author: Todd, J.

text:
    No. 8559.
    L. B. Cain vs. Edward Pullen. H. & C. Newman, Intervenors.
    A motion in this Court to strike out claim for damages in intervention comes too late after issue is joined.
    A recouveutional demand need Dot be equally liquidated with the one to which, it is opposed.
    Our law does not authorize the appointment of a commissioner by the Court, to whom the books and papers of a commercial house,'one of the litigants, must be delivered for examination.
    Books and papers must be examined in Court, and when the paity whose hooks or papers are required, resides in another parish, he may furnish sworn copies of them, which will be sufficient.
    Where there is no dispute as between intervenor and defendant, relative to intervenor's claim, the latter can reconvene and recover damages against plaintiff, without citing defendant, or joining issue as to him.
    If is competent to establish by parol a subsequent change or modification of a written contract.
    Without express stipulation to the contrary, ‘-advances ” include not only necessary supplies, but also goods furnished a plantation store, open only to the laborers and employes on the place.
    An agreement, for a consideration, on the part of the lessor, that he will not seize the leased place for rent, until the factor is reimbursed for advances, enures to the benefit of the lessee, and will enable him, as well as the factor, to recover damages for the lessor’s violation of said contract.
    APPEAL from the Ninth Judicial District Court, Parish of Concordia. Hough, J.

      L. L. Levy, Hoatner & Mason, for Plaintiff and Appellant:
    Where the intervenor has been ordered by the Court to produce his books and correspondence before a commissioner of his domicil for examination by plaintiff, and plaintiff swears be can establish material and specific facts by the books or documents called for, and inter venor fails to obey order, plaintiff is entitled on motion, to have the specific facts sworn to, taken pro coufesso, and it is error to refuse the same. Vol. 30, A. R. 11, W. R. Mills vs. Fellows, p. 825; Art 140, C. P.
    Where the intervenor has cited defendant and prayed judgments but failed to have his intervention put at issue, the appellate court cannot dettnniiio whether he is a creditor or not of defendant, and the intervention must fall. Aleix vs. Derbigny, 22 A. R. 386; Weil vs. Weil, 28 A. R. 241; Jones vs. Lawrence, 4 A. R. 279; Yale vs. Hoops, 12 A. R. 464.
    Where iutervenur’s demand for damages against plaintiff rests upon the reality of his de inand against defendant, which inteiveuor failed to put. at issue, a judgment for damage against plaintiff must also fall and share fate of demand against defendant, leaving, as the only issue to be tiled, the demand of plaintiff against defendant.
    A claim for damages against the plaintiff cannot be coupled with an interventional demand claiming privilege upon property seized; nor can it be granted on an intervention against plaintiff, who does not reside in the paiish where main action is pending. G-ersonvs. Jamar, 30 An , part 2, p, 1297.
    Lessor had the right to a writ of provisional seizure. Failure to pay rent as it becomes due is sufficient cause to authorize the provisional spizure of the tenant’s property. Shift vs. Ezekiel, 23 A. R. 383; Wallace vs. Smith, 8 A.. R. 375; Macarty vs. Lepaullard, 4 R. R. 425; Thayer vs. Waples, 26 A. R. 502
    A receipt evidencing an obligation cannot be enlarged by parol to have a meaning foreign to the matter of the contract, but must be taken in that sense most congruous thereto. G. C. [1947] 1952, et seq.

      If there be a doubt arising from the want of necessary explanation, which one of the parties ought to have given, the construction most favorable to the other party should he adopted, whether he be obligor or obligee. 0. 0. Art. 1958, [J9531 et seq.
    Where the lease provides all rent becomes exigible if tenant fails to pay rent punctually as it becomes due, plea of prematurity is not pertinent. In case at bar no such pica was filed. 22 A. B. 511; 32 A. B. 272.

      Steele & Garrett} for Defendant and Appellee:
    1. Parol evidence is admissible to show the capacity in which parties to a written con tract acted in the premises. Barriere vs. Peychaud, 14 Am. 272.
    2 When a suit has been prematurely brought, it must be dismissed, reserving to the party his right to bring his action in due time. C. P. 158; Chiisten vs. Buhlman, 24 An. 50 ? Cattlet vs. Heffner et al., 23 An. 577; 20 An. 538; 15 An. 689-707; 13 La. 403 ; 11 La. 420 ; 8 La. 589, and cases there cited.
    3. Where the suit for rent is brought before due, and no ground for seizure is alleged, except that defendant is in default, which is disproved, the provisional seizure must he dissolved» Cattlet vs. Heffner, 23 An. 577.

      Spencer & White, for Intervenors and Appellees :
    1 The proof shows that, by express agreement, the right to provisionally seize was waived until the crop was gathered, and the factor was paid his advances.
    2. The proof by parol of a subsequent modification of the written lease was admissible. 5 N. S. 459 ; 4 L. 30 ; 2 L. 61; 1 B. 358; 13 A. 504 ; 5 A. 597 ; 17 A. 32; 29 A. 551.
    3. The parol proof of facts, prior to the receipt, was admissible to explain it. 21 A. 175; 19 A. 459; 20 A. 276; 21 A. 532.
    4. Even if this receipt is to he viewed as a substantive and distinct contract, its term** hound plaintiff quoad H. &. C. Newman, not to provisionally seize for rent of 1880, until H. & C. Newman had been reimbursed their advances. Whatever may he the difficulty of construction involved in the verbiage of the receipt, it meant this, if it meant anything at all.
    5. H. & C. Newman advanced, on the faith of the contract, the six thousand dollars paid in March, and the other advance; they have a right to see to the enforcement of the contract.
    (i. The answer, by pleading certain special defenses, admits the legal consequences of the contract, the defenses being untenable.
    7. The crop had not beeD gathered and shipped, and the advances had not been reimbursed when the provisional seizure was issued
    8. The advances were made for plantation puiposes; the store was a mere plantation store, an auxiliary to the plantation, an instrument for their successful working.
    9. The word u advances ’ does not mean necessary supplies; advances are generic. The conti act covered all advances.
    10. Even the necessary supplies, by plaintiff’s own computation, had not been paid when the wrongful and illegal provisional seizure issued.
    11. The action did not abate by the death of Cain, and the claim for damages was an incident to the frustration of the illegal seizure.
    12. The claim against the plaintiff; that the seizure was illegal, was independent of the rendition of a judgment against the defendant.
    13. The duces teewtn was satisfactorily complied with. If not, it was illegally taken; it was never served. The Court properly refused to take it for confessed. C. P. 474.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff sued the defendant on a contract of lease to recover the rents of several plantations for the years 1880, 1881 and 1882, amounting to $18,000, alleging that by the terms of said contract the rents for the years named were due, because of the failure of the defendant to pay the rent for the year 1880.

The suit was filed on the 13th December, 1880, and was accompanied by a writ of provisional seizure, under which the crops then on the plantations, gathered and ungatliered, working animals, contents of a store, etc., were seized.

The defendant answered, alleging in substance, that the proceeding was instituted by the plaintiff, in violation of a special agreement, by which he had bound himself, in consideration of a payment of $6,000, to be made through his merchants and factors, H. & C. Newman, on a note of previous date to the rent obligations sued on, not to proceed to collect the rent for 1880, until his said factors had been reimbursed for all advances made to him for said year. That the sum named had been paid in March, 1880, and that he was, therefore, required to ship his crops to said firm until their advances had been paid, which had not been done, and that any payment on the rent notes had been deferred until the reimbursement to his factors had been accomplished.

H. & C. Newman intervened in the suit, and in their petition set up substantially the same facts, and both the defendant and iutervenors claimed damages against the plaintiff for a violation of the agreement, and the injury resulting therefrom, in the waste of the crops ungathered, from the suspension of work, the closing of the store, etc.

There was judgment in favor of the defendant and intervenors, rejecting his demand and condemning plaintiff to pay each of said parties one thousand dollars damages, and plaintiff, or his executors, who became parties to the suit after his death, occurring during the pendency of the proceedings in the lower court, have appealed.

Before addressing ourselves to the merits of the case, there are several preliminary matters to be considered and disposed of.

The plaintiff’s counsel moved to strike out of the intervenors’ petition the claim for damages, on the ground that plaintiff and intervenors resided in the same parish (Orleans) when the petition and intervention were filed, and since the institution of the suit, plaintiff had died and his succession was opened in said parish of his domicil, and the demand for damages should have been instituted there.

This motion, or exception, was not made until after answer filed and issue joined, and, consequently, came too late.

A similar motion or exception was filed respecting the damages claimed by defendant, on the ground that no such claim in reconvention could be urged against a demand founded on a contract of lease.

This was also properly overruled, as the plaintiff and defendant resided in different parishes, and a reconventional demand is not required to be equally liquidated with the one to which it is opposed.

The plaintiff filed a motion asking for an order requiring the intervenors to produce a.n itemized account of the indebtedness claimed against the defendant, together with the vouchers, etc., and.subsequently they prayed for the appointment of a commissioner in New Orleans, to whom the commercial books of the intervenors should be produced, and in his presence examined by witnesses, and sworn copies of their accounts made therefrom by a certain witness named, and other witnesses not named.

Both orders were made, and the commissioner appointed. It appears from the return of such commissioner, that on the day appointed for the delivery and examination of the books, that Judge E. D. White, one of the attorneys for the intervenors, “ appeared at the office of the commissioner named, before the hour fixed for said examination, and informed him that the papers called for had been previously delivered by the intervenors under a subpama duces tecum from the Court; that the intervenors knew no law which required the delivery of their books to the notary or commissioner, but they would afford evoi’y facility to him, the notary or any authorized person, to examine at convenient times said books and papers, and take abstracts from, and make copies of sucji portions thereof as may be required. ”

Copies of the accounts and papers in question were subsequently delivered into the Court before which the cause was pending, and about the same time plaintiff moved to have the facts set forth in the motion to produce taken pro confesses. This motion was overruled by the Judge a quo, for the reasons stated by him, that the documents called for “had been produced, and before the day of trial, which was in time.”

