labor, but who by a reaction as sudden and complete, had become buoyant and jubilant over the rich reward that was in immediate prospect for the agriculturist. O’Neill took advantage of the opportunity. His contract with Carter was eminently advantageous to the minors. He stipulated that Carter was to furnish labor, and to pay for it, and they were to divide the gross crops equally.

It was a disastrous year. The floods came, and landlord and tenant and laborer were engulfed in a common ruin. The Lay plantation was almost an exception. There were two hundred and forty-five acres in the tract. The crop of 1866 was seventy-five bales of cotton and about five hundred bushels of corn. O’Neill took half,and sold the cotton for gold, and paid it to the heirs. He was unwilling to try more experiments. The property was sold in December of that year under an order of court for partition, and the land realized twenty two thousand ■six hundred and fifty dollars in gold. We have seen that it was distributed equally.

The opponents charge that O’Neill was without authority in all this matter, and that he owes them twelve dollars per acre for the rent of their land for that year, and one dollar per bushel for six thousand bushels of corn, and something more for pork and use of implements, and eleven years of interest upon the whole. They have received the gold for the cotton raised during that year, and credit their tutor with it. Their demand is not just. O’Neill displayed extraordinary prudence and judgment in his management at this critical time, and did all that a ‘ prudent administrator ’ could do, and his wards profited by his good management.

Another item is an alleged sale of thirty bales of cotton in 1865 immediately after the close of the war, with the valúe of which the opponents seek to charge their tutor. O’Neill had credited them with the sale of exactly that number of bales in his 3d account,' but they insist they were not sold then (1863) when of course Confederate currency alone could have been obtained, but that his entry on his account was a fraud, and the cotton was in fact retained until 1865, and then sold. O’Neill’s account was prepared and filed in court during the war, and at a time when wiser men than ho thought that all the cotton in the Confederacy ought to be burned, and stronger men than he, and of more authority, were burning it whenever occasion offered or pretext could be found. It could not have occurred to him to charge himself with the price of thirty bales of cotton in an account that was to go on the records, in the hope or expectation that he would save it, and sell it with profit at that indefinite time in the far future when a treaty of peace should be made ■between the then contending governments. His act in charging himself with the price of the cotton was unsuspicious both as to time and circumstance. Besides there is no evidence, either reliable or certain, to support the charge of appropriation of money or the charge of fraud. O’Neill’s whole conduct as administrator of the property of these heirs falsifies the accusation. He did sell 114 bales of cotton on 12th. August 1865 for nine thousand dollars, and 104 bales on March 10,1866 for over fifteen thousand dollars, and he has accounted to the heirs for these sums.

Another ground of opposition is that the accounts for- the years of the war were in Confederate currency, and that the charges made in them should be scaled, so as to reduce the amount charged against the minors to their proper value in gold, and to facilitate us in doing this, we have been furnished with a tabulated statement of the value of Confederate currency at Richmond, expressed in gold, as extracted from Appleton’s Cyclopedia. The counsel for the opponents does not rely on art. 127 of the constitution, which is inapplicable to the matters in issue here, nor upon the reported cases in this State immediately succeeding the war, which we do not regard as precedents, wherein a doctrine was maintained which the Supreme Court of the United States has since pronounced erroneous. Thorington v. Smith, 8 Wallace, 1.

In establishing liability, as between parties circumstanced as these were, a variety of considerations intervene. Prices not only nominally large but really so had to be paid for food and clothing of minors, while their own revenue was in the main cut off. The scarcity of food and clothing of itself caused an increase in price, so that the large prices paid then were -not entirely due to the depreciation of the currency. A bottle of quinine, which cost one hundred and twenty dollars, is one of the items objected to. Of course the small value of the currency was one of the causes of this cost, but if the quinine at this moment in the State were instantly destroyed except a few bottles, the appreciation in price of those few bottles would be very considerable.

So again, the parish judge has stricken out of every one of these accounts of the war period, the excess of expenditures over receipts, on the general principle that a tutor cannot expend' for a minor more than his revenues, which is quite true as a general rale. But he lost sight of the fact, that the reason why the revenues were so inconsiderable was, that the tutor was husbanding the cotton he was raising during these years, and,'saving it to produce a revenue on a grander scale thereafter. He sold some cotton during the war, as he'was obliged to have some money, but he saved 218 bales and sold them for over twenty-fcrar thousand dollars. Part of them were raised during these years when the revenues are inconsiderable, and equitably belong to those years. If he had sold the cotton each year as he raised it, the complaint would be that the minors’ property was exchanged for valueless paper, but he would at least have got enough money to reimburse his ’expenditures. He preferred in the interests of the minors to wait, and they have been largely benefitted by his action.

