author: Breaux, J.

text:
    No. 11,247.
    The State of Louisiana vs. Lee Taylor et al.
    It was not shown that the defences of the joint defendants were antagonistic. The . pleafor a severance was properly overruled.
    The statement objected to as self-serving and hearsay was not open to the sus - picion of being part of a determined plan of defence; it was admissible in evidence.
    If the defendant in a criminal case jointly indicted and tried with another defendant charged with the same offence avails himself of the privilege given him by statute, of testifying in his own behalf, and he incriminates his co-defendant, he is to be regarded and treated as any other witness.
    Therefore, his character for honesty may be put at issue by his co-defendant, whom he seeks to inculpate, in an examination as to the general character of the witness for truth and veracity.
    The character of a witness in the neighborhood in which he lives is subject to inquiry. It is inadm'ssible to ask what character the witness had in a neighborhood in which he resided at a period long prior to the trial.
    With one exception there is no error in the ruling.
    The judgment is annulled and the case remanded for trial.
    APPEAL from the Eleventh District Court, Parish of St. Landry. Perrault, J.

      M. J. Cunningham. Attorney General, and E. B. Dubuisson, District Attorney, for the State, Appellee.

      E. P. Veazie and Chas. F. Garland for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The two defendants in this case were charged together with larceny in one count of one indictment.

One has acquiesced in the sentence condemning him to serve eighteen months at hard labor in the penitentiary.

The other from a similar sentence appeals.

Motion for a Severance.

In support of his application for a severance he called his co-defendant to the witness stand for the purpose of proving that their defences were antagonistic — that he had made declarations implicating him.

The co-defendant testified that he had not made any declaration whatever.

The appellant, anxious for severance, called another witness and propounded questions to him in order to prove that his co-defendant had made false statements while testifying as his witness on the trial of the motion for a severance; also that he had offered to become a State witness provided he thereby could secure immunity from prosecution.

The district attorney objected to the admissibility of the testimony.

The court maintained the objection, and gave as reason that the appellant had chosen to examine his co-defendant as a witness, and had failed, by his testimony, to prove the grounds of his motion for a severance; that the district attorney had not heard of any confession, and had expressly declared that no confession would be offered in evidence; that the granting or refusing a severance was within the discretion of the court.

The principle is clearly laid down by the text writers on the subject, in a number of authoritative decisions, that the defendants can not claim separate trials as a matter of right, although they sever in their pleas, but that the court, in its discretion, may allow them to be tried separately.

There are exceptions to the rule. One, for instance, where one joint defendant has made' a confession implicating both, and which the prosecution intends to offer on the trial.

The case of the appellant is not at all within the exception.

There was no error in the court’s ruling refusing to grant a severance.

Self-serving and Hearsay.

The next error urged by the appellant was to the admissibility of testimony in answer to a question propounded to his co-defendant as a witness.

It was in reference to this co-defendant going to appellant’s home on the evening of the day that the larceny of a beef was charged to have been committed.

The witness’ answer was:

Lee Taylor (the co-defendant) told me on that occasion that he was going to Joseph Thomas’ house (the appellant) to help to kill a beef. Nothing else was said.” (The parentheses are ours.)

The question was objected to on the ground, substantially, that the testimony was self-serving; that it was made out of the presence and hearing of the appellant and was hearsay.

The statement is not open to the suspicion of being part of a determined plan of defence. It was made prior to the larceny charged.

It is not a second-hand relation of facts, but the declaration of a party, proving rem, ipsam.

The appellant had no ground of complaint, for it did not inculpate him. It is not apparent that by this testimony the co-defendant sought to fix the crime on the appellant.

The court states, as part of the bill of exceptions, that it was not the truth of the statement that was sought to be established, but the fact that the statement was made. The judge’s statement and his ruling upon the subject do not suggest error.

Inquiry into the Character of a Witness.

The next bill of exceptions, in the order in which they were taken, relates to the court’s confining the inquiry to truth and veracity in matter of the character of one of the accused who had testified.

The defendant, Lee Taylor, had testified that the appellant represented himself as the owner of the beef alleged to have been stolen, and that they had killed it as his property.

As to this witness, Taylor, appellant, propounded the following questions to one of the witnesses:

1. “Do you know the general reputation of Lee Taylor in the community in which he lives for honesty?”

Upon the objection of the counsel for Lee Taylor, the court held that “the witness, Lee Taylor, was a defendant, and not an ordinary witness, and not having put his character at issue, same could not be inquired into by the State or his co-defendant, and for the further reason that even in the case of an ordinary witness whose testimony is sought to be impeached, the better practice is to limit the inquiry as to character to the general reputation of the witness for truth and veracity.”

Lee Taylor, under Act 29 of 1886, became a witness on the trial in his own behalf and sought to inculpate his co-defendant and to ex-, cúlpate himself.

He was subject to the rules which apply to witnesses.

When the defendant becomes a witness against his co-defendant public policy and individual safety require that his reputation for veracity should not be beyond inquiry, though he does not put his character in issue.

Why, if the testimony of other witnesses may be impeached or destroyed, should not his be open to like attack ? No case to the contrary can be found in any of the jurisdictions, permitting the accused to testify in his own behalf.

The well considered case of Lockard vs. Commonwealth, 87 Ky. 201, reviews the jurisprudence of a number of States upon the subject.

The decisions reviewed are: The State vs. Cohn, 9 Nev. 179; Commonwealth vs. Bonner, 97 Mass. 587; Brandon vs. The People, 42 N. Y. 265; The People vs. Connors, 50 N. Y. 240; McGarry vs. The People, 2 Lansing 227; The People vs. McGungill, 41 Ala. 429; Town of Norfolk vs. Gaylord, 28 Conn. 309; State vs. Ober, 52 N. H. 459; State vs. Clinton, 67 Mo.

“ Whether the inquiry into the general character shall be restricted to his reputation for veracity or may be made in general terms involving his entire moral character is not yet definitely settled, though it is reasonable that the question as to reputation should be pjut in the most general form, the opposite party being at liberty to inquire whether notwithstanding the bad character of the witness in other respects he has not preserved his reputation for truth.

“Indeed, one or two English authorities seem to sanction this course; and although a stricter rule is said to prevailgin some'of the United States, in others, as, for instance, in North Carolina and South Carolina and in Kentucky, the general range of inquiry as hereby recommended is distinctly allowed.”

The following decisions specially sanctioned inquiry in reference to honesty in an examination as to the general character of a witness for truth and veracity: 23 N. E. 1098; 100 Mo. 342.

Judge Preston, organ of the court in State vs. Parker, 7 An. 85, ably discussed the subject at some length.

Under the authority of that decision the inquiry may include “honesty” in establishing whether or not a witness is worthy of credit, without, however, going into details of particular acts making up character, whether good or bad.

In the case of the State vs. John Donelon, 45 An., just decided, that decision is specially referred to by counsel for the State as authoritative, and was so considered by the court a qua, and by this court, by the conclusion reached upon the point.

In the case under consideration the scope of the inquiry is not lessened nor enlarged.

We only hold that in a case of larceny, in testifying as to character, the witness may be questioned as to the honesty, truth and veracity of the witness sought to be impeached; that the character of a witness should be marked by honesty in order to maintain a character for veracity.

It is not possible to affirm the sentence and verdict without overruling the decision to which we have just referred. This we think preferable not to do. The case must be remanded.

Character of the Witness in the Neighborhood.

The appellant attempted to strengthen his defence by putting his character in issue.

