author: Manning, J. Fenner, J. Manning, J.

text:
    No. 9103.
    Annie M. Upshur et al. vs. Mary E. Briscoe et als.
    The decision of the Supreme Court of the United States, rendered since the original decree in this ease, has settled the vexed question of the construction of the exemption from discharge in bankruptcy of debts contracted “while acting in a fiduciary character, ’* and has held that such exemption only embraces technical trusts, suck as those of executors, administrators and the like, and does not include trusts resulting from the relation of agents, commission merchants, etc. This reverses the tormer jurisprudence of this Court on this .subject, and, the question being purely -Federal in its character, we shall horeafter follow the decision of the highest Bederál court.
    An analysis of the instrument sued on in this case, satisfies us that the debt created thereby-was not, under this construction, excluded from the discharge in bankruptcy,
    Although a discharge iu bankruptcy is ordinarily personal to the debtor, yot when discharged creditors attack the transactions of the bankrupt which took place after the discharge, his transferees are entitled to the benefit of such discharge, and cannot be deprived thereof, when properly pleaded, by the failure of his collateral heirs, who are themselves estopped from attacking such transfer, to plead the discharge in their own defence. Such a case is not within the purview of Moyer vs. Dewey, 103 U. S. 101.
    A PPEAL from the Ninth District Court. Parish of Tensas, Hough, J.

      Wade It. Young for Plaintiffs and Appellants.
    JE. J). White, J. W. Montgomery and Steele & Garrett for Defendants and Appellees.

      Julius Aroni for the Heirs of Briscoe.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff Annie is the daughter of James Andrews and the widow of John B. TTpshur. Her son and only child is co-plaintiff and is of age.

The defendant Mary is the childless widow of William J. Briscoe, and her co-defendants are his nieces and heirs at law, all married.

The action is based upon this paper-writing;—

State op Louisiana, Parish of Tensas.

Know all men by these presents, that I, James Andrews, of said Parish and State, do nominate, constitute and appoint William J. Briscoe, also, of said Parish and State, my true and lawful attorney for me and in my name, to pay or caused to he paid, to Annie M. Andrews the sum of $700 annually; said amount to he paid at the counting-house of some commission merchant or at some, banking-house in the City of New Orleans, in equal, quarterly instalments of $175 each; said commission or banking-house, to be named and specified before the day of payment to the said W. J. Briscoe, and the said Annie M. Andrews, subject to the conditions and restrictions, hereinafter enumerated, viz: The payments are to be regularly made as above set forth, according to the discretion of the said William J. Briscoe, of the general good conduct of the said Annie M. Andrews, which conduct must, in all respects, comport with the character and bearing of a discreet, prudent female.

The said William J. Briscoe being here present, accepts this appointment and trust, and binds himself to carry out the provisions of the same, according to its true intent and meaning, and I do further constitute and appoint the said William J. Briscoe, my attorney in fact, to have and receive the sum of $10,000, to he held by him for the benefit of the said Annie M. Andrews, subject to the conditions hereinafter enumerated, viz:

It is understood that the annual payments of $700, as above secured, shall be considered as interest upon the said amount of $10,000, and First, it is provided that in case the said Annie M. Andrews shall, hereafter, marry and leave issue, this amount of $10,000, shall remain invested as heretofore in the hands of the said William J. Briscoe, and the interest shall continue to be paid as heretofore mentioned; and in case of the death of the said Annie M. Andrews, such children, legal issue of her, shall become possessed of the above amount of $10,000, unconditionally, in full possession, to be paid by said William J. Briscoe. Second. It is provided, that in case of my death occurring before that of the said Annie, the above amount of $10,000, shall be placed unconditionally in her hands by the said William J. Briscoe, provided only she shall have no legal issue. In case, however, she shall at the time of my death have a child or children, legal issue of her body, then the provision heretofore enumerated, shall be strictly adhered to; and Third. It is provided that in case at the death of the said Annie M. Andrews without legal issue of her body surviving, then the above sum of $10,000, shall revert to me, my heirs or assigns.

Thus done and signed at St. Joseph in said Parish and State this 25th of January, 1857, in presence of Geo. W. Williams and Edgar 1). Farrar, competent witnesses.

JAMES ANDREWS.

G. W. Williams,

E. D. Farrar.

And now to these presents, also comes William J. Briscoe, who accepts this mandate in all its clauses, and binds himself faithfully to carry the same into effect, and the more effectually to secure the faithful performance of the same, he also binds himself as surety for the said James Andrews, that the within mandate and all the stipulations therein contained, shall be well and faithfully executed and that the same shall be complied with in all its clauses. Thus done and signed at St. Joseph on the 25th day of January, 1857, in presence of G. W. Williams and Edgar I). Farrar.

Witness : W. J. BRISCOE.

G. W. Williams,

E. D. Farrar,

And at the same time and place, also came the said Annie M. Andrews, who hereby declares that she accepts the above in all its parts and clauses, ratifying and accepting the appointment of the said William J. Briscoe, as her trustee, and binding herself to confirm and abide by the above mandate in all its provisions. Thus done and signed at St. Joseph on the 26th day of January, 1857, in the presence of George W. Williams and Edgar D. Farrar.

Witnesses: ANNIE M. ANDREWS.

G. W. Williams,

E. D. Farrar.

Recorded in book of Wills and Donations.

Tensas Parish, February 18, 1857.

The payments of seven hundred dollars were annually made until the outbreak of the war between the States, the last regular payment in course having been made in January 1861. One other was made after the close of the war, viz in April 1867—none since that date.

James Andrews died in 1860. Briscoo married the defendant Mary in 1866, was adjudicated a bankrupt and was discharged in 1868, and died in 1880.

In 1857 when the above instrument was executed Mr. Briscoe owned a large and valuable plantation with its appurtenances which he had successfully cultivated many years. He was rich or had the appearance of wealth. Neither Andrews nor any other person in Tensas could have reason to suppose that this affluence would soon disappear. Andrews, pondering how he could best make sure provision for his daughter, entrusted Briscoe with the money set apart for her, and died before the crash came.

In October 1865 Briscoe mortgaged his plantation for $8,081.92, a compromise of a large ante-bellum debt, and in February 1866 executed another mortgage for fifty thousand dollars to Given, Watts & Co. and in April following a third mortgage to C. Fellows for $58,450.16. This last mortgage was also for ante-bellum debts, but the Given mortgage was made to enable him to operate his plantation. He did cultivate it through 1866 and 1867 with the disastrous results that have made those years memorable.

The year 1868 opened gloomily. Given, Watts, & Co, had made a surrender in bankruptcy, but prior thereto, as is asserted,- they had transferred to Mrs. Mildred Gregory such of Briscoe’s notes as had been consumed in his planting operations—three of them of ten thousand dollars each. Mrs. Gregory is the mother-in law of Given, and this transfer was made, as is charged, to pay her $4,000 that the firm owed he).’ and $15,000 that the firm owed her daughter, Given’s wife. Mrs. Gregory sued Briscoe on these notes in January, 1868, and foreclosed the mortgage and bought the property in March for twenty thousand dollars. In April Briscoe went into bankruptcy with $2000 of assets and $150,000 of debts. Briscoe and Ms wife staid on the place, lie managing it as usual outwardly but under a power of attorney from Mrs. Gregory and with no salary. The supplies were sent in Mrs1 Gregory’s name by Given, and the advances in like manner, and both were charged to the Mound plantation. In November came the next event that seems to follow those already narrated inevitably, and which one could predict with absolute certainty.

Briscoe’s wife sued him for separation of property in November. She had no estate. She was a house-keeper when Briscoe married her. Mrs. Gregory had given her a horse, so she alleged, and her husband had sold it for $250 and spent the money, and so she had judgment for that sum and for separation—the same oft-enacted farce.

Then Mrs. Gregorjr sold Mrs. Briscoe the plantation and all that was thereon for $4,517.83 cash and $25,000 credit extending through five years. This sale was made one month after the judgment of Mrs. Briscoe against her husband, when $250 was the sum total of her earthly possessions, and the realization of that was dependent upon executing her judgment against a man who had six months before surrendered everything in bankruptcy and had since been working without pay.

The planting operations of that year liad been successful. In December when this sale, was made there were in Given’s hands $9,102.48 nett proceeds of the cultivation of that year, and which of course belonged to Mrs. Gregory if she were the real owner of the property. This sum was transferred after the sale to the credit of Mrs. Briscoe. The sale included the growing crop and all things else that had been adjudicated to Mrs. Gregory at the sheriff’s sale.

The plantation was worked thereafter by Mrs. Briscoe as owner, her husband being her “manager” or agent. He died in 1880. This suit was instituted in 1881. Its object is to recover a judgment for the $10,000 and for each of the unpaid annual instalments, and to make it, effective against the property, all the acts and doings by and through which the title has boon finally vested in Mrs. Briscoe are attacked as fraudulent simulations, and a decree is prayed declaring the, property to belong to Briscoe or his succession, and liable for this debt.

The case has been handled with signal ability by both sides. The defences are numerous—each in its turn hotly pressed—and the result below was a judgment for the plaintiff’s against the Briscoe heirs for $700 annually from January, 1872, dismissing the demand for $10,000 as in case of non suit as prematurely made, and in favour of Mrs. Briscoe rejecting the claim against her and of course recognizing the. property as hers.

The preliminary question meeting us at the .threshold is the character of the obligation assumed by Briscoe, for if it be not fiduciary in the sense of the Congressional statute, his discharge in bankruptcy released him from compulsory liability for it.

It would be difficult to find a fuller creation of a trust than is there in terms set out. Briscoe is to pay Ann Andrews a fixed sum annually, to produce which a larger sum is put in his hands. The payment is not to be made unconditionally, but only if Ann’s conduct is discreet and prudent, and of that Briscoe is to be the judge. His discretion alone controls him. If Ann shall marry and have issue, the trust continues, and when she dies her issue shall be unconditional owners of the fund, and the trust terminates. If Andrews dies before Ms daughter, she becomes unconditional owner provided she have no issue. If she have issue then, the trust remains as before provided. If Ann die before her father without issue surviving', the money must be returned to Andrews or to his heirs.