The ruling was correct, the order appointing a commissioner to whom tlie intervenors were to deliver their books and papers to be examined by witnesses summoned by such commissioner, is not authorized by any law that we are aware of. There is certainly no warrant for it in our Code. The Article under which it is claimed this proceeding was taken, and which is the governing Article on the subject, is 140 C. E. This Article authorizes the Court, at the request of one of the parties, to order the other parties to bring into Court, books, papers and other documents, material in the cause, provided the party asking for their production make oath to the facts he intends to.establish by them ; and on the failure of the party so ordered to comply, the facts sworn to, are to be taken as confessed, unless it was shown that it was impossible to produce them.

It has been held in several adjudications upon this Article, that when the party against whom the order is directed, lives out of the parish where the Court is being held, that he cannot be compelled to bring liis books from his domicil or place of business to the place where the litigation is pending. And it is well settled in such cases, that-sworn copies of the papers desired will suffice. 2 A. 158 j 4 A. 534; 3 8 A. 300.

It is true it is stated in one of the cases referred to, that where the mover is unwilling to rely on the conscience of his adversary, the Court might issue a commission under which witnesses might examine the books and make copies from them. It would require a very liberal construction of the language of that decision to justify an order requiring a commercial house in the City of New Orleans to take their books from their office and deliver them to a person designated to receive them, and leave them for an indefinite time to be examined by witnesses whom the Judge might name, or the person commissioned might summon at the instance of the mover.

In the case referred to, no such order has been made, and no such order was before the Court, and the statement was, therefore, clearly an obiter. And in the present case there is no averment in the motion ■that there was cause to distrust the correctness of copies made out by the intervenors. We cannot, in this case at least-, sanction any proceeding or remedy relating to the point in question, beyond the provisions of the Code, which we think are adequate for the purpose intended to be accomplished.

It is urged by the plaintiff that judgment was improperly rendered on the intervention, and that it should have been dismissed, because no default was taken against the defendant by the intervenors, nor issue joined between them. It is true that plaintiff alone answered the intervention. It is, however, to be noted, that the main issue in the case is jointly raised against the plaintiff by the defendant in his answer, and the intervenors in their petition. The intervenors really join the defendant in his defense against plaintiff’s action, and that is mainly touching his right to proceed against the defendant and resort to the provisional seizure on account of the agreement set up in the several pleadings.

It is true that the intervenors ask a judgment against the defendant for the indebtedness claimed, but a judgment against the defendant for the debt was not essential to their right of action asserted against the plaintiff, growing out of the alleged violation of the agreement in question, so that they made proof of the existence of the debt.

Besides, there seems to be no controversy between the intervenors' and defendant respecting the debt, nor in any other regard. Therefore, it was not necessary to the regularity and validity of the intervention as relates to its prosecution against the plaintiff, that an issue by default or by answer should have been made between the intervenors and defendant. Gerson vs. Jamar, 30 A. 1297.

The authorities cited by the plaintiff’s counsel have been examined, . but are not in point.

On the Merits.

The substantial charge mado by the defendant and intervenors is the illegality of the provisional seizure, and plaintiff’s absolute want of right to institute the action, by reason of the alleged agreement referred to. The defendant, in his answer, pleads specially throe several matters of fact in avoidance of this charge. These are:

1. That at the date of the provisional seizure the intervenors had been fully reimbursed their advances to defendant.

2. That their advances wore not to the plantations cultivated by the defendant, but to his store thereon.

3. That the agreement made with plaintiff contemplated a reimbursement only of necessary supplies, and not for all advancos.

It is very plausibly argued by the intervenors counsel, that by this pleading the entire subject of controversy has been narrowed down to the issues embraced in these three propositions, and that they contain a distinct admission that the agreement averred was made, and that the plaintiff’s failure to sustain them by proof, leaves him without further defense, and justifies the judgment claimed against him. Strictly and technically this may be truo, but we prefer to give him the benefit of the general denial that precedes the special pleas, and decide the case upon its real merits, and as the evidence presents it.

We gather from the record the following as the facts of this case:

The defendant, for many years prior to 1880, had been the lessee of the plantations referred to, and the intervenors had been his factors.

The plaintiff had owned the plantations sincel878. In December, 1879, the defendant leased the property for the three ensuing years at an annual rental of $6,000, and executed the written contract upon which the action was brought. In the writing there is a stipulation that defendant was to pay plaintiff $6,000, during the month of March, the same to be credited on one of several notes held or controlled by plaintiff, amounting to some $20,000.

After signing this contract the defendant applied to the intervenors to furnish the usual advances to the plantations. Upon ascertaining the terms of the lease, and that defendant was to pay $6,000 rental, at the end of the year, and $6,000 more on an old debt, they declined to make the advances. Defendant reported this fact to plaintiff and they both went to the intervenors and there was a verbal agreement entered into by which the stipulated payment of $6,000 was to be made through the intervenors, and in consideration of that, it was agreed that defendant- was to ship the 'Crops to the intervenors, and continue shipping until they were reimbursed their advances, and plaintiff to relinquish all claim on the crops and the right to proceed against them for his rent until they were fully paid.. Here we would note that the testimony to establish this last agreement was objected to, on the ground that it contradicts the written contract of lease. It is shown, as stated, that this agreement was made subsequently to the execution of the written one. It constituted a new and independent contract, intended to modify the original, and to this new contract there was another party, the firm of H. & C. Newman, intervenors.

It is competent to establish by parol, a subsequent change or modification of a written contract. Green leaf, Ev. ; 5 P. S. 459 ; 4 L. 30 ; 1 R. 358; 13 A. 504 ; 5 A. 597; 29 A. 551.

On the 15th of March, 1880, the $6,000 was paid to plaintiff, in conformity to the agreement, and upon its payment the plaintiff gave the following receipt:

Received, New Orleans, March 15, 1880, from H. & C. Newman, six thousand dollars, to be placed to the credit of E. Pullen’s note held by me, due January, 1879. I further relinquish my claim for rent due me by said Pullen for the current year, to-wit: for 1880, until said H. & C. Newman are reimbursed for advances made by them to said Pullen.

(Signed) L. B. Cain.

Before this date the intervenors had been advancing to the defendant, and they continued afterwards to advance for the balance of the year, and when the seizure was made they had not been reimbursed said advances. As stated by one of the Newmans, in his testimony on the trial, and quoting his own words :

At the date of the seizure we had not been reimbursed for advances made to Pullen during the year 1880. At that date he was indebted to us in the sum of $32,449.38, subject to a credit of eighty-one bales of cotton of the year that were unsold at the time that is unaccounted for.” .

This statement was accompanied by a corresponding account found in the record, and is not contradicted.

Notwithstanding this fact, the plaintiff, after applying to the intervenors to pay the rent for that year (1880) which was declined, on the 13th of December, 1879, instituted this suit, which was for the rents of that year and the two following years; as the contract stipulated, that if the rent of the first year was not paid at maturity the whole for the three years should become due, and the suit, as previously stated, was accompanied by a seizure, under which the crops and all the movable effects of the defendant were seized, inflicting, as is conclusively shown, a severe loss, from the causes set forth in the pleadings.

The plaintiff justifies his action and his right to make the seizure, on the following grounds, which we will proceed to notice :

1. That the advances meant in the agreement were necessary plantation supplies, whereas the advances made were not exclusively such supplies, and the large part of them was to the plantation store.

2. That the agreement only included such advances as had been made up to the 15th of March, 1880, the date of the receipt, and not advances for the whole year; and

3. That the agreement by which plaintiff relinquished his right to seize under the conditions stated, was exclusively with the Newmans, and did not enure to the benefit of the defendant, nor affect his right to proceed against him, (defendant) so far as he was concerned.

'First. In the receipt the word “ advances” is used, which has a broader meaning than that of necessary supplies; and Pullen testifying with respect to the prior verbal agreement under which the money was paid and the receipt given, says :

Cain, agreeing to extend the payment of the rent money until the crop was shipped, and H. & C. Newman had been paid the amount of their advances.”

Neither in the verbal or written agreement was there any qualification or restriction in regard to the character of the advances to be made, and we can supply none. Were we to adopt the construction contended for, the intervenors could not even claim reimbursement for the very money that they paid plaintiff, and which was the consideration for the postponement. This was not a necessary plantation supply, but money paid on an old debt. Such a conclusion would be utterly illogical and extravagant.

Relative to the store, its existence on his plantations was well known to the plaintiff, and the purposes for which it was established. It is shown to be strictly a plantation store, to supply the laborers and employees on the places. All their accounts were kept there and settled there. It was literally an adjunct in the planting business, and the defendant testifies that he never paid a dollar out of the proceeds of the store during the year for outside debts, except for labor or servants’ hire.”

The contract between the parties clearly included such advances.

Second. The agreement, in our opinion, did include all the advances made by the intervenors during the entire year. When we recur to the objections made by the intervenors to advancing for the defendant, in view of his obligations to the plaintiff, under the first contract of lease, and the inadequacy of the security to them, as they believed, under the terms of that contract, for any advances they might make, and the evident inability of defendant to pay for such advances, should that contract, as it stood, be enforced against him, plaintiff could not possibly have supposed, after the whole matter had been explained to him, and the difficulty suggested, that the intervenors only wanted to be secured for their advances up to the 15th of March, and were indifferent as to subsequent supplies. Without even this consideration, and restricting ourselves to the language of the agreement, it seems clear enough that the advances ” mentioned meant advances for the entire, year. The word itself and the intention of the parties, evidently referred to the point of time when plaintiff could take out his seizure, that is, at the maturity of the rent note; ■ and it is manifest, it is to this point of time that the advances ” to be made, referred. That intervenors might be secured their advances up to that time, plaintiff would not exercise the right the law and contract gave him, when the rent obligation was due.

