author: Egan, J. Marr, J.

text:
    No. 6904
    Marietta J. Brown and Husband vs. J. N. Brown, Administrator.
    The parish court in which a succession has been opened, and which has thus ' aeauired control of the property of the succession, has jurisdiction of a suit brought by the heirs of the succession to enjoin and prohibit the nominal administrator of the succession from acting as such, and from executing a certain judgment obtained by him, as administrator, in the district court.
    The object of such a suit is not to enjoin the judgment of the district court, but merely to prevent an alleged unauthorized person from executing it. In a suit like this the dissolution of the injunction might work irreparable injury to the plaintiffs, and other heirs and creditors of the succession, and hence, if properly issued, should not be dissolved on the bond of the defendant; more especially, when the amount of that bond is too small to protect the property of the succession from spoliation and waste.
    Where it appears that the petition for an appeal from a decree of court rendered in chambers ivas filed in open court, on the same day, and immediately after the decree yras rendered, and in the presence of the counsel of plaintiff and defendant, it will be held that the appellee was sufficiently cited.
    ^PPEAL from the Parish Court of Red River parish. Broughton,

      Joseph H. Pierson and L. B. Watkins for plaintiffs and appellants.

      J. F. Pierson and W. H. Jack for defendants.
   The opinion of the court was delivered by

Egan, J.

This appeal is from an order dissolving, on the bond of the defendant, under article 307 of the Code of Practice, an injunction sued ■out of the parish court of Red River to restrain and prohibit the defendant from acting as administrator of the successions of the father and mother of the plaintiff, and especially from proceeding, as he was about to do, to execute a judgment of the district court for that parish, •obtained by the said defendant, in said capacity, against a sister of petitioner, in a suit for the recovery of a valuable tract of land and several thousand dollars rents. The merits of the injunction suit or the propriety of the issuance of the injunction are not before us in this appeal. That its character may be further understood, however, as bearing upon the present appeal, it is sufficient to state that it is alleged among other things that the plaintiff and others interested had brought suit in the parish court from which the injunction was obtained against the same defendant, who was acting as administrator of said successions, to have him decreed not to be the lawful administrator thereof, because there was no order appointing, no advertisement of his application, no commission issued to him, and because he had not taken the oath of office, had not had a proper inventory taken, having only had inventoried a very small property, two or three hundred dollars in amount, and had given a bond of only $éC0, whereas, by his own judicial and other allegations and admissions, the property of the successions which he sought to control was and is worth between fifteen and twenty thousand dollars, and yields a large revenue; all of which, if unrestrained by injunction, would fall into his hands and be possessed and controlled by him, especially through the instrumentality and execution at his instance of the before mentioned judgment of the district court of Red River; all to the great and irreparable injury of the plaintiff and other heirs and parties interested. Besides the insufficiency of bond and other matters stated, it is further alleged that the defendant is insolvent. This injunction proceeding seems to have been sued out in aid of the suit for amotion or destitution as it is called by the plaintiff, if such it can be styled, and the prayer is that the defendant be restrained especially from attempting to control and execute the before mentioned judgment of the district court, and thus possess himself of so large an amount of property of the successions until he shall cause himself to be regularly appointed administrator, and give bond in accordance with law sufficient to cover the true value of the property.

The petition is somewhat inartificially drawn, and the particular act sought to be restrained by the injunction is the provoking by the defendant of the execution of a judgment of the district court not against the plaintiff, but another person, and his thereby obtaining possession and control of largely valuable assets and property of the successions. It is urged that the parish court was without jurisdiction to enjoin the execution of a judgment of the district court, and that, without passing upon tlxe merits of the present appeal, we should so adjudge. The proposition would bo correct if the validity of the judgment itself or its execution were attacked; but such we do not understand to be the case here. It is the right and power of one whose authority is denied to contest and order the execution of the judgment as an act of administration of a succession of which he is not administrator; and the existence and attempted execution of the judgment are only alleged as they affect and bear upon the attempt of an unauthorized person to control and possess himself by that means and through that instrumentality of 'property of the succession, .to the danger and apprehended detriment of the heirs and other parties in interest. The real object of the injunction was then to protect the property of a succession of which the parish court had jurisdiction from the unauthorized control and possession of one who claimed to administer it. by virtue of authority derived from the same court, and while a proceeding was actually pending in the same court which issued the injunction to test his right to do so, or to make him take the oath, give the bond, and have the inventory taken, as required by law. To this real purpose the allegation as to the judgment and execution was merely subsidiary and incidental, and seems only to have been made as would have been the allegation of any other act or fact not involving the judgment of any court through which danger to the succession and heirs was apprehended. Eor this purpose, and with this view, and to this extent, the parish court had jurisdiction as a necessary incident to its power to appoint and remove administrators, and to control the administration of succession property; not to stay the execution of a judgment of the district court, for that we do not think has been attempted here, but to control and prevent the defendant, who claimed to act by its authority, from attempting to do this particular act of administration until he had first qualified himself and given proper and sufficient bond. Was this, then, a proper case for the dissolution of the injunction on the bond of the defendant? We think it was not. If the injunction were properly issued and maintainable at all, a matter not now before us, the-grounds upon which it was sued out were such that its dissolution on the mere bond of the defendant in favor of the plaintiff would work irreparable injury in the sense and meaning of the law not merely to the plaintiff, one of the heirs, but to the other heirs and creditors, and to the succession itself, none of whom, except the plaintiff, are in any manner protected by the bond given in favor of the plaintiff. Again, according to the allegations of the petition, which for the purposes of this case are taken as true, the amount of bond required, $1250, is wholly inadequate to protect against spoliation and waste property to so large an amount as that alleged by the plaintiff.

The appeal was then rightfully taken, not only because it was not a proper case for dissolution on bond but also because the bond required was too small. To take any other view would be to avoid all the provisions of the law in regard to the character and amount of bond, and other prerequisites to the rightful administration of estates. Any one might otherwise first apply for the administration of a succession, and then when restrained from acts of administration might proceed to administer without complying with the law in any respect by simply giving a bond to dissolve the restraining order, the effect of which would be to evade the law and enable him to deal illegally with the estate and its property.

We are asked to "dismiss this appeal for want of citation to the ' appellee. It appears from the entries in the record that, to use its own language, “the court met in chambers on the twelfth of December, 1877, at the courthouse, in the town of Coushatta, that the defendant moved the court to ‘suspend’ the injunction on his giving bond, that it was so ordered, that all the papers and proceedings in the suit were filed in ■ evidence, and immediately following that ‘petition for appeals, suspensive and devolutive, (were) filed in open court,’ and the usual orders thereon granted, all on the same day and at the same time, and that thereupon the court adjourned sine die.” The judge thereupon' signed officially and certified to all of the foregoing facts. The petition for appeal is then given, and then the order of appeal, which ends in these words: “ Done, read, and signed during the chambers trial of said proceeding herein, on this twelfth of December, 1877. A Ben Broughton, Parish Judge of Bed Biver parish, La.”

While the manner of proceeding seems to have been somewhat anomalous, we think it sufficiently appears that all the steps taken, including the appeal, were had contradictorily with each other, and in the presence of both counsel for plaintiff and defendant, and under the peculiar circumstances of this case that the motion to dismiss the appeal for want of citation should be and it is overruled; and on the merits

For the reasons assigned, it is ordered,-adjudged, and decreed that the order dissolving the injunction sued out in this case upon the bond of the defendant be and it is amended, and the injunction reinstated. It is further ordered that the defendant, J. N. Brown, pay the costs of this appeal and of the proceedings in the court below upon his application to release the injunction on bond.

Dissenting Opinion.

Marr, J.

I do not concur in the opinion and decree just pronounced. J. N. Brown, as administrator of the successions of his father and mother, recovered judgment in the district court of Red River parish against his sister Elizabeth, declaring to be simulated the title by which she held certain real property, and decreeing the same to belong to the successions; and in the same judgment she was condemned to pay $3000 for rents and revenues.

Soon after this judgment was rendered, Marietta J. Brown, a sister and co-heir of the parties to that suit, authorized by her husband, filed a petition in the parish court of Red River, setting out various causes of injunction; and concluding with a prayer that J. N. Brown be enjoined from procuring or causing to issue “ any writ of possession or execution under said judgment, and from taking possession of said property, or of its revenues, under or by virtue of said writ, until he causes himself to be regularly appointed, and gives bond for one fourth over and above the proved value of the said successions.”

The general rule is that the court which rendered the judgment has exclusive authority to execute it or to arrest the execution. Code of Practice, arts. 617, 629; Olger vs. Daunoy, 7 N. S. 658; Borne vs. Porter, 4 Rob. 57; Nolan vs. Babin, 12 Rob. 533; Donnell vs. Parrott, 13 An. 252.

To this rule there is this exception, founded in necessity and recognized by jurisprudence: When a judgment has been rendered in one parish, and execution issues to another, the competent court of the parish in which it is to be executed may enjoin. Cavelier vs. Turnbull, 8 Mart. 61; Lawes vs. Chinn, 4 N. S. 390; Hobgood vs. Brown, 2 An. 323; Police Jury vs. Michel, 4 An. 84.

I can not consider the injunction asked for and granted in this case as any thing but an interference with the authority and jurisdiction of the district court, by arresting, prohibiting, the execution of a judgment rendered by that court; and in violation of the Code of Practice, arts. 617, 629, and of the jurisprudence established by the decisions just referred to, from 8 Martin, in 1820, down to 13 An., in 1858, and not since questioned by bench or bar, so far as I am informed.

