author: Egan, J.

text:
    No. 6547.
    J. U. and H. M. Payne & Co. vs. Octavia Pavey and Husband.
    Tho failure of a recorder of mortgages to record a deed of sale of property, which dood lias boon deposited for registry with him by the bona ftde purchaser of the property, can not in anywise operate to the prejudice of tho rights of such purchaser, as owner of the property.
    APPEAL from the Seventh Judicial District Court, parish of Avoyelles. Ilewes, J.

      Irion & Thorp, for plaintiffs and appellants.

      Thomas Overton, for defendant.
   The opinion of the court was delivered by

Egan, J.

This is an hypothecary action to enforce against certain lands in the possession of defendants a judicial mortgage resulting from ■the registry on the twenty-seventh pf October, 1874, of a judgment obtained by plaintiffs against the vendor of defendant, Mrs. Octavia Pavey, born Cuvilier.

It appears from the evidence that the defendant purchased the property by public act on tho eighteenth of January, 1872, and that tho act ■was regularly deposited for record in the recorder’s office of the parish ■ of Avoyelles, in which the land lies, on the eighth of February, 1872, was indorsed, and filed the same day by E. W. Masters, recorder, who was a witness on the trial of this case, and swore that the indorsement was cor-, rect and that the act was deposited and filed in his. office on the day named in the indorsement. It further appears from the evidence that ■the defendant went into possession at the time of sale, January, 1872, of the land conveyed, and has continued to possess and live upon it ever since, but that the act of sale, though deposited and filed for record according to law, on the eighth of February, 1872, was not actually recorded or transcribed on the books of the recorder’s office until the eighteenth of September, 1876, sometime subsequent to the registry of plaintiffs’ judgment against defendant’s vendor. The question raised in this case is whether under this state of facts the land in the hands of the defendant is subject to the judicial mortgage of plaintiffs against the property of her vendor. We think not. If there was fault, nothing in the evidence shows it to have been that of the defendant, who had no power to make the registry, and who had complied with the law by depositing or causing to be deposited and filed for record the act of sale in the recorder’s office of the parish where the land lay long anterior to the obtaining or registering of plaintiffs’ judgment. The laws of registry are arbitrary, and often operate constructive notice when there is no actual notice. In other States actual notice supplies the place of registry. This equitable doctrine is held not to prevail in Louisiana. In many cases of much greater hardship than the present, this court has considered itself bound to refuse relief, because “ ita lex scripta est.” So say we now. The plaintiffs seek in this case to disturb a bona fide purchaser who had been in actual possession for several years before the institution of this suit, solely on the ground that though filed for record in the proper office before his judgment the defendant’s act of sale had not been actually transcribed on the books of the office. The law-maker has said otherwise. C. C., art. 2264, provides that no notarial act concerning immovable property shall have any effect against third persons until the same shall have been deposited in the office of the' parish recorder or register of conveyances of the parish where such immovable property is situated. Article 2264 makes it the duty of the recorder to indorse on the back of each act deposited with him the time at which it was received by him and to record the same without delay in the order in which they wore received; and provides further “that such acts shall have effect against third persons only from the date of their being deposited in the office of the parish recorder;” while article 2266 provides affirmatively that “ the recording of all contracts, sales, and judgments affecting immovable pre perty shall have effect from the time when the act is deposited in the proper office and indorsed by the proper officer.” The title of the defendant was so deposited and indorsed, as we have .seen, long prior to either the obtaining or registry of plaintiffs’ judgment, against her vendor, and must prevail. We have been referred to several .cases showing the strictness required in regard to the registry of mortgages. They have no application to the ease at bar, and upon that, subject we express no opinion. The judgment below was in favor of defendant, Mrs. Octavia Cuvilier, wife of Pavey, and rejected plaintiffs’ demand with costs. It was correct, and must be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 6527.
    Hall & Lisle in Liquidation vs. James L. Belden.
    The property o£ a succession can not be sold under a fieri facias issued on an ordinary judgment, even though the judgment has been given to enforce a mortgage,, and vendor’s lien. The holder of such a judgment must go into the probate court, to enforce his rights.
    APPEAL from the Fifteenth Judicial District Court, parish of Terrebonne. Beattie, J.

      Charles W. DuRoy, for plaintiffs and appellees.