Third. The plaintiff bound himself, for a valuable-consideration, not to seize the defendant’s property for the year’s rent, when the same became payable under the written lease. This is j)lain. In the face of it, it seems idle to consider the proposition involving the hairbreadth distinction that hound him only to the intervenors, and did not affect his right against the defendant. Considering that it was this very right against the defendant that he agreed to relinquish,, it seems to us a vain inquiry as to its effect relatively to the plaintiff and defendant, except so far as might concern the claim for damages setup by defendant. But, in onrview of the subject, the agreement not only concerned the defendant and enured to his benefit, hut he was a party to it. Aud a recurrence to the situation of the parties, and the evidence bearing on it, will demonstrate this beyond question.

It appears that the defendant had not only contracted towards the plaintiff for the three years rent, but was indebted to him besides many thousand dollars. He had no other means of paying, except whathe might hope to make by his skill and labor in the cultivation of these plantations.

He could not, however, attempt to cultivate these except by the help of the intervenors or some other factor. Without such aid there was but a gloomy prospect of plaintiff getting the rent for his places, much less being paid the $20,000 he had against the defendant besides. The intervenors held claims against the defendant for favors-extended in past years. There was, therefore, an active interest prompting each of the parties to make the agreement they did. It was by this each itoped to save himself. It was not an agreement between two of the parties, plaintiff and intervenors alone, but a tri-partite or tri-lateral compact, all three being parties to it, and all three present in person when it was made. We refer to the parol agreement made just subsequent to the written one. The receipt given afterwards was merely a fulfilment of this agreement.

The defendant was not only a party to this agreement, but had, likewise, a large interest therein. It enabled him to make an effort to pay his debts, he procured an exemption from seizure for rent, when his obligation matured, and in a certain contingency, that is, if he did not make sufficient crops to pay his factors, he was even exempt from liability for the year’s rent itself. The defendant, therefore, had a clear right to oppose the seizure, on the ground of a violation of an agreement with himself.

It is to be observed that, although plaintiff’s seizure resulted disastrously to himself as well as to the other parties, still it must not be inferred that he lost everything. The evidence shows that 600 acres of land were cleared and put in a state to cultivate, at an estimated expense or value of $12,000. If he sustained any loss, it may have resulted purely from his own improvident and unauthorized act, committed in violation of his agreement. The damages allowed we consider moderate, under the evidence, and we cannot disturb the judgment in this respect.

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


source: Caselaw Access Project

author: Beiuiuoez, C. J,

license: Public Domain

text:
    No. 7585.
    E. Conery, Gallagher, Subrogee, vs Rotchford, Brown & Co.
    An agent has no power to bind a ■firm, or the members thereof, by a confession of judgment where no attempt was made, at the time the judgment was thus obtained, to prove Ills agency.
    An agent of a firm, even if his power had been proved, could not, by a confession of judgment-bind the individual ipembers thereof.
    This judgment is therefore an absolute nullity, which can he set up by the firm, as well as the members who were not cited, in an action to revive.
    A judgment cannot he revived which never existed.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      Merrick, Face & Foster, for Defendants and Appellees :
    1. The death of a partner dissolves the partnership, as, also, does the expiration of the term.
    2. The breaking up and utter annihilation of the business of a firm dissolves the partnership.
    3. Parties who are alien enemies cannot he cited, in justice, in the country to which they are alien enemies, in their absence, respecting the affairs of the partnership.

      4.A clerk, the alien enemy of liis principals, who abandons his employers during the time of war and takes employment in another house, thereby revokes all his powers as agent, and once revoked, he cannot by any .subsequent act of his own renew them.
    0. The war also, in general, revokes the contract of agency, except, perhaps, so far ash respects those things which may be. doue by a negotiorum, gestor.

      •Tno. -If. Bonner, Miller, Finney cf; Miller, for Plaintiff and Appellant:
    1. Tlie judgment sought to be revived was rendered against “the defendants, Botchford, Brown J Go., a eonmercictl firm of this city, composed of Shepherd Brown, Joseph JL. Johnson and Bhilip Botchford, in solido,” being both against the juridical being, the partnership, and the individual members thereof.
    2. The allegations of the petition, and their admission by the answer of the defendants through their duly authorised agent, R. A. Bourke, fully justify and warrant the judgment as rendered.
    The cause of action, as sot forth in the petition, was “that Shepherd Brown, Joseph H. Johnson and Philip Rotcbford. composing the firm of Rotcbford, Brown & Co , domiciled in this city, and doing a commercial business under said style, are indebted, in solido,” to petitioner, as the holder and owner of four certain promissory notes made to the order of, and endorsed by, Rotcbford, Brown & Co., on which demand, protest and notice of protest had been waived, and which notes were annexed to and made a part of the petition. The petition, therefore, exhibited a two-fold obligation, viz: one involving the juridical being, the partnership 5 and the other, the solidary liability of the individual members of the partnership.

      The voluntary appearance qf the defendant, through their duly authorized agent, stood in lieu of citation, and dispensed with citation. C. P. Art. 206.
    3. This judgment is regular inform, and is certainly not an absolute nullity. “Nullities which'are not absolute, but relative, cannot be invoked in this proceeding. Whatever he the force of a judgment, not absolutely null, and however irregularly rendered, the party mi* (crested is entitled to kaveiU'evived.” Rolger & Son vs. Slaughter efc al,, 33 An, 342; 30 An. 1330 ; 31 An. 326 ; 29 An. 69.
    4. At the time the original judgment was rendered, Bourke was ignorant of tlie death of Johnson, and his authority to appearand confess judgment for the firm still subsisted. R. C. C. 3032 and 3033.
    5. Under the original and. modified agreement of partnership, the death of Johnson did. not dissolve the partnership, and did not, therefore, revoke the power of attorney held by Bourke. R. O. C. 2882.
    6. The burden of proof is on the defendants to show cause why this judgment should not be revived. Plaintiff is not bound to exhibit a judgment that is free from any sort of attack in order to have it revived. The statute reads: “ Any one interested in any judgment may have the same revived at any time before it is prescribed, unless the defendant or his representative SHOW good came why the judgment should not be revived.”
    We do not ask your Honors to validate this judgment in any way. All we ask is to arrest the running of prescription, by having it revived “ with all its defects upon its head.”
    “ The judgment of revival does not correct defects in the original judgment; does not impart any additional force to it 5 hut tvhafever it is, or was, in the beginning, merely preserves it and saves it from extinction.” 33 An. 342.
   Tlie opinion of tlie Court was delivered by

Beiuiuoez, C. J,

This is an action to revive a judgment. The case was once already before this Court, hut was remanded, 30 A, 692.

From an adverse judgment on the remandment, the plaintiff has appealed.

The original suit, wherein the judgment sought to he revived was rendered, was upon notes endorsed by Rotchford, Brown & Co. The petition prayed that judgment be rendered against the members of the firm, who wore asked to bo cited individually.

On the written answer of one representing himself as the agent of the defendants,” judgment was rendered against the firm Rotchford, Brown & Co., composed of Shepherd Brown, Joseph H. Johnson and Philip Rotchford.

Within ton years after the rendition of this judgment, the suit to revive it, was instituted, which, now appears for a second time before this Court.

The main defense is, that the judgment sought to be revived is an absolute nullity, and as such cannot be revived.

The record of the suit in which it was rendered, consists merely of the petition, the endorsed notes, with waivers, the answer of R. A. Bourke, appearing and coufossingjudgment as the agent of the defendants, and the judgment rendered thereon and signed.

No evidence of the alleged agency was offered at the time.

It is claimed, however, that on the trial of the suit to revive, that agency was proved, as resulting from a notarial power issued to Bourke by Rotchford, Brown & Co., on the 19th of May, 1858. The evidence establishes that Bourke had no other power audit is not contended that ho had any other. That power, even if introduced in evidence at the time, would not havo justified the confession of Bourke in the name of Rotchford, Brown & Co., who wore not parties to the suit, who had not even been asked to be cited. It did not authorize Bourke to volunteer and confess judgment in the name of Rotchford, Brown & Co., in cases in which they had not even been made parties.

The judgment rendered was not even against the members of the firm. It could not havo been, for the reason that the power of attorney to Bourke was not issued to him by the individual members of the firm, but only by the firm. Such power did not confer on him, in any manner, the right to represent the individual members in that case. 18 A. 336.

The judgment rendered on the answer confessing judgment, is not responsive to the petition. It is not such as could have served as a foundation for any writ of fieri facias.

It is usual in suits against commercial firms, to obtain judgment not only against the firm, but also against each and every member composing it. The members in this case were not cited, and the judgment rendered, is not against them. It is rendered against the firm composed of the members, but it is not against the members.

It is well settled now, that in a suit to revive a judgment, although the defendant be not permitted to attack the judgment sought to be revived, by urging some latent or relative nullities, sucli party is allowed to oppose the revival, but setting up patent or absolute nullities, which show the judgment to be utterly null and void. 30 A. 692, 363; 32 A. 1006.

The judgment sought to be revived, is shown clehrly to be an absolute nullity. The plaintiff seeks to revive that which never had any being. He cannot do so. 33 A. 342, 615 ; 31 A, 326; 30 A. 1330 ; 23 A. 69, 173 j 29 A. 69 ; MeCutcheou vs. Askew, 34 A. ; Levy vs. Calhoun, lb.

This view of the case dispenses us from passing upon the other defenses urged.

It is, therefore, ordered and decreed, that the judgment appealed from be affirmed, with costs.


author: Levy, J.

text:
    No. 8337.
    The State of Louisiana vs. John Henry Douglass.
    The testimony of a witness, taken contradictorily with tho accused at the preliminary ex» animation, is admissible at the trial, if the witness is then absent from the State.
    The failure of the committing magistrate to require of the witness that he should furnish his recognizance, does not operate against the State to show such want of proper diligence as should exclude the testimony.
    It is not necessary, in order to render an accessory liable as a principal, in a charge of man* slaughter, that he should have been actually present at the homicide; such presence may be constructive.
    APPEAL from the Eighth Judicial District Court, Parish of East Carroll. Delon ey, J.