The only testimony he offered was that of a witness who was acquainted with him about five years previously, in another locality, about twelve miles from his domicil, at the timé of the trial.

The subject of inquiry was the general character of the witness in his neighborhood.

This excluded the consideration of testimony as to character in another community in which he resided many years before the trial. Wharton, Criminal Evidence, p. 487.

With one exception, the district judge’s rulings were correct.

It is therefore ordered, adjudged and decreed that the judgment and sentence appealed from be annulled, avoided and reversed, and that the verdict of the jury be set aside as to Tom Casey, alias Joe Thomas, and the case is remanded and a new trial is ordered in so far only as relates to Tom Casey, alias Joe Thomas, but not as to Lee Taylor, who has not appealed, and who is therefore concluded by the verdict of the jury and the judgment of the court a qua.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 11,022.
    John A. O'Neil vs. Walker Brothers.
    1. AVhen a third opposition has for its object to set aside an order of sequestration on the ground that it has been effected on property claimed by a third party, such opposition is considered as a separate demand, distinct from the suit in which the order was granted, and opponent must be considered as plaintiff in an action of revendication. 12 An. 311.

      2. A third opponent who does not attack either plaintiff’s claim or the privilege which he asserts as securing it on property sequestered, but in his pleadings only raises a question as to the ownership of the property,*is;restricted to the single issue which he has tendered.
    3. An agreement by which a person transfers movable property to another, but which leaves the vendor in possession, with the right for six months as the nominal agent of vendor to sell the property, repay the purchase price with interest and appropriate the surplus for himself, is simply a pledge without delivery under the name of a sale with power of redemption. Bourg vs. Lopez, 36 An. 440.
    APPEAL from the Seventeenth District Court, Parish of St. Mary. Allen, J.

      Foster <& Mentz for Plaintiff and Appellee:
    Any person advancing money,‘or furnishing supplies, to enable another to deaden, cut, haul, float or raft any logs or forest timber, shall have privilege upon such logs or timber. Acts 1882, No. 33, p. 47.
    Privileges on movable property shall exist without registration. Constitution 1879, Art. 177.
    Under the present Constitution registry to preserve a privilege is unnecessary in the absence of legislation requiring it. 35 An. 448, Kuhn & Co. vs, "Embry So Pilcher.
    A contract by which A sells to B a movable for a sum named, which sum, together with whatever may be realized from the movable, shall be placed to the credit of the seller, is not a contract of sale but of security. Title docs not pass, the relation of the parties is not that of vendor and vendee, but of debtor and creditor. Herold vs. Stockwell, 32 An. 949.
    When one transfers to another movable property, with the proviso that the latter is to sell it, pay himself what the fransferrer owes him, and account to the transferrer for the balance, it is not a sale, and the transferee does not become owner. He is at most a bailee or a trustee. A seizure under fi. fa. of this property by a judgment creditor of the transferrer is lawful. 36 An., Bourg vs. Lopez.
    An act, purporting on its face to be a sale a remove, is not translative of propeity when it is shown that the parties did not intend that it should so operate. Howe vs. Powell, 40 An. 307.
    In a controversy over a sale of this kind, where the pretended vendee presents no issue save that of ownership, nothing but that issue will be passed on by the court. Ib.
    The price is an essential in the contract of sale. C. C., Art. 2439.
    A sale is perfect between the parties when there exists an agreement for the object and the price. C. 0., Art. 2456.]
    The price of the sale must be certain — that is to say, fixed and determined by the parties. C. O., Art. 2464.
    As soon as the contract of sale is completed, the thing sold is at the risk of the buyer. C. 0., Art. 2467.
    Sales of movable property are void against a creditor unless possession is given before such creditor acquires his right. C. O., Art. 2247.
    Although the consent to transfer movables transfers ownership, this effect is strictly confined to the parties until actual delivery. O. 0., Art. 1922.

      If movables have been alienated but not delivered, they are liable, in the hands of the transferrer, to seizure by his creditors. O. 0., Art. 1923.
    The possession by a vendor of the movable under a precarious title, induces the presumption of simulation. O. C., Art. 2480:
    Since the passage of Act 46 of 1880, amending Code of Practice 398, the seizing creditor may, in answer to a third opposition alleging ownership of personal property seized, “ allege and prove the title fraudulent, and the court shall try and decide the issue thus made.” Lahitte vs. Sheriff, 42 An. 864.

      D. Caffery & Son for Intervenor and Appellant:
    1. Privileges can not be extendea by implication or analogy; they are never allowed but when expressly granted by law, and then only by virtue of an exact compliance with the legal request essential to their creation and existence. Privilegia milt strietissimai interpretalionis. II. I). P. 1238, No. 3, 27 An. 87.
    2. As against third persons they must be conclusively established.
    3. Act 83 of 1882, providing “ that any person advancing money or furnishing supplies to enable another to deaden, cut, haul, float or raft any logs or forest timber'shall have a privilegepipon such logs or timber,” creates a privilege upon the logs or forest timber actually deadened, cut, etc., through the use of the money advanced or supplies furnished. The privilege does not extend to the general product of the swamping business of the person advanced, and is restricted to the particular trees the money or supplies enabled him to deaden, cut, etc,
    i. The nature of a sale of movables can not he inquired into by a third party who, having set up a privilege on the movables sold, fails to clearly and satisfactorily establish it. He is without interest to dispute the sale.
   The opinion of the court was delivered by

Nicholls, C. J.

On the 17th of October, 1890, John A. O’Neil filed in the District Court a petition in which he alleged that the commercial firm of Walker Bros:, doing the business of cutting, hauling, buying and selling trees and timber, was indebted to him in the sum of $233.14, with interest thereon at the rate of 8 per cent, from the 23d of August, 1890.

That during the year 1889 plaintiff advanced and furnished supplies to the said defendants to enable them to cut, deaden, haul and float logs and ferret timber to the aforesaid sum, as shown by an account annexed for reference.

That under the law he was entitled to a privilege on the logs an d timber for which these advances were made and entitled to he paid by preference out of the proceeds of the logs and ferret timber. That said logs and ferret timber, or the greater portion thereof, were still in the possession and under the control of the defendants. That he had just ground to believe and did believe and aver that defendants would conceal, part with or dispose of the same, on which he has a privilege during the pendency of his suit, and that he was entitled to a writ of sequestration to preserve his rights in the premises.

He prayed for the issuance of such writ — that he have judgment for the amount claimed — that his privilege on the logs and timber be recognized, and that the same be seized and sold to satisfy his demand. The writ was ordered to issue and did issue as prayed for and under it a large number of logs were seized.

Lewis S. Clark intervened by way of third opposition in the suit. Reciting the fact of plaintiff’s sait and the sequestration made therein of the logs as property of the defendants, he averred that they belonged not to Walker Bros, but to himself, and that they were at the time the sequestration was issued and levied in his actual and constructive possession, and that he was entitled to have the property restored to him on his executing his forthcoming bond; that he was entitled to have judgment for the damages occasioned him in prosecuting his claim, to-wit, $200 for attorney’s fees and$10 traveling 'expenses. He prayed for citation to plaintiff and defendants, that the property sequestered be decreed to be his property, and that he be allowed to release the sequestration and have the property restored to him on his furnishing his forthcoming bond for such amount as the court might fix.

The court ordered the sequestration to be released and set aside, and the property sequestered to be restored to the intervenor on his furnishing bond in the sum of $10,300.

The bond having been furnished the logs were taken possession of by Clark.