      Crover & Harding, for defendant.
   The opinion of the court was delivered by

Egan, J.

The plaintiff obtained judgment via ordinaria against the-defendant, Belden, with recognition of mortgage and vendor’s privilege upon a house and lot in the town of Houma, which were seized under fieri facias and advertised for sale. Meanwhile the defendant in execution died, and his succession was regularly opened. The plaintiffs caused notice of their proceedings to be served upon the representatives of the succession, and thereupon the sheriff offered the property for sale under the fieri facias and seizure issued and made prior to the-death of Belden; and the plaintiffs, in the language of the petition in this proceeding, “bid in the same, but the sheriff refused to adjudicate the property to them because of the registry of an official bond of decedent as treasurer of the school fund for the parish of Terrebonne.” Plaintiffs thereupon took this' rule upon the sheriff, the administrator of Belden, and H. M. Johnson, parish recorder and also president of the school board, to’show cause why the mortgage resulting from the registry of the before-mentioned treasurer’s bond should not be canceled and erased so far as it bears on the property upon which they, the plaintiffs, claim their mortgage and vendor’s privilege. He further prays for general relief.

Service was aocepted by all the defendants, and Johnson alone answered, denying the plaintiffs’ right to force an adjudication of the property in question by reason oí the death of Belden before the sale, averring that the matter belongs to the probate court, and praying that the rule be dismissed.

The mortgage and vendor’s privilege were retained in the act of sale of the property, and were recorded according to law on the day of its execution, so that in a proper case the plaintiffs would be entitled to relief. We, however, know of no case, except under special statute, in which the sale of succession property is permitted under fieri facias issued upon judgment obtained via ordinaria against the deceased while the succession is under administration.

The death of the judgment debtor stays all such proceedings for the forced alienation of his property. See Legendre vs. McDonogh, 6 N. S. 514. There is an exception where the proceeding is via executiva. Resort must be had to the court of probates for the enforcement of ordinary judgments.

If there was no valid or legal sale the plaintiffs were not adjudicatees. of the property and could not at the present stage maintain this proceeding to cancel the bond mortgage before sale. The property might bring more than their debt.

The judgment of the court below was correct, and is therefore affirmed with costs.


author: Spencer, J.

text:
    No. 6301.
    State vs. James Augustine et al.
    Where two, or more crimes are involved in a single act, but one indictment will lie-
    APPEAL from the First District Court, parish of Orleans. Abell, J.

      A. P. Field, Attorney General, for the State.
    P. W. Kramer, for defendants and appellants.
   The opinion of the court was delivered by

Spencer, J.

The question presented by this appeal is whether, when a party steals a wagon and horse harnessed in it, and is indicted, tried, convicted, and sentenced for the larceny of the wagon alone, ho can be afterward prosecuted for the theft of the horse.

The horse and wagon being harnessed together, the taking of them was a single act, and constituted but one fact. W o think that under these circumstances there was but one theft. To hold otherwise would be to permit an unlimited number of indictments to be predicated upon one single fact — one taking. If an indictment will lie for horse-stealing, in that a horse was taken, and for grand larceny, in that a wagon was taken, you might continue and indict for petty larceny of the harness,, and so on without limit.

We think that where two or more crimes result from a single act or f act, but one indictment will lie.

This seems to bo the spirit of our law, which in section 1055 of the. Revised Statutes declares, in substance, that no person tried and acquitted or convicted of one offense can be tried for another or different offense arising from the same state of facts.

Mr. Wharton in his Criminal Law (paragraph 5S5) says: “Where the act is separable into two distinct branches, as when a man steals simultaneously two articles, as a horse and saddle together, ho may be convicted on separate indictments for each offense.” But this rule is held not to apply when the articles stolen belong to the same person. Idem. —. We apprehend, moreover, that.' this rule could, under our .statute, only apply when the saddle was not on the horse, but required a separate act in its taking — an act which, though contemporary or simultaneous with, was yet “separable” from the act of taking the horse. However this, may be, wo think the spirit of our law forbids two indictments for different offenses arising out of the same state of facts. We therefore think, the exception, or plea in bar, to the indictment in this case should have been sustained.