The parish court had exclusive jurisdiction to appoint Brown administrator, and to remove him; and to compel him to have a proper inventory taken and to give the security required by law. It was the right of the plaintiff, as one of the heirs of her father and mother, to take such proceedings in the parish court as might be necessary to protect her interests, either for the removal of the administrator or to compel him to have a proper inventory taken, or to give bond and qualify according to law; and she might, at the same time, have gone into the district court and obtained an injunction staying the execution of the judgment of that court pending the proceedings in the parish court. The pendency of these proceedings in the parish court, which is vested with exclusive jurisdiction of such matters, would have been ample cause for the injunction by the district court of the execution of its own judgment in favor of Brown in his capacity as administrator. I do not think the parish court had any power or jurisdiction to grant the injunction. I can not imagine any necessity for a resort to that tribunal, since the jurisdiction of the district court was complete, and, in my opinion, exclusive, to suspend the execution of its own judgment, for the alleged causes, although it had no power to deal with the causes themselves, otherwise than by refusing to proceed until these causes were passed upon and disposed of by the court having exclusive jurisdiction of them.

I think the parish court was-absolutely without jurisdiction; that the entire proceeding in that court was coram non juclice and void; and that we should so declare by our decree.


source: Caselaw Access Project

author: Egan, J.

license: Public Domain

text:
    No. 6958.
    Wm. M. Lovell vs. James A. Payne et al.
    When a certain fact put at issue by the pleadings is peculiarly within the knowledge of the defendant, such for instance as the consideration of a transfer made by him, the burden of proof is on him to show that fact.
    A fixed price is as essential to the validity of a giving in payment, as it is to a sale.
    A (lotion enpaiement made by an insolvent debtor to one ol Ms creditors is fraudulent, and may be set aside.
    The return of a writ of fieri facias against a party, unsatisfied, is evidence of his insolvency.
    Every fraudulent act of a debtor, no matter what its form, may be attacked by any creditor who has been prejudiced by it.

      k PPEAL from the Fifth Judicial District Court, parish of East Baton rl Rouge. Me Vea, J.

      Favrot & Lamon for plaintiff and appellant.

      J. & G. W. Burgess and G. W. Buckner for defendants.
   The opinion of the court was delivered by

Egan, J.

This is a revocatory action to set aside certain alleged fraudulent transfers of property, rights, credits, etc., made by Payne, a judgment debtor of plaintiffs, to Mrs. Grace Timms, one of the defendants. The petition contains the usual and necessary allegations of fraud, insolvency, and injury; alleges the want of any fixed price, or price in money, for the transfers attacked. The answers admit the transfers, deny the fraud and insolvency, aver the existence of a valid and valuable consideration, and of other property belonging to the debtor, more than sufficient to pay plaintiff’s debt.

The transfers were of judgments, notes, etc., amounting to many thousands of dollars, and were made subsequent to the institution of suit by plaintiff to a daughter residing in West Yirginia through an attorney and agent residing in Louisiana, who admitted the possession of the property transferred, on the trial. The only evidence of any consideration for the transfers is that of Payne himself, who stated on another occasion (not on this trial) that the transfers were made on account of indebtedness to Mrs. Timms. He says: “ I am largely indebted to Mrs. Timms, and made these transfers to pay her with other claims and judgments. In the case of Payne vs. Ronnseville & Elliott, 1670 district court, there was no stipulated price for the transfer. I am unable to fix the amount of my indebtedness to Mr. Timms. It is more than I am able to pay.” This is the only evidence going to show any consideration for the transfers attacked, notwithstanding that was directly put in issue. The burden of proof was upon the defendants to prove facts peculiarly within their knowledge. They have not done so in this important particular. Indeed, neither Payne nor Mrs. Timms testified on the trial below, and even the existence of any indebtedness to the transferee is not otherwise shown than by the statement of Payne just recited, which was given in another judicial proceeding and introduced here by the plaintiff.

The attorney and agent who received the transfers testified on the trial to that fact and to his authority to do so, but nothing more; not a word as to any knowledge of indebtedness by Payne to Mrs. Timms. See 15 An. 509, 663; 20 An. 97, as to effect of failure to produce evidence on a material point, and especially as to proof of price of transfer in a case like this. See 12 R. 95. But were the indebtedness established beyond question, the transfers would at most be only a giving in payment, to which' a fixed price is as essential as to a sale. C. C. 2655. There is no sum stipulated or shown to be due. Though it be a debt, the amount of that debt must be shown. 10 La. 151. Kleinpeter vs. Harrison, 21 A. 197. Though the consideration was really a debt due, however, it could only have been lawfully paid in money when the debtor was insolvent. C. C. 2658.

A sale to pay one creditor, even ignorant of the debtor’s insolvency, is a fraud on the other creditors. 2 La. 18; 8 La. 308; 14 La. 367. It is denied that Payne was insolvent, and it was attempted to show by the evidence of two or three witnesses in the trial that they owed him more at the time of the judgment and after the transfers attacked than plaintiffs’ debt, and had since paid him. This indebtedness is stated to have been for money loaned or advanced, to have been evidenced partly by note and partly by account, but how much by note and how much by account is not shown. It is hardly probable that any considerable sum of loaned money was on mere account, or that one who was evidently transferring the great bulk of his means in view and anticipation of plaintiffs debt being put in judgment would leave these claims open to seizure. They were doubtless protected against it by the form of the notes or evidences of debt. A fieri facias was issued upon plaintiffs judgment, and the defendant pointed out as the only property subject to seizure an iron safe. He was assessed for no property on the tax-rolls, and after the garnishment of a debt which yielded a little over four hundred dollars, the sheriff being unable to find any thing else subject to seizure, the fieri facias was returned unsatisfied except as to the credit stated. This was evidence of the debtor’s insolvency, or practi•cally the same thing, that there was nothing belonging to him within reach of the process of the law. See C. P. 643 and 647 as to duty and manner of procedure of the sheriff and what may be seized. Will it be «aid that a transfer made in fraud of and to defeat the rights of creditors can not be set aside, because after transferring the great bulk of his property and assets to large amount, and without any consideration or in any manner recognized by law, it can not be avoided, because the debtor may control out of reach of his creditors some remnant of means when he himself confesses his insolvency. Either his statement that he owed Mrs. Timms is to be accepted as true or not. If not true, then there was no consideration for the transfers. If true, they were in fraud, besides the other reasons mentioned, because that indebtedness is confessed by himself to be more than he can pay, which itself proves insolvency. Again, he does not state that he received or had given up to him any evidences of debt, any obligations or other consideration, and it is shown by Mrs. Timms’s agent that most of the notes were merely handed over to him without any formal transfer at all. We think the case is with the plaintiff, if not on the score of insolvency and injury, most certainly on the ground that there was really no valid or legal transfer at all, and that what was done and attempted was done in fraud of plaintiff’s rights as a judgment creditor. No matter what the shape or form of the attempted fraud, it was open to attack by any creditor prejudiced. C. C. 1968 and 1969; 6 An. 552; 10 An. 18.

The judgment of the district court was against the plaintiff in his demand to revoke and set aside the fraudulent transfers; it was erroneous, and is avoided and reversed; and it is now ordered and decreed that the transfers and conveyances made by James A. Payne to Mrs. Grace Timms, wife of Jules L. Timms, of the promissory notes and judgments described in plaintiff’s petition be and they are declared and adjudged illegal, fraudulent, and null and void in law, and that said notes, subscribed by Andrew S. Herron, Thomas J. Buffington, and R. M. & D. M. Walsh, by Mrs. Mary C. Pierce, wife of S. M. Pierce, by M. J. Williams, by M. C. Blessing, and the judgments against Tim Duggan, Joseph L. Bernard, David Ahern, and Mrs. Miller, Nos. 2322, 2412, 2413, and 2056, described in plaintiff’s petition, together with all accessory mortgages and securities, be declared to be the property of James A. Payne, and subject to be seized and sold to pay and satisfy the judgment and debt of plaintiff as such or otherwise subjected to the payment of his said debt and judgment according to law. It is further ordered and adjudged that the defendants pay costs of both courts.


text:
    No. 7012.
    State ex rel. John J. Barrow, Sheriff, et al. vs. Charles L. Fisher, Treasurer.
    Wliera the police jury of a parish join in an appeal from a judgment making peremptory a mandamus against the treasurer of the parish on account of alleged services rendered, and expenses incurred in behalf of the parish, no affidavit of interest is required of the police jury. The interest is patent on the face of the record.
    It is the duty of the treasurer of the parish to register and he may be mandamused to register the claims of the sheriff for all expenses incurred by him on account of the ai'rest, confinement, and maintenance of persons accused of crime, and for all expenses whatever attending criminal proceedings, when the amount of such claims shall have been certified to as correct by the clerk of the court and the presiding judge thereof, and presented to the treasurer for registry within sixty days thereafter. But the treasurer is not bound to register claims for services, or expenses not rendered, or incurred in criminal proceedings, not even if certified to as correct by the clerk and presiding j udge.
    The sheriff of a parish can not be compelled to accept a certain sum, or sums of money in lieu of his fees of office, unless ho has voluntarily contracted with the police jury to do so.
    Neither the registry by the treasurer of an account against the parish, nor its indorsement by him under the statute, amounts to the issuance of scrip, or negotiable obligations of the parish.
    The fact that no money is in the parish treasury when a proper claim for registry is presented to the treasurer is no reason why the claim should not be registered.
    APPEAL from the Seventh Judicial District Court, parish of West . Feliciana. Yoist, J.