      J. O. Egan, Attorney General, for the State, Appellee;
    1. "When the bill of exceptions contains no'specific objection, but uses vague and indefinite terms, it will not be considered by this Court. Voorhies’ Crim. Juris., Sec. 156, p. 472; 32 A. 819 j 10 A. 458; lb. 453; 12A.382; oA.342 ; 6 A. 420 and 651; 11 A. 283 and 430 j 12 A. 67!); 14 A. 461; H. IX Sec. 14, p. 410.
    2. An assignment of errors in criminal, as in civil cases, must be written in accordance with Art. €97, C. P., and must be filed before the case is submitted, or the right to assign errors is waived. 12 A. 682.
    3. Objection to incompetent evidence must be made when the same is offered, and the object tion and the ruling of the cou.it thereon embodied in a bill of exceptions, to be consideied by this Court. 31 A. 804.
    4. The motion for a new trial cannot contain any points which cannot be assigned as errors, and in reference to which no bills have been taken. 10 A. 453.
    5. If due diligence has been used, and it is made manifest that the witness has been sought for and cannot be found, or if it be proved that he was subpoenaed, and fell sick by the way, his deposition may be lead, for that, in such case, he is in the same circumstances with regard to the party that is to use him as if he were dead. 28 A. 305.
    IF. (r. Wyly, for Defendant and Appellant.
   The opinion of fho Court was delivered by

Levy, J.

The accused, John Henry Douglass, was prosecuted under an information charging him with the crime of manslaughter, tried by a jury who returned a verdict of guilty, and he was sentenced by tlie Court to imprisonment at bard labor, in the State penitentiary, for the term of ten years. From this sentence and judgment he has appealed..

The information charges one Blue Woods and John Homy Douglass as principals in the crime of manslaughter, committed ou one Spencer Watkins.

Douglass was triod alone, Woods not being brought to trial. We do not think the ground urged in the motion for anew trial, and the hill of exceptions as to the inadmissibility of the evidence of Richard M. Dowell, taken on the preliminary examination, contradictorily with the accused, is sufficient to set aside the verdict and judgment. The absence of this witness from the State, as shown by the sheriff’s return, justiiied the introduction and reception of the evidence, and the failure of the committing magistrate to require of this witness his recognizance, cannot operate to show such want of proper diligence as would exclude his testimony-.

In defendant’s brief, 1ns counsel does not refer to his bill of exceptions as to the ruling of the Judge a quo, on the question of the manner of the witness, Steele, in giving his testimony, and the request of counsel that the Court should compel said witness to maleo his answers responsive to the questions prcqmunded to him ly defendant’s counsel. We iind, however, no serious cause of complaint against the action of the Judge iu that regard. Counsel, in his appeal to the lower court for its interference, remarked that “witness was trying to swear falsely.” The court answered that in “his opinion the witness was endeavoring to give his answers truthfully, and if permitted to answer the questions fully, would probably do so, and stated to the jury that this remark should not affect or influence them, as they wore the sole judges of the credibility of tire witness.”

We are unable to perceive liow this was calculated to prejudice the accused, or that it can be construed into an expression calculated to trench upon the jury’s sole right to decide on the facts and weigh the testimony adduced before them.

Defendant has taken a general bill of exceptions to the charge of the Judge a quo to the jury, on the ground that “the same is not a true, exposition of the law apjdi cable to this case, and upon its face, is incorrect and calculated to mislead the jury.”

This is sweeping and comprehensive in its terms, and covers the whole charge of the Judge, hut in his brief, the counsel of accused dwells upon that portion which refers to what constitutes the particular crime of manslaughter, and specially objects to the following passages in the charge:

“ There can be no accessory before the fact in manslaughter, but whoever assists another by giving a weapon to the person killing, or aids him in any other manner, is, under the law, equally guilty and subject to prosecution and punishment as the person who inflicts the fatal wound; that is, if the person who kills another is guilty of manslaughter, any and all persons who aid him in any manner, are also guilty of manslaughter.” B * * * “If you find, from the evidence that the prisoner, John Douglass, did feloniously, without malice aforethought, and without lawful excuse, kill and slay the deceased, Spencer Watkins, or did in any manner aid or assist any one else in doing so, your verdict will be one of guilty, as charged.”

Defendant contends that this charge is erroneous, because, in order to render an accessory liable as a principal, he must be present at the homicide, aiding and assisting therein; but if the accessory was absent when the homicide was committed, he could not be convicted as principal, even though he gave the pistol, or otherwise aided the person killing, and he relies on the decision in State vs. Maxient, 10 A. 743.

This question is discussed at considerable length by many of the elementary writers, and especially by Russell, in his work on Crimes, and we think the views expressed therein may be regarded as authority. He says “the distinction between principals in the first and second degree, is a distinction without a difference, and, therefore, it need not-be made in indictments. 2 Brevard, 338.” And, “In order to render a person a principal in the second degree, or an aider or abettor, he must be present, aiding and abetting at the fact, or ready to afford assistance if necessary; but the presence need not be a strict actual immediate presence, such a presence as would malee him an eye or ear witness of what passes, but may bo a constructive presence. So that, if several persons set out together, or in small parties, upon one common design, be it muffler or other felony, or for any other purpose unlawful in itself, and each takes the part assigned him, some to commit the tact, others to watch at proper distances and stations to prevent a surprise, or to favor, if need be, the escape of those who are more immediately engaged, they are all, provided the fact be committed, in the eye of the law, present at it.”

The charge complained of must be considered as embracing this view of the law, and, therefore, was not- erroneous.

The testimony of Mr. Dowell, made a part of the bill of exceptions, shows that shortly after the dispute between Blue Woods and deceased, he saw Woods and the prisoner, Douglass, go out of the house together, he, witness, was standing at the door and started to go into the store, and saw Douglass hand Woods a pistol. In three or four minutes after Douglass gave Woods the pistol, Woods shot Watkins. The prisoner was present when Woods and Watkins were quarrelling, before Watkins was shot. When Woods returned into the store after Douglass gave him the pistol, Douglass was not with him. Thus it will be seen that Douglass’ constructive presence might well be assumed by the jury, besides non constat that other facts and circumstances elicited on the trial may not have weighed on the jury.

The facts bringing the ease of the accused under its operation, were matters for the jury, which are not subject to review at our hands, and no further charge was asked by the accused, nor any explanation of that given required, nor any objection urged or exceptions taken thereto at the time, setting forth the particular errors complained of.

The judgment appealed from is affirmed, with costs.


text:
    No. 8539.
    F. A. Gallagher et al. vs. Hebrew Congregation of Baton Rouge.
    Although a caso has already been fixed for trial, an application for a jury is in time if, at the moment it is made, the case does not stand fixed for trial. Affirming previous decision.
    APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge. Sherburne, J.

      O. D. Favrot and J. H. Larnon, for Plaintiffs and Appellees.

      J. & G. W. Burgess and J-Ierron & Beale, for Defendant and Appellant.
   The opinion of the Court was delivered by

Levy, J.

Plaintiffs, judgment creditors of Rev. C. Delacroix, bring this hyx>othecary action for the purpose of subjecting certain property of said Delacroix, now in the possession of the defendant Congregation, as third possessors, to their judicial mortgage.

Plaintiffs are the sole heirs of the creditor, by judgment rendered in the suit of F. A. Gallagher vs. Rev. C. Delacroix, which judgment was recorded in the office of Recorder of Mortgages of the Parish of East Baton Rouge, on the 18th of July, 1872. On the 1st of October, 1875, Rev. Delacroix purchased the property sought to be affected by plaintiffs’ judgment from Marco Givannovich, and the deed of sale was recorded in the book of notarial acts on the 15th of September, 187(1, and he made an exchange and sale of this property to the Hebrew Congregation of Baton Rouge, by act executed before a notary on the 12th of September, 1876, but which was recorded on the 16th of September, 1876, one day later than the recording of the sale from Givannovich to Delacroix.

Defendants, in their answer, admit their purchase of the property, but contend that said sale to them was passed on the 12th of September, 1876, before the Parish Recorder, and that no judicial mortgage could attach, inasmuch as the deed to Delacroix had not then been recorded, and their title vested by the passage of the act on the day of such passage. The original answer was filed on 25th July, 1881. The cause was assigned for trial for Thursday, 27th October, 1881, and reassigned for November 3d, for November 10th, and for November 16th, 1881. On this last day, plaintiff suggested the death of Mrs. Emiline Gallagher, one of the plaintiffs, and a motion was made and allowed, that the natural tutor of her minor children be substituted as party plaintiff, and the ease was continued until the next term of court. On the 6th of December, 1881, the cause was assigned for trial on the 10th of that month, then reassigned for 21st December, but was not then tried. At the January term 1882, defendants filed an amended answer, in which they claimed, as possessors in good faith, reimbursement for improvements made, and prayed for a jury. The Court ordered the prayer for a jury to be stricken out, and as thus amended, the answer was filed and there was judgment in favor of plaintiffs and rejecting defendants reconventional demand. Defendants have appealed. To the ruling of the Court refusing the prayer for jury, defendants filed a bill of exceptions.

The defendants were entitled to the jury prayed for. In 2A. 651, La. State Bank vs. Duplessis, the Court said:

“It appears that this cause had been set for trial several times, and had been continued without day. At the time a prayer for jury was made, it does not appear that the cause was then set down for trial. If this reason had existed, we should have sustained the refusal, but the mere fact that on former occasions the cause had been set for trial, was not a sufficient reason for rejecting the application.” C. P. 495; 28 A. 731.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court below be reversed, and that this cause be remanded for a trial by jury, the plaintiffs paying the costs of this appeal.


author: Fenner, J.

text:
    No. 8530.
    Samuel Friedlander vs. Mrs. Elise Schmalinski.
    In tho absence bf proof in the record that defendant was a public merchant, and that the ob ligation sued upon was for account of her business as such, ehe cannot be held liable on said obligation, being a married woman.
    APPEAL from the Twelfth Judicial District Court, Parish of Rapides. Barbin, J.