The defendants in their answer pleaded the general issue, prayed that they be dismissed at plaintiff’s costs, and that the sequestration be dissolved, with $75 damages for attorney’s fees.

Plaintiff answered the intervention.

He first averred that intervenor’s petition disclosed no cause of action, then pleaded a general denial, save what he should specially admit. He admitted the sequestration of the logs or trees, but specially denied that the same belonged to Clark or that he was in possession of the same. Further answering he alleged that the pretended sale of said sequestered property is fraudulent, collusive and simulated, and made with a view of defrauding the creditors of defendants, and specially the plaintiff.

That defendants were insolvent at the date of said pretended transfer, and their insolvency was known to intervenor, and that he knowingly and fraudulently made himself a party to this transaction for the purpose of shielding the property of the defendants from the pursuit of their creditors.

That at the date of the sequestration defendants were in the possession of said seized property, and were then and now exercising all the rights of ownership over the same.

That if there was any transfer or sale of said timber there was at the date thereof no price paid for the same, and that the intervenor being a creditor of defendants the collusive transfer was made for the sole protection of intervenor, to the prejudice of the other creditors, specially plaintiff, and was made for the purpose of giving an unfair preference to intervenor.

That defendants had no other property out of which plaintiff could realize his claim. He therefore prayed that the demand of intervenor be dismissed, rejected and of no effect against plaintiff or of his rights, and in the event that the court deem that a transfer cf said property was made, that the same be avoided,, annulled and set aside, and the property seized be declared subjeet]to the privilege and rights of plaintiff.

The case having gone to trial judgment was rendered thereon in favor of the plaintiff against the defendants, Walker Bros, for the sum of $233.14, with 8 per cent, per annum interest from the 23d day of August, 1890, maintaining the writ of sequestration, recognizing plaintiff’s privilege on the logs and timber sequestered and ordering that the property sequestered be seized and sold to satisfy plaintiff’s demand, principal, interest and costs.

The judgment further decreed that the petition and demand in intervention filed by Lewis S. Clark be rejected, and rejected at his costs.

The intervenor took a devolutive appeal from this judgment to the Court of Appeals, Fifth Circuit, returnable first Monday of May, 1891, but the appeal was dismissed on motion of plaintiff’s counsel for want of jurisdiction, on the ground that the value and amount of the property in dispute was over $2000.

Intervenor then appealed to this court.

' The defendants, Walker Bros., took no appeal and the judgment as to them became final.

The basis of intervenor’s claim consists of two written agreements, which are as follows:

Contract Sale.

New Orleans, June 9, 1890.

L. S. Clarke to Walker Bros.:

2152 trees not rafted and now boomed in Bayous Felix and Oherami, which trees are to be rafted, watched and cared for during the next six months at our expense . . . $5,600

Received payment in full.

Walker Bros.

Agreement.

New Orleans, June 9, 1890.

Having this day purchased from Walker Bros. 2152 cypress trees now in Bayous Felix and Oherami and not rafted, same being timber floated and pulled by them during the last three months, and having paid them in full for said trees the sum of $5600, I hereby agree to sell back to said Walker Bros, the same lot of trees at any time within six months from date on their paying me cost price ($5600), and interest at 8 per cent, per annum.

Walker Bros, assume all responsibility for the care of said trees during the six months, and all expenses for rafting and watching or any other purpose all to be borne by Walker Bros., and in the event of the re-purchase of the timber by them under this agreement, they are to stand any losses of timber which may have occurred by sinking or otherwise, the intention of this agreement being that I shall receive back the full sum paid without any risk, responsibility or expense on my part.

(Signed) Lewis S. Clark.

It should be noticed that the third opponent in his pleadings attacks neither plaintiff’s claim nor his privilege, and that the only issue which he tenders is the restricted issue of ownership vel non in himself of the property sequestered. He occupies, therefore, the position of a plaintiff in an action of reven dication. 12 An. 341. Claiming, as he does, under Walker Bros., whose continued ownership O’Neil insists upon, he must make good his position that their title has been divested and in his favor.

We have very carefully examined the evidence in the record, and are of the opinion that the dealings between the intervenor and defendants did not carry with them a transfer either of the property or possession of the logs seized. Although what is called “the contract of sale” refers to 2152 trees as having been purchased by Clark, the testimony shows that they were scattered about (not rafted) in or about Bayous Felix and Cherami, and formed part of a large number in the same situation in the same locality. At the time of the sale Clark had never seen the trees; he knew nothing of their size, condition, or identity, nor did he know precisely where they were.

It is not pretended that any one but himself dealt with the defendants and the contract left Walker Bros, free at any time to suit themselves, to select the particular trees which they might think proper to have fall under its operation; they were uncertain, indeterminate and not at the risk of Clark, either by law or by contract (C. C. 1915). The sale was not perfect (C. O. 2458). Clark might have held defendants to a delivery to him of 2152 trees, but not any specific trees. If intervenor had any claims they were of the floating character which we referred to in Hero vs. Block, 44 An. 1032, as being neither desirable nor permissible as affecting third parties. The precise objects with reference to which Clark and Walker Bros, were contracting not being fixed, ascertained and designated no possession of the same was or could be given to the former under such uncertain conditions, even if such a purely fictitions delivery as he relies upon in this case could have been available against creditors under the circumstances disclosed by the testimony.

What we have just said is upon the hypothesis that the intervenor and Walker Bros, occupied toward each other (with rights more or less fixed) the positions of vendors and vendee, but we do not think those were in law the relations between the parties.

Walker Bros., who were largely engaged in the business of deadening, cutting, floating, rafting and selling logs, being pressed by their employés for their pay, applied to Clark, to. whom they as well as their father were heavily indebted, to advance them the money needed for that purpose. This he at first declined, but ultimately consented to do, matters between them taking the shape of the contract which is referred to as the “ contract of sale.”

Clark was not engaged in the lumber business, but a planter, and although a creditor of defendants and their father, does not appear to have been pressing them. He did not seek the defendants asking a sale, but they sought him asking a loan of money. He finally concluded, evidently, that by furnishing the money an opportunity would be afforded him not only to secure the same, but also to secure the indebtedness already mentioned as due him by defendants and their father through the contract which he eventually entered into.

Doubtless, as a whole, as between himself and the Walkers, his position was bettered; for he obtained through the contract the nominal title (binding Walker Bros., at least to a certain extent) to property which, the evidence satisfies us, was worth largely more intrinsically than the $5600 named as the price paid for it.

This property was never in fact delivered to the intervenor. It remained in- the actual possession of the defendants, at their expense, and was to 'remain at their risk.

For six months at least defendants were authorized to sell the logs, and were beyond question, by understanding between them and Clark, authorized to appropriate to their own use as funds belonging to them any surplus of price which might remain in their hands after paying Clark in cash his advances and the debts due him with interest. Defendants never ceased to have an interest in this property.

The object of the contract was first to obtain an advance of money to pay the hands, next to secure the logs temporarily from seizure under cover and claim of adverse title, next to secure Clark, and finally to enure to Walker Bros.’ benefit in enabling them to hold the property for six months, within which time a rise in the price of lumber was confidently expected, and within which time a sale was contemplated to be made, through which Clark was to be paid, and (Clark being paid) the defendants were to receive the remainder of the price.

We do not think it necessary to enter into details of testimony, but we feel satisfied that the so-called act of sale was not such, but a mere security.

See as bearing on this subject: Herold vs. Stockwell, 32 An. 949; Howe vs. Powell, 40 An. 308.