      W. W. Leake for relator and appellee.

      C. L. Fisher for himself.

      Joseph L. Golsan, district attorney pro tem., for the police jury, intervenors and appellants.
   The opinion of the court was delivered by

Egan, J.

In this proceeding by mandamus, relator seeks to compel Charles L. Fisher, treasurer of the parish of West Feliciana, to register certain claims which he alleges are due by the parish to him in his official capacity oí sheriff, ior services rendered in criminal and other matters, for which the parish, under the law, is liable. The evidences of the indebtedness by the parish to him are shown by the certificates of the clerk of the court and district and parish judges of the parish.

The defendant, the treasurer of West Feliciana, for answer why the mandamus nisi should not be made peremptory, represents—

First — That the accounts against the parish have never been approved' or allowed by the police jury, or according to law.

Second — Denies that the claims are legal and valid claims against the parish, or such claims as defendant is required by law to register as. claims against the parish. *

Third — That the police jury, of which the defendant is a ministerial officer, is vested with discretionary powers to approve, allow, and pay any and all claims against the parish, before said claims have been adjudicated judicially.

Fourth — That the law affords the relator adequate relief by the ordinary means to have his demands judicially determined.

Fifth — That the police jury in making up the annual budget of expenses for 1877 exercised discretionary powers, which are not the subject of judicial inquiry.

(a.) That in said tableau of expenses the sum of $600 was appropriated to pay the-sheriff for all services in criminal matters, or in cases-in which by law the parish is to pay for services rendered the parish or-State, including all services rendered the police jury, as a salary.

(b.) Five hundred dollars was appropriated for maintenance of prisoners, or so much thereof as may be legally due upon account of sheriff, at twenty-five cents per prisoner per day.

(c.) Six hundred dollars was appropriated, or so much thereof as might be legally issued to pay contingent expenses.

Sixth — That no other levy or appropriation was made to pay the sheriff, except the salary of $600, and what might be legally due for maintenance of prisoners, and out of the contingent fund for contingent expenses.

Seventh — That the sheriff presented no bills for approval on account, of salary as fixed by police jury. Nor has he presented any other bills to-police jury for approval.

Eighth — That the police jury, the parish treasurer, and all the-other officers of the parish are expressly prohibited from issuing any evidences of indebtedness, or to warrant for the payment of money from and after the first day of October, 1877, except against money actually in the treasury.

Ninth — And no officer of the parish can approve or cause the issuance of paper or evidences of indebtedness in excess of appropriations..

Tenth — That the several claims presented were erroneously and illegally approved by the clerk and the district and parish judges.

Eleventh — That the treasurer of the parish is not authorized to register any such claims unless approved by the police jury.

Twelfth — That the claims for serving road notices, besides being obnoxious to the objections above, are matters with which the police jury has concern, and not the clerk and several judges.

Thirteenth — That all the claims were erroneously approved after the first of October, 1877, there being no money in treasury.

Fourteenth — That defendant could not register said claims under express provisions of a prohibitory law; that by so doing he would not only render himself liable criminally, but would thereby be the instrument of -the issuance of a lot of scrip, under the sanction of his official signature, which would have the effect of creating the belief in the public mind that there was money in the parish treasury, thus causing damage to individuals and the parish.

Fifteenth — Further, that the police jury have provided in tlieir annual budget for 1877 for the collection of a tax to pay what they admitted to be due, and the list or tableau of expenses for which they have provided contains every thing they can provide for under the general laws, and will fully come up to, if not exceed, the limitation as to the per centum which the laws have imposed.

Sixteenth — That relator has not been irreparably damaged.

The mandamus was made peremptory, and the defendant has appealed.

On Motion to Dismiss Appeal.

Before proceeding to consider the merits of this controversy we will first dispose of a motion to dismiss the appeal taken by the police jury who joined the defendant in the appeal. It is upon two grounds—

First — That there is no affidavit of interest as required by law.

Second — That they have not shown a direct pecuniary interest in the subject matter either by affidavit or otherwise.

Neither ground is well taken. No affidavit was necessary. The record discloses the interest of the parish which the police jury represents in the subject matter which is claims against the parish for alleged services rendered and expenses incurred. The interest is direct and pecuniary. The motion to dismiss is overruled.

On the Merits.

Section 1042 of the Revised Statutes of 1870 provides “that all 'expenses incurred in the different parishes of the State and in the city of New Orleans by the arrest, confinement, maintenance, and prosecution of persons accused or convicted of'crimes, their removal to prison, the pay of witnesses, jurors, and all expenses whatever attending criminal proceedings, shall be paid by the respective parishes in which the offense charged may have been committed, or by the city of New Orleans, as the case may be. Such expenses shall be paid by the parish treasurer or by the city treasurer, as the case may be, after an account thereof shall be duly certified to be correct by the clerk of the court and the presiding judge thereof.”

Section 2644, Revised Statutes, provides “ that it shall be the duty of all persons having a claim against any parish which may have been allowed by the proper authorities to present such claim within sixty days from the date of its allowance to the parish treasurer. It shall be the duty of the treasurer to keep a well-bound book in which he shall make an entry describing the claim and date of such presentation, and also indorse his name across the back of the claim, with the day and date of such indorsement. No claim shall be received by him from any sheriff or collector of taxes which has not been so indorsed.”

This is the registry which the relator sought, and the defendant refused to make for the reasons stated in his answer.

It was held in the case of Parker vs. Robertson, Auditor, 14 An. 249, at a time when, under the act of 1857, the expenses of criminal cases were paid by the State upon the certificate of the clerk and presiding judge, that the duties of the Auditor relative to accounts for such expenses were ministerial and imperative, and he must issue his warrant to the treasurer therefor. The same doctrine was reiterated in regard to the statute now under consideration in the case of the city of New Orleans vs. Patton, Sheriff, 27 An. 168, although the court in. the latter case gave to the certificates of those officers an effect of conclusiveness for all purposes which we refused to attribute to them in the State ex rel. Houston, Sheriff, vs. City of New Orleans, not yet reported. The-duty of the parish treasurer to make the registry of claims which have been allowed by the proper authorities is clear and imperative under the statute, but as was very properly held in the cases just cited, it would be otherwise if the certificate of the clerk and judge should show upon, its face — to which we will add, if the account to which they were appended should show — that they were not within the law, in other words, that the clerk and judge were not the proper authorities to allow, approve, or certify to the correctness of the accounts.

It is clear, under the statute read, that the clerk and judge were the proper officers to certify to the correctness of the sheriff’s accounts so far as they are for services and expenses in criminal cases, whether for the maintenance of prisoners in jail, or otherwise. We have, however, been referred to no law and know of none which authorizes or requires their certificates or approval of the relator’s accounts “ for serving road notices ” of which there are three in the record, amounting respectively to $14, $34 80, and $17 30, a matter which has no connection with expenses in criminal cases, and which, therefore, was within the province of the police jury or its officers. It is admitted by the defendant that the accounts of relator were duly presented to him for registry before filing the petition, and that the police jury did''not contract with him lor a salary for his services in criminal cases under the statute relied upon by the relator and the police jury, but that he has always protested against and refused to receive the salary which they attempted to fix for that purpose. It appears that the police jury did, in accordance with section 2777 R. S. of 1870, fix the fees to be paid by the local authorities, but it does not appear that the fees charged by the relator ■are in excess of the rates so fixed, nor that the amounts charged for the maintenance of prisoners exceed those fixed by the police jury under article 73 of 1877. Neither is it properly deducible from the power conferred upon the police juries to fix the amount of their fees, or the rate of compensation for such maintenance of prisoners, that they are the proper authorities to approve accounts made according to the standard fixed by them. The law on that subject remains unchanged. It is, however, urged that act number 30, of the extra session of 1877, which 'authorizes police juries to contract for fixed and determined sums of money with those officers who receive fees, commissions, and mileage in lieu of such fees, commissions, and mileage as fixed by the laws then existing, compels such officers, and among them the relator, to accept whatever amount the police jury may choose to dictate. This would indeed be a singular contract, made with an officer without his consent, and with that alone of the other contracting party. It would indeed be unilateral. Read in connection with th^ other statutes on the same subject matter and with the general law of contracts, we think a fair interpretation of this statute is that it enabled the parishes to make •contracts with officers for specific sums in lieu of fees of office, and to enforce them when made, but by no means enabled them to compel the other party to enter into the contract. The fact that the police jury undertook arbitrarily to fix an amount without his consent by no means forced the relator to accept it. Nor can it be said that the mere registry of an account against the parish, or its indorsement by the treasurer according to the statute as evidence that such registry has been made, is the issuing of script or negotiable obligations of the parishes within the sense and meaning of the law. The object of the registry and the manner of evidencing it is not that, but to enable the parish authorities to know the extent and character of its indebtedness, that they may make provision accordingly, as well as also to identify the claim with a view, as is evident from the latter clause of the statute, to its possible use in the payment of taxes, or its ready collection otherwise. But were it the issuance of such evidence of indebtedness as argued by the defendant, it is specifically authorized and required by the statute. Again, it is argued that, because there was at the time no money in the treasury, the registry of the relator’s claims could not be made. That would be a very good reason why ^aa¡merit should not, as it could not, be made, but not so registry. Suppose that the parish treasury should, as often happens, continue empty for more than sixty days after the certificates contemplated by S. 1042 of the K. S., does it follow that the provisions of section 2644, which positively requires that all claims against the parish shall be presented to the treasurer within sixty days from their being allowed by the proper authority shall be ignored and disregarded ? And yet this must be so if the defendant’s position be correct. Again, the argument would apply with equal or greater force against any claim allowed by the proper officer or authority, and yet it is the right of the claimant, and the positive injunction of the law, that such allowance or certificate bo given or made. Our attention has been called in the brief cl.defendant to two items, one of $40 and one of $104 60, for serving notices on eighty jurors and mileage in so doing, respectively. These do not come within the provisions of the statute relied upon by tb e relator and already quoted, nor have we been referred to any law of similar character covering them, ■although it would seem eminently proper that they should be covered by the same provision. It is only necessary to say of the defendant’s bill of exceptions that we have considered and discussed the evidence ■appended to it, and thus give him its full benefit. The certificates of the clerk and judge are without legal effect in other cases, and in accounts other than those contemplated in the statute; and, as we said in Houston vs. the City of New Orleans, are not conclusive of the party’s right, ■even in cases witihin the statute. They are in such cases, however, sufficient to authorize and require that the claims so certified be registered. If the parish'has any valid defense against them it may be urged in another form of action. We have given it and the defendant the benefit of all which are appropriate in this proceeding by mandamus.