      It. J. Bowman, for Defendant aud Appellant:
    i. To bind a married woman, the creditor must prove either that the’ debt enured to her separate benefit, or that she was a public merchant, and the obligation was connected with her business as such. 15 A. 352 5 13 A. 540.

      % There is no proof that the obligation sued on had any connection with her business as merchant, or that it enured to her separate benefit.
    3. The obligation sued on is not for §3,400, but in express terms for whatever amount less than §3,400 which may be realized from the courthouse warrants and the mortgage note: that said obligation is, therefore, for an uncertain and unknown amount to be determined by afuture event, and, therefore, conditional.
    4. That a suit upon a conditional obligation, before the happening of the event, must be dismissed. 24 A. 109 ; 15 La. 235.
   The opinion of the Court was delivered by

Fenner, J.

This is a suit against a married woman ou the following obligation:

New Orleans, December 14, 1877.
Should certain securities (named below) not realize $3,400 net cash to Mr. S. Friedlander, during the year 1878,1 promise to pay ou demand, during January, 1879, to Mr. S. Friedlander, whatever amount less than $3,400 net cash said named securities shall have realized to Mr. S. Friedlander. Say, mortgage note Agricultural Fair Association, March 23, ’76, $915, with 8 per cent, interest, and 20 Rapides warrants, each for $100, with 5 per cent, from 14th July, 1874.
(Signed)' E. Schmalinski.
S.Schmalinski.

The plaintiff alleges that the defendant was carrying on business aw a public merchant, as a member of a commercial firm of Schmalinski &. Bloom, and that this obligation is for an indebtedness growing out of her said business.

In the absence of any brief of counsel for appellee, we have scrutinized the record very closely, in seach of evidence to establish that the obligation was given by Mrs. Schmalinski in her capacity of public merchant, of that it was connected with, or grew out of, tho business .of Schmalinski &■ Bloom.

We find no such evidence.

This proof was clearly essential in order to maintain the claim against her on that ground. Bowles vs. Turner, 15 A. 352.

Proof is equally lacking that she was separate in property, or that, the debt enured to her separate benefit.

In absence of such evidence, we can discover no ground on which this action against a married woman be sustained. Graham vs. Egan, 13 A. 546; Erwin vs. McCaleb, 5 A. 173; 19 A. 206; 24 A. 96.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be avoided and reversed, and that plaintiff’s demand he dismissed, as in case of non-suit.


text:
    No. 8485.
    The State of Louisiana vs. George Cognovitch.
    An information for assault by wilfully shooting, under Sec. 792, R. S., neednot allege that the shooting was done with a dangerous weapon.
    APPEAL from the Criminal District Court for tlie Parish of Orleans. Lnsenberg, J,
    J. 0. Egan, Attorney General, for -the State, Appellee:
    1. An assignment of errors in ciiminal, as in civil cases, must he written and filed within ten days after the filing of the record, in accordance with Article 897, 0. P.; 12 A. 862.
    2. An information for an assault hy wilfully shooting at, drawn under Article 792, B. S., need not allege that the shooting was done with a dangerous weapon.
    A. -D. HmEiqms and IF. L, Evans, for Defendant and Appellant:
    Section 792, B. S., was enacted for the purpose of suppressing the use of dangerous weapons in cases of assault.
    To bring a case within the meaning of Sec. 792, B. S., the information must contain an allegation that the assault by shooting was done with a dangerous weapon. 27 Conn. 310: Bishop on Stat. Cr., Secs. 230, 231, 232, 235.
   The opinion of the Court was delivered by

Fenner, J.

Defendant was prosecuted for the statutory offense of assaulting another by wilfully shooting at him, under Section 792, R. S. It is assigned as error that the charge should have embraced the words, with a dangerous weapon.”

The information follows the exact terms of the statute, adding the word-44 feloniously ” as a prefix to assault.

We think this is sufficient and that it conveys the offense with which the prisoner is charged.

The common sense of prosecuting officers, judges and juries may be relied on to protect persons from imprisonment in the penitentiary for shooting with pop-guns, or like innocent playthings.

Judgment affirmed.


author: Pocint, J.

text:
    No. 8332.
    Joseph P. Kearney vs. Succession of R. R. Whitehead.
    The plea of insanity, urged by defendant as caused by habitual intemperance, is repelled by the Couit.
    The doctrine is well settlod, that the ploa of want of consideration of a promissory note given as for value received, does not throw the o?ms probemdi upon the pl.iiutiff, even when he is the payee of the note.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J,

      Keunarü, Howe & Prentiss, for Plaintiff and Appellant:
    1. Consideration for promissory notes presumed; party denying consideration must clearly prove his allegations.
    2. Sanity of maker of note always presumed. Peculiar special rules iu Louisiana. C- C. 1788, [1781].
    3. Insanity must be proved to have oxisted at the moment of the execution of the note.
    4. Pecuniary consideration in Louisiana not required. C. C. 1888. “ The requiring a small pecuniary consideration to support an agreement is a mere fiction, which the civil law has never adopted.” Monton vs. Noble, 1 An. 192.
    5. Cause used by civilians in relation to obligations in samo sense as consideration is used at common law. G. C. 1774, [1767].
    6. No allegation nor proof of fraud. Evidence received, showing plenary proof of all of plaintiff’s allegations.
    7. Testimony of medical experts favoring insanity to be received with oaution; in this case witnesses offered by defendant testified clearly in plaintiff’s favor.

      Singleton & Broivne, for Defendant and Appellee:
    1. If there be ho consideration given for the note it is null and void. Moutonvs Noble, 1 An. 193 ; B. C. 0. 1893.
    2. The plaintiff undertook to state what the consideration was, but as the alleged consideration amounted really to nothing, ho must fail iu his action He has shown there was really no consideration given for the note.
    3. At the time the noto was executed, defendant was laboring under a temporary derangement; of intellect caused by excessive use of ardent spirits, which was not only apparent, but was also well known to tho plaintiff; therefore plaintiff cannot i\ cover. B. C. C. 17j?9.
   Tho opinion of the Court was delivered by

Pocint, J.

Defendant resists the payment of a promissory note of $2,500, * * * executed by R. R. Whitehead, on the 7th of January, 1879, payable after date to order of plaintiff, for value received, on the grounds: .

1. That, at the time of executing the note, the deceased was laboring under a state of insanity, caused by habitual intemperance.

2. Want of consideration.

The latter plea having been sustained by the lower court, plaintiff appeals.

Burst. The plea of insanity is not supported by the evidence, which is overwhelming in favor of the sanity of the deceased at the time that he executed the note.

The most that was proven by defendant’s witnesses on this plea, is that Whitehead was a hard drinker, and that he had had one or two attacks of delirium tremens, but the weight of the evidence proves conclusively that the deceased was aúnan of more than ordinary intelligence and of considerable mental culture, and that when sober, he was a shrewd business man, as shown by his negotiating, between December, 1878, and February, 1879, the sale of his half of a sugar plantation which had cost a year before $30,000, for the price of $35,000. It is worthy of note that this important transaction was closed by an authentic sale on the 13th of February, 1879, a little over a month after the date of the note in suit, and a little less than a month previous to the death of Whitehead, and that while his insanity is urged as a defense against this note, no one has ever even dreamed of attacking the validity of the sale made by him at a later date, when his insanity, if existing at all, should have increased on him.

At the request of Whitehead, the note was written under his dictation by the proprietor of the St. Charles Hotel, where the contracting parties were then stopping. That witness, and another, equally disinterested, both testify that on that day Whitehead was not only competent to attend to business, but that he was perfectly sober. This testimony is corroborated by his merchant’s book-keeper, from whom he drew $500, preparatory to his departure for Kentucky, to join his family, and two witnesses who saw him off on the train that evening, testify that he was both rational and sober at the moment of Ms departure.

We conclude that the defense of insanity is utterly without foundation. To sustain this plea under the circumstances of this case, would lay the foundation for a jurisprudence under which no man addicted to drinking could be held to any contract which his interest would prompt Mm to evade.

Second. The plea of want of consideration finds no better support, either in law or under the evidence in the case.

Defendant contends that Ms denial of any consideration for the note throws on plaintiff the burden of proving the consideration, and he cites two authorities, which seem to bear him out in the rule which he invokes. 6 N. S. 565, Bowen vs. Veil; 9 R. 183, Copeley vs. McFarland.

But the doctrine enunciated in those cases has long since been reversed in our jurisprudence. As far back as the case of Bradford vs. Cooper, 1 A. 325, the rule has been that the defendant who pleads want of consideration of a note purporting to have been made fdf value ■received, must prove clearly such want of consideration, even as against the payee of the note. The doctrine has beon so frequently reaffirmed and enforced by our Courts, that we consider it as firmly embedded and fixed in our jurisprudence. Byrne vs. Grayson, 15 A. 459; Henderson vs. Giraudeau, 15 A. 382; McGuigin vs. Ochiglevich, 18 A. 92; Robinson vs. Doherty, 20 A. 209; Stephens vs. Lanier, 20 A. 347; Friedman vs. Houghton, 21 A. 200; Roderiguez vs. Lopez, 28 A. 94.

Defendant has offered no testimony in support of that idea. "Wo attach no importance to the statements of three or four witnesses in Kentucky, touching’ declarations of the deceased a short time before his death, of a trouble which haunted his mind, concerning a note of $2,500, or $25,000, which he had signed in New Orleans some time, in January.