The intervenor, as we have said, has not disputed plaintiff’s claim nor Ms privilege, and they have, besides, become fixed between him and the defendants. He has not attempted to place himself before the court as either a privileged creditor or as holder of pledged property. In this respect he occupies the position which Hebert did in the case of Bourg vs. Lopez, 36 An. 440.

It is obvious, however, that the objections urged against the contract as one of sale would be equally applicable to it as one of pledge.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed.

Judgment affirmed.


text:
    No. 11,046.
    Richard L. Robertson vs. City of New Orleans.
    1. Capital invested to be habitually used and primarily intended to be used for a particular purpose not giving exemption from taxation can not become exempt by reason of its being occasionally, exceptionally and accidentally used for another.
    2. Pry docks are not constructed for the purpose of building, but of repairing boats.
    8. Exemption laws are strictly construed.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      T. M. Gill for Plaintiff and Appellant.

      E. A. O’Sullivan, City Attorney, for Defendant and Appellee.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff enjoined the city treasurer from selling his dry docks to satisfy a claim thereon for taxes.

He alleges that he is a mechanic engaged in the manufacture of articles of wood; building boats, and making the necessary apparatus and ornaments therefor, and the docks are not only absolutely necessary, but constantly employed in carrying on his business, in which he has more than five men employed. He alleges that by Art. 20V of the Constitution the docks are exempt from taxation.

The defendant pleaded a general denial, and prayed that the suit be dismissed and the injunction dissolved, with damages.

The court rendered judgment in favor of the defendant, dissolving the injunction and rejecting plaintiff’s demands, and he has appealed.

Plaintiff relies upon his own testimony, that of A. L. McBride, his book-keeper, and that of Louis A. Himel, his foreman.

The latter testified that the number of persons employed by the plaintiff averaged from fifteen to twenty a day; that he was engaged in the “ dry dock” business; that that business embraced the repairing and building of boats; that the docks are used in that business; that plaintiff manufactures different pieces of material for these different boats for repairs and for building; that he manufactured nothing else — that, of course, he put up chains and iron work that was necessary to keep the boat together; that he made all the woodwork and ornaments for boats; that the docks are absolutely necessary for the conducting of plaintiff’s business; that plaintiff repaired steamboats and also ships there; that plaintiff did not build any boat on these docks in 1891, but that he had rebuilt some; that he was rebuilding a boat at the time of giving his testimony (1892) and had then out estimates for building of boats not yet heard from; that the boats which had been rebuilt, and that then rebuilding, were rebuilt on the docks; that rebuilding consists in taking pretty much all the frames out of the boat and replacing them with new, virtually making a new boat when it is rebuilt.

McBride testified that plaintiff’s business consisted in repairing and rebuilding — building anything in the line of mechanic work that applies to steamboats or steamships; that there were then outstanding contracts or offers or bids for building boats; that plaintiff was engaged generally in the business of boat building — building and repairing boats; that there were no boats built, but several rebuilt, in 1891; that he never knew of any boat being built brand new in the docks; there were several rebuilt in 1891 — one was the Hibernia ; she was virtually made new; that it was his impression that there was none of the frame work of the old Hibernia left.

Plaintiff himself testified that he used the docks for building and repairing boats, vessels of all classes and descriptions; that they were absolutely necessary for conducting his business; that they are constantly used by him in that business; that he manufactures boats of all classes and kinds, or at least he builds them; that' he will build anything, from a skiff to a seventy-four gun frigate; that he furnishes everything that is to be built; that last year he took a steamboat called the Hibernia — she was so rotten she could not hold herself together — and he took out every floor and everything and put in brand new deck overhead and everything else; that at the time of giving his testimony he was doing the same thing with the Charles D. Sholas, of Natchez; that he is constantly called on to make bids for building boats, as well for the United States government as for private individuals; that he had a bid standing for seventeen barges, for the United States government and three barges for Mexico; that the docks are two large floating bodies— floating vessels — they are called tanks. That the docks are used for boat building and repairing, used for both; that he built entirely a boat by the name of the Hibernia; that the only part of the old part of the Hibernia left in the new boat was the stern, worth about $50, no iron work left, he took everything out; that he did not build new any boat in 1891; that he bid on several, but lost them, as his bids were too high; he bid to build boats or repair hulls, as the case might be.

In deciding the case the district judge used the following language:

“The evidence satisfies me that the dry docks in this case were not used during the year 1891 in boat building.
“ The court is satisfied that if so used in boat building, they would be exempt from taxation; but it can not extend the article which exempts property used in boat building to mean to exempt articles 'used in boat repairing.”

In his brief counsel says: “ The theory of the judge is, that i'f the plaintiff should not make money, he should pay his taxes; and that if he did make money, he should not pay them.” And in his argument he maintains that the evidence discloses the fact that two boats have been entirely rebuilt upon the docks, and that the latter are essential in the business of boat building, “ for should a boat when launched be found to be defective in its construction it would of necessity have to be placed in dock as a condition precedent to its .delivery.”

Plaintiff entirely misapprehends the ground upon which this case was decided in the lower court. The evidence showed that whilst plaintiff was engaged in “building” boats, he was also extensively engaged in “ repairing ” them. The court was evidently of the opinion that the money and capital expended in the docks were so expended for the construction or purchase of property to be habitually used for “repairing” and only to be exceptionally employed, if at all, in “boat building,” and therefore if exemption was allowed at all, it could only be claimed under Art. 207 of the Constitution in a year in which it had been shown to have been so exceptionally used and employed.

The judge nowhere intimates that if the docks had been constructed or purchased for the purpose of “ boat building ” and were essentially necessary in that business — that if the plaintiff having invested his capital for boat building stood prepared in any given year to build boats, and only failed to do so for the reason that no contracts were called for or no bids were awarded him, the docks would not have been exempt. Had he so held he would have been in error, for plaintiff’s case under such a condition of things wouldhave fallen squarely under the principle announced by us in Waterbury vs. Atlas Steam Cordage Co., 43 An. 723.

We are of the opinion that capital invested to be habitually used and primarily intended to be used for a particular purpose not exempted, does not become exempt by reason of its being occasionally, exceptionally and accidentally used for another. Docks are not constructed for the purpose of building, but of repairing boats. The particular fact brought out in the testimony that the Hibernia had been entirely rebuilt, and the Sholas was at the time of the trial being entirely rebuilt upon the docks, leaves undeniable the fact that when they were placed in the dock they had already been built, and were placed there as existing boats.

The circumstance that when being in the dock, as the necessity for greater and greater repairs developed as they were being partially dismantled, it became possible to make these repairs so progressively, as that ultimately they left the docks “virtually new boats,” as declared, does not alter the fact that the Hibernia and the Sholas were not placed there to be “built.”

Had the owners contemplated the extent of the repairs necessary to be made upon them, it is very fair to presume they would have replaced them by boats built in the usual way on land upon the stocks. The accidental fact that a boat after having been launched should be ascertained to have some unknown and unforeseen defect, requiring her to be placed in dock, does not give to the work done after that time the character of building, but of repairing.”

Whilst we recognize the great value and importance in a commercial community of the business in which plaintiff is engaged in repairing boats, we are powerless to deal with the question before us from that standpoint. We are only authorized to declare property . exempt from taxation when we find the exemption covered by the terms of the article of the Constitution. Where the law makes no distinction the courts can not — it is certainly not less true that they are not permitted to [disregard distinctions which the Constitution itself has thought proper to draw. Exemption laws are strictly construed.