It is therefore ordered, adjudged, and decreed that the judgment of the equi-t below be amended so as to disallow, without prejudice to their enforcement according to law, the relator’s demand for the registry in thejx present shape of the items of account for serving road notices, •and for notices to jurors and mileage in serving, them, and that in all ;?>mer respects it be affirmed.

It is further ordered and adjudged that the relator pay the costs of appeal and the defendant those of the court below.


text:
    No. 7036.
    D. R. Carroll & Co. vs. Mrs. Lizzie Hamilton et al. Post & Co., Intervenors.
    A iinal judgment against an intervenor in a sequestration suit, who claims the ownership of the property sequestered, has the force of res adjudícala as to those questions only that were passed on by the j udgment; and hence those questions can not be subsequently raised by the intervenor when pursued as a surety on the bond given to release the property from the sequestration. A judgment has-not the force of res adjudicata as to those who were not parties to it.
    The refusal of the lower court to continue a ease, on the ground that a material witness was absent, who had been properly summoned, and for whom an attachment was then out, will not lead this court to set aside the judgment, when it appears that the attachment for the absent witness issued six months before the trial of the case.
    The sureties on a bond given to release property sequestered, have a right, when sued on i be bond, to prove that the sequestration was invalid, and illegal; and a refusal u> allow them to introduce proof of this illegality, will be such an errólas to justify the setting aside of the judgment below.
    Sureties on the release bond have the right to prove that the property sequestered does not belong to the defendant in the sequestration suit.
    Sureties on the release bond have the right to show that the plaintiff in the sequestration suit had no lien on the property sequestered, in a ease where they have-alleged fraud and collusion to their prejudice between the plaintiff and defendant in the sequestration suit.
    Consent judgments are not binding on third persons, and therefore any third person sought to be affected by such a judgment, has a right to show its character.
    A surety on a release bond who alleges a privilege on the property sequestered superior to the lien of the plaintiff in the sequestration, has a right to prove the alleged privilege.
    The sureties on a release bond can not be held for more than the value of the property released from sequestration.
    Where a part of the sequestered property has been released by a decree of court, the value of the balance of the property must be proved' by i he plaintiff in sequestration, before the liability of the sureties.on the release bend can be Used.

    APPEAL from the Thirteenth Judicial District Courts parish of Madison. Hough, J. ' ^.

      Seale & Morrison for intervenors and appellees.

      James T. Coleman for plaintiffs and appellees.

      E. D. & W. Earrar and E. H. Farrar for defendants and appellants-
   The opinion of the court was delivered by

Egan, J.

This suit is against the sureties on a bond given to release property sequestered. The judgment on the intervention is net appealed from. There was judgment in favor of the plaintiffs against the defendant sureties, who introduced no evidence below. The case is-before us on an assignment of errors. ^

The answers set up fraud and collusion between plaintiffs and Brid-, well, defendant in the sequestration suit, and principal in the release-bond, between whom it was agreed, to the prejudice of the sureties, that judgment be rendered for plaintiffs iu that suit; that there was no valid sequestration; that the property sequestered did not belong to Bridwell, but to another, and was at the time of sequestration subject to the lessor’s privilege and right of pledge to its full value in favor of one of the defendants, Mrs. Lizzie Hamilton, now wife of Thrasher; that the plaintiffs had no privilege to support the sequestration; and that the true value of the property was much less than the amount of the bond, which also included other property, as to which the sequestration was not sustained. The case is before Us on assignment of errors and bills of exception, before proceeding to the consideration of which it is proper to notice a plea of “res acljuclicata,” filed by the plaintiffs against the several defenses set up. This applies only to^Mrs. Hamilton, now Thrasher, and rests upon an intervention filed by her in the original sequestration suit, in which she set up the same grounds now asserted in the answers of herself and her co-defendants. There was judgment both in the court below and on appeal in favor of the plaintiffs and dismissing the intervention. It is now urged that this dismissal was on an exception and without a trial on the merits. ' This is no doubt true so far as the intervenor sought in that form of proceeding to question the regularity of the proceedings and sequestration as between the plaintiffs and the then defendant, Bridwell, but we do not so understand it as to all the issues raised in the intervention. It appears from the mandate in that case, filed in this, that among the grounds stated for affirming the judgment was “ that no fraud or collusion were shown between plaintiffs and defendant.” As to that issue, then, the plea of “res adjudicata” must be sustained as to Mrs. Hamilton, now' wife of Thrasher. As to all the other grounds raised in the answers in this case, it must be overruled, and so, also, on all the grounds as to all the other defendants who were no parties to the litigation in which the judgment invoked was rendered. The first error assigned is to the refusal to continue the case on an affidavit of the absence of a witness for whom an attachment was then out under the order of the court and whose evidence bore upon a material issue, the value of the property sequestered. Sufficient reason existed for not granting the continuance, though from the affidavit alonp it would seem the party was entitled to it. The attachment had issued six months before, and no summons appears in the case. We can not sustain it as ground of error in this court.

The second ground assigned is that the defendants were not allowed to prove that there was no legal or valid sequestration to support the bond sued on, and that the writ issued without affidavit as required by law. It does not appear that this question was ever passed upon or raised between the plaintiffs and the principal on the bond. It was not an exception merely personal to the debtor, and especially in a case like the present, where fraud, collusion, and consent to the judgment between the plaintiffs and the principal in the bond are set up, we see no good reason why the sureties should not be allowed as part of their ease to prove a fact which may have had much to do with inducing them to sign the bond of release. The execution of the bond of release did not estop the principal from moving for or obtaining the dissolution of the sequestration. 1 An. 372; 2 An. 154; 13 An. 549. Why, then, deny the right to the sureties to show the facts which would have justified such a motion, when they expressly set up that they were induced to sign the bond by representations that the proceedings were irregular and would be set aside, and when it was not done through the fraud and collusion of their principal ?

The third ground assigned is that the defendants were not allowed to prove that the property sequestered did not belong to Bridwell. In the case of Quinn vs. Mays, 2 R. 510, the surety on an attachment bond was allowed to prove that the property attached did not belong to the defendant in attachment.

The fourth assignment is that defendants were not allowed to prove that plaintiffs had no privilege or lien on the property sequestered. In an ordinary case this might not be permissible aftera judgment against the principal recognizing the privilege; but for the same reasons stated under another head we think these defendants should have been allowed to prove the non-existence of the privilege when, as in this case, they set up that a fraudulent judgment, one rendered by consent, is sought to be used to bind them.

The fifth assignment is to the refusal to permit the defendants to prove that the judgment was merely by consent, and therefore not binding on them. This was error. It is well settled that consent judgments are only binding as such between the parties, and have not the effect of judgments regularly rendered contradictorily, as regards third persons. See 3 An. 34; 12 An. 426; 6 An. 2; 4 An. 276; 2 An. 907; Allison vs. Thomas and Rosenfeld, 29 An. 732.

The sixth assignment is that the defendants were refused the right to offer evidence to prove that one of them, Mrs. Hamilton, now Thrasher, had a lessor’s privilege and right of pledge upon the property sequestered superior to any right of the plaintiffs and more than sufficient to absorb the proceeds. We do not know that this concerns any of the defendants except Mrs. Thrasher, unless it were further shown that they were unable to return the property by reason of the assertion of such privilege or right; but as to her it was properly provable as part of her case, and more especially in connection with the other defenses urged. v

The seventh and last assignment is that the liability of the sureties is to be measured by the value of 'the property sequestered and which they bound themselves to return, and not by the amount of the judgment rendered in the case in which the bond is given, and that no evidence was offered by the plaintiffs to prove the value of the property in the present case, a part of which was released by the judgment. The position assumed is perfectly correct, that it is the value of the property, and not the amount of the judgment alone, which regulates the obligations and responsibilities of the bondsmen, as was decided in Barber vs. Morrison, 4 An. 372, and as is expressly provided by article 279 of the Code of Practice. The judgment may be for more or less than the amount of the bond or the value of the property. If so no more can be recovered than the amount of the bond or value of the property in the former case and no more than the amount of the judgment though less than either in the latter case. As, however, the amount of the bond is required to be fixed by the judge with reference to the value of the property and at an amount equal to that value, it would seem that the value should, prima facie at least, be measured by the amount of the bond, in the absence of proof of less value. In the present case, however, where a part of the property sequestered was released by the judgment of the court, it was essential for the plaintiffs to prove its relative value to that of the other property or of the whole, in order to measure and fix the liability of the sureties on the bond. This was not done, and is error. It does not, however, go to the dismissal of the action, but only to the remanding of the cause.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is avoided and reversed, and the case remanded to be further proceeded in according to law and the principles of this opinion.