This vague testimony vanishes in the presence of the testimony of Drouet and of Milliken, to whom he expressed his intention in February, 1879, of paying this note, and in the face of his attempt to compromise with Koarney, who was willing, on Milliken’s advice, to settle by taking less. Speaking of this note with Milliken, the purchaser of his share of the plantation, and his merchant, on the day before the sale, on the ,13th of February, Whitehead used the following language found in Milliken’s testimony : “As I have sold out, Kearney may be induced to take less, but if he insists upon it, I consider myself bound. I never went back on my word. I am an honest man, and I consider it ought to bo paid.”

This honest intention, though resisted by his administrator, must be enforced by the Courts.

Under the view which we have taken of the case, we find it uuneces-' sary to review and analyze the testimony which plaintiff introduced in support of the consideration of the note, but will merely say that it is satisfactory to our minds, and that it does prove a legal cause or consideration for the execution of the note.

The judgment of the lower court is, therefore, annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that plaintiff do have and recover judgment of the administrator of the succession of Richard R. Whitehead, in the sum of two thousand five hundred dollars, with legal interest from judicial demand until paid, and costs of suit in both Courts.


text:
    No. 8445.
    Congregation of St. Mary of Mount Carmel Church vs. B. Farrelly and Wm. Hommerich.
    The enforcement of the penalties provided by law against executors for failing to prosent their accounts, to deposit money in bank, and to obtain proper authority to pay debts, is a matter within the sound discretion of tho Court.
    In the case at bar, the Court sees reasons, in the conduct of the executors, not to inflict such penalties.
    APPEAL from Hie Fifteenth Judicial District Court, Parish of West Feliciana. Yoist, J.
    IT. W. Leake, for Plaintiff and Appellant:
    Amendments not changing tho issue will he allowed at any stage of the cause, prior to j udg- . ment. 27 A. 316, 713; 28 A. 627; 32 A- 395.
    An executor who fails to render an account once in twelve months shall be dismissed from office, and pay ten por cent, per annum from the date of the expiration of the twelve months. R. S. 1465 • 9 A. 376; 13 A. 585 ; 33 A. 1021.
    All executors, etc., shall deposit all moneys in one of the chartered hanks of this State, or one of their branches, allowing interest on deposit, if there be one in the parish, * * and shall not pay any claim until a tableau of distribution shall he homologated, or unless ordered by a competent court, and then only to pay such debts as may be ordered for payment, etc., etc. R. S. 1463; R. G. C- 1150; 19 A. 97 ; 32 A. 557.

      Wiekliffe & Fisher, for Defendants and Appellees :
    •* Corporations unauthorized by law' or by an act of the legislature, enjoy no public character, and cannot appear in a court of justice, hut in the individual name of all the members who compose it, and not as a political body.” + * C. C. 446; 29 An. 379, Workingmen's Accommodation Bank vs. George T. Converse et ais.; 12 R. 428; 3 A. 541.
    11 The act requiring executors, etc., ‘to deposit all moneys collected by them, etc., under penalty of being condemned to pay the estate 20 per cent, per annum interest on the amount not so deposited or withdrawn without order of court, besides all special damage, and dismissed from office, being highly penal, must be rigidly construed.' ” 7 R. 477; 9 A. 412; H. B., vol. 11, p. 1490.
    •* Where there is no bank paying iuterest on deposits in the parish where tho executors reside and tho succession is opened, they need not deposit the funds, the object of the law being not so much their safety as to render them productive.” 7 R. 477; 11 A. 279.
    “ The right to do what is ordered to be done within a given time exists so long as no action of court or the opposite party has in erveued to conclude that right.” H. 1). verbo Time, p. 1580.
   The opinion of the Court was delivered by

Fenner, J.

Tho object of this suit is to destitute the executors and to enforce the penalties provided by R. S., Sections 1465 and 1463, on the grounds:

1. That they have failed to file accounts once in every twelve months.

2. That they have not deposited moneys in bank, and have paid debts without order of Court.

The petition was originally filed in the- name of the congregation, as if it were a corporation. Exception was filed that, not being incorporated, the congregation could not sue in that form. The exception was undoubtedly good. Workingmen’s Bk. vs. Converse, 29 A. 369; 12 Rob. 428; 3 A. 551; 15 A. 441.

The authority of the Court to allow the plaintiff to amend by substituting the names of the members, is not questioned; but, in granting this permission, the Court should have sustained, and not overruled the exception. This, however, is of slight consequence. Before the amended petition was served, the defendants filed their account, which is the subject of opposition by the plaintiff, In another appeal, now under submission. This should, perhaps, end the case, so far as the failure to account is concerned, for we consider it very questionable whether an action to destitute on this ground could possibly lie, after account filed.' Indeed, it was held by this Court, in one case, that the sole remedy of the creditor, in such case, was to apply to the Court for an order to file account, and only on failure to comply with such order, to demand the removal. Sue. Head, 28 A. 800.

However this may be, it is well settled that the enforcement of the penalties, provided for this and similar defaults of executors and administrators, is a matter within the sound discretion of the Court. We find nothing in this case to call for their infliction. Defendants have filed an account, the fulness and completeness of which is not disputed. The debts paid by them, without order of Court previously obtained, are shown to have been justly due. They are not proved to have made any improper use of succession funds, and are excused for not depositing them in bank, by the fact that there was no bank in the parish. On the whole, we think the demand of plaintiff was properly rejected.

Judgment affirmed, at appellant’s costs.


text:
    No. 8535.
    V. Bergeron, Administrator, vs. Hubert Patin.
    The exchange of the notes originally given for the price of an engine and machinery for another note, in which the same consideration is recited, created no novation of the debt.
    APPEAL from the Fifteenth Judicial District Court, Parish of Pointe Coupée. Yoist, J.

      Selves & Parlange, for Plaintiff and Appellee:
    1. Novation is never presumed. O. C. 2190.
    2. And where it is conceded that one new note is given for the aggregate amount of two other notes for same consideration and interest, by same maker to same payee, solely because the two notes were old and worn out, novation is disproved.

      3. The recording at the moitgage office of the parish in which the purchaser resides of a promissory note given hy him for the price of an engine and machinery for sugar making, and so expressing it on its face, is sufficient to preserve the vendor’s privilege against the purchaser and third persons. Carlin vs. Gordey, 32 An. 1285.
    4. And if without material injury to the house iu which it is placed, such property can ho moved therefrom, the vendor may seize and sell same separately from the land on which that house stands. Ibid.

      Haralson & Claiborne, for Defendant and Appellant:
    Where the vendor of an engine and machinery, who has accepted the purchaser’s two notes for the credit portion of the price, subsequently surrenders these notes to the purchaser and accepts in place of them another note with different terms of payment, and thereafter brings suit for the price of the machinery and engine, alleging that the new note was given through error and the old notes surrendered or destroyed through error and without authority, lie cau not recover judgment for the price in such suit if he fail to prove the error and waut of authority alleged; hut lie will be required to proceed by a new suit on the new note which had been substituted for the old ones.
    Plaintiff', in the progress of his suit, must meet the general issue aud prove up his claim. See Durham vs. Williams, 32 Au. p. 962.
    A creditor who on receiving a new note surrenders the first, novates his debt. See 1st Rob. p 527; 2 An. 765; 18 An. 697; 24 An. 610..
    The privilege of che former credit is not transferred to the one which is substituted in ills place, unless by special agreement. See Civil Code, 2195.
   Tlie opinion of the Court was delivered by

Fenner, J.

This is an action for the unpaid price of an engine and machinery sold to defendant, and for recognition of the vendor’s privilege thereon.

It appears that the sale was for $2,000, of which $500 were paid in cash, and the balance was originally evidenced hy two notes of $750 each, reciting- their consideration to he as part of the price “d’une machine a vapeur et nioulin a sucre.”

Subsequently, these two notes were exchanged for single note of $1,500, which also recited its consideration to be “ en paiement d’une machine a vapeur, moulin a, sucre.”

We think such au exchange operated no novation of the debt. Novation is never presumed, C. C. 2190; and, in this case, it is conclusively negatived hy the recitation in the last note, which shows that it, like the two notes originally taken, was simply the evidence of the debt due for the price. That price remains unpaid, and is secured by the vendor’s privilege.

The evidence satisfies us that the engine and mill may he removed from the house in which they have been placed, without such material injury as to prevent their being- removed and sold in satisfaction of the vendor’s privilege. The case falls fully within the doctrine of Carlin vs. Gordey, 32 A. 1285.

Judgment affirmed at appellant’s cost.


text:
    No. 8554.
    New Orleans Pacific Railway Co. vs. George M. Murrell.
    a proceeding of expropriation for the construction of a railroad, the jury of freeholders cannot, by their verdict, instead of assessing the money value of the property and damages, require the Railroad Company to do certain work for the benefit of the party who if* to be expropriated.
    APPEAL from the Twenty-third Judicial District Court, Parish of Iberville. Oole, J.

      Kennard, Howe & Prentiss and ktam'l Matthews, for Plaintiff and Appellant:
    1. In an expropriation suit, the jury must find a verdict in money for the value of the land and such damage as defendant may sustain. It cannot contain conditions. C. C. Arts. 2630,2031,2632. Mills on Eminent Domain, Section 112, and authorities cited; Section 258, and authorities cited.
    2. The value of the land in fee must he paid in money. Value of right of way can he offset.
    3. The appellate court having the several cases before it. if they set aside the verdict, should v render such judgment as should have been given by the jury and court below. C. C. 2634.

      4. Testimony of experts (engineers) as to draining should prevail.
    5. Only actual damages to he allowed; nothing for probable damages “in futuro.”