This opinion would be extended much beyond its present length, were • we to examine in detail the whole of the grounds of opposition. We do not think they are sufficient to entitle the opponents to a revision of the accounts. The three daughters of the deceased have no ground of complaint whatever. Elizabeth was paid in.full, and Sara and Nancy were overpaid. We should give O’Neill’s executrix a judgment against each of them for the sum overpaid if there were a prayer to that effect in the pleadings, but we find none except in the brief of counsel. We shall reserve the rights of O’Neill’s succession in that respect.

We have already stated the apparent sum due Eranldin Lay, but it is not cerl ain that the tutor’s succession is not entitled to a reduction of that sum, in so far as the commissions of the tutor are unpaid. The calculations point to a probable deduction of $1725.85, but we are not prepared so to adjudge, nor can we grant the prayer of the executrix to relieve the succession by crediting it with all that was paid to all the heirs indifferently, and thus decree the youngest to have been paid through his sisters. O’Neill was tutor to each one of the heirs. He should have paid to each only that which was her due. Having paid more to some than were their shares, he would be entitled to reimbursement from them of the overplus if he had asked it, but he must still pay to the youngest what is justly his, and to ascertain how much that is, the claim of Franklin Lay as set forth in this suit will not be concluded but must be ascertained, in accordance with the views expressed in this opinion upon the various matters discussed and decided therein.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that there be judgment in favor of the executrix of Elias O’Neill’s succession against Mary Elizabeth Robertson, and Sara L. Boykin, and Nancy A. Swann upon their demands, and that the right of the executrix of that succession to pursue the two last named for the sums overpaid to them is reserved. It is .further ordered and decreed that there be’judgment in- favor of the executrix of Elias O’Neill against John Franklin Lay as in case of non-suit, and that she, as executrix recover of the opponents the costs of both courts.


author: DeBlanc, J.

text:
    No. 645.
    Hugh Allison, Liquidator, vs. Frank Thomas, Administrator, and L. Rosenfeld.
    Where a surety has alleged in his defense, a new and exonerating contrae,t, made subseuuent to the one-declared on by the plaintiff, any fact in proof of tho new contract, is admissible in evidence.
    A confession of judgment by a principal, has on the surety, only the force of a private agreement between the principal and his creditor.
    Even after a judgment against the principal, any agreement made with him by tho creditor, without the assent of tho surety, which defers payment, or in any wise impairs tho recourse of the surety against the principal, will discharge the surety.
    Orders of court should and must be executed — not at tho risk and peril of tho officer charged with their execution..but at the risk and peril of those who dare disregard or resist those orders.
    APPEAL from the Twelfth Judicial District Court, parish of Franklin. Taliaferro, J.

      Wells & Corkern, for plaintiff and appellee.

      Morrison & Farmer, for defendants.
   The opinion of the court was delivered by

DeBlanc, J.

As receiver and liquidator of tho lato firm of Hugh Allison & Co., plaintiff claims from defendants, the sum of six hundred and fifty dollars, with interest thereon at the rate of eight per cent'per anuum from the seventh of December 1869. His action is based on a bond furnished by one'Van Thomas as principal, and Leopold Eosenfeld as his security, to release some cotton and com sequestered from said Yan Thomas, to satisfy the price of supplies advanced to him by the aforesaid firm.

That the writ of sequestration was properly granted, there can be no doubt: Thomas was certainly indebted to the firm of Hugh Allison & Co., for supplies furnished him by the latter, to enable him to carry on his plantation during the years 1869 and 1870. The evidence of that debt was duly recorded, and, in violation of the law and his contract, Yan Thomas was attempting to part with and dispose of the crop of 1869, with the view of defeating his furnishers’ privilege, when they applied fornand obtained an order of sequestration, commanding the seizure of said crop.

The writ of sequestration was placed in the hands of the sheriff of the parish of Franklin. Ho proceeded to execute it, but the only evidence that he did, is the defendant’s judicial admission that his cotton and corn were sequestered. That admission is contradicted by the sheriff’s return; for, in that return, he states that, after the seizure, the cotton, which never was in his possession, was moved in his presence and against his will, by threat and force. We hope that this return is the last of that description which shall be made in our State. Orders of court should and must be executed, not at the risk and peril of the officer charged with their execution, b.ut at the risk and peril of those who dare disregard or resist those orders.