It is further ordered that the plaintiffs pay the costs of appeal, those of the court below to abide the judgment which may be rendered.


author: Marr, J.

text:
    No. 7039.
    Ann L. Spears vs. W. L. Jackson, Administrator.
    One who purchases a claim which he knows to be in suit, and legally contested, is entitled to recover on it only what he paid tor it, with legal interest from the date of its transfer to him.
    A PPEAL from the Fifth Judicial District Court, parish of East FeliJA. ciana. Wedge, special judge.

      D. C. Hardee for intervenor and appellant.

      Kernan & Lyons for defendant and appellee.
   The opinion of the court was delivered by

Marr, J.

Mrs. Aun L. Spears, administratrix of the succession of Alexander Spears, commenced this proceeding via executiva on a note-for $3000, bearing eight per cent interest from November 30, 1868, and the mortgage by which it was secured, given by John S. Scott for the price of a plantation purchased by him of Spears. At the time this suit commenced, August 28, 1872, Scott was dead, and "W. L. Jackson was the administrator of his succession.

On the sixth of November, 1872, the attorney for Mrs. Spears acknowledged receipt from the attorney of James King of $1608 48, ‘'which, including amounts heretofore paid by James King, is in full of above mortgage claim, and I hereby transfer the same to said King, and subrogate him to all mortgages and privileges upon the same, with the understanding that the same may be continued in my name, as to conducting the proceedings for the use and benefit of said King.”

The property was advertised for sale by the sheriff under the writ of seizure and sale, on the twelfth of December, 1872. The counsel for King informs us in his printed brief that the proceeding via executiva was changed into an ordinary action by consent of parties, to allow Jackson, the administrator, to set up any offsets he might have, without resorting to an in j unction for that purpose. At what time this was done we can not ascertain from the record. We find, however, that the seizure was released on December 2,1872, and the writ returned; and this was the end of that proceeding.

On the fourth of December, 1872, Jackson tendered to the attorney of King $1608 48, with interest and costs of court, in full satisfaction of the mortgage debt, which he declined to receive.

On the eighth of October, 1873, King intervened in the suit, alleging that he was the owner of the claim; and praying for judgment against Jackson as administrator, with recognition of the mortgage and vendor’s privilege. Service was accepted by Jackson’s attorney; and on the tenth of October Jackson answered, alleging that the transfer by Mrs. Spears to King was made pending the suit, and that it was the sale of a litigious right; that he had tendered to King the amount paid by him, $1608 48, with interest and costs to the date of the tender; and that King was bound to take that sum and interest in full payment. He also alleged that the sum so tendered was the only amount due on the note sued on.

There was no other pleading on the part of Jackson, and none on the part of King, except the petition of intervention, and the plea of prescription filed on the tenth of October against any and all accounts set up by Jackson as administrator, no reference to which is made in the answer.

The special judge who tried the case rendered judgment in favor of King for $1608 48, with interest at five per cent from the sixth of November, 1872, with recognition of the mortgage on the property described, 'Scott’s administrator to pay the costs up to the tenth of October, 1873, and King, the intervenor, to pay those accruing since that date; and King appealed.

In this court the intervenor insists that he is. entitled to the full amount of the note, with eight per cent interest from the thirtieth of November, 1868, less $468 73 paid by Scott to Spears on account. Scott’s administrator contends tha.t he is bound only for. the $1608 48, with interest from the date of the transfer, because that is the amount paid by King for the claim, when it had become a litigious right; and because Scott had made payments to Spears on account, which reduced the debt to that amount.

The term litigious rights is used in the Code in two senses:

First — With respect to public officers, such as judges, attorneys, sheriffs, and clerks, who are forbidden, under pain of nullity, to purchase litigious rights which fall under the jurisdiction of the tribunals in which they exercise their functions. R. C. C., art. 2447.

Second — With respect to all persons, whomsoever, against whom litigious rights may have been validly transferred. R. C. C. 2652.

Article 2447 does not define the litigious rights which it forbids public officers connected with the administration of justice to purchase; and the meaning of the term is to be sought in article 3556, which defines terms of law used in the Code, “ and not therein particularly defined.” No. 18 of this article says: “Litigious rights are those which can not be exercised without undergoing a lawsuit;” and the litigious rights referred to in article 2447 are all such rights as fall within this definition.

Article 2652 authorizes him against whom a litigious right has been transferred “to get himself released by paying to the transferee the real price of the transfer with the interest from its date.” The next article furnishes the definition : “A right is said to be litigious whenever there exists a suit and contestation on the same.” It is in this sense that the term is used in article 2652. See Pearson vs. Grice, 6 An. 237, 238.

It is proven in this case by the testimony of Jackson, and by that of Herndon, who was the book-keeper of Scott & Cage, of their successors, Scott & Jackson, and of their successor, John S. Scott, that Spears was indebted to Scott & Cage in the sum of $157 56 for supplies furnished up to December, 1868; that on the fourth of December, 1869, Scott paid Spears $1000 on account of the note, which was due thirtieth November, 1869; that at same date Spears was indebted to Scott & Cage, in the sum of $275 33 for advances and supplies; and that in 1870 and 1871, Scott & Jackson made advances in money and supplies, amounting to $729 25, of which Spears paid $260 52 on the thirteenth May, 1871, leaving balance on this account $468 73.

Herndon and Jackson both saw Scott pay the $1000. Jackson was in the office of Scott & Cage, and saw Scott hand the book-keeper, Herndon, a check; Herndon went out, and returned in a few minutes, and handed to Scott a sum of money, out of which Scott gave Spears $1000 on account of the mortgage note. He says the conversation between Scott, Spears, and himself was about the property purchased by Scott of Spears.

Herndon could not find the check nor any receipt for the $1000; but he found the check book, and got the stub with the memorandum on it which he had made. What appears to be a facsimile of this stub is copied in the record; and it shows that the check was No. 276, date fourth December, 1869, to the order of J. S. Scott, for $1500, of which to A. Spears $1000, change $500; and that this latter sum was deposited again “ as could get no small change.”

He also testifies that in the spring of 1872 Spears was in New Orleans; that a statement of all the accounts of the several firms of which Scott had been a member, including the $1000, was furnished by him to Spears, and acknowledged by Spears to be correct; that Spears desired Scott to allow Herndon to go to Feliciana and indorse on the note Spears held for the price of the plantation all the credits to which Scott was entitled on these several accounts; “and it was then he acknowledged the correctness of all the accounts.”

He adds that Spears died suddenly on the boat, on the trip home, immediately after this. We may well understand, therefore, why Mrs. Spears was ignorant of this business, and why the credits are not on the note in accordance with the final understanding and settlement between Scott and Spears in the spring of 1872.

Our attention is called to a bill of exceptions taken by intervenor to the verbal testimony to prove the payment of the $1000, on the ground that the check on which the money was drawn would be the best evidence. This objection is not well taken. The payment was not by check. The check was for a larger amount; and it was payable to the order of Scott. If it had been produced, it would simply have proven that Scott on that day withdrew from the Citizens’ Bank $1500. The memorandum on the stub, contemporaneous history, made by the book-keeper, enabled Mm to tell what became of the money, which the check itself could not have done. It is only where the check is to the order of the person to whom the money is paid that it affords evidence of such payment.

The testimony offered by intervenor is exceedingly meager and unsatisfactory. Judge McYea, the only witness, was attorney for Mrs. Spears: and he is satisfied she knew nothing of any payments except as stated by King. There is proof that General Hays, now dead, then a member of the New Orleans bar, professing to represent King, as he no doubt did, called on Jackson, after Scott’s death, for a statement of Spears’s account, which was furnished him. There is nothing to show the motive of King in asking for this statement, nor is it proven that he received it. It is evident, however, that he was not ignorant of the state of the accounts between Scott and Spears at the time he acquired the mortgage claim. A statement was made up of the amount due on the note, in which are credited as payments by King, on February 21,1871, @1550, and on July 1,1871, @150; and as a payment by Scott on March 21, 1872, @468 73; showing balance due November 5,1872, @1608 48, the amount for which the mortgage claim was transferred to him.

Judge McYea knew nothing of payments by King except from a memorandum in King’s possession. He examined the accounts, and was satisfied that no more was due on the note, and his client was willing to take the @1608 48 for that reason. He says that Mrs. Spears would have taken this from Jackson or anybody else; and he thinks the reason that neither Jackson nor King would purchase the note or pay it at first was that there was some question as to the priority of a judicial mortgage on the property in favor of King. He stated that the memorandum in the possession of King was signed by Spears; but he afterward corrected himself and said he might be in error as to that. This testimony was given in June, 1877, nearly five years after the transfer of the claim to King. Mrs. Spears accepted King’s statement of the payments made by him.

It is remarkable that this memorandum was not produced, or otherwise accounted for, except that Judge McYea says it remained in the possession of King. Neither King nor Mrs. Spears, the author of his title, nor the attorney who represented him in the acquisition of the claim, and who has represented him in this entire litigation, was called to explain this business. If the accounts were properly stated and credits given as proven by Jackson and Herndon, the balance due on the note on the fifth of November, 1872, would not exceed @1608 48; it would probably be a few dollars less; and in a suit between Mrs. Spears and Scott’s administrator she could not have recovered more than that amount on the evidence in the record.