The terms used in Acts of Congress must be construed in the sense given them in the common law. They are framed by common-lawyers, have force and effect among and upon a people mainly governed by (he common law, and are interpreted by Courts that expound and apply that system. Not a moment’s doubt would be entertained by them that the word 'fiduciary ’ in the Bankrupt Act meant primarily and par excellence such obligation as was created by Andrews and accepted by Biiscoe, and therefore the discharge of Briscoe in bankruptcy did not affect his liability lor the obligation thus assumed by him. His own conception of the nature of the debt accords with this, since he entered it upon his schedule of debts as a ‘ trust.’

It is next urged that the settlement made by Andrews for the benefit of his daughter contains a substitution and fidei eommissim, and therefore cannot be enforced.

The fund of $10,000 was notgiven to the daughter but only the usufruct thereof. Nor was it given to Briscoe. It was placed in his hands with the conditions that he should pay ovei the fruits of it to the (laughter if her good conduct merited it, and should pay the fund itself to her issue surviving at her death. It was a trust committed to his faithful care, the obligation of which he accepted, and promised to conform to the conditions imposed, and to carry out the purposes of the trustor. For we must not be frightened by names. The first court of this State said as early as 1827 that- the object of the abolishment of substitutions and fidei eommissa was well Known to be to prevent property from being tied up for a length of time in the hauds of individuals, and placed out of the reach of commerce, and that the framers of our Code certainly never contemplated to abolish naked trusts uncoupled with an interest which were to be executed immediately. Mathurin v. Livaudais, 5 Mart. N. S. 302. And this was quoted and applied in Milne v. Milne, 17 La., 57, and repeatedly since.

There is no property tied up and put out of commerce by this settlement of Andrews upon his daughter and her children of a sum of money. Groves v. Nutt, 13 Ann. 122; Suc. Michon, 30 Ann. 214. Nor has it other indicia of a substitution. It is not sufficient, says Marcadé, in order to create a substitution, that the donee shall be obliged to preserve the thing and to restore it. There must needs be an obligation to preserve it until his death. Thus substitution will not exist in a charge imposed upon a donee to preserve the thing given and deliver it to Paul at the end of ten years, or when he shoud become of age, or at any time other than the death of the donee. s * * Whenever a liberality is made with a charge to restore it at auy other time than death, it is an ordinary fidei eomamssim, but not such as the law reprobates. 3 Explication dit, Oocle Nap. 5 463. And lie goes on to explain that even when the liberality is made with a charge to preserve it until the death of the party charged with it, it will not be obnoxious if the charge is to transmit it to a determinate person, and especially when that person is the heir, for that would not interfere with the legal order of succession. Ibid, No. 464. Still further on he argues that it is not always a prohibited substitution when the charge is to return the property to the donor, for e’est un writable retour et nonpas une substitution. Ibid, No. 694. , And in the light of his argument it may very well be that the last clause of Andrew’s settlement—the condition that he shall receive back from Briscoe this money if his daughter shall die without heirs—would not be reprobated. But it is pot necessary that wo should make any ruling on that matter, since the event did not occur. That condition, if reprobated, may be cxcided, leaving all others and the donation'subsisting. Marcado, No. 694.

In this and kindred questions the true rule of construction is not to give effect to refinements for the purpose of so bending the instrument as to.bring it within the terms of a prohibition, but rather to give effect and potency to its meaning and intent, whether or not the language used is in strict conformity to our own nomenclature.

The object and intent of Andrews was one that should be encouraged, not reprobated—to provide for his daughter through varying circumstances. Had he by any sort of donation given hei the usufruct, and retained the naked property himself—or given it her for a term only or for life—the law would not have nullified it. He has merely interposed Briscoe, conveying him no interest, but imposing upon him a trust to do what is not forbidden by law, and the court must compel its execution whenever means are at hand available for the purpose.

It is obvious there are no means at hand if the transfer of ownership of the Mound Plantation to Mrs. Briscoe vests the title absolutely in her, but the successive steps by which that was done indicate unmistakeably the scheme, concocted by Given and Briscoe, to foil all other creditors of Briscoe save those whom Given chose to use as instruments to accomplish their purpose—if indeed the persons thus used were creditors at all. That Given owed Ms mother-in-law, Mrs. Gregory, four thousand dollars we are willing to believe. The alleged debt to his wife of fifteen thousand was manufactured for the occasion.

In order to make the plot effective it was essential that Briscoe should not own the plantation when he went'into bankruptcy, and it was equally necessary that at its sale the nominal purchaser should be a tool of Given. The mortgage for fifty thousand dollars made to the Given firm, which did not represent nor secure a dollar of then existing debt, afforded the appliance that was needful to effect the transfer. The mortgage for fifty-six thousand dollars to Fellows, which -was primed by the Given mortgage, was emasculated by the division of it into sixty notes transferred to different persons, each of whom was powerless to interfere. No one of them could make the small amount of the note lie held a basis for competition at the sale, and combination among them was impossible.

The Given firm had classed Briscoe as an ordinary debtor on their schedule in bankruptcy, and Mrs. Gregory as an ordinary creditor. The Given mortgage notes were kept in the background. When the time for action arrived Mrs. Gregory appeared as the owner of three of these notes of ten thousand dollars each, the other two never having been used, while at the sale under her executory process, the whole mortgage for fifty thousand dollars is still of record. No one would be rash enough to bid against the apparent holder of the mortgage, whose process had provoked the sale, and no one had an interest that could bo protected but McLean whose ranking mortgage for $4517.87 alone stood in the way. He was quieted, and provision made for his debt as we shall see by-and-by.

Thus armed and equipped Given and Briscoe, under covert of Mrs. Gregory, proceeded to the consummation. The Given mortgage was foreclosed and Mrs. Gregory bought for twenty thousand dollars. We attach no importance to the price, and do not care whether it was a fair value or not. The only effect of a higher appraisement and a larger bid would have been to increase the sheriff’s commissions. This sale was in March 1868. Throughout that year the operations of the place went on as before. Briscoe was there directing and guiding as before, but with a complaisance unusual to men who have been stript of all they had by that hard hand of the law which never strikes without evoking an angry growl from its victim, he not only staid and “overseed” but did it gratuitously.

The sale was of all his earthly possessions, even the house furniture ; for the more sweeping and all-embracing the sheriff’s deed to Mrs. Gregory, the less would there be to go on Briscoe’s list of property to be filed in the bankrupt court. And it was filed right on the heels of the sale -in the following month, so soon as the sheriff’s deed, with its plausible and fair-seeming exterior, was spread on the public records to mock and falsify the doubts and surmises of incredulity.

The supplies sent to the plantation by Given were never thereafter marked with Briscoe’s name, nor was the account kept with him. To have supposed that Given would neglect to make the marking of pork-barrels and the heading of Ms ledger conform to the requirements of the new situation, would be an injustice to his fertility of invention, and his sense of symmetry. Everything was done to produce verisimilitude. And as the year sped by and the gravid earth, gathering its accumulated strength which two years of barrenness had but husbanded, burst its bosom and spread before delighted' eyes the rich spoils of an abundant harvest, the excellent judgment of Mr. Given in advising his mother-in-law to this purchase was vindicated. The year closed with a balance of over nine thousand dollars to the credit of the plantation, but Mrs. Gregory was so obtuse in perceiving the excellence of her bargain that she not only incontinently sold the plantation but also transferred all its profits to Mrs. Briscoe so soon as the latter could qualify herself for its purchase by a judgment of separation of property, which be it remembered obtained no funds for her wherewith to buy. The cash payment stipulated at this sale is the exact amount of the McLean mortgage above mentioned, and it was paid by the proceeds of the cotton raised on the plantation that year. It was impossible that this sum should have been Mrs. Briscoe’s under any theory except that the plantation was worked in her interest, to tide over the time when Mr. Briscoe’s discharge from bankruptcy, and her judgment of separation of property obtained, she would be in a position to take the title. And such was the fact.

Tiie surplus of over nine thousand dollars was carried to Mrs. Briscoe’s credit precisely as if she had been the owner and cultivator of the plantation all the year, it being reduced by the charge of McLean’s debt and payment of lawyer’s fees for foreclosing the mortgage upon her husband’s plantation. Mrs. Gregory was merely a person interposed to hold the title until this skillfully arranged plot could be slowly and cautiously worked out. She took the title and passed it to Mrs. Briscoe as an automaton, doing what she was bid by Given. She never saw the x>lace. She was told doubtless all these formalities were different steps needful to realize her money, and Given no doubt thought he was doing a good turn to Briscoe by screening from his creditors the fine plantation, and doing an equally good turn to his own family by hiding away from his own creditors over twenty thousand dollars for his mother in law and wife. The evidence makes patent the scheme to defraud Briscoe’s creditors and to secure to Given’s mother in law, or through her to his wife, what these plaintiffs in the present suit had the best right to.

Prom that time, December 1868, to Briscoe’s death in 1880 the plantation has been in Mrs. Briscoe’s name and its operations enured ostensibly for her sole benefit, while really it has been Briscoe’s property in fact (not so considered by him) and his management, good judgment, and skill have enabled him to pay the debt assumed to Mrs. Gregory. Now that he is dead, 'and the trust accepted by him for the daughter of Andrews has terminated, she and her son ask for its execution. We have said enough to shew that they are entitled to it. Heirs Casanova v. Acosta, 1 La. 186; Thibodeaux v. Herpin, 6 Ann. 676; Spurlock v. Mainer, 1 Ann. 302; Dennistoun v. Nutt, 2 Ann. 483; Suc. Ames, 33 Ann. 1331; Friedlander v. Brooks, 35 Ann. 741.