The condition of the bond of release is that, “if the said Yan Thomas, or his surety, the said Leopold Rosenfeld, shall well and truly deliver unto the sheriff of the parish of Franklin, or his successor in office, the corn and cotton sequestered by said sheriff, when ordered to do so by the court, then the bond to be void — otherwise to remain in force. That bond- was given on the twenty-ninth of January, 1870, and it was declared forfeited, and transferred to the plaintiff on the second of December 1873.

The cotton and corn passed, or rather remained in the possession of Yan Thomas and Rosenfeld. The latter disppsed of the cotton and of the proceeds of its sale. Their object was accomplished: they had substituted, in lieu of the sequestered property, one of those bonds intended as a protection to both, the debtor and the creditor, and which, now, is a danger to the creditor; a bond which, in the correct estimation of plaintiff’s counsel, is always given with the invariable intention of violating its condition, and of doing the very reverse of what the parties bound themselves not to do.

It is manifest that, at the date it was subscribed, the bond sued upon was, in substance and in form, a valid bond, and that, shortly after its execution, it could have been enforced. Has it ceased to be valid ? Can it still be enforced ? If not, since when and for what causo ?

On the sixth of September 1870, Yan Thomas moved that plaintiffs’ sequestration be dissolved: his motion was tried and overruled, and, on the eleventh of March 1871, he confessed, in favor of said plaintiffs, a judgment acknowledging their claim and their privilege on the sequestered property. By the terms of that judgment, the acknowledged claim was to bo paid in four instalments maturing respectively on the ninth day of June, September and December 1871 and March 1872. The confession made by the debtor and the delay granted by the creditor were the result of a compromise, and constituted, as to said delay, a new contract, one to which Rosenfeld was not a party and to which it does not appear that he gave his consent.

Whatever it was, that compromise suspended the creditor’s action from March 1871 until November 1872. Yan Thomas died, and, at the last mentioned date, the firm of Hugh Allison & Co. brought suit on the sequestration bond, against the succession of said Thomas and Leopold Rosenfeld. The proceedings in that suit were mislaid and a subsequent action filed against said parties,by Hugh Allison, as liquidator of the aforesaid firm. In that action, he alleges that the succession of Yan Thomas is insolvent.

Rosenfeld alone appeared in court, and, in his answer, he contends that he never was legally bound, as the surety of Van Thomas, and that if he was, he has been released by the compromise already referred to and entered into between said deceased and the firm' of Hugh Allison & Co. On the trial of this case, he offered to prove, by one of plaintiff’s witnesses, that the consideration of Thomas’ confession of judgment was that, as they became due, his (Thomas’) warrants for his salary as parish judge, would be received by his creditors, in payment of their claim against him. - The evidence of that fact was rejected by the lower court, on the grounds that it is irrelevant, and that the surety could not be heard to set up defects and irregularities in the judgment.

To the ruling of the court defendant excepted.

The evidence sought to be elicited was proper and legal. It tended to show the existence of a subsequent agreement between Van Thomas and the firm of Hugh Allison & Co. The terms and the mode of payment were changed: the creditors had agreed to receive, in payment of their claim, the warrants of the parish judge, and, if established, that fact, as the delay allowed to the debtor, discharged the surety.

It is urged that a judgment had been rendered against the principal, and that the surety could not be heard to set up its defects and irregularities. This, we imagine, was not the object which defendant had in view. . He was merely striving to prove that, for the confession of that judgment and tho prolongation of time, there had been a consideration, and what it was. This, he had the right to do.

As to tho surety, the confession of judgment by his principal, was but the evidence and had but the value of a private agreement between the 'principal and his creditors, made executory by their will and consent, and not, as in other cases, by exclusively the decree of the court.

[It has been correctly held, and we adhere to that conclusion, that, though by judgment the surety becomes absolutely bound for the debt of his principal, the creditor can do no act by which the rights or recourse of said surety against tho debtor may be destroyed or impaired: if he does, he releases the surety in the same manner as if no judgment had been obtained.] 3 R. R. 299.