~We have no doubt that Jackson had manifested his intention to contest this claim and to set up payments and offsets before the date of the transfer to King. This is evident from the stipulation in the transfer that the suit might be continued in the name of Mrp. Spears for the use and benefit of King; from the release of the seizure and the return of the writ which terminated the proceeding via executiva shortly after the transfer was made; and from the preparation made by Jackson to prove payments and offsets by taking the testimony of Herndon, at New Orleans, before the filing of King’s intervention; and from his prompt offer to pay King the price which he paid for the claim, immediately after the release of the seizure. Indeed, the counsel for King informs us that the suit via executiva had been changed into an ordinary action by conseut of parties to enable Jackson to make his defenses without resorting to an injunction. In the language of the Civil Code, art. 2658, there existed a suit and contestation on this claim, to the knowledge of King, at the time he took the transfer.

The evidence shows that the real price of the transfer was $1608 48. As to the payments alleged to have been made by King, they are not proven. It was his duty to have proven them: and he could have proven them by his own testimony, if he actually made them. The facts that he did not appear as a witness, and that he did not call any witness to prove that he had made these payments, are not reconcilable with any other theory than that he did not make any such payments. Scott’s administrator was entitled to get himself released by paying the real price of the transfer, as provided by article 2652 of the Code; and if he had made a real tender of the amount, with interest and costs up to the date of the tender, and had deposited the money, subject to the order of King, he would have been discharged from all liability. Not having done this', the intervenor is entitled to recover the price paid by him for the claim, with legal interest from the date of the transfer, and the costs up to the date of the filing of Jackson’s answer setting up the plea of litigious right, as decided by the district court.

The judgment appealed from is, therefore, affirmed with costs.


text:
    No. 6923.
    Sevin & Gourdain, in Liquidation, vs. Théogène Caillouet.
    There can be no valid pledge oí a mortgago, or vendor’s privilege, by mere agreement of parties to that effect, unaccompanied by an actual or symbolical delivery of possession.
    Amendments of pleading will not be allowed during the trial of a ease, when they will delay the trial, and change the issues.
    Open accounts of merchants and factors for supplies furnished, and money advanced, are prescribed in three years.
    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J.

      Lewis Guion and E. W. Blake for plaintiff and appellants.

      J. D. Moore and Thomas A. Badeau for defendant and appellant.
   The opinion of the court was delivered by

Egan, J.

The plaintiffs were commission merchants in' the city of New Orleans. The defendant resided in the parish of Lafourche, where he was engaged in the year 1871 in planting, in partnership with J. K. Gourdain, a member of plaintiffs’ firm at the time. It appears that the defendant had been furnishing the money used by his partnership, but that in the month of May it became necessary to arrange for advances of money and supplies for the year; that Gourdain was unable to furnish them, and that an arrangement was made by which his New Orleans firm agreed to make the necessary advances; but in order to enable them to do so that Oaillouet gave his draft on them to his own order and by him indorsed for five thousand five hundred dollars payable on the first of January, 1872, with eight per cent interest from maturity, and at the same time, to secure the same to plaintiffs or any-holder, executed a public act by which he declared that he did “pledge and give as collateral security a certain conventional-mortgage, with vendor’s lien and privilege, resulting from the sale by him to other parties of a certain sugar plantation in the parish of Lafourche, by act passed before J. K. Gourdain, the parish recorder, in January, 1860.”

'This draft was taken by the plaintiffs’ firm, as was customary among commission merchants, with a view to its negotiation or use as a pledge or collateral security, in order to raise money with which to make the advances stipulated for. It was accepted and so used by them, and at its maturity, as they allege, was paid.- They allege that the defendant became indebted to them “for moneys due and advanced during the year 1871,” for the plantation worked by him and his partner, Gourdain,’ in the sum of six thousand three hundred and seventy-eight dollars and sixty-one cents, with eight per cent interest per annum thereon from the dates set forth and fully detailed in an account current accompanying this petition, “and that the before mentioned” draft and “pledge” were “ executed to guarantee ” the payment of this indebtedness. They ask for judgment for the full amount of their account, and for the sale of the mortgage and vendor’s privilege claimed to have been pledged to satisfy the said indebtedness to the amount for which the draft was given, besides interest and five per cent attorney’s fees as stipulated in the act of pledge. Under this state of facts we regard the present action, and indeed the plaintiffs themselves so treated it, as on an account current, into which the draft passed, was merged so soon as it was taken up by the plaintiffs. It is evident that the act of pledge, as it is termed, was designed to secure the draft and to give it currency and credit for the purpose of its negotiation so as to raise money and thus enable the plaintiffs to make the proposed advances. The draft was so used, and at its -maturity was paid according to its tenor by the plaintiffs, the acceptors. The draft thus became extinct and with it the pledge or security, if, indeed, it amounted to so much.

The defendant denied all the allegations of the plaintiffs except th© signature of the draft and the execution of the notarial act of pledge of the mortgage and vendor’s lien (which we may here remark was not offered in evidence), denied specially receiving any advances from plaintiffs and any indebtedness to them on account of either the draft or act of pledge, the obligations of which were conditional, and the condition had not happened; and sets up against them error, fraud, and want and failure of consideration. He avers further that they were given for the accommodation of the plaintiffs, and to enable them to raise funds to be loaned by them to their copartner, Gourdain, to aid him in his planting; that it was distinctly understood that the plaintiffs would take up the draft at its maturity, and cancel and return it to defendant, by whom it was so loaned to them as an accommodation; that respondent was not to be considered or held bound in the same, and that plaintiffs had frequently assured him that the draft was so taken up and canceled' and respondent discharged therefrom. He further denies the existence, in any event, of any legal or valid pawn or pledge of the conventional mortgage, by reason of its not being susceptible of pledge or pawn, and by reason of there having been no delivery of possession. Defendant sets up a reconventional demand for over twenty thousand dollars, for money loaned plaintiffs, and crops of sugar and molasses shipped to and sold by them and not accounted for, and prays judgment rejecting their demand, and in his own favor, for the amount claimed in reconvention. •

The notarial act professing to create the pledge to secure the draft recites that both are given for moneys, supplies, and provisions furnished and to he furnished to carry on and cultivate, during the year 1871, the plantation cultivated by the defendant and his partner, Gourdain, , and contained the usual obligation on the part of both the partners to ship to the plaintiffs all the crop of sugar and molasses made on the place that year. The act was signed both by Caillouet and Gourdain. Clay Knoblock swears that he was present when the draft and notarial act of pledge were executed, and he is positive that they were given either for the accommodation of the plaintiffs, or of one of the partners of the firm, Gourdain; that he acted as the friend of both parties in this transaction and knew that Caillouet had furnished the money used so far to run the place; and that Gourdain often acknowledged that he was indebted to his commercial firm in the sum of about seven thousand dollars, of which the amount of this draft formed a part; and that he was, besides, indebted to his partner, Caillouet, to at least twenty-five hundred dollars, and was unable to pay him; another witness swears that Gourdain told him this was his debt; and the son of defendant swears that Sevin told him that the amount ought to be charged to Gourdain, but that he could not change his books. This is denied by Sevin, as is also the substance of the defense set up. A clerk of the plaintiffs swears to the correctness of the account, but says he only knows it is correct because it is so on the books of the firm. The amount of §1498 21 only appears from the account to have been charged to the Seudday plantation, that worked by Caillouet and Gourdain; while on the thirtieth of May, 1871, that amount was transferred to the account of Caillouet and Gourdain, with whom the account was kept by Sevin and Gourdain from that date.

There is no allegation or proof that Caillouet assumed the payment of that amount, or that he is otherwise liable in any event than as a planting partner, in which capacity' he is not sued. The account was not annexed or alleged to be annexed to or made part of the petition, the allegation of which is, as we have seen, that “ the defendant became indebted to plaintiffs for moneys due and advanced during the year 1871.” The defendant’s counsel asked that the plaintiffs be confined to the proof of cash advances, and the court so ordered. His counsel excepted to this ruling, and offered to amend the petition instanter, while the trial was going on, so as to make the allegation conform to the account, which included many other charges besides cash advanced. We think the court did not err in refusing the amendment under the circumstances and at the time it was asked. It was matter of substance, would have delayed the cause and changed the issues. We are not prepared to say that the plaintiffs should not have been restricted to the proof of cash advances only. In point of fact they were, however, allowed to introduce their account current, and proof of its correctness, besides proof of the other facts alleged by them in regard to the draft and act of pledge, as well as to negative the defendant’s answer and demand, so far as their evidence would enable them to do so, as indeed they did in answer to interrogations on facts and articles propounded by defendant.

Their own account and the evidence aliunde show the reception of a large quantity of sugar and molasses, with the proceeds of which the account is credited. We think they have not sufficiently established, by a preponderance of evidence, the alleged indebtedness of defendant, Caillouet, to them, as it was incumbent upon them to do, while there is evidence in the record which would go far to make out a substantial defense as set up. The probabilities would seem to be that the present defendant is sought to be made liable for an indebtedness which,- if it existed at all, existed against their own copartner, Gourdain, for whose accommodation the draft and act of pledge were executed; and that they ceased to exist or be of force against- this defendant when the draft was taken up. At all events, whatever rights were conferred by that act, in regard to the mortgage and vendor’s privilege, their sale could not. be decreed, as prayed for.