There remains for consideration what is now the exigible part of the trust fund. Prescription is pleaded. It is obvious it will begin to run from the time each payment became due unless some cause suspended it, or- unless from the nature of the obligation prescription will not apply at all.

The primary condition imposed by Andrews and accepted by Briscoe was that the fund should remain in the latter’s hand until the several events occurred which were to determine the final disposition of it. The plaintiff could not have demanded the principal sum until the-event occurred which should terminate the trust. Provision was made for every contingency except the death of the trustee. The principal was not payable to the plaintiffs until after the death of Andrews and then only in the event of his daughter’s marriage and birth of issue. Briscoe’s death made the principal demandable from his succession, but the annual payments were demandable as they fell due, still prescription would not begin to run during the continuance of the trust nor until there was an unequivocal disavowal of it brought to the knowledge of the party entitled to it.

A payment was made in 1867, and in 1868 Briscoe regarded the relation as one of trust and so denominated it on his bankrupt schedule. In 1872 he offered Mrs. Upshur a compromise, tendering $250 annually and $2500 when he was able to pay that sum. This is the first disclaimer of the relation of trustee and marks the point of time when his functions as such ceased, and from which prescription may be reckoned. South. Mut. Ins. Co. v. Pike, 32 Ann. 488. The plea therefore bars recovery of the annual payment beyond ten years and consequently those accruing before January 1,1872 are lost, and so the lower judge ruled, allowing interest upon each sum annually due from the day it became due.

The loAver court dismissed the demand for the principal sum for prematurity. Why premature since Briscoe’s death does not appear. If ever there can come a time when it was proper to demand the sum entrusted to him, it was at his death, and no time was lost in preferring the claim when that event occurred.

It is therefore ordered and decreed that the judgment of the lower court is reversed in these particulars;—that instead of rejecting the plaintiffs’ demand, the same is maintained, and the sales and conveyances by which Mildred Gregory received title to the Mound plantation and its appurtenances from the sheriff, and by which she afterwards conveyed title to Mary E. Briscoe, are annulled, cancelled, and set aside, and the property thus conveyed is declared to belong to the succession of William J. Briscoe and to be liable to the plaintiffs herein for the satisfaction of this judgment. And it is further ordered and decreed that the plaintiffs have and recover of the succession of said Briscoe seven hundred dollars with five per cent interest thereon from January 1, 1872, and the same sum with same interest from the first of January of each succeeding year until paid, and the further sum of ten thousand dollars and costs of this suit, and in other respects that the judgment be affirmed.

On Rehearing.

Fenner, J.

The plaintiff is Annie M. Andrews, now the widow of John B. Upshur, and her son and only child, now of age, is co-plaintiff.

The defendant, Mary, is the childless widow of Wm. J, Briscoe, and her co-defendants are his legal heirs.

The action is based upon the following written instrument:

Static oe Louisiana,

Parisli of Tensas.

Know all men by these presents, that I, James Andrews, of said Parish and State, do nominate, constitute and appoint William J. Briscoe, also, of said Parish and State, my true and lawful attorney for me and in my name, to pay or caused to'be paid, to Annie M. Andrews the sum of $700 annually; said amount to be paid at the counting-house of some commission merchant or at some banking-house in the City of New Orleans, in equal, quarterly instalments of $175 eách; said commission or banking-house, to be named and specified before the day of payment to the said W. J. Briscoe, and the said Annie M. Andrews, subject to the conditions and restrictions, hereinafter enumerated, viz: The payments are to be regularly made as above set forth, according to the discretion of the said William J. Briscoe, of the general good conduct of the said Annie M. Andrews, which conduct must, in all respects, comport with the character and bearing of a discreet, prudent female.

The said William J. Briscoe being here present, accepts this appointment and trust, and binds himself to carry out the piovisions of the same, according to its true intent and meaning, and I do further constitute and appoint the said William J. Briscoe, my attorney in fact, to have and receive the sum of $10,000, to he held by him for the benefit of the said Annie M. Andrews, subject to the conditions hereinafter enumerated, viz:

It is understood that the annual payments of $700, as above secured, shall be considered as interest upon the said amount of $10,000, and First, it is provided that in case the said Anide M. Andrews shall, hereafter, marry and leave issue, this amount of $10,000, shall remain invested as heretofore in the hands of the said William J. Briscoe, and the interest shall continue to be paid as heretofore mentioned; and in case of the death of the said Annie M. Andrews, such children, legal issue of her, shall become possessed of the above amount of $10,000, unconditionally, in full possession, to be paid by said William J. Briscoe. Second. It is provided, that in case of my death occurring before that of the said xVunie, the above amount of $10,000, shall be placed unconditionally in her hands by the said William J. Briscoe, provided only she shall have no legal issue. In case, however, she shall at the time of my death have a child or children, legal issue of her body, then the provision heretofore enumerated, shall be strictly adhered to; and Third. It is provided.that in case at the death of the said Annie M. Andrews without legal issue of her body surviving, then the above sum of $10,000, shall revert to me, my heirs or assigns.

Thus done and signed at St. Joseph in said Parish and State this 25th of January, 1857, in presence of Geo. W. Williams and Edgar D. Farrar, competent witnesses.

JAMES ANDREWS.

G. W. Williams,

E. D. Farrar.

And now to these presents, also comes William J. Briscoe, who accepts this mandate in all its clauses, and binds himself faithfully to carry the same into effect, and the more effectually to secure the faithful performance of the same, he also binds himself as surety for the said James Andrews, that the within mandate and all the stipulations therein contained, shall be well and faithfully executed and that the same shall be complied with in all its clauses. Thus done and signed at St. Joseph on the 26th day of January, 1857, in presence of G. W. Williams and Edgar D. Farrar.

Witness: W. J. BBJSCOE.

G. W. Williams,

E. D. Farrar,

And at the same time and place, also came the said Annie M. Andrews, who hereby declares that she accepts the above in all its parts and clauses, ratifying and accepting the appointment of said William J. Briscoe, as her trustee, and binding herself to conform and abide by the above mandate in all its provisions. Thus done and signed at St. Joseph on the 26th day of January, 1857, in the presence of George W. Williams and Edgar D. Farrar.

Witnesses: ANNIE M. ANDREWS.

G. W. Williams,

E. D. Farrar.

The objects of the action are: To recover judgment against the heirs or succession of Briscoe; to annul the title held Mrs. Briscoe to the Mound plantation, and to have said plantation declared to belong to the succession of Briscoe and to be subject to the satisfaction of the claim of plaintiffs. Various defenses are interposed, amongst others a plea of Briscoe’s discharge in bankruptcy.

Since the rendition of our original opinion and decree herein, the Supreme Court of the United States has rendered its decision in the case of Hennequin vs. Clews, reported in 111 U. S. Reports, p. 680, which has altered our conclusions as to the effect of the discharge in bankruptcy.

Since the adoption of the Bankrupt Act of 1867, the State courts and the inferior Federal courts, have been divided upon the question as to the effect and true meaning of the 33rd Section of said act, which declares that “no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any other fiduciary character, shall be discharged under this act.” .

A similar clause in the earlier Bankrupt Act of 1841, though couched in different verbiage, had been construed to apply only to technical trusts, such as those of public officers, executors, administrators, guardians and trustees, and not to include the implied trusts resulting from the relations of agents, factors, commission merchants, etc. Chapman vs. Forsyth, 2 How., 202.

Some courts have taken the view, that the same limitations were applicable to the terms “ fiduciary character ” as used in the Act of 1867; while others, including this Court, have held that the language of the latter act, being conceived in broader terms, embraced agents, factors, etc., as persons “acting in a fiduciary character,” within the meaning of the law.

This vexed question lias now been definitely and authoritatively settled by the Supreme Court of the United States, in the recent decision referred to, which holds, in the sense of Chapman vs. Forsyth, that the terms only apply to technical trusts.

Thus the decisions of this Court in the cases of Benning vs. Bleakley, 27 Ann., 257 and Desobry vs. Tête, 31 Ann., 809, besides others, have been overruled by the Supreme Court of the United States, and, the question being purely federal, we must henceforth adopt the view of the latter tribunal.

We are now satisfied that, acting under onr former jurisprudence, we gave too much weight to the agency declared in the instrument upon which this suit was brought as affecting the question of Briscoe’s fiduciary character, whereas, under the decision just referred to, it is entitled to no weight whatever.

Nor is the term trust, as used in the instrument of greater weight; for the question, after all, is not whether the transaction is called a trust, but whether it is a trust within the meaning of the bankrupt act. Suppose an instrument of this kind to be presented: ‘‘-This witnesseth that A has this day delivered to B $10,000 in cash, upon the trust that he is to pay A interest thereon at the rate oi seven per cent per annum, on the first day of January of each current year, and at the end of five years is to. return to A the said sum of 10,000.” Would anyone contend that such an instrument created a trust within the meaning of the bankrupt act, or was evidence of anything but an ordinary contract of loan Í

Now a close analysis of the instrument here sued on reveals the following essential elements: That Andrews delivered to Briscoe #10,000, for which Briscoe obligated himseli to pay seven per cent interest anT nuallv. This interest was to be paid to Annie M. Andrews, during her life or that of Briscoe, with the discretion, however, of withholding it from her in case of her improper deportment. But the obligation to pay the interest, was, nevertheless, absolute and unconditional, and if he judged- Annie M. Andrews unworthy to receive it, it would have remained as a debt due to the ultimate beneficiary of the capilal. This is apparent from the absence of any indication of a purpose to let Briscoe have the use of money without interest, and from the incongruity of construing otherwise the discretion confided to him of judging of her worthiness to receive it; for, if by deciding against the propriety of her conduct, he could absolve himself from the obligation of paying the interest at all, it would create an antagonism between his duty- and his interest, which could find no support in a rational interpretation of the writing. Therefore, we say, he was absolutely and unconditionally bound to pay interest on the money as long as he held it. This, unquestionably, implied the right to use the money and to use it as his own ; for no authority is given to make particular investments of it for account of the beneficiary, and such investments would have been at his own exclusive risk; and, if unfortunate, however prudently made, they would have furnished him no excuse for non-payment of either .principal or interest. It imposed the further obligation of returning the $10,000 (together, as we have shown, with any unpaid interest) to the beneficiary named, or to Briscoe or his heirs or assigns, in certain definite contingencies named and not necessary here to detail. Such is the plain import of the provisions of this so-called “trust.”