[In law, what was the time fixed for the return of the released property, for a compliance with the obligation of the bond ? "Was it, could it have been one year after the rendition of the judgment recognizing the creditor’s claim, the creditor’s privilege ? Assuredly not.. That term could not, legally, extend beyond the spac.e of time within which a judgment could have been obtained and executed.]

Instead of ,that, the confessed judgment itself was made payable in 'four distinct instalments,, and one after'the other the four fractions of that judgment matured, without any action on the.part of the creditors. After the delays first agreed upon, three additional delays were granted to the principal on the bond, from June 1871 to March 1872.

Were the excluded evidence before us, had defendant been allowed to prove that there was a settlement between Thomas and the plaintiff, to what irresistible conclusion would that evidence lead ? That, when the creditors of Thomas ascertained that the cotton had been shipped and was out of reach, that his recognized privilege was no longer an available security, that he was left with but an action on one of those bonds which so often impeded the course of justice and the enforcement of ‘the most legitimate rights, he exchanged the hope of recovering by that expensive action for the promise to be paid in warrants.

[Plaintiff has alleged, but has failed to prove the insolvency of the principal on the bond. If he died insolvent, when did he become insolvent ? Was it before, during or after the extension of time granted by the creditor ? If it was during and after the extension, when it would have been either premature or too late for any successful action on the part of the surety, the latter’s liability was discharged.

In his treatise on obligations, Pothier maintained that “ when the creditor accords the debtor a prorogation of time, this does not prevent the surety from acting against the debtor, and providing for his indemnity, if he perceives that the fortune of the debtor is beginning to diminish.” Until 1825, this was the legislation in our State. Since then, what is the law?

The prolongation of the terms granted to the principal debtor without the consent of the surety, operates a discharge of the latter.” R. C. C, 3063.

Pending the discussion ’on this amendment to the Code of 1808, the jurisconsults submitted to the Legislature the following remarks:]

“Notwithstanding the respect due to an authority of such weight as Pothier, we do not think that his doctrine is in accordance with general principles, as applicable to matters of suretyship, nor that.it is just to drive the surety to the recourse he indicates. The obligation which the surety contracts is to pay at the time fixed by the contract, if the debtor himself does not. ' This security is given for a limited time. When the time for performing the obligation arrives, the surety should have the right of insisting on the execution' of the contract,-that he may be discharged, or at least that he may be informed of the amount which he has to pay. To prolong his obligation beyond the term fixed, is to force him beyond his undertaking, to subject him to conditions to which he did not mean to submit. In form, it is changing his contract.

Twenty-four years ago, commenting on a case more doubtful than that submitted to our consideration, this court said: “If defendant had paid the whole of plaintiff’s' claim, and demanded a subrogation, of his rights, plaintiff could not have given it. By his agreement, which was a prolongation of time granted to the principal debtor, without the consent of the surety, ho was estopped from present suit. Then, the co-surety’s-right under the contract had been changed, to the co-surety’s detriment, by the act of the creditor; and, therefore, the co-surety’s liability was discharged. ' 8 An. 75-6.

In this case, the prolongation of the term was not a mere indulgence on the part of the creditors: it is evidenced by the confessed judgment, and it was the result of an agreement which suspended the execution of said judgment, the enforcement of the claim against the debtor or his surety, and which, necessarily, not only suspended, but absolutely precluded, during the allowed delay, any payment by the surety and his subrogation to the creditor’s rights.

Under these circumstances, wo conclude:

1. That a new contract may have been, and, probably, was entered into between plaintiff and defendant, as to the mode of satisfying the claim of the former against the latter.

2. That, even if there was no such contract between them, a prolongation of term was granted to the debtor by the creditor, without the consent of the surety.

3. That the confession of j udgment by the debtor, the division of the claim into four instalments, ffhd the delays fixed for the maturity of each of the instalments, justify the presumption that said judgment was a final settlement between the creditor and debtor.

A That, when the agreement took place between Yan Thomas and the plaintiff, they were aware that the cotton had been shipped, the condition of the release bond violated, and that, by said agreement, the confession of judgment and the extension of time allowed and accepted, Thomas’ creditors tacitly renounced to their recourse on the bond and against the surety.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is hereby annulled, avoided and reversed.

It is further ordered, adjudged and decreed that plaintiff’s demand against Leopold Rosenfeld be and the same is hereby rejected, and that the costs of this appeal and of the lower court be paid by said plaintiff.

Rehearing refused.