There was certainly no delivery of possession, no valid pledge (see 7 An. 221), and they, from their very nature, were themselves merely accessory to a principal obligation which they were intended to secure, and which was neither pledged nor transferred, even as collateral security. The account offered in evidence is not the individual account of the defendant, nor alleged nor proved to have been assumed by him. It is neither alleged upon as, nor proved to have been, an account stated or acknowledged. The suit is for moneys advanced and due during the year 1871, while the citation was only served upon the defendant on the thirtieth of December, 1876, a period nearly sufficient to prescribe even the draft, and of course more than sufficient to prescribe against an account for moneys advanced by and due to merchants. The prescription of three years is pleaded in this court. It is sustained by the evidence, independent of the other defenses set up, and we have not been asked to remand the cause on that issue. The district judge thought that the defendant was liable for $60 12£, as his half of the indebtedness of his planting firm, after allowing the credits shown in the account, and gave judgment accordingly. He further gave judgment of nonsuit as to that part of plaintiffs’ demand for supplies and moneys advanced prior'to January, 1871. The defendant asks that the judgment be amended so as to make it absolute against the plaintiffs. The credits on the face of the account and the evidence offered by the defendant were properly considered by the district judge in determining the question of the fact and amount of defendant’s liability, but the reconventional demand does not seem to have been otherwise considered, nor is it passed upon by the judgment. No complaint is, however, made here on that score, and as to that feature of the ease we think no injustice appears to have resulted; the items covered by it for sugar and molasses sold are the same credited in plaintiffs’ account. The view we have taken of this case renders unnecessary the consideration of the various questions raised by other bills of exception in the record.

Eor the reasons assigned it is ordered, adjudged, and decreed that the judgment of the court below be and it is avoided and reversed, that the defendant’s plea cf prescription be sustained, and that plaintiffs’ demand be rejected, with costs of both courts to be paid by them, with reservation, however, of any right the plaintiffs may have as to the other items of account than cash advances, as not in issue in this case.


author: DeBlanc, J.

text:
    No. 6997.
    Silas H. Cooper and Wife vs. Jno. T. Rhodes.
    The emancipation of a minor qualifies him to become a surety on an appeal bond. The parish court has jurisdiction to emancipate a minor, even when the minor is the owner of property worth more than $500.
    It is not necessary that the sheriff should call on the principal on an appeal bond to point out property, in order to hold the surety on the bond, when it appears from the sheriffs return that the principal, after diligent search and inquiry, could not be found.
    When it appears that the principals on an appeal bond own no property, and that the creditor has taken every reasonable step to exact payment from them, the liability of the surety on the bond will become fixed.
    The surety on an appeal bond is liable for the full amount of whatever judgment the Supreme Court may render, without regard to the amount of the judgment appealed from.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. J. Gf. White, special judge.

      M. Ryan añd O. F. Frits for defendant and appellant.

      Bowman & Hunter for plaintiffs.
   The opinion of the court was delivered by

DeBlanc, J.

Silas H. Cooper and wife brought suit in the parish of Rapides against Samuel C. Cappel et ais, and obtained against them — in the district court — a judgment for one thousand dollars. That judgment was — by the Supreme Court, increased to three thousand dollars, and — on two executions thereon issued — the sheriffs returns show:

That of the sheriff of Rapides, “ that he called on all the defendants, except J. D. Bass, whp had left the parish; that they, failing to pay or point out property, he demanded of the plaintiffs in execution that they should point out property of the defendants, when they declared that they knew of none; he then demanded of J. T. Rhodes, the security on the appeal bond furnished in the case finally decided by this court, and the defendant in this suit, that he should point out property of the defendants in execution, and he declared that he knew of none. He held the .writ for nearly seventy days and, it being about to expire, he returned it.”

That of the sheriff of Avoyelles, “ that he called on Samuel C. Cappel and securities to point out property liable to seizure and the said defendant and securities failing to point out any property, and after. diligent search and inquiry, and not having found any property of defendant, Samuel C. Cappel, principal, and IL B. Mathews, Joseph D. Bass, Rafe Amos and Zedo Pierre, as securities, he returned the writ not executed.”

Rhodes was the surety of Cappel, Mathews, Bass, Amos and Pierre, on a bond of fifteen hundred dollars furnished by them to obtain a suspensive appeal of the judgment of one thousand dollars rendered against them in the parish of Eapides, and which — as already stated— was, by this court, increased to three thousand dollars. In law, and by the terms of his bond, the condition of Ehodes’ obligation, as a surety, was that — unless his principals satisfied any judgment that might be rendered against them by the appellate court, ho would be liable for the sum of fifteen hundred dollars.

The judgment rendered on appeal was not satisfied. Two executions, were thereon issued' — one directed to the sheriff of Eapides, who — writ in hand' — called on every one of the principals on the appeal bond, except Bass who had left said parish, and — to his request to point out property on which to levy to satisfy said writ — they answered that they had neither property nor money. Ehodes — the surety — and the plaintiffs in this case were then called upon, and they answered that they knew of no property belonging to the principals. The other execution was directed to the sheriff of Avoyelles, and he, after diligent search and inquiry, could not discover any property of Bass and the other principals, four of whom he refers to as being the sureties of the fifth one. That error is not important and does not vitiate the balance of his return, from which we infer that he may have called on Bass.

After those fruitless efforts to recover the amount of their judgment, plaintiffs brought suit against Ehodes, the surety on the appeal’ bond — who—in his answer to their action — alleges and contends:

1. That he was a minor when he signed said bond, and is in nowise indebted to plaintiffs.

2. That the sheriff did not call upon Bass, or any "one, to point out property to be seized; that, if it had been necessary, he could have shown that Bass is in the State, not many miles from the place where he-lived the year before.

3. That, if indebted to plaintiffs, it is for only the judgment of the district court, and the costs of prosecuting the suit to final judgment in the Supreme Court.

The case was tried on those issues; the district court rendered judgment in favor of plaintiffs for fifteen hundred dollars, with legal interest, from judicial demand, and Ehodes has appealed.

Of the several grounds urged by him, not one is tenable.

When he signed the bond sued upon, he was emancipated and — by a regular decree of the parish court — had been relieved of all the disabilities which attach to minors. The fact alleged in his counsel’s brief, that his property was then worth more than five hundred "dollars, did not divest that court of the power to emancipate him. In his application to that effect, only two questions were presented: Was he above the age of eighteen years and fully capable of managing his own affairs ? This, the parish court could and did decide.

Bass was not called upon to point out any property to be seized in Rapides, because — as shown by the return of the sheriff of that parish, he had left that locality. Rhodes knew where he was, but could not point out any property belonging to him, nor was any found — after diligent search and inquiry — in Rapides and Avoyelles.

The Code of Practice provides — not that the sheriff shall, but that he may call upon the party against whom the execution is awarded to point out to him property which he may possess in the parish. That course is eminently proper and should be invariably pursued, whenever said party is present or represented in the parish wherein the judgment has been rendered against him. C. P. 726.

In this case, the facts that the principals on the bond own no property, and that the creditors have taken every reasonable step to enforce against them the payment of their judgment, have not been successfully traversed, and stand — not merely uncontradicted — but almost admitted by the surety’s answer to the sheriff of Rapides. Under these circumstances, the right of action of those creditors against the surety on the bond had certainly accrued. C. P. 596. 8 A. 141. 13 A. 264.

The last ground urged by defendant is that — if liable on the bond, he can be held liable but for one thousand dollars, the amount of the judgment of the district court. To sustain that position, he relies on that part of article 575 of the C. P. which refers to only the judgment appealed from, and provides for its payment by the security, in case it be affirmed by the appellate court, and argues that article 579 which provides for the satisfaction of whatever judgment that may be rendered against the appellant, is merely indicative of the form of the bond to be prepared by the clerk.

“ It is obvious — said this court — that the language of article 579 is broader than that of article 575. The latter speaks of the original judgment as the test of the surety’s liability; but the former points to the judgment which the appellate tribunal may render against the appellant. Its language is very large and comprehensive, and covers not the mere case of affirmance, but whatever judgment may be rendered against the appellant. In estimating the comparative force of those articles, we have no hesitation in saying that article 579 is entitled to the greater consideration.” It more particularly designates the requisites of the bond, and is — in fact — exclusively directed to that object.”

3d A. p. 38-39. 5 A. 523.

There is no error in the judgment of the lower court,-but we can not treat as absolutely frivolous the appeal taken therefrom and allow the damages claimed by plaintiffs.

It is, therefore, ordered, adjudged and decreed that said judgment is affirmed with costs.

The Chief Justice declined taking any part in the decision of this cause.


text:
    No. 7078.
    The State vs. Jacob and David Gunter.
    When a bill oí exception to a ruling of the judge in a criminal trial contains a statement oí facts in opposition to his own recollection, and his notes of evidence, he is justified in refusing to sign the bill, and to hear any evidence to contradict his own recollection and notos.
    Whether the judge below has, or has not improperly refused to sign a bill of exception, is a question which can only bo inquired into, when brought before this court in a mandamus proceeding.
    A prisoner has no right, under the law, to a service on him of a list of the talesmen summoned.
    The confession of a prisoner, if received in evidence, must be received as a whole; but it is for the jury to determine whether the whole of it, or any part of it is entitled to credit; and if so, how much credit.
    To offset his declarations to one person, offered in evidence by the State, the accused has no right to introduce in evidence other declarations of his, made to other persons, unless they were made at the same time, as those offered by tho State.
    While this court will review, and consider the evidence taken on a motion for a new trial in a criminal ease if brought hero by bills of exception, or by affidavits appended to the motion, yet it ean.not be said that the lower court erred, when such evidence was orally produced, in refusing to have it reduced to writing.
    The charge of the lower court and the facts urged as grounds for a now trial can be brought before this court in no other way than by bills of exception.
    In tho interest of justice, this court will sometimes .grant a new trial in a criminal case, when no precedent for it exists.
    APPEAL from the Ninth Judicial District Court, parish of Vernon. Blackman, J.