We can but affirm the judgment — judgment affirmed.


author: Nicholls, O. J.

text:
    No. 11,206.
    The Vicksburg Liquor and Tobacco Company et al. vs. William T. Jefferies et als.
    1.The effect oí a decree approving and homologating the deliberations of ameeting of creditors granting their debtor a respite, is to create a judicial contract between the debtor and his creditors, by which the debtor is allowed a delay for the payment of the sums which lie owes them, and as the debtor’s property is the common pledge of his creditors, and the contract is binding) on all the creditors, the law did not and could not contemplate conferring on any one creditor the right of annulling the contract without judicial process, on the ground of its alleged violation by the debtor, and applying the property to the satisfaction of his individual claims. 35 An. 917; 44 An. 823.
    2. The vote of a single creditor is not a mere offer to make a new contract between the particular creditor and the debtor, but a quasi judicial act by which the rights of the other creditors are to he affected; the other creditors should therefore be made parties to any proceeding to annnl or modify the order granting the respite. The court will exproprio motu notice the want of proper parties where the judgment asked for will unavoidably land vitally affect the rights of third parties not before it. 14 An. 30; 7 La. 62.
    3. A plaintiff who closes his case on insufficient evidence, relying upon supplementing it by letters then in his possession, to be offered in rebuttal to testimony which he assumes will he introduced by the defendant, can not claim as a right to reopen the case for the purpose of placing as he states all the facts before the court when the defendant is content to rest his own case on the testimony offered hv the plaintiff. The action of the court onjsuch a request rests upon the discretion of the trial judge, who properly exercised that discretion in the present instance in refusing the application.

      PPEAL from the Seventh District Court, Parish of Madison. Montgomery, J.

      ' Wade R. Young for Plaintiffs and Appellants:
    Several creditors, standing in the same predicament, and seeking- the same relief may join in one application. Pecquet vs. Golis, 1, New Series 138.
    A petition to sot aside conveyances as in fraud of lereditors, which joins several fraudulent grantees, who claim different portions of the debtor’s property, is not subject to the objection that it is multifarious. Collins etal. vs. Stix et al., Ala., R. Rep. 380; Giraud vs. Mazier, 13 An. 117; Williams vs. Hawthorne, 11 An. 615.
    The Article 1965 (1970) of the Civil Code, which provides that the action to annul a contract in fraud of the rights of creditors is to he exercised by the representatives of the creditors, when there has been a cession of property, is no longer in force, having been repealed by the act of the Legislature of 1855 Revised Statutes of 1856, pp. 256, 257, which authorizes, in express terms, the institution of such a suit by an individual creditor after the cession of property. Revised Statutes of 1870, See. 1807; Giraud vs. Mazier, 13 An. 117.
    The judgment in this action, if maintained, shall be that the contract be avoided as to its effects on the complaining creditors, and that all the property or money taken from the original debtor’s estate, by virtue thereof, or che value of such property to the amount of the debt, be applied to the payment of the debt. Civil Code, Art. 1977; State Nat. Bank vs. Monroe Cotton Press Co. et al., 39 An. 531.
    An order staying proceedings rendered on an application for a respite, or a judgment homologating the contract, does not strip the lower court, which rendered it, of jurisdiction over a suit by creditors to annul it. State ex rel. Williams vs. Judge Tenth Judicial .District, 12-An. 71.
    Such suit is the revocatory action of the Civil Code, and not an action to annul a judgment for causes anterior to the rendition of the judgment,Sand all the creditors are not necessary parties to the suit.
    After a respite is granted the debtor can not legally give a preference to a creditor over the rest. Fraud is presumed in a bankrupt. Brandt et als. vs. Sham-burgh, 2 New Series, 329.
    Articles 1986 and 1988 of the Civil Code are to be construed together, and not apply to the case of a debtor who has obtained a respite, because it would be contrary to the very condition on which that favor was accorded, namely, that all will wait the payment of their debts, such as they exist at the time the delay is granted, until a certain period has elapsed. Brandt vs. Sliamburgh, 2 New Series, 330.
    The defendant in the revocatory action who demands the discussion of the property belonging to the original debtor must point out and prove the existence of such property, the title to which is not in dispute. C. C., Art. 1973; Gayosa vs. Lewis, i La. 329.
    The purchaser in bad faith will not be entitled to a restitution of the consideration, unless he proves that it enured to the benefit of the creditors, by adding to the amount applicable to the payment of their debts; but if the only consideration be a sum due from such debtor to the party with whom he contracted, then the only restitution to be made is the placing the parties in the situation in whioh they were before the contract complained of was made. C. C., Art 1982; Chaffe et al. vs. Gill et al., 43 An. 1054.
    Pleas by way of confession and avoidance relieve plaintiff from preliminary proof of his demand. Berry vs. Kimball, 10 An. 787
    The rule that admissions can not be divided does not apply to those in the pleadings, but to answers to interrogatories. C P. 356, or Judicial Confessions under C. C. 2270; Powell vs. Graves, 14 An. 860.
    The answers are a part of the pleadings, and either party may use them without formally offering them in evidence.
    If the court refuses to let in evidence which has been omitted in its order by an oversight, the judgment will be reversed. Thompson on Trials, See. 348; Meacham vs. Moore, 59 Miss. 561; State vs". Rose, 32 An. 932; Heirs of Wood vs. Nicholls, 33 An. 745.

      W. M. Murphy for Defendants and Appellees:
    The burden of proof is upon plaintiffs to make out their case, and they have no cause to complain that defendants offered no evidence, and no right to have the ease reopened after they had closed, the defence having offered nothing.
    Where plaintiff seeks to avoid a contract of sale, payment or preference, as made in fraud of creditors, he must allege and prove three things, viz.: fraud, knowledge of insolvency and injury to the plaintiff. 44 An. 425; Newman vs. Mahonyi 38 An. 422; O. C. 1978; 44 An. 19; Buillion vs. Creditors.
    The b u-den is on him to prove these essentials,
    The judgment homologating actions of creditors in respite or insolvent proceedings is res adjudicóla as to ali matters occurring prior to its rendition. O. C. 3092; 11 An. 36; 3 La. 217.
    If the alleged payments made by the debtor benefited instead of injured plaintffs, they have no cause for complaint. O. 0.1978.
    Where acts have been declared to have been made in fraud of creditors and for that reason revoked, the parties must be placed in the same position as they were in before the contract was made. C. C. 1982, 1983.
    The payment of a just debt in money can not be revoked under any circumstances, and there are no exceptions to this rule. C. C. 1986.
    Actions to revoke fraudulent acts of debtor are prescribed by one year from their date. 0.0.1987; 4 U. 489.
    A party does not lose his privilege by taking part in a respite proceedings. C. C. 3095 ; 24 An. 506.
    No sale of property or other contract made in the usual course of a party’s business nor any paymentof a just debt in money shall be affected by virtue o£ any provision in this section, although the party was in insolvent circumstances, and the person with whom he contracted or to whom he made the payment knew of such insolvency. C. C. 1986.
   The opinion of the court was delivered by

Nicholls, O. J.

This suit is brought by five different persons, who allege that the defendant Jefferies is justly, legally and severally indebted to them.