In the language of the Supreme Court of the United States: “if the act embrace such a debt, it will be difficult to limit its application. It must include all debts arising from agencies; and indeed, all cases where the law implies an obligation' from the trust imposed in the debtor. Such a construction would have left but few debts on which the law could operate. In almost all the commercial transactions of the country, confidence is reposed in the punctuality and integrity of the debtor, and a violation of these is, in a commercial sense, a disregard of a trust. But this is not the relation spoken of in the act.” Chapman vs. Forsyth, 2 How. 208. Such is precisely the character of the trust reposed in Briscoe—a trust simply in his “punctuality” and “integrity ”—the same trust which lies at the base of every agency and of every loan or other credit. The fact that this trust is expressed in this instrument adds nothing to its nature, force, or effect. Had not' the word “ trust ” been used, it would, nevertheless, have been implied in identical measure and strength.

The Supreme Court has held that a commission merchant who has made away with goods consigned to him by his customer, and failed to account for the proceeds, or a pledgee who has disposed of collaterals and failed to produce or account for them when his debt is 'paid, are not exempted from discharge under the terms of the act. See eases above cited, cmd also Neal vs. Clark, 95 U. S. 704; Wolf vs. Stix, 99 U. S. 1. It would be a mockery of reason to hold such debts subject to discharge, and exclude such an one as that of Briscoe. The commission merchant and pledgee, above alluded to, had committed acts of positive fraud and turpitude, punishable under the criminal statutes of this State. What has Briscoe done ? He merely ventured the money confided to him, as he had the right to do, and lost it as he ran the inevitable risk of doing. In failing to pay according to the obligation assumed, in the language of the U. S. Supreme Court, “ lie is not regarded as guilty of a breach of trust, but only of a breach of contract.”

Indeed, considering the language of the acf, which refers only to “debts created while acting in afidudcwy character,’1'1 we incline to adopt the opinion of the Supreme Court of Massachusetts, “that the phrase implies a.fiduciary relation existing previously to, or independent of, the particular transaction froni which the debt arose.” Cronan vs. Cutting, 104 Mass. 246. This would entirely exclude Briscoe’s case, because all his obligations arose out of the very transaction which gave rise to the trust.

But, under every aspect of the case, considering the authoritative construction now placed upon the act, we conclude that Briscoe’s debt was discharged by the bankruptcy.

It is urged, however, that, as the discharge in bankruptcy is not pleaded by the heirs of Briscoe, but only by his widow, whose title to the property sought to be subjected to the debt is herein attacked as a fraudulent simulation, the latter is not entitled to the benefit of such discharge which is personal to the bankrupt. The plaintiffs, in support of this proposition, rely upon the case of Moyer vs. Dewey, 103 U. S. 301. That case is differenced from this by two distinctions which destroy its application, viz: 1. The transfer of the property there attacked took place prior to the bankruptcy, while that here assailed arose subsequently thereto, so far as Mrs. Briscoe is concerned; 2. Judgments had been rendered against the debtor in that case subsequently to the bankruptcy although founded on debts existing prior to his discharge.

Thus the attacking creditors, in that case, were unquestioned creditors at the date of the transfer, and they remained creditors by subsequent judgment at the date of their suit. But here the transfer to Mrs. Briscoe took place after the discharge in bankruptcy at a time when the debts here sued on wore barred and without revival by subsequent judgment. As we have held in the case of Scott vs. Castleman, decided this day, the heirs we estopped from attacking Mrs. Briscoe’s title in their own right. We cannot admit that, by simply omitting to plead the discharge of their ancestor, they can turn loose upon Mrs. Briscoe the creditors of their ancestor, whose debts were barred at the time when she acquired her title. Mrs. Briscoe, deriving her title, as is alleged, from 'Briscoe, is entitled to the full benefit of the position in which he stood at the date of transfer and to all the defenses resulting therefrom. She cannot be deprived of the benefit of his discharge in bankruptcy by the failure of his heirs to plead it, but is entitled to plead such discharge in her own defense.

This dispenses us from the necessity of reviewing our former decision on the. merits-of this controversy, and we content ourselves with the remark that all that was there said may be considered as not having been said.

The heirs who are sued as representatives of the succession of Briscoe, having failed to plead the discharge in bankruptcy, the personal judgment against the succession must stand, which, however, we understand to be of no moment, as its execution is restricted to the property of the succession which consists of milla bona. And this, doubtless, is the reason why the plea has been omitted.

It is, therefore, ordered, adjudged, and decreed, that our foimer decree herein be revoked and set aside; and it is now ordered, adjudged, and decreed, that the judgment appealed from be amended so as to condemn the succession of Briscoe to pay to plaintiffs the sum of seven hundred dollars with five per cent interest from January 1, 1872, and the same sum with like interest for each succeeding year, and the further sum of ten thousaud dollars and costs of suit; and that, in all other'respects, including the limitations on said moneyed judgment, the same be now affirmed, plaintiffs and appellants to pay costs of this appeal. -

On Rehbauing.

Manning, J.

As the organ of the court in Desobry v. Tete, 31 Ann . 819, after reciting the conflicting decisions of the State and U. S. Circuit courts upon the interpretation of the Bankrupt Act touching the discharge of fiduciary obligations, I said—-“the words ‘while acting in any fiduciary capacity,’ employed in the act of 1867, will be construed in each State with reference to its own legislation, andjdie present contrariety of opinion will doubtless continue until a decision of the 1J, S. Supreme Court shall have definitively settled their interpretation.”

Since the first opinion in this case was rendered in May of last year that court has definitely settled the interpretation of those words in the decision cited in the opinion just read. It is a federal question, and 1 accept the determination of it as binding.

But I have not the shadow of a doubt that the scheme for placing the title of this property in Mrs. Briscoe was concocted and carried, out as detailed in the opinion I read on the first hearing of this case, and I can only deplore that the arm of the law which ought to be strong enough to shatter such schemes is made powerless by the shield thus imposed for their protection.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9381.
    Mrs. Cora C. Sewall et al. vs. Mrs. Penelope L. Hebert et al.
    Minors who have attained their majority, or been fully emancipated, and who intervene in an act of mortgage by one who encumbers property once belonging to the succession in which they were heirs, and who therein waive a rank to which they might be entitled for the payment of their share in the partition of the same property, are estopped from afterwards contesting, either the validity of the partition proceedings, or the title of the first adjudicates, or of subsequent purchasers, particularly of the vendees who have acquired since the date of the mortgage act containing their ratification.
    The prescription of five years bars an action to rescind a partition. The prescription runs from the majority of minors becoming of age, or from their full emancipation, which relieves them of disabilities which attach to minors.
    A PPEAL from the Twenty-third District Court, Parish of Iberville. IX Talbot, J.

      Alex. Hebert for Plaintiffs and Appellants.

      Demid N. Harrow for Defendant and Appellee.
    $am’Z Mattlmos for H. Baldwin.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs sue to annul a partition made during their minority, of a plantation lcuown as the Home Place, in Iberville parish. They also claim the nullity of the subsequent transfers of the property. They bring in all necessary parties.

They base their action on the ground that the proceedings were illegal and fraudulent, and that they have sustained injury.

The main defense, which avails all the defendants, is, that the x>lain-tiffs, since their majority and emancipation, have, by public act, ratified the partition and the subsequent transfers of the property and are thus estopped from contesting the title which the present owner has since acquired to it. The plaintiffs are also met with the plea of tiie prescription of five years, in bar to the action in rescisión.

The record shows that the plantation was adjudicated at the partition sale on May 6, 1871, for $50,000 to Gov. Hebert, plaintiffs’ father; that he afterwards sold it on terms to F. J. Montijo, who, on failure to pay, was expropriated judicially—Mrs. Penelope Hebert becoming the adjudicatee; that in an act of mortgage by-her, in favor of Chism & Boyd, on February 10, 1877, which recites the provenance of the plantation, the plaintiffs intervened and waived in their favor the preference and priority which they had as security for the payment of the amount due them from the partition and mentioned in the certificate of mortgage annexed to the act, and recited therein, and which was of $2,808.10.

The plantation was afterwards, that is, on April 28, 1882, sold by Mrs. Hébert to Henry Baldwin, the present owner. This purchaser had a right to believe in the state of facts as disclosed by the act of mortgage, and to act upon the representations made therein by the plaintiffs. The defense of estoppel is therefore well founded. R. C. C. 2272.

The plea of prescription set up, is also An effectual bar to plaintiffs’ recovery. More than five years had elapsed at the institution of this suit, since the majority of one of the plaintiffs and the full emancipation of the other.

Mrs. Sewall was born on the 16th of December, 1851, and became of age December 16, 1872. Mrs. Proctor was fully emancipated on January 10, 1876, by the judgment of a competent court.

In 36 Ann. 250, this court held, in an action by Mrs. Proctor against her tutor, that the prescription of four years pleaded against it began to run, not from her majority, but from the date of her emancipation.

The present suit was brought on August 25, 1882. The action in rescisión of the partition was then barred by the prescription of five on the 17th of December, 1877, as to Mrs. Sewall, on the 11th of January, 1881, as to Mrs. Proctor. R. C. C. 3542.