      H. N. Ogden, Attorney General, for the State.

      Robert A. Hunter for defendant.
   The opinion of the court was delivered by

Egan, J.

The defendants were indicted for murder, found guilty of manslaughter, and sentenced, respectively, to six and three years confinement at hard labor in the Penitentiary. After an ineffectual motion for new trial they have appealed.

The case is before us on several bills of exception, the first of which is to the refusal of the judge to sign a bill of exceptions prepared by the counsel for the accused in regard to one of the jurors who was sworn to try the case after being examined on his voir dire, and to the refusal of tho judge when applied to to sign the bill, to hear evidence of defendant’s counsel as to what his ruling had been, and what were the answers of the juror upon which that ruling was based. The judge refused to sign the bill as drawn by counsel, for the reason, as stated by him, that the statements of what the juror had sworn on his voir dire, contained in it, did not accord with his recollection of the facts, and that his uniform ruling had been other than as stated by counsel. The judge refused to hear the evidence offered in support of the bill as drawn, which was the testimony of three counsel for the accused, for the reason as stated by him that (he) “I would not hear testimony to contradict my own notes and recollections of the facts.” The judge did not err in refusing to hear the evidence offered to contradict himself and his own recollection and notes of the facts as stated by him. We know and have been referred to no precedent for so extraordinary a proposition, and one so subversive of all the proprieties of judicial proceeding and the discipline and authority of courts and judges. As to whether the judge properly refused to sign the bill of exceptions as drawn by counsel, we can not determine on a bill of exceptions to such refusal. Where a judge refuses to sign a bill of exceptions properly taken, the proper remedy is by mandamus. C. P. 899; 3 M. 714; 13 An. 484.

The second bill of exceptions is to the refusal of the judge on the trial after th.e regular panel had been exhausted and tales jurors summoned by order of the court to have a list of the tales jurors served upon the accused as requested by their counsel. The court did not err. The prisoners had no right under the. law to service of a list of tales-men.summoned. See State vs. Reeves, 11 An. 685; 14 An. 461; same, 651.

The third bill of exceptions is to the refusal of the judge at the request of the counsel for the accused to charge the jury after the State had offered evidence of a confession of the accused in regard to the homicide “ that the confession of the accused having been elicited by the State the jury must take the whole confession together; that they could not admit a part without receiving the whole, and that the State was bound by the confession as it had been brought out by the State.”

No bill was taken, nor does it appear that the court received a part of the confession and rejected the remainder. We therefore understand, and from the reasons given by the judge for his ruling, that it related entirely to the effect and not the admissibility of the confession. He says “ the court refused the charge requested for the following reasons: The court charged the jury that they were the judges of the law and the evidence; that they could believe the confession of the prisoner as true or false; that they had the right to believe a part and reject the other if they saw fit, or reject the whole; the truthfulness or falsity of all evidence, and the weight to be attached to it, being left exclusively to them. The charge asked by defendants’ counsel is not law.”

Greenleaf says on this subject, vol. 1, sec. 201: “But though the whole of what be, the person making the admission, said at the same time and relating to the same subject must be given in evidence — as we understand was done in this case — yet it does not follow that all parts of the statement are equally worthy of credit; but it is for the jury to consider under all the circumstances how much of the whole statement they deem worthy of belief, including as well the facts asserted by the party in his own favor as those working against him.” See to similar effect State vs. Wedmeyer, 11 An. 49; State vs. Bruyer, 14 An. 461.

The court did not err in refusing the charge asked for, as we understand the facts presented by the bill.

The fourth bill of exceptions is to the refusal of the judge to receive-the evidence of a witness offered by the accused to prove declarations or confessions of one of the accused, “about the same time,” to other persons than the witness Rhames, who had given evidence for the State of certain confessions of the same party in regard to the homicide. The accused had a right to have offered the whole of the confessions made at the same time with those offered by the State, whether made to the same person or not, if we can conceive of such a case, but he had no right to offer on his own behalf declarations made by him in his own favor at a different time from those offered by the State, no matter to whom made. No connection is shown between the confessions or admissions received and those rejected.

The court did not err in refusing to receive the evidence. The-record is silent upon the subject, but it has been stated at bar by the counsel for the accused that he was permitted at his own request to await the close of the trial before presenting bills of exception on points reserved during its progress. If this be so, it accounts very naturally for any difference in regard to them between judge and counsel, and only illustrates anew the propriety of what this court has often said, that bills should be presented without unnecessary delay, while the facts are fresh in the memory of both judge and counsel. See 5 An. 24. This is especially true in cases of so grave a character as the present, and it is not for us to presume that a judge whose duty it is to preside impartially and to accord to the accused and his counsel every right given them by the law has failed or refused to do so.

The fifth bill of exceptions is to the refusal of the judge to have taken down in writing for use upon appeal testimony offered by the accused to substantiate the facts alleged as grounds for new trial. The judge says he refused to comply with the request of counsel for the reason that the evidence in criminal cases is not required to be reduced to writing, as the Supreme Court has appellate jurisdiction in such cases on questions of law only. There is no question of the general correctness of this proposition, but its application is usually to the evidence given upon the trial on the merits of the case, which, of course, under the Constitution, and as we have often held, can not be considered by this court, even if brought up in the transcript. It often happens, however, that we have occasion to review and do review the evidence, and the action of the court below upon it, given on matters incidental to the trial, with a view to ascertaining whether or not that court has ruled correctly as to matters of law based upon the facts proved. As, for instance, in regard to the competency of jurors or witnesses, or the propriety of challenges to jurors. The case at bar is a novel one, and while the judge is doubtless right in saying that evidence in criminal cases is not required to be taken down in writing as in civil cases, it is to be regretted that, as he thought proper to hear evidence in support of the motion for new trial, we are not afforded, by a statement of the facts upon which he ruled, to consider how far he ruled correctly.

The better practice is to append to the motion for new trial evidence in the shape of supporting affidavits which come up with the motion itself; otherwise, it is only by bills of exception that the facts upon which the court below ruled in incidental matters in criminal cases come before us. The bill under consideration does not present the evidence referred to, and we are therefore unable to pass upon or consider it, and thus to afford the accused the benefit of this bill of exception. The motion for new trial itself is based upon the discovery since the trial of important and material evidence, first, affecting the competency of one of the jurors who tried the case, and contradicting his statements when sworn on his voir clire; and, second, in regard to statements made prior to the trial by the principal witnesses for the State, in regard to the material facts and their means of knowledge of them, directly contradicting their evidence as given on the trial. Next, upon the ground of alleged misconduct of the district attorney, in giving to the jury and permitting them to take with them to their room, without the knowledge or consent of the counsel for the accused or of the court, and specially inviting the attention of the jury to certain law books with passages marked, with a view of influencing their verdict; matters which were not known to the accused till some time after the jury had retired to their room. Misconduct on the part of the jury, based upon the same matter, is also alleged. The motion for new trial further sets forth the fact that the judge gave certain charges to the jury alleged to be erroneous, which are stated in and as part of the motion; and also the general ground that the verdict is contrary to the law and the evidence.

None of the grounds for new trial are presented for our consideration by bills of exception. If the district attorney did so hand law books with marked passages to the jury for use in their room, it was extremely irregular and improper, no matter how intended. We are, therefore, compelled to remind counsel that the charge of the court, whether in a criminal or civil case, can not be proved by witnesses, much less by the affidavit of the accused for new trial, but can only be brought before this court for review through a bill of exceptions — see 8 R. 529, and 571; 10 M. 66; State vs. McClanahan, 9 An. 210 — and that facts appearing as one of the grounds in a motion for new trial will not supply the place of a bill of exceptions. See State vs. Romero, 5 An. 2-4. The counsel should have taken a bill stating the facts of the conduct on the part of the district attorney and the jury complained of. Without it, they are not properly before us, and we can not assume, without bills of exception, either the existence of those facts, or that the court gave the charges complained of. It is, therefore, unnecessary, as it would be improper, for us to pass upon their correctness or incorrectness. Our attention has been invited to a statement contained in the certificate of the clerk at the close of the transcript, that the evidence of certain witnesses taken on a preliminary trial of the accused, and which was offered in evidence on the trial in the court below, was handed to the jury by order of the court and never returned by them. This statement is made as a reason for not including this written evidence in the transcript. It was neither necessary nor proper that it should be so included, and no -bill of exceptions was taken to its being handed to the jury on their retirement, so that the principles just referred to in regard to statements of fact in the motion for new trial apply equally to this also. We will, however, take occasion, in this connection, to remark that if such a thing was done, it is, to say the least, unusual, and that we are not prepared to apply to such a state of facts as that presented by the clerk’s statement the principle which, under the peculiar circumstances of that case, seems to have been announced in the State vs. Bradley, 6 An. 556, where the jury improperly took with them to their room a paper offered in evidence, especially as the court then immediately instructed 'the jury to disregard it. Such partial reminder of the facts of cases out of the presence of court or counsel would be extremely dangerous, especially as juries .are now constituted.

While, however, we have applied the principles of well settled law to the various matters reviewed and discussed by us in detail, on the whole case, we are not left without an impression of the possibility that there may have been irregularities calculated to influence the result of the trial unfavorably to the accused, and that his counsel may have mistaken the manner of presenting them for the consideration of this court. As, therefore, less injury would be done to the State by our granting another trial than, possibly, to the accused by refusing it, and as this court has held new trials may sometimes be granted though no precedent exist for them,

It is ordered that the verdict and sentence appealed from be and they are avoided and set aside, and the case remanded to be proceeded with according to law.