They aver that in March, 1891, Jefferies filed a petition in the Madison Court, in which he surrendered all of his property to his creditors; that the court- accepted the cession, appointed a provisional syndic, and ordered a meeting of creditors to be called as provided by law. That pending these proceedings in March, 1891, Jefferies abandoned the cession so made and accepted and filed his petition for a respite, and obtained from the court an order staying all proceedings against his person or property, and calling a meeting to deliberate upon the proposed delay of the payment of the sums due them. That plaintiffs were induced to believe by the representations of Jefferies that such delay would be for the interest and advantage of all parties, and would enable him to pay and satisfy his debts in full, and by such representations so made were induced to forbear from opposing the respite or to vote for it, and that a contract was duly entered into and approved by the court without opposition, by which Jefferies obtained a delay of one, two and three years for the payment of his debts, in three annual instalments, of one-third each. That in 1892, as the time for the payment of the first instalment was approaching, Jefferies again presented his petition to the court, praying that all proceedings against his person and property be stayed, and that a meeting of his creditors be called to deliberate upon a proposed change in the terms of the contract, by which the debts should become due and exigible in two annual instalments — in 1893 and 1894. That plaintiffs were again induced to believe by the representations of Jefferies that such additional delay would be for the intei’est and advantage of all parties, and would enable him to pay and satisfy his debts in full, and by misrepresentations so made were induced to consent to the proposed change in the terms of the contract, or to forbear from opposing it, and that the contract was duly entered into and approved by the court without opposition, by which the said Jefferies obtained the additional delay for the payment of his debts. That plaintiffs have recently and since the May term, 1892, learned that the representations so made by the said Jefferies of the condition of his affairs, and upon which their consent or forbearance was obtained, were false, and the said consent and forbearance were given in error of fact induced by the said Jefferies.

That it was represented to plaintiffs and other creditors by said Jefferies that although on account of the low prices of cotton he would not be able to meet the instalment of one-third of the debts in May, 1892, yet he had shipped to his merchant near three hundred bales of cotton, mostly of long staple and superior quality, the proceeds of which would be more than sufficient to pay the expenses of the year-, that he still retained $7000 of the stock of goods, and would be able to continue the business in good condition with a fair prospect of meeting all of his obligations at maturity. That plaintiffs have recently and since the May term, 1892, discovered that the representation of the condition of his affairs so made by the said Jefferies, and by which their consent or forbearance to the new contract was obtained, were false, and that the cottons so shipped was not of long and superior quality — that the proceeds were barely sufficient to pay the expenses of the year — that about only $3000 of the stock remained; that he had abandoned the only business from which he could hope to obtain the means of paying his debts; that his merchant of last year would not continue to furnish him, and that he could not get another, and that so far from being able to continue the business in good condition with a fair prospect of paying his debts he had consumed and wasted or otherwise disposed of the stock of goods so entrusted to him, and practically abandoned the business, with no prospect or intention to pay.

Plaintiffs further represent that Green L. Boney, agent for R. H. & J. G. Boney, and Mrs. M. P. Utz, and Mrs. Sarah E. Marshall, a resident of New York, who were named on the schedule as creditors with lessor’s privilege, and voted for the respite, have conspired with Jefferies in violation of the conditions of the respite, and by fraudulent preference have obtained the payment of their debts of $1300, $840 and $500 respectively, and that Chaffe, Powell & West, of New Orleans, have been paid by Jefferies with fraudulent preference the proceeds of thirteen bales of cotton of the value of. $600.

That said creditors so named as lessors voted to grant the respite and to that extent waived their privilege, and the payments so made to them by Jefferies were fraudulent and void, the said Jefferies being then insolvent to the knowledge of said payees, and were in violation of the terms of the respite. That said Chaffe, Powell & West, although no parties to the contract of respite, were creditors on the schedule, and the payment to them was equally fraudulent and void. That Mrs. Utz, although named on the schedule as a creditor with the lessor’s privilege, was not in fact such creditor. That by Jefferies’ conduct in the premises, his false representation of facts, his waste and consumption and other disposition of the stock of goods, his mismanagement of the business and his fraudulent-payments to favored creditors, the said Jefferies has violated the condition- of his contract and has forfeited the respite and made it necessary for plaintiffs to invoke the process of the court or to submit to have what remains of the assets of the insolvent wasted, consumed or otherwise disposed of in fraud of their rights. That Jefferies has mortgaged, assigned or disposed of, or is about to mortgage, assign or dispose of, his property rights or credits, or some part thereof, with intent to defraud his creditors or give an unfair preference to some of them, and that he has converted, or is about to convert, his property into money or evidences of debt with intent to place it beyond the reach of his creditors.

The premises considered, the plaintiffs prayed for a writ of attachment directed to the sheriff of Madison commanding him to attach all the property, real and personal, rights and credits of W. T. Jefferies to await the further order of court. That Jefferies be cited to answer their demand, that they have judgment against him respectively for the amounts stated in the petition as being due to them severally, with recognition of the lien and privilege resulting from the attachment, and that said Green L. Boney, agent for R. H. Boney and J. G. Boney, and Mrs. Utz, be cited to answer their demand. That Mrs. Sarah E. Marshall, a femme sole resident of the State of New York, who owns property within the jurisdiction of the court, be cited by the attachment of the property and the appointment of a curator ad hoc. That the payments as stated made to them respectively, by the said W. T. Jefferies be decreed to have been fraudulent and void, and that petitioners have judgment against them severally for the said sums of $1300, §840 and §500 so paid to them respectively with interest thereon from their respective dates of payment. That the contract of respite be annulled and avoided, and the proceeds of the property attached and the sums paid by fraudulent preference, and so recovered, be applied to the payment and satisfaction of the judgment of petitioners against Jefferies pro rata.

On this petition the district judge ordered that a writ of attachment issue as prayed for against the said Jefferies, and the said Mrs •Sarah E. Marshall, upon petitioner furnishing bond according to law; and that A. L. Slack be appointed curator ad hoe to represent the absent defendant, Mrs. Marshall.

Under this order the Oabin Teel plantation and other property belonging to Mrs. Marshall were seized, bntfor some reason no action was ever taken against Jefferies’ property.

On the 9th of November, 1892, the curator ad hoe filed an exception that all the parties in interest were not parties to the suit; that plaintiffs’ petition disclosed no cause of action; that they had no grounds for attachment; that the demand upon which they base their action constitutes no debt/’ as against Mrs. Marshall, there being no privity of contract between the plaintiffs and her and consequently no basis upon which to support an attachment; that the allegations, if true, would only disclose a case for damages as against Mrs. Marshall, and is not such an “ unconditional debt ” as the law requires to serve as the basis of such a proceeding as an attachment.

The defendant Jefferies filed exceptions of no cause of action, res judicata, and estoppel.

The defendants Utz and Bonez filed exceptions of want of proper parties and discussion.

By agreement of counsel all these exceptions were referred to the merits (that of non-joinder of parties being withdrawn) and answers were then filed.

The defendant Boney pleaded first the general issue. He then admitted that he had for several years leased to Jefferies the store building where he is at present, and has for a number of years been doing business; that the building was leased by the month and the rent was payable monthly, and has always been- collected by the month. He denied that he took any part in the respite proceedings, or ever by word or deed directly or indirectly agreed with any one to waive his privilege as lessor for the amounts due him, or ever in any manner agreed to grant to Jefferies an extension of time for the payment of said rent or any part thereof. He averred that he had only recently learned of the alleged respite proceedings of Jefferies and of the unauthorized acts of Wade R. Young in pretending to represent him therein — that he had never had any citation or notice of said proceedings, and that Wade R. Young had no right or authority to represent him therein, and that said proceedings and the judgments homologating same are absolutely nuil and void, and without effect as to him. That as lessor of said property he in good faith received the sums due on said lease at the end of each month, and would not under any circumstances have jeopardized his rights by waiving his lessor’s privilege or by granting an extension of time to his said debtor, and he is not guilty of any fraud or bad faith to plaintiffs or to any of Jefferies’ creditors. That the lease of said premises enured to the benefit of Jefferies and to plaintiffs, and to all the creditors of Jefferies, and to plaintiffs during the whole time of said lease and the present continuation thereof, because respondent would not have allowed said lease to run without the payment of same monthly, and had respondent terminated said lease the business of Jefferies would have |been ruined and the interests of his creditors would have suffered greatly, and therefore said complaining creditors have no just cause of complaint against respondent by reason of said transactions.