      Barrow & Pope, for Defendant, and Appellant:
    1. In an expropriation suit, the jury must find a verdict in money for value of the land and such damages as defendant may sustain. It cannot contain conditions. C. C. Arts. 2630, 2631, 2632. Mills on Eminent Domain, Section 112, and authorities cited; Section 258, and authorities cited.’
    2. The value of the land, whether the fee or only a servitude of way he awarded, must be paid. Art. 2633. No benefits can he compensated against this price. 10 An. 151; Const. 1859, Art. 156.
    3. Where a railroad only desires land to lay their tract, a servitude of the right of way is all the estate necessary for the public use and all that can be taken. 32 An. 475; II An. 93 ; Const. 1879, Art. 155; C. C. 722, 490, 491, 492, 505; 55 Pa. St. 16; 29 Mo. 141; C. C. 509; 32 An. 68; C. C. 777, 2634; C. P. 690 ; C. C. 2626, 2630, 2640; Field on Corp. 496.
    4? The appellate court having the whole case before it, if they set aside the verdict, should ' render such judgment as should have been given by the jury and court below. C. C. 2634.
    5. When both plaintiff and defendant appeal in an expropriation suit, where plaintiff has made no previous tender to defendant, the costs of both courts must be paid by plaintiff, however the case may be decided. C. C. 2638 ; 31 An. 434.
   The opinion of the Court was delivered by

Fenner, J.

This is a proceeding for expropriation of five 14-100 acres of land on defendant’s plantation, required for the construction of the plaintiff’s railroad, and for the assessment of the value thereof, and of the damages which defendant may suffer in consequence of said “expropriation.

The jury of freeholders found a verdict, by which, instead of assessing the money value of the property and damages, the5r required the plaintiff to do certain work in lieu thereof.

Both parties have appealed.

The verdict of the jury is clearly erroneous. Their function is confined to the assessment of value of property, and of damages, in money.

The legal principles involved are very simple.

1. The value of the property must he assessed on the basis of its value before tlie contemplated work was proposed, and without deducting therefrom any amount for benefit derived by the owner from the work.” C. C. 2633.

The same rule would apply to any estate, less than the fee, which might he expropriated. We find no reason or authority for making a difference.

2. They must assess the damages which the owner will sustain, in consequence of the work, in addition to the value of the property taken.

The defendant has the right to have this assessment made according to the best attainable data, and cannot be required to have his right held in abeyance until the damage is actually suffered. Such is the clear effect of Art. 156 of the present Constitution.

But the advantages which the owner would derive from the work may be offset against these damages, the damage suffered being only the excess of injury over benefit.

It would he proper for the jury to itemize in their verdict all the elements of damages allowed.

. Both parties appeal to us to render the verdict which the jury should have done.

We might be authorized to do this; but, after reading the evidence, we do not feel that we could settle the damages with any confidence in the justice of our determination, and we must decline to do so.

They are matters peculiarly within the province of a jury of freeholders, and, without the aid of the prior determination of such a jury, as contemplated by law, we do not feel disposed to undertake the task.

It is, therefore, ordered, adjudged and decreed, that tlie verdict and judgment appealed from, be annulled, avoided and reversed, and that this cause be remanded for further proceedings according to law; costs of this appeal to he divided between the parties,


text:
    No. 8443.
    The State of Louisiana ex rel. L. Ory vs. B. S. Labranche, Tax Collector.
    Act No. 107 of tho Legislature of 1880, providing for the sale of the property forfeited to the State for unpaid taxes, was not intended to apply to future but only to prior taxes.
    APPEAL from the Twenty-sixth Judicial District Court, Parish of St. Charles. Oheevers, Judge of the Twenty-second Judicial District Court, in place of Malm, J., recused.

      James I). Augustin, for the Relator and Appellee.

      J. 0. JSgan, Attorney General, for tho Respondent and Appellant:
    1, Property offered for sale for taxes must bring tlie full amount of taxes due, or it cannot be transferred to the purchaser. Aot 47 of 1873,101; Bollocq vs. City of New Orleans, 31 A. 471.
    Aot No. 77 of 1880 refers to the collection of futuro taxes, and not taxes due prior to 1880. State ex rel. Mrs. Jackson vs. Recorder of Mortgages, 33 A.
    3. Tho provisions of Act 107 of 1880 apply to tho sale of property forfeited or sold to the State, and not to the sale of property for delinquent taxes.
    4. A mandamus will not lie “ to compel the performance of a duty clearly not prescribed by law; * * and especially will the courts refuse in such oases to interfere, when it is apparent that the interest of third parties, not before the court, are involved.” High’s Extraordinary Legal Remedies, Sec. 39, p. 35.
   The opinion of tlie Court was delivered by

Fenner, J.

The Relator applies for a mandamus to compel the tax collector to make to him a free and unincumbered title to certain property sold to him at public sale, in accordance with the provisions of Act No. 107 of 1880, entitled “ an aot to provide for the sale of all property forfeited or sold to the State for delinquent taxes or licenses.”

The regularity of the proceedings is not questioned. The evidence establishes that the property had been sold to the State in 1877, and, therefore, fell within the purview of tlie above Act.

The collector avows his readinoss to give him a title free from taxes due prior to 1877, but claims that the property must remain responsible for the unpaid taxes of 1878 and 1880.

So far as the taxes of 1880 are concerned, we think tlie position of the defendant is tenable.

The Act 107 of 1880 must be construed together with Act 77 of the same year. Tlie latter Act fully regulated the mode of enforcing payment of taxes of the year 1880 and of subsequent years, and the mode and terms of sale of property therefor. We think the Act 107 was not intended to apply to those taxes or to interfere with those regulations, but was only intended to apply to prior taxes.

The property has not been lawfully sold for those taxes which are not extinguished, and the purchaser must pay the same or take subject to the lien thereof, if any exists. We are not called upon, and it is not proper in such a proceeding to determine the question of the validity and exigibility of the tax of 1880, as affecting this property claimed to have belonged to the State. Those issues will be determined when properly presented. %

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from, be reversed, and that the mandamus applied for be. denied, at Relator’s costs in both Courts.


author: Poché, J. Levy, J. Bermudez, C. J.

text:
    No. 8073.
    Patrick Coyle vs. Succession of William Creevy.
    An appeal "bond is good though the name of the surety is not mitten in the body of that instrument, if it is signed at the bottom of it.
    An executor may take a suspensive appeal on giving bond for costs only. Affirming previous decisions.
    An opponent suing on a note indorsed by the deceased must show protest and notice before he can recover. Claims for money loaned are prescribed by three years. Neither can oral testimony he received or considered, nor can entries of the creditor, unsigned by the debtor, have effect to prove an interruption of prescription against a deceased person. The judgment obtained by a creditor against a succession representative is equivalent only to a recognition by the latter. Its effects are to interrupt prescription, to give the creditor the right of intervening in the succession, but it does not conclude the creditors of the succession. In a con curso in an insolvent succession, such judgment creditor is bound to prove his claim when assailed.
    Rent of a house leased by the year to the deceased who, by contract with another person, saw hound to provide such, the latter paying housekeeping expenses, and supplying the wants of the family of both, is a debt chargeable to the succession from and after the death of th e lessee. Such rent is to he deducted from the $1,000 homestead allowed to the necessitous minors of the deceased, as they occupied the house. Relieving them from such deduction would he to give them the amount fixed by law for their relief. The law, being in derogation of common right, must he strictly construed. Such rent is not chargeable to the executor, on the ground that he should have rented said premises, and not permitted them to he occupied by the necessitous orphans of the deceased
    APPEAL from tbe Civil District Court for tbe Parish of Orleans. Mghtor, J,

      Beovy <£• KruttseJuiitl, W. S, Benedict, A, B. Tucker, for Opponents and Appellees.

      Singleton c6 Browne and B. J?. Ohoate, for tbe Executor, Appellant.
   On Motion to Dismiss.

Tbe opinion of tbe Court was delivered by

Poché, J.

Among other reasons urged for tbe dismissal of this appeal, is tbe following.

That the appeal bond does not contain, in the body of the instrument, the namo of any party signing' the same as surety.

The bond reads that: “We, Richard Y. Hopkins, executor of Win. Creevy, as principal and as security, are firmly held and bound, etc.,” and is signed by Hopkins and by R. Loeliger.

Nothing in the instrument indicates in what capacity or for what purpose Loeliger affixed his signature to the instrument, and wo cannot assume that he intended to bind himself as security on the bond.

The contract of suretyship cannot bo presumed, but must bo distinctly alleged and clearly proven, to justify judgment against any one held as security. As a man binds himself, so must he be bound, and this instrument, considered in all its parts, fails to inform us, whether, or in what manner and capacity, Loeligor undertook to bind himself. The bond is, therefore, before us without surety, and it cannot be maintained as legal. 30 A. 1127.

Counsel on both sides refer to the decision rendered in the succession of L. W. Lyons, not reportod, but to be found in Opinion Book SO, page S70, and appellant’s attorneys urgently invoke that opinion as conclusive of the point, and as supporting their views of the legality and sufficiency of the bond in this case.

An inspection of that decision shows that the ground for the dismissal of the appeal was identical with the one now under consideration, but that the appeal was dismissed and not maintained, as suggested by appellant in his brief.

His counsel must, by inadvertance, have read the dissenting opinion of Judge DeBlane, and not that of the majority of the Court.

On the authority of that case, we conclude that the motion to dismiss must prevail.

It is, therefore, ordered that the appeal taken in this case be dismissed, at appellant’s costs.

On Rehearing.

Levy, J.

A further investigation and consideration of the authorities, on the faith of which we rendered our decree dismissing this appeal, and reference to the opinion of tho Court in the case of the succession of Lyons, to which our attention was erroneously directed in tho brief of appellant’s counsel, compelas to change our former decree. We relied upon the decision of the Court found on page 376 of Opinion Book SO, .where the Court, for the same alleged defects in the appeal bond as are urged herein, held the bond as being invalid or insufficient, the name of the surety not being inserted in the body thereof.

Counsel, in his brief on this rehearing, admits their error in this citation, and rely upon the decision subsequently rendered by the Court, with unanimity, on the rehearing which had been granted. This decision is to be found on page 163, Opinion Book 49.