Judgment affirmed with costs.


author: Fenner, J.

text:
    No. 9365.
    W. J. McGeehan et al. vs. E. A. Burke, Treasurer.
    Tlio amendment of 1884 to Art. 130 of the Constitution did not destroy the old, or create new, district courts for the Parish of Orleans, hut merely altered the j urisdiction of the existing courts.
    The amendment to Art 146 of the Constitution only relieved the judicial expense fund from contribution to future criminal expenses. It granted a preference on said fund in favor of the officers named therein over all future charges on the fund; but it did not operate retroactively to destroy the valid, vested rights of prior legal warrant holders.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Bm-gess, J.

      B. 11. Formcm for Plaintiffs and Appellants.

      Miller & Finney for Intervenor and Appellee.

      F. L. Bielum-dson on the same side.
   The opinion of the Court was delivered by

Fenner, J.

Art. 145 of the Constitution of 1879 required the General Assembly to enact a fee-bill for the clerks of courts, civil and ^criminal sheriffs, constables, register of conveyances, and recorder of mortgages of the Parish of Orleans; and also to make provision for the collection of such fees directly by the State, instead of by said officers themselves, through the medium of “ a system of stamps or stamped paper,” to be bought from the State and to be used in payment of the fees.

Art. 146 directed that the sums realized from the sale of said stamps “ shall be set aside and held as a special fund, out of which shall be paid by preference the judicial expenses of the parish of Orleans; ” and further prohibited the payment by the State of any such expenses “except from the special fund provided for by this article, and ahy such appropriation made contrary to this provision shall be null and void.”

These articles were carried into operation by appropriate legislation. The fund proved insufficient to meet the charges upon it, and competition arose between the various claimants thereon. See Arnaud vs. Treasurer. 34 Ann. 548. By Act No. 17 of 1882, the General Assembly put an end to such disputes by providing for the payment of all warrants against the fund in rotation of months and in order of date.

Recognizing the inadequacy of the fund to meet “ all the judicial expenses of the parish of Orleans ” as contemplated by Art. 146, the legislature took steps to relieve it from the payment of the expenses of the criminal courts. To this end it adopted Act 113 of 1882, proposing an amendment to Art. 146 of the Constitution, in the following form, viz: “That Art. 146 of the Constitution be amended so as to read as follows : All fees and charges fixed by law for the various civil courts of the parish of Orleans and for the register of conveyances and recorder of mortgages of said parish shall enure to the State, and all sums realized therefrom shall be set aside and held as a special fund, out of which shall be paid by preference the expenses of the clerk of the Civil District Court, the clerks of the city courts, the register of conveyances, and the'recorder of mortgages of the parish of Orleans, provided that the State shall never maKe any payment to any sheriff, clerk, etc.,” following the words of the original article.

A critical comparison of the amendment with the original article will show that the only change consists in substituting for the general words “judicial expenses,” which included expenses of criminal courts, the words italicized 'in our quotation enumerating the particular officers and excluding those of the criminal courts.

This amendment was submitted to, and adopted by, the people, at the general election of 1884.

At the moment of its promulgation, under the administration of the fund in accordance with existing laws, there were outstanding a large number of unpaid warrants for past fees and services, which, by the express terms of Act 17 of 1882, were entitled -to be paid out of the fund in rotation of months and in order of date, and hence by preference over all warrants of a later date.

By Act No.-of 1882, the General Assembly proposed another amendment to Art. 130 of the Constitution, establishing the district courts for the parish of Orleans in similar form, to-wit: “ That Article ISO of the Constitution be amended so as to read as follows; ” repeating the original article with certain changes in the jurisdiction of the courts. This amendment was also adopted by the people at the election of 1884.

The treasurer of the State, charged with the custody and disbursement of the judicial expense fund, did not conceive, that these amendments affected his duties as prescribed by Act 17 of 1882, aud continued to pay all warrants which had been lawfully drawn against it from the fund as it accumulated, in rotation of months and in order of date, without regard to the fact that they had been drawn prior to the date of said amendments. ' The present suit is brought by the officers named in the amendment to Art. 146, as the future preferred beneficiaries of the fund, and who hold warrants drawn subsequently to the promulgation of the amendments. Its object is to restrain the treasurer from paying prior drawn wairants, and to compel him to pay those actually held, or hereafter accruing to them, by preference, out of the funds arising from the sale of stamps after the promulgation of said amendments.

They assume that the effect of the amendment 'to Art. 130 was to wipe out the old, and to create a new, civil district court for the parish of Orleans; that the effect of the amendment to Art. 146 was to establish an absolute preference on the judicial expense fund, in favor of the officers of such new court aud of their fellow-beneficiaries therein named, over the outstanding warrants in favor of the officers of the defunct court as well as those for prior criminal expenses.

We cannot admit that any such effects were intended or produced by the amendments.

So far as the amendment to Article 130 is concerned, we concur in the construction thereof evidently adopted by both the executive and legislative branches of the Government, under which the continued existence of the district court for the parish of Orleans, as originally established l>y tilie Constitution of 1879, has been recognized, and the judges thereof, whose terms had'not expired, have been maintained in office. The only effect intended or'operated by the amendment was the change .of jurisdiction therein prescribed. Therefore, the officers of that court, prior to the amendment to Art. 146, are as fully included within its terms as the present complainants.

So far as the latter amendment is concerned, we are clear that its only intention and effect were to relieve the fund from subjection to future criminal expenses.

The stamp system and the judicial expense fund were established by Articles 145 and 146 of the Constitution, and they continue, to-day, the same system and the same fund, originally provided, unaffected by the amendment to the latter article, except as to the charges hereafter affecting them. When this'amendment was adopted the warrants then outstanding had a legal and valid right to be paid out of the accumulations of said fund in rotation of months and by preference over all warrants of later date.

When that amendment declared that the “expenses of the clerks” and other officers therein named, “ shall t¡e paid by preference ” out of said fund, it established a perfectly valid preference in their favor over future charges, of whatever nature, on said fund. But it did not divest or destroy existing prior preferences established by law, and vested in the then warrant holders.

No cunning of dialectics can evade the self-evident proposition that to give the amendment an interpretation destroying such vested rights would be to give it a retroactive effect.

We decline to follow eouusel into the discussion of theporoer of the State, by constitutional provision, to pass retroactive laws and to divest vested rights. Such questions do not arise, in this case. We rest our decision on the salutary and universal rule, recognized in all systems of law, that no statute or constitutional provision is to be construed as designed to destroy or affect vested rights, however broad the general terms used, unless such intention is unequivocally expressed or necessarily implied from the very nature of the provision. Rotter’s Dwarris, p. 162; Cooley Const. Lim. pp. 62, 370; Civil Code, Art. 8; Const. 1879, Art. 125. There could hardly arise a case in which we could apply this rule more readily; for it would be difficult to express too strongly the positive certainty we feel that it enforces the legislative intent. The arguments on the other side are based upon a subordination of the substance and object of the constitutional amendment to its mere form.

Judgment affirmed.


text:
    No. 9371.
    Joseph Meyer vs. Simon Weil.
    Aii obligation containing the words: ‘‘This is to certify that I am to pay,” etc., is an unconditional promise to pay money or a promissory note.
    Suits brought on unconditional obligations to pay money, must be tried without a jury, unless the defendant pleads want of consideration, or sets up a reconvontional demand, and makes oatli to tjie truth of the allegations of his defense.
    In such suits, and in tbo absence of such oath to such defenses, the court is right in striking the case from tho jury docket and in passing upon it itself
    APPEAL from the Fifteenth District Court, Parish of West Feliciana, Foist, J.

      Wiekliffe & Fisher and 8. 0. MoLcmrason for Plaintiff and Appellee.

      W. W. & R. 0. Leake for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This suit is brought on the following written obligation :

“ $3,000.00.

' “Bayou Sara, La,, February 24, 1883.

“This is to certify that I am to pay to Joseph Meyer, the sum of three thousand dollars, on tho first day of February, 1884, said sum being agreed upon as per contract signed before C. W. Barrow, clerk, this day, and being his interest in the property of the store of Simon Weil, upper store.

(Signed) Simon Weil.”

The defense is failure of consideration. On an averment of injury, inflicted on him by the plaintiff, in bis business, the defendant claims five thousand dollars in reconvention, praying for a trial by jury.

On the day of trial, plaintiff moved to have the case transferred, from the jury to the court docket, on the ground that the obligation sued on is unconditional, and that the defense is not verified by affidavit. The court sustained the motion and the defendant reserved a bill.

On the nieiits, the court rendered judgment for plaintiff, non-suiting defendant on Ms reconventional demand. Defendant appeals.

On the Bill.'

filie word “promise" is not sacramental in a promissory note. No particular form is required by law. It is enough if the note contain a legal promise for the certain payment of a specified sum, and, that the maker and payee be designated with sufficient certainty.

The language used in this case, is precise, positive, peremptory. It is of, at least, equivalent force and similar meaning. It is rather emphatic. It certifies that the maker is to pay, that is, must and shall pay. Tt clearly meets all legal exigencies in that respect, and makes the instrument an unconditional obligation to pay. Parsons on Prom. Notes. Yol. 1, pp. 14, 21, 28; Daniels on Negot. Instr., Vol. 1, p. 32, sec. 36; p. 91, see. 104, Boyle on Bills, 8 ; Chitty on Bills, 130 ; Story on Notes, 1, 14; 22 Ann. 28, 180, 452; 21 Ann. 121; 15 Ann. 143.

It is true that the contract mentioned in the note forms part of it, in as much as reference is made to it in the instrument; but, it was not necessary for the plaintiff, in the absence of any ambiguity, to have produced it, as it only states the consideration. He nevertheless did so. It was referred to for the purpose of showing that the note was issued in furtliérance of it. The note states that the consideration of the $3000, which the drawer certifies he was to pay to the plaintiff, was his interest in the property of a certain store.

The contract is in the record. It does not set forth that payment of the note sued on is to be made dependent on any contingency whatever. It is altogether reticent on that subject.

The defendant says that the condition affixed to the payment was that plaintiff would carry out his obligations under the contract, and that, as the plaintiff has violated them and inflicted damage on him, he cannot recover.