That if the court should hold that the payments made by Jefferiesto respondent should be rescinded, and the parties placed in the same situation as before said payments were made, then respondent demanded his lessor’s privilege upon the property of Jefferies be recognized and reserved to him for the amount of all said payments, that he have judgment against Jefferies accordingly for said sum. That Jefferies is not insolvent, but has ample property with which to pay the claims of all his creditors, and especially those of plaintiffs; that he owns the goods in the store where he is now doing business, worth $10,000, together with live stock, open accounts and other property worth a great deal more, liable under execution, and which property should be discussed in any event before judgment could be rendered against respondent, and should the court consider this action against respondent entitled to serious consideration, then respondent claimed the benefit of a previous discussion of said property by plaintiffs before considering the question of respondent’s liability.

That the claims sued on are not real claims against respondent, or Jefferies, and he denied their existence; but if valid they are not yet due, and that plaintiffs can not recover judgment thereon until they become due.

The defendant Mrs. Utz, first pleaded the general issue, next admitted that she leased a store building and dwelling to Jefferies from March, 1891, to April, 1892, by the month, at a monthly rental of $60, payable monthly, and received said rental monthly in cash at the end of each month; and then at the close of the answer made allegations and took positions identical with those of Boney.

Mrs. Marshall’s answer was a repetition of her exceptions, coupled with the general issue and a special denial that she had ever received any payment from Jefferies.

Jefferies himself pleaded the general issue, next averred that plaintiffs’ demands are not yet due, and that the action is premature. He further averred that he had carried out in good faith all the agreements, stipulations and conditions of the respite and extensions granted by the creditors, and that all his acts in the premises have been done with the full knowledge, advice and consent of his creditors and of the plaintiffs.

The case having gone to trial, plaintiffs opened their case, introduced their evidence and rested, whereupon defendants declared they also rested. The plaintiffs, alleging surprise at the failure of the defendants to introduce any rebutting testimony, moved the court to “ reopen the case for the purpose of getting all the facts before the court.” This motion was overruled and the plaintiffs reserved a bill of exceptions, to which bill (with the leave of the court) were annexed certain letters of the defendant Jefferies which the plaintiffs had intended to have offered in evidence had their motion to reopen been granted.

On the 14th November the court rendered a judgment in favor of Jefferies, Boney and Mrs. Utz against the plaintiffs rejecting their demand, and in favor of Mrs. Marshall against the plaintiffs rejecting their demands as in case of non-suit, with reservation of her rights to proceed against the plaintiffs and their sureties upon the attachment bond. The plaintiffs have appealed.

In March, 1891, the defendant Jefferies obtained from his creditors in the District Court for Madison parish a respite for one, two and three years. Before the termed fixed for the payment of the first instalment of his debts had been reached he applied for and obtained an order for a meeting of the creditors to deliberate upon granting him a change in the terms of the respite, so as to authorize him to make the payments in two equal instalments, payable in 1893 and 1894. The meeting was held; the creditors acceded to the request and (according to plaintiffs’ allegations) the “contract” to that effect was “duly entered into and approved by the court.” Plaintiffs alleging that they were induced to enter into said contract by the misrepresentations of Jefferies, and that since the respite was granted he had violated the conditions by making premature payments to three designated creditors, giving to those particular creditors an illegal preference over them, have united in a suit, in which they pray for an attachment against Jefferies’ property, for citation to him and the three creditors so alleged to have been illegally paid, and contradictorily with those parties, for a judgment annulling and setting aside the order for a respite and the payments to those particular designated creditors, for judgment in favor of each of them against Jefferies for the amount of their respective claims, and for the application pro rata among themselves of the property attached, and the moneys ordered to be returned as resulting from the setting aside of the payments alleged to have been improperly made. This suit is not brought, if we may so express ourselves, inside of the respite proceedings, but as an independent separate suit between the particular creditors plaintiffs and Jefferies and the particular creditors defendants. This action was doubtless based upon the idea that when the order for the respite was granted and approved by the court, the proceeding terminated, and with it the jurisdiction of the District Oourt over the subject matter ended.

The demand is obviously predicated upon the theory that the “contract” which the plaintiffs speak of, was a separate several contract between Jefferies and each of his creditors individually, for the other creditors placed on the schedule, and who were either actually or constructively parties to the respite proceedings, have been ignored by the plaintiffs and were not made parties in the court below, nor are they parties before us.

The plaintiffs are mistaken in this view of the situation. The very motive and object of bringing the creditors together was, through the vote taken at the meeting, to, bring about a result binding on each and all, and in the supposed interest of the mass of creditors. As said in Morgan vs. Nye, 14 An. 30, the vote of a single creditor is not a mere offer to make a new contract between the creditor and debtor, but a quasi judicial act, by which the rights of the other creditors are to be affected.

In Anderson vs. Duson, 35 An. 917, this court, speaking of the order of respite, said: “ The effect of the judgment is to create a judicial contract between the debtor and all his creditors by which •the debtor is allowed a delay for the payment of the sums which he owes, them. * * * As the debtor’s property is the common pledge of his creditors and the contract is binding on all the creditors the law did not and could not contemplate to confer on any one-creditor the right of annulling the contract without judicial process on the ground of its alleged violation by the debtor, and to proceed to apply the property thus restored to the possession of the debtor to the satisfaction of his individual debts.”

In thus stating the necessity of judicial action in order to bring about an annulment of the order the court was not called upon to express, nor did it express, any opinion as to the character of such judicial proceedings, the persons who should be made parties to them, nor the nature, character and extent of the relief which could be asked and granted on showing the debtor had violated his obligations.

If it be granted that all the creditors were parties to the contract and interested in being heard as to its annulment and the consequences to result from such annulment, or as to its modification in any manner, it would seem that the same rules which govern ordinary contracts should be applied to this and that they should be afforded an opportunity to be heard and their interests consulted before any change should be made. The debtor does not stand as a syndic does, as the representative of the mass of creditors.

We are of the opinion that the granting of the respite and its. approval by the court gave all the creditors rights which could not be ignored, and that the original status of the debtor and his property could not be restored at the instance of one or more creditors so as to remove in their individual favor the injunction (barring them from proceeding against the debtor and his property) which resulted from the respite and thus enable them to attach, seize and apply that property to their special personal benefit. The inequity of such a proceeding is manifest, and was not only referred to in Anderson vs. Duson, but in Mitchell vs. Dalton, 44 An. 823.

If the original situation could be returned to at all, and particularly at the instance of one or more creditors, the proceeding would have to be carried on contradictorily with all the creditors whose rights would unavoidably have to be affected. Morgan vs. His Creditors, 7 La. 62.

While we do not express any decided opinion upon the matter, it certainly admits of a very serious doubt as to whether matters could, legally be thus made to go back to the original position, and whether the only proper and legal course to be pursued should the debtor violate the terms of the respite, and the order of respite be set aside, would not be to force him into a cession of his property for the common benefit of all concerned.