The Court then said: “ Appellee insists that we cannot presume that'John Devonshire’ signed as surety, and in our former decree a majority of the Court so held. A reconsideration leads us to a different conclusion. The bond recites that it is given as an appeal bond, and to secure the prosecutiou of the appeal, etc. It was received and filed by the clerk of the lower court as an appeal bond. The signature of ' Devonshire’ is written immediately under those of the two principals where the surety should sign. An appeal bond pre-supposes and and recites that there is a surety to sign it. We find the name of a person who is not one of the principals, signed to the bond where the surety should sign. He does not profess to sign as a witness. Indeed, does not sign on what may be called the witness side of the document. Appeal bonds are not usually witnessed, and it is not essential that they should be. We think we are bound to presume that 'Devonshire’ signed as surety, and that a contrary conclusion violates all the probabilities of the case.”

The decision just quoted is in consonance with that in 6 An. 74, in which it was substantially held, that where one signs an instrument between other parties, in which it is contemplated surety is to be given, he will be considered as having signed as the contemplated surety,although his name does not appear, or is not mentioned in the body of the instrument.

The other ground upon which the motion is based is, that the bond required and given is not sufficient to authorize the granting of a suspensive appeal.

The only authority which supports appellee’s motion is that of 27 A. 324, Succession of Massieu.

This is opposed by previous and subsequent decisions, and we are not disposed to affirm the views and doctrine therein laid down.

In the case of State ex rel. Gaussen et al. vs Judge of Second District Court, 21 A. 43, the true doctrine is enunciated ; there the Court held : A judgment recognizing a claim against a succession has generally no greater force in law than an acknowledgment of the claim by an executor or administrator. In either case the creditor can only obtain the payment of it concurrently with the other creditors.”

" An executor or administrator is an officer of the Court, and any funds or property in his hands, belonging to the estate he administers, are amply secured, as the law does, and the creditor may require bonds to secure them, and to insure the faithful administration, and the creditor incurs no risk by the delay which an appeal, that every executor 'or administrator has the legal right to take, -may occasion.”

And again: “ The doctrine is one sanctioned by reason and common sense, when applied to executors and administrators, otherwise their right to appeal would, in most cases, for any practicable purpose, be wholly nugatory; as it would require them to furnish security for the payment of debt, only recognized judicially for a solitary purpose, and which might turn out eventually to be utterly valueless, by reason of the insolvency of the succession against which they have claims.” 10 A. 345; 20 A. 108; 30 A. 285; 29 A. 327; 7 N. S. 352.

On the strength of these decisions we are constrained to change our former decree.

It is, therefore, ordered, adjudged and decreed, that our previous judgment herein be set aside, and it is further ordered, that the motion to dismiss this appeal be denied.

On the Merits.

Bermudez, C. J.

The executor’s account is opened by five parties: J. L. G-ubernator, the heirs of Stevens, Patrick Coyle, J. W. Fee and J. J. Warren, under tutor.

I.

The first merely asks to be recognized as an ordinary creditor, and he so correctly was. His claim is not disputed here.

II.

The claim of the heirs of Stevens was rejected in the lower court. They have neither appealed nor joined in the appeal. The judgment as to them cannot be altered.

III.

Coyle claims to be a creditor for $1,619,77, as subrogee of T. L, Wibray, for balance due on a note endorsed by the deceased, $205, and for three sums : $500, $285.75 and $735, said to have been loaned to the deceased, and upon which he had obtained judgment against the executor, who had appealed from it. The appeal is not decided.

The record in that case was offered in evidence on the opposition, with an understanding that the judgment to be rendered on it, in these proceedings, will settle the controversy in that suit. 32 A. 767.

The District Judge rejected Coyle’s opposition, but, on the motion for a new trial, amended his judgment by directing the executor to retain an amount sufficient to pay Coyle’s claim.

The judgment against the executor in case No. 8073 of the docket of this Court, was that the claim be iiaid in due course of administration. It was equivalent to an ex parte recognition of th e claim by the executor, a substitute for it by the Judge, and would have been mandatory on the succession representative, to have placed it on the account, had he not appealed from it.

The effect of such a judgment is not greater than that of a recognition by the executor. It interrupts prescription and liquidates the claim, only to the extent of permitting the creditor to intervene in the mortuary proceedings as a party concerned in the estate. 11 A. 177; 18 Á. 583 : 21 A. 44 ; 27 A. 552; 10 A. 224 ; C. P. 986, 1054.

It is not such as concludes the creditors, who must establish their claims contradictorily with each other to the fund to be distributed, particularly in insolvent successions where they seek to force themselves upon the estate, or the reality of their claims is seriously disputed and assailed. 4 A. 451, and above authorities besides. A contrary doctrine would have the mischievous effect of placing the ■other parties concerned in the settlement of successions at the mercy of a dishonest or neglectful administrator.

The defenses set up against Coyle’s claim are: That the note endorsed by Creevy was not protested, and that the required notices were not issued. Prescription is also set up, but against the recovery of the money said to have been loaned him.

The record does not show that the conditions precedent, essentially necessary to hold an endorser liable, have been fulfilled. It was incumbent on Coyle to have established the fact affirmatively, and he has not done so.

The sums claimed are averred to have been loaned on March 3d, and April 18th and 22 of 1876.

A claim for the reimbursement of money loaned is effectually barred by the prescription of three years, where no interruption is shown. R. C. C. 3538.

The attempt to prove interruption by entries from a memorandum book kept by Coyle’s subrogor, of payments made by Creevy, on account of the loan, and unsigned by the latter, is of no avail.

Under Article 2278 of the R. C. C., oral testimony was inadmissible, and even if received without objection, it could not be considered. 23 A. 747; 24 A. 401; 26 A. 220 ; 21 A. 350.

In the case of Pavy vs. Escoubas, 23 A. 581, it was held that such evidence was not admissible to prove that partial x>ayments, endorsed ■on a note, but not signed by the maker, were actually made by him ; the evidence being offered after the maker’s death. 21 A. 350. Indeed, the law requires a written evidence” signed by the party sought to be made liable, and in negative tenns, forbids the reception of any other.

The authorities relied upon by Coyle’s counsel, refer to cases in which suit had been brought against a living debtor. In such instances, parol or oral testimony is unquestionably permissible to show intemiption of prescription by such debtor/ but that sort of evidence ceases to be admissible, and becomes absolutely prohibited, after the debtor has died.

The District Judge properly rejected the claim, but erred in ordering, as he did, a reserve of fund to meet it, as presented in the suit of Coyle vs. the Succession of Creevy, on appeal.

IV.

J. W. Pee claims to be a creditor for $4,286.32, with 8 per cent, interest on $3,423.70 thereof. His claim was properly allowed and does not appear to be disputed in this Court.

Fee opposes, however, these items :

1. The claim of Henry McKay, which was established and allowed with interest. It is not seriously pretended that there is any error in the judgment, and we discover none.

2. The next item opposed by him was that in favor of the succession attorneys, but the difference was amicably adjusted and need not be noticed.

3. He finally objected to an item of $495, paid by the executor for rent subsequent to Creevy’s death. He claims that the executor is liable for that amount, as he should have caused to be inventoried and made profitable the lease which Creevy had to the house, and which, at his death, had nine months to run, and has not done so. He claims that the executor’s commissions, $345.55, should be applied to the partial payment of that item, and that he should be held personally for the balance. On the other hand, it is insisted that if the rent be not chargeable to the executor, as due by him, it is to be deducted from the one thousand dollars homestead, claimed by the minors, if it be allowed them.

The rent paid was due for the use of a house leased by Creevy at $55 per month, for the year expiring on December 1st, 1880.

It appears that there existed a contract between Hopkins, the executor, and Creevy, the deceased, who Were kinsmen, under which tin; former was to pay all housekeeping expenses for Creevy and his family, while in return, the latter was to procure the residence. The lease and this agreement survived Creevy, whose death dissolved neither. As Hopkins fulfilled his portion of the understanding by providing fully for the five minor children of the deceased, supplying them with food and other necessaries of life, there is no reason why the succession of Creevy should not be held for the performance of its share of corresponding obligations. The rent constituted a debt which the succession owed and had to pay, and to extinguish which Hopkins’ commission cannot be applied. It is true that lie failed to declare tlie lease at the taking of tlie inventory and did not turn tlie children out of the property and vacate it himself, and rout or endeavor to rent it, to realize something from it, but no creditor can complain of those omissions, owing to the view which we have taken of the matter, on the opposition of the minors, which we will now consider.

Y.

The fifth and last opposition is that lhade for the homestead of the minor children of the deceased left in necessitous circumstances., The claim in their behalf was properly allowed, under the evidence. The minors were entitled to the allowance at the date of the opening of the succession. Had it been paid them at that ’time, their wants and necessities for shelter and other purposes would have had necessarily to be satisfied out of it.' It could not aud was not then paid, but they received the benefit of the contract of tlioir father with Hopkins, by occupying the house and being otherwise taken care of by the latter. Their under tutor is not heard, nor could he be, to complain that $55 per month for their support is not as moderate aud reasonable a charge as could have been possibly made, under the circumstances. The homestead law in their favor is in derogation of common right, and must be construed strictly. To allow the minors the one thousand dollars, and also the benefit rvhich they have derived from the payment of the rent, since their father’s death, would be to give them more than the quantum fixed by law.

The ruling on that opposition was correct.

For those reasons:

It is ordered and decreed, that the judgment appealed from by the executor, be amended by striking therefrom that portion of it which, on the motion for a new trial, directs the executor to retain an amount sufficient to satisfy Patrick Coyle’s claim,‘and that thus amended, said judgment be affirmed; the costs in both courts to be borne equally by J, W. Fee and Patrick Coyle, appellees.

It is further ordered and decreed, under the agreement of the parties, for the, trial and determination, in these proceedings, of the suit of Patrick Coyle vs. the Succession of William Creevy, pending before, this Court, under Ho. 8073 of its docket, that the judgment therein rendered, be and it is hereby reversed and avoided, and that plaintiff’s demand therein be rejected, with judgment in favor of the succession of William Creevy, at the cost of plaintiff in both Courts.