We have failed to discover any such understanding or provision in the contract, which is a compromise of a pending suit, and, therefore, conclude that the obligation sued on is an unconditional one, therefore a joromisso ry note.

The preliminary decision of this question, the character of the obligation, was necessary to pass upon the correctness of the ruling of the district judge, transferring the case from the jury to the court docket.

The Code of Practice, 494, provides: That, suits brought on unconditional obligations to pay money, shall be tried without a jury, unless the defendant shall plead, that it issued without considerationj or set up compensation, or reconvention, and makes oath to the allegations of the plea or answer.

The defendant has not complied with this exigency of the law. He should have sworn to the averments of his defense.

The district judge therefore ruled correctly by striking the case from the jury docket and trying the same himself.

On tiie Merits.

The note and the contract establish plaintiff’s demand.

' The evidence, under the reconventional demand for remote ami supposititious damages, has failed to satisfy us, as it did the district judge, that, as charged, the plaintiff' had interfered with the defendant’s business by deterring others from dealing with him. The plaintiff in reconvention was projierly non suited.

Judgment affirmed with costs.


author: Manning, J.

text:
    No. 9397.
    Nicholas Soulier vs. E. J. Benker, Sheriff, et al.
    Wliore a mortgage has been given for the loan of money by two co-proprietors of land, and one afterwards buys the other’s undivided half of it, he cannot successfully setup a right of homestead upon the land against or in derogation of the mortgage.
    And this the more when ho has assumed the payment of his co-owner’s half of the mortgage-note as a part of the purchase price, since the homestead-right is not pleadable againsl the vendor’s lien.
    The debtor must exercise liis right of selecting the newspaper in which the sale of his property is to be advertised when notice of seizure is given him or before advertisement is made. The sheriff has not to hunt him to ascertain his wishes.
    APPEAL from the Fifteenth District Court, Parish of Pointe Coupee. Young, J.

      Senvple & Bouanelmud for Plaintiff and Aiqiellant.

      Heioes & Parlange, Brcmlc D. (JhréMen, .and Albert Yoorhies for Defendants and Appellees.
   The opiniou of the Court was delivered by

Manning, J.

This is a claim of homestead against .a mortgage creditor.

The plaintiff Soulier and one Wolff became the joint owners of a tract of land in Pointe Coupée by purchase at a sheriff’s sale. They never separated their interests but held it in indivisión, and in 1873 mortgaged it to P. S. Wilts? to secure a loan of $1,150.

In January 1876 Judge DeBlauc acquired this note by transfer from Wiltz, and in May following Wolff sold his undivided-half of the land to Soulier, the price being Soulier’s assumption of the payment of the entire mortgage-note and several hundred dollars besides. Some years passed and no payment was made. Proceedings were then taken to foreclose the mortgage and were met by this injunction asserting a homestead upon the land.

The plaintiff fulfills all the conditions, is the head of a dependent family, etc. and the land is but one hundred and twenty arpents worth about §1,500, so that the sole question is whether his acquisition of his co-owner’s interest, by which he has become owner in severalty of the land, enables him to plead the right, of homestead against his creditor’s mortgage.

Since Henderson v. Hoy, 26 Ann. 156, it has been accepted law that land held in indivisión was not subject to the right of homestead of any of the co-proprietors. Brannin v. Womble, 32 Ann. 805, extended the doctrine to its legitimate result and established the principle that a mortgage given by one proprietor, or owner of an undivided part, of land is not affected by the mortgagor’s acquisition of the remaining part quoad the homestead-rights, and that, this latter cannot be set up against or in derogation of the mortgage given by the part proprietor. As he could not set up a claim of homestead upon the land while he held it jointly with another in indivisión, he cannot acquire the homestead-right by buying the outstanding interests on the land.

This case is stronger. The two owners of the land borrowed money and executed their solidary note and a mortgage upon the whole land. One of them pannot by acquiring the interest of his co-proprietor set up a right of homestead against the mortgage given by both.

Besides, the assumption of payment of the entire mortgage note was a part of the purchase price of Wolff’s half of the land, and is another reason why the plaintiff’s claim cannot prevail. 'The right of homestead is not pleadable against the vendor’s lien.

An additional ground of the injunction is that the debtor was not given opportunity to select the newspaper in which the sale of his property was to be advertised. He had the opportunity when notice of the seizure was given him. It was for him to avail himself of it. The sheriff has not to hunt the debtor to learn from him what newspaper he will indicate to advertise in.

The lower court dissolved the injunction without damages, and an amendment is asked for the allowance of them as prayed in the original answer. The decision in Brannin v. Womble has been made long enough for parties to be advised of it, and we shall allow the attorneys fees as established by evidence.

It is therefore ordered and decreed that the judgment of the lower court be amended by inserting therein that the defendants have and recover of the plaintiff and the surety on his injunction-bond in solido one hundred and fifty dollars, the plaintiff paying costs in both courts.


text:
    No. 9396.
    N. Gregg et al. vs. Lee & Co. et als.
    A sale of a stock of goods in block with the adjuncts of a country-store wholly on credit and. without security to an impecunious buyer has the appearance of a simulation, and whon the seller has no property left and is largely insolvent, fraud is established and the sale will bo annulled at the suit of the seller’s creditors.
    A PPEAL from the Eleventh District Court, Parish of Natchitoches, xi Pierson, J.

      Wailcms, Scarborough, é Carver, ancl Jack & Dvmmkes for Plaintiffs and Appellees.

      J. F. Smith, Fonder & Porter, and A. V., Garter for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

The plaintiffs are thirty live different commercial firms who had instituted separate suits against Lee & Co. for the sums respectively due them and had each obtained j udgment tliereou. These suits were provoked apparently by a pretended sale of Lee &. Co. of their stock of goods (they wore merchants at Robeline a railway station in Natchitoches Parish) made in block to one Warner together with all the accessories of the establishment such as waggons, buggies, hacks, three horses etc. The lots in the. village of Robeline were also .sold and houses thereon, some to Warner, others to a Doctor living in Texas who was brother-in-law to Johnson and Arnold members of the firm of Lee & Co. and all were recorded on October 2,1884. The several suits followed immediately.

All these judgment-creditors bring the present action to annul this sale declaring it simulated and made expressly to defraud them, and alleging that Lee & Co. and the individuals composing that firm have thus denuded themselves of their entire property. The price of the sale was nine thousand dollars, all on credit, four notes having been given therefor due in 1885 and 1886. The plaintiffs obtained an injunction also forbidding the sale or removal of the personal properly.

The testimony in support of the plaintiffs’ charges is so complete that the lower judge had no hesitation in giving them a judgment', and we have none in affirming it.

Two experts were appointed to examine the books of Lee &, Co. who have done their work very well, and they report that the first ledger shews liabilities amounting to over thirty seven thousand dollars while the assets are less than five thousand. The second ledger shews liabilities for over sixteen thousand dollars and assets over ten thousand, so that the defendant firm were insolvent at the time of the salo. Indeed the members do not pretend otherwise, and two of them as witnesses swear that neither of the parties had any property left. The sale included all their possessions, but the experts report they can find no trace in the books of eleven hundred and fifty bales of cotton shipped by the firm to various parties between September 1,1883 and October 1884. What these parties have done with the,proceeds of sale of this cotton cannot be ascertained from the books, although the fact that they did ship that quantity is manifest from them, and this of itself is a badge of fraud. The aggregate of the plaintiffs’ judgments is over twenty-five thousand dollars.

We shall not give even a resume of the erddence, every part of which tended to the same conclusion. The defendants had nothing to offer that could for an instant weaken its force. They seem not to have known that transactions such as this could be torn to pieces in a court of justice and their rottenness exposed to view. One of them said that nearly the whole of the first note had been paid by the purchaser of the stock of goods and he had no reason to believe the others would not be, while the testimony of this purchaser shews that he was cognisant of the whole scheme of fraud and lent himself to its consummation.

Judgment affirmed.


author: Todd, J.

text:
    No. 9304.
    The State of Louisiana vs. Foster Chase, Jr.
    Act 54 of the General Assembly of 1868 defines the qualifications of jurors throughout Ike State, and. provides for the selection of competent and intelligent jurors.
    There is no conflict between this Act and Act 98 of the same year The latter Act by requiring the commissioners to draw the names of one thousand persons from, those qualified to register as voters, from which to select competent jurors, does not thereby determine that such persons entitled to register are competent jurors. They must be guided by Act 54 m determining the question of competency.
    The jurors must be, under Art. lid of the Constitution and the Act 54, intelligent persons, and it is not an improper or illegal discretion on the part'of the Jury Commissioners, under certain conditions, to determine the question of intelligence of a juror by Ms ability to read and write, not asan exclusive test, but as one of the means to such end.
    It is not every error on the part of the trial judge that will suffice to set aside a verdict. It must be so serious as to justify the belief that the accused was prejudiced thereby, and but for such error, a different result might have been reached in the trial.

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

      M. J. Cunningham, Attorney General and Lionel Admns, District Attorney for the State, Appellee.
    . Henry 0. Castellanos for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was convicted of the murder of Marie Louise Prevost, and appeals from a death sentence pronounced in accordance with the unqualified verdict of the jury.

Through his counsel he complains that the trial judge erred in overruling his challenge to the array of the grand and petit jury, and in refusing to give the jury, by whom he was tried, a special charge requested by his counsel, except with an amendment thereto, to which he objected.

1. The challenge was based substantially upon the averment that the venire from which the jury was drawn, was not selected at large by the Jury Commissioners impartially from the citizens of the parish of Orleans, having the qualifications to register as voters, as required by Act 98 of the General Assembly, approved April 10, 1880; but that the Commissioners were guided in said selection by Act 54 of the same session, approved April 1, 1880.

That said last act, it is charged, contained qualifications for jurors repugnant to those prescribed by Act 98, and the commissioners, by tlieir action, excluded from jury service a number of persons who, under the last named act, weregood and competent jurors, and that in so doing and in passing upon the competency and intelligence of jurors, they arrogated to themselves judicial functions not conferred in them by law.