.

Whilst in the case at bar the defendant Jefferies filed no exception' for the want of proper parties, and the other defendants who did do so expressly waived them, the court is bound to notice ex propria mutu that no judgment could be rendered in this cause which would not unavoidably and vitally affect the rights of third parties who are not before it. We have on repeated occasions declared that we could render no decree under such circumstances.

Plaintiffs do not appear before us asking conservatory process in the interest of the mass of creditors nor for a cession of the property in that same interest, but they are seeking to undo, and, by undoing, make to enure to their separate advantage a judicial order, based upon the joint and concurrent consent of themselves and others, upon the faith of which. the others -are resting in full supposed security. This they can not be permitted to do.

Independently of these considerations the judgment of the District Court was correct on the facts as placed before it.

Plaintiffs closed their case upon insufficient evidence, relying upon supplementing it by way of rebuttal to that which would be offered by the defendants.

The defendants having offered no testimony plaintiffs moved the court to reopen the case “so as to place all the facts before it.,') This the court refused to allow. In so ruling, the court exercised, in our opinion, a proper discretion.

Eor the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment of the District Court be and the same is .hereby affirmed.

Rehearing refused.


author: Fenner, J.

text:
    No. 11,155.
    Succession of Stephen White.
    1, When there is an heir present or represented in the State who opposes the ap - plication oí the public administrator for the administration, and applies for it. himself, the law accords the preference to such heir or his representative.
    ,2. It does not affect the case that, at the date of the application by the public administrator, the absent heir was not represented; if, at the date of his timely opposition, he was duly represented, his rights are secured.

      3. A party who, with the exercise of the utmost possible diligence, has been unable to secure his proofs, which he shows are actually in the mail on their way, is entitled to the trifling necessary delay, and is protected in such application by Art. -161, 0.1?.
    PPEAL from the Civil District Court for the Parish of Orleans. j King, J.

      Chrétien c&• Suthon for. the Public Administrator, Appellee.

      J. L. Blair for Opponent and. Appellant.
   The opinion of the court was delivered by

Fenner, J.

Stephen White died in this city on November 23, 1892, intestate, without issue and unmarried, and leaving no heir then present or represented in the State.

Three days after his death the public administrator opened his succession and applied for the administration, alleging that the succession is vacant and that there is property here requiring administration.”

On the 9th of December, 1892, and within the legal delay, J. P. Blair, Esq., filed an opposition to this application, alleging that Mary White Scahel, a sister of deceased, residing in Liverpool, was his nearest of kin and his legal heir, and as such, she or her duly authorized representative was entitled to the administration by preference over the public administrator; that she had appointed opponent as her agent and authorized him to applv for her, but in his own name, for the administration, and to administer for her and oppose all other applications for administration; and he, therefore, opposed the appointment of the public administrator, and prayed for his own ap - pointment as representative of the heir.

This opposition was forthwith set down for trial, on motion of the public administrator, on December' 19, 1892.

On that day the cause was called, and opponent applied for a brief •continuance thereof, in support of which he made the following exceptional showing of facts. He proved that his constituent, Mrs. Scahel, was a legal heir of the decedent and was living in Liverpool, England; that on November 23, 1892, Mr A. C. Hutchinson, a friend •of Stephen White, wrote to Mary White Scahel, the deceased’s sister, residing in Liverpool, England, informing her of her brother’s death and advising her to at once take steps to protect her rights in her brother’s succession; that he suggested to her to appoint some one in this place her agent and attorney in fact, and, having previously obtained the consent of his counsel, the present opponent, he enclosed in his letter to Mrs. Scahel a full power of attorney in favor of opponent, directing her to execute and return the mandate, and to cable him when she had done so, as follows: Mailed power today;” that on December 8, 1892, Mr. Hutchinson received the cablegram in the form agreed upon to indicate the execution and delivery (by mailing) of the power of attorney constituting opponent the representative in this State of Mary White Scahel; that the next day, December 9, opponent, accepting the mandate, applied under it for letters of administration and opposed the application of the public administrator; that on Monday, December 19, when the opposition came up for trial, sufficient time had not elapsed for the evidence of opponent’s authority to act in the premises, the written power of attorney, to reach New Orleans in due course of mail; that letters mailed from Liverpool the day before the mailing of the power of attorney, namely, on December 7, had reached New Orleans Sunday, December 18; that on Monday, the 19th, the day of the trial and the expected arrival of the power of attorney, the train of the Louisville & Nashville Railroad on which such mail was carried was several hours late, and hence in all human probability the power of attorney would arrive later in the day or on the next day.

Here was certainly a showing of all possible diligence, indicating beyond doubt that opponent was actually the duly authorized representative of the absent heirs, and that the power of attorney appointing him as such had actually been executed and was not then producible as evidence, only because it was then in course of transmission by mail and had not had time to reach its destination. It was further made to appear that the condition of the succession was such that no harm would result from reasonable delay. We know too well the justice and fairness of the judge a quo, to suppose for an instant that he would have denied the reasonable demand of the opponent under such a showing if he had supposed that he was cutting him off from the opportunity of making proof which, if made, would have entitled him to a decree. Indeed, under this exhibition of exhaustive diligence, opponent stood under the clear protection of Art. 464, C. P.

“ When a cause is called, a party who had not been able to procure the necessary evidence shall be entitled to a continuance, on proving that he has not sufficient time to get his proof, or has been prevented from doing so by some unforeseen cause.”

But the judge assigned reasons for his action which, if founded in law, might have fully justified it. He said:

“As the court understands the law this case has to be tried upon the state of facts that exists at the time that the application was made for the appointment of the public administrator in this ease, and if at that time there were no heirs present, or there was no one present in this State to represent them, the law has placed the duty upon the public administrator to administer this estate and take charge of this property if the state of facts existed at that time.
“ The court does not consider, in its discretion, that the application applied for should be granted, because the court considers that even if the power of attorney were present here, under the state of facts shown by those affidavits it would refuse the application of the heir and appoint the public administrator. For these reasons the court refuses the continuance.”

These reasons are equivalent to the maintenance of an exception of no cause of action against the opposition, and say, in effect, admitting all the allegations to be true, the opposition has no merit, and therefore a continuance would be useless.

We think, however, the’judge committed a grave error in holding that the right of the public administrator depends on the state of facts existing at the moment of his application and is unaffected by any change of conditions supervening between that date and the date of his actual appointment.

Act 87 of 1870 says: “In all intestate successions, when there is no surviving husband or wife, or heir present or represented, in the State, the public administrator of the parish shall be appointed by the judge of the proper court to administer the same.”

This language obviously refers to the date of appointment as the time at which it is to be determined whether the conditions on which his right depends exist, and if at that time it is made to appear that there is a “ husband or wife, or heir present or represented, in the State,” the application of the public administrator must yield to the preference accorded by the law to such surviving spouse or heir. A contrary construction would involve the absurd consequence that in every case of accidental or temporary absence of the spouse or heir of a dying man, the public administrator, by making immediate application, could defeat the rights of such absentees and the evident purpose of the law. The proposition is utterly untenable.

If the allegations of the opposition are true, opponent is undoubtedly entitled to the administratorship, and, under the showing of diligence made, he was entitled to the reasonable delay applied for for the production of his proofs.

It is therefore adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the case be remanded to the lower court for a new trial according to law of the application of the public administrator and the opposition thereto, appellee to pay the cost of appeal.