We have examined critically the two acts referred to.

Act 54 is entitled An Act “ To carry into effect Article 116 of the Constitution, to provide the qualifications and for the selection of competent and intelligent jurors throughout the State.”

The act then proceeds to define the qualifications of a juror throughout the State, and among other qualifications it declares that he must be a “competent and intelligent person, having capacity to serve as a grand juror and try and determine both civil and criminal cases,”

This act is strictly an enabling act to carry into effect the article of the Constitution referred to in its title.

This article reads:

“The General Assembly, at its first session under this Constitution, shall provide by general law for the selection of competent and intelligent jurors, who shall have capacity to serve as grand jurors and try and determine botli civil and criminal cases,” etc.

Act 98 is entitled “An Act to organize the Criminal District Court of the parish of Orleans, as established by Article J 30 of the Constitution of the State; to create a board of jury commissioners for the parish of Orleans; providing for the appointment of the same and the filling of vacancies therein; fixing the number of the board; defining its duties, powers and compensation; providing for the manner of drawing and selecting and empaneling grand, petit and tales jurors for the parish of Orleans ; providing for the division of the Criminal District Court for the parish of Orleans into sections; providing for an annual vacation for each of the judges of said court; providing for the transfer of causes pending in the Superior Criminal and the First District Courts for the parish of Orleans to the Criminal District Court for said parish; providing for the appointment of a short hand reporter for the Criminal District Court for the parish of Orleans and fixing his salary, and to repeal all laws in conflict therewith.”

The provisions of this act are in strict conformity with the title.

The question arises, is there a conflict between Act 54 and this Act 98 as charged by the defendant counsel 1

Our examination of the two acts satisfies us that there is no such conflict.

The sole object of the first act was to declare the qualifications of jurors and provide for the selection of competent and intelligent jurors throughout the State.

The last named Act 98, is an enabling act to carry into effect Art. 130 of the Constitution, which required the establishment of a Criminal District Court for the Parish of Orleans; and, the main object of the act was to provide for the organization of such court, and as an incident thereto, for the appointment of jury commissioners and regulate the manner of drawing and selecting jurors for said parish.

'There is nothing in this act that declares or defines the qualifications for such jurors. It is trae that the commissioners are first directed “ to select at large impartially from the citizens of the parish, having the qualifications to register as voters, the names of not less than one thousand persons, competent to serve as jurors,” but, as we construe his clause, it does not convey the intent or meaning that the right to register as voters determined of itself tlieir competency, but on the contrary, the imperative requirement that these thousand persons must be competent to serve as jurors, repels such a conclusion.

The palpable meaning of it is, that these one thousand voters or persons entitled to vote, must be competent jurors, and to be selected exclusively with a view to their competency.

This is the more evident from the further requirement, that this list should be kept complete and supplemented from time to time; and to prepare such lists, and in order to the selection by the commissioners of none but good and competent jurors, they were to have access to the registration books, and have the right to subpoena witnesses and examine them on oath. The form of the oath is prescribed in the act, and it does not require the witness to "answer questions touching the right of the person or persons so drawn to register as voters, but, in the express language of the prescribed oath, touching their qualifications to serve as jurors.

The entire details of the act relating to the drawing of the jurors, in the manner of their selection, are evidently designed to enable the commissioners to determine respecting their competency.

As there is nothing in this act to guide the commissioners in regard to the qualifications of the jurors,—nothing to define their competency—it is manifest that in the discharge of their responsible duties they must look elsewhere for the required information. And where else could they look except to Article 116 of the Constitution and to the enabling act under it, defining the qualifications of jurors, and in mandatory terms requiring the drawing and selection of none but “competent and intelligent persons, having capacity to serve as grand jurors and to try and determine both civil and criminal cases'?

Consulting that act, they were, therefore, compelled to exclude from the list of jurors, all that the act declared incapable from serving in that capacity for the several causes therein expressly mentioned, and also to select none but intelligent persons, capable of discharging the responsible duties devolving on both grand and petit jurors.

We can easily perceive that, to determine this question of competency and intelligence, required a sound discretion and acute discrimination on the part of the commissioners, with which they were clothed under the terms of the statute, and with the exercise of which the courts should not interfere, unless there was a palpable and manifest abuse of that discretion in the means resorted to and adopted, to solve the question.

It does not seem unreasonable, where other conditions justified it> that they should adopt as one of the tests of intelligence in a juror his ability to read aud write. Not that the rule should be absolute and the inability of a juror in this respect should, in all cases, be cause for exclusion. Though it might be forcibly argued that, from the nature of their duties, and the intricate and delicate questions of law aud fact often submitted to jurors for determination, demanding, at times, the examination of written and documentary evidence, such degree of illiteracy as to be unable to read aud write, should be ample cause for exclusion.

In this age of progress and enlightenment, when the facilities for education are so ample, and considering that the most useful and valuable information is derived from books aud the press, it might reasonably be contended that a person so ignorant as to be unable to avail himself of such sources of knowledge, might not be considered competent to pass on questions affecting the lives, liberty and fortunes of men.

But, however this may be, the commissioners in this instance, as we find from the record, adopted no such exclusive rule.

We are further of opinion, that-in resorting to this test as a means among others to determine this question of intelligence, the commissioners as charged by defendant’s counsel, did not arrogate to themselves judicial powers. The matter of intelligence was a fact to be solved as other facts involving no exercise of judicial functions. Besides, intelligence in jurors was a constitutional requirement, and the legislature was clothed with adequate powers to have it determined by the means and instrumentalities it has adopted to this end.

We therefore conclude, that this ground of objection to the proceedings and acts of the jury commissioners is without merit.

2. The second complaint is, that the judge refused to charge as requested.

This is the charge asked:

If from the whole evidence attending the homicide and the attempt of the prisoner to commit suicide, the jury believe he was laboring at that time under such a disordered condition of the mind as to render him unable to distinguish between the right and wrong of the act he was committing, then it is the duty of the jury to acquit.”

In lieu thereof, the judge charged with the following modifications :

If from the whole evidence attending the homicide and the attempt of the prisoner to injliet a wound upon his own person, the jury believe he was laboring at that time under such a. disordered condition of mind as to render him unable to distinguish between the right and wrong of the act he had committed upon the deceased, then it is the duty of the jury to render the following verdict: Not guilty by reason of insanity.”

Both the charge asked and the one given are improper, so far as they refer to the prisoner’s attempt to commit suicide or his attempt to inflict a wound on his own person, are referred to as a fact proved or established on the trial.

Even admitting, that the judge erred in making the substitution complained of, which we do not concede, it was certainly not an error of such gravity as to have worked the slightest injury or prejudice to the accused. It is surely not sufficient in any light that it can be viewed to vitiate the verdict. It is only when a court is satisfied that it has worked a real injury, that for such error a different result would have been reached, that it will set aside a conviction on account of it.

3. The question touching the plea of insanity and when pleaded whether it must be established by the defendant beyond a doubt, or whether a preponderance of evidence will suffice to justify an acquittal, does not seem to be seriously urged. The question, however, has been determined by this Court adversely to the counsel’s contenpon in case of the State vs. DeRauce, and from the principle in rule therein declared, we cannot recede.

Judgment affirmed.


author: Manning, J.'

text:
    No. 9374.
    W. O. Thistle et al. vs. L. O. Irosen et al.
    Where a purchaser of land at execution-sale fails to comply with, the requirements of law and the sheriff refuses to give him a deed and he takes no step to force him to execute one, whereby the title to the land remains on record as in the former owner and creditors of this latter 'execute their judgments upon the land without objection or protest the purchaser at such sale will acquire a good title.
    Where no title has ever been executed and there is no- record of the adjudication, there is nothing to support a petitory action.
    APPEAL from the Ninth District Court, Parish of Tensas. Dagt/, Judge ad hoc.

      Warrick Ihnstall for Plaintiffs and Appellants.

      Wade JR. Young for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.'

John P. Davis bought the Clifton Plantation in Tensas in 1866, giving a small cash payment and two notes of $6,00(1 dollars each therefor. In 1872 G. M. Davis, holder of one of these notes, and Elizabeth Thistle, holder of the other, obtained judgment upon them and the property was sold under a fi. fa. issuing thereon, and was bought by the two creditors. Neither writ nor adjudication nor sheriff’s return appears in the record, but the sheriff made a deed to G. M, Davis in 1877 of one half the plantation upon his paying half of the taxes then accrued. Mrs. Thistle did not pay the taxes upon her half and the sheriff did not execute a deed to her.

In May 1878 the tax-collector brought suit for the taxes against J. P. Davis the former owner and Mrs. Thistle the purchaser for these unpaid taxes—personal service having bseu made on Mrs. Thistle—and obtained judgment in regular form, upon which a fi. fa. issued, under which her part of the property was sold, Robert J. Walker being the purchaser to whom a title was made on September 5, 1878.

Burnett & Co. had before this obtained judgment against John P. Davis which Walker bought and issued a fi. fa. upon it at the same time the tax collector issued his. The price of the property did not fully pay this judgment and the taxes.

H. S. Buckner had a judgment against Walker, and Hugh Allison & Go. had another, under which a sale was made when James M. Gillespie bought the land in February 1880.

The defendant Irosen was a tenant of the land under Walker and was in possession as lessee when this suit was brought. He answered disclosing his lessor and Walker and Gillespie were afterwards brought in and are the other defendants.

The plaintiffs are the heirs of Mrs. Thistle and sue to recover the land, They allege their ownership by inheritance from their deceased mother and that tender was made of the taxes and penalties to Walker within two years from the tax sale, that an amicable partition had. been made between their mother and G. M. Davis, and they sue for the half of the land that she took under that partition. The suit was brought June 9, 1882.

Gillespie denies that Mrs. Thistle ever had any title to the land—that none was executed to her—but if she had any, both hers and J. P. Davis’ title was divested by the sale under the judgment for taxes in 1878 and passed to Walker, and that he holds under a sheriff’s deed given after the execution of a fi. fa. against Walker. He pleads the prescription of one and two and three years.

Although there is no record of the adjudication to Mrs. Thistle in 1876 both parties argue as if one had been made, but it is certain that there was no recorded title to this part of the land out of J. P. Davis. The title so far as the record shewed was in him np to July .1878 when Burnett & Co’s fi. fa. was issued upon their judgment against him, under which Walker bought, at the same time buying also under the fi. fa. issued on the tax-collector’s judgment against Mrs. Thistle.. After Walker had thus bought the interests of Davis the owner of record, and of Mrs. Thistle the adjudicatee under a fi. fa. against Davis,'a tender of the taxes and penalties was for the first time made. This tender is claimed to have been made in the autumn of 1878 or the following spring, and more than three years elapsed after the last date before, this suit was filed in June 1882.

The plaintiffs are not suing to have their right of redemption (if any they have) recognised and enforced, nor do they pray to have the proceedings set aside, but they treat them as absolutely null and non-existing and bring this petitory action to recover the land and produce, no title thereto recorded or unrecorded. The sole basis of their claim is an alleged adjudication that exists only in memory and of which there is not a shred of written evidence. They suffered the title of J. P. Davis to remain on the public records unchallenged, and even stood by silent when his judgment creditor seized the laud as his and the sheriff sold it at public outcry. Nay more, on the same day the sheriff sold in like manner Mrs. Thistle’s interest in the land, whatever it might be, to satisfy a judgment against her rendered after personal service of citation upon her.

After these laches they now demand that Walker’s title acquired at this double sale be disregarded, and that Gillespie’s title acquired at a sale of Walker’s interest be treated as a nullity, and that their own title be declared superior to all others without producing any title whatever on paper or of which any record-evidence exists.

The lower judge refused their demand and we do not see how he could have done otherwise.

Judgment affirmed.


text:
    No. 9311.
    The State of Louisiana vs. Squire White.
    Evror iu the charge of tlie judge to the grand jury is no ground to quash the indictment found by them.
    "Where no bill of exception is taken to the overruling of a motion to quash an indictment, this court cannot review evidence taken on the trial thereof, though found in the record.’

      Evidence cannot he offered in support of a motion in arrest of judgment which must rest on errors apparent on the face of the record. “Whore the trial i« a continuous proceeding begun and completed atan uninterrupted sitting of the court, and the minutes show that the prisoner was presero at the beginning thereof, his continued presence will bo presumed.
    Failure of the record to show his presence at tho filing, arguing and overruling of motions for new trial and in arrest of judgment, is immaterial. /
    APPEAL from the Seventeenth District Court for the Parish of East Baton Ttouge. Burgess, J.

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

      T. JB. Dupree and Robertson & Bussell, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Defendant filed a motion to quash the indictment on the grounds: 1. That K. A. Cross, a private attorney without official position, attended the sessions of the grand jury, and participated and advised m their deliberations; 2. that the grand jury was misled by certain erroneous charges of the judge as to their duties. The State denied the truth of the first ground and demurred to the second. Evidence was heard and the court overruled the motion to quash. No bill of exception was taken to the ruling of the court. We cannot notice the evidence found in the record, the same not being embodied in a bill of exceptions. State vs. Nelson, 32 Ann., 842. We may say, however, that it exhibits no ground of complaint by defendant. Mr. Cross was appointed by the court to represent the State in a different case in which the district attorney was recused; and whether such appointment was authorized or not, it appears that he attended the grand jury only in reference to that case and was not present at any deliberations affecting the charge against defendant.

We know of no authority recognizing errors in the general charge of the judge to the grand jury, as ground for quashing indictments found by them.

The above grounds were re-assigned in a motion for arrest of judgment which was overruled by the court, which properly refused to hear testimony. State vs. Watson, 34 Ann., 672; 25 Ann., 370; 28 Ann., 129 ; 30 Ann., 90; 15 Ann., 185; 6 Ann., 310; 32 Ann., 526; 10 Ann., 265 ; 14 Ann., 827. The errors assigned are not patent on the face of tho record, even if they iiad merit otherwise.

In this Court an assignment of errors has been filed reiterating above grounds which require no further notice, and also assigning deficiencies of the record in showing presence of the prisoner at important stages of the proceedings. The charge that the record does not exhibit his presence when the verdict was rendered would he fatal, if true ; but it is not true.

. The minutes show that “ the accused was brought to the bar to be tried,” that a .jury was invoanneled, evidence and arguments heard, the charge given, that the jury retired, returned into court and delivered their verdict,--all, without interruption and at a single sitting. The continued presence of the accused is presumed. State vs. Collins, 33 Ann., 152; State vs. Cox, id. 1056; State vs. Price, 37 Ann.

His presence when the motions for new trial and in arrest were filed, argued and overruled, was immaterial; State vs. Green, 33 Ann., 1408; State vs. Harris, 34 Ann., 121.

Judgment affirmed.


text:
    No. 9313.
    W. B. Schmidt vs. F. E. Foucher et al.
    A suspensive appeal does not lie from an interlocutory decree dissolving an injunction, where tlie dissolution is permissive only of an act, the commission of which cannot cause any irreparable injury.
    The effect of the dissolution of an injunction issued against an actual possessor of real estate, to prevent him from collecting the rents thereof, is to place the parties in the condition which they occupied before the writ asked was allowed.
    The injury resulting to plaintiff—should ho finally succeed in his petitory action—could be ascertained, computed and liquidated into dollars and cents. Such injury is not irreparable.
    APPEAL from the Civil District Court for the Parish of Orleans, Tissot, J.

      W. 8. Benedict for Plaintiff and Appellee.

      Ohas. F/ouque for Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The injunction issued in this case, was dissolved-on a rule, previous to trial on the merits.

The plaintiff appeals from the decree of dissolution.

The defendant and appellee claims that, as the dissolution of the injunction is permissive of an act, which cannot cause the plaintiff irreparable injury and as the dissolving decree is interlocutory only, no suspensive appeal lies from it. lie therefore, moves for-a dismissal.

The injunction issued against defendant to prevent the collection of rents of x>roperty, which plaintiff claims to belong to him ;- but, of which defendant had actual possession'when the writ was obtained.

The Code, of Practice (566) provides, that one may appeal from all interlocutory judgments, when such may cause him an irreparable injury.

To ascertain whether an appeal lies in such cases, it is only necessary to ascertain whether the interlocutory order, if unappealed from, would authorize an act, the consummation of which might cause irremediable wrong. If the act can cause such injury, the appeal lies; if it cannot, the appeal does not lie.

The exercise of the power to dissolve an injunction, can be reviewed on appeal, only where the act prohibited is such as, if committed, may occasion damage not susceptible of being indemnified.

The erroneous unfettering of the party enjoined and permitting him to do an act irreparably mischievous, confers a right of appeal under the express terms of the law ; but in that event ouly.

No appeal has ever been maintained from an interlocutory decree dissolving an injunction, unless the effect of th’e dissolution was such as would- cause irremediable injury.

Where the wrong apprehended, if consummated, is such as can be ascertained, computed and liquidated into dollars and cents, suspensive appeal does not lie from the dissolving order. Neither would a devolutive appeal lie from it, for the reason that its correctness can be reviewed on duo appeal from .the judgment on tho merits of the case.

It is immaterial whether the injunction be dissolved on bond or otherwise. Au appeal lies ouly where, if the dissolving order is not appealed from, injury, not reparable, would be sustained.

The averment, though sworn to, that unless prevented, the apprehended act, if committed, will occasion irreparable injury is not conclusive on the court. The showing must be such as leaves no doubt on the character of the injury sought to be guarded against 3 Ann. 217; 14 Ann. 57; 16 Ann. 88, 396; 17 Ann. 320 ; 21 Ann. 786; 23 Ami. 151, 51; 3 R. 437; 12 R. 488; 32 Ann. 1192 ; 36 Ann. 833, and many others.

The suit is petitory in character. The plaintiff alleges that he acquired the property from Foucher, who continued to occupy half of it with his wife, and who subsequently, on vacating the same, rented it to a party named, whom he even sued for the rent, recovering judgment, notwithstanding plaintiff’s resistance to tho claim before a city court. The. plaintiff further alleges that he is in possession of the other half. The prayer is, that Toucher and wife he cited, that plaintiff be recognized as owner of the property, and for damages against them, and that Toucher and his wife be enjoined from collecting the rents from the tenant.

Mrs. Toucher answered, claiming title to the property under a transfer from her husband, and Toucher appeared charging the nullity of the title averred by plaintiff

The contention as to the ^ownership of the property is between plaintiff and Mrs. Toucher.

The effect of the dissolving order made on the rule, is to restore things to the condition in which they stood when the injunction was obtained and issued, that is, it retains actual possession of the property where it stood at the time.

The injury which may result to the plaintiff in consequence, would ' consist in a deprivation of the enjoyment of the property pendente lite, a wrong, which, if plaintiff be ultimately successful, can well be ascertained and reduced into dollars and cents, some way or other. 36 Ann. 833.

The damage, if any be sustained, occasioned by any act consequent on the dissolution of the injunction, cannot therefore be said to be irreparable.

The acts complained of do not amount to a trespass. The effect of the dissolution does not change the possession, and the injury is reparable.

If it be true that the court erred in dissolving the injunction, it is an error which can he remedied before, or by the final judgment in the case.

Under such circumstances, a suspensive appeal does not lie. 33 Ann. 133; 22 Ann. 512 ; 24 Ann. 154; 30 Ann. 685; 34 Ann. 1210 ; 35 Ann. 515; 33 Ann. 1560; 30 Anil. 833.

It is therefore ordered and decreed, that the motion prevail and that the appeal be accordingly dismissed, at appellant’s costs.