It is therefore ordered, adjudged, and decreed that the judgment and conviction appealed from be annulled and avoided, and it is now ordered and decreed that the indictment in this caso be set aside and quashed, and the defendants be not held to answer the same.


author: Manning, C. J.

text:
    No. 6560.
    Alexander Anderson vs. Mary A. Pike, Tutrix.
    A will by which property is devised to A, and at his death to 13, involves a substitution, which avoids the devise in favor of 13.

    No act reprobated by law, can be made valid by anybody’s ratification.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Dewing, J.

      Samuel P. Oreves, for plaintiff and appellee.

      Thomas P. Dupree, for defendant,
   The opinion of the court was delivered by

Manning, C. J.

In 1833 John Anderson died, domiciled in the parish of East Baton Rouge, having made an olographic will, by which he bequeathed his property'to his brother and sisters, except that disposed of in the following clause :

“Ileave bo Phebe, one hundred acres of land known as Taquino Place,; with all the improvements thereon, and four negroes, viz: Phil., Jeany, Big. Louisa, and Long Prank, and ono thousand dollars, cash, to be invested in bank stock. At the death of Phebe, said land and negroes and increase to become the property of a yellow boy by the'name of Alexander, son of Jeany, and in case of his death, to revert back to my heirs mentioned in the first part of my will.”

The legatee, Alexander, seeks in this action to recover the Taquino Place, which is now in the possession of the defendant, whose husband acquired it at sheriff’s sale issued upon judgment against J. & H. Perkins, to whom Phebe had sold it in 1815. The recovery is resisted on these grounds —

First — That the will is null as to the donation to Alexander, because it is a Jklei commission and substitution.

Second — That at the death of the decedent, the legatee, Alexander, was a slave, and incapable of inheriting or acquiring by donation mortis causa.

Third — The legatee is the unacknowledged bastard son of the deceased, and by reason thereof could not receive from him by that donation.

Fourth — That W. S. Pike, whom defendant represents, acquired the land in 1886, and those from whom he holds acquired it in 1845.

Fifth — The prescription of ten years is pleaded.

Substitutions and fulei commissa are prohibited. Every disposition by which the heir, legatee, or donee is charged to preserve the thing for, or to return it to, a third person, is null even with regard to the donee, instituted lieir, or legatee. Civil Code, article 1507, new number 1520. The following clause in a will has been held to contain a substitution : “ I give and bequeath unto my wife the plantation upon which I reside, and the following slaves, etc. I further will that upon the demise of my said wife that the property bequeathed to her return to my brothers and sisters and be equally divided between them.” Provost’s case, 13 An. 574.

The terms of the will in that caso are very similar to the present. The bequest was pronounced a nullity.

In a later case a testator bequeathed to his grandson the residuum of his estate, and in the event of the legatee’s death before majority, or without leaving lawful issue, then to his niece. The legatee attained majority, and afterward sold a part of the property thus bequeathed him, .and then died without leaving lawful issue. The niece sued for the property. The purchasers pleaded the nullity of the provision of the will under which she claimed, because of its containing a prohibited substitution, and it was so held. Wailes vs. Daniel, 14 An. 578.

The facts of this case and the case at bar are exactly alike.

It is alleged, however, that the nullity of the will quoad the donation to Alexander is cured by the ratification of the testator’s heirs, who have not sought, and do not seek, to disturb tho donation, or question its validity. A disposition of property which is reprobated by law is not susceptible of ratification. Hoggatt vs. Gibbs, 15 An. 700. Marcadé says : La confirmation n’est done possible que pour les obligations annulables. et non pour celles qui seraient proprement nuiles, inexistantes. * * *

Cette impossibilité d’une confirmation pour les obligations qui seraient proprement nuiles a été nettement reconnue Iors des travaux preparatoires, et la volonté du legislateur á cet regard ne saurait étre douteuse. Explication du Code Napoleon, tome 5, p. 90.

Nor has the Legislature here left this matter in doubt.

It is therefore ordered, adjudged,'and decreed that the judgment of the lower court is avoided and reversed; and that there be judgment in favor of the defendant with costs in both courts.


text:
    No. 6529.
    Edward J. Gay & Co. vs. Crichlow & Donelson et al.
    Where a creditor, who has bought certain movables from his debtor, by crediting the latter on his account with the price of the movables, instantly resells the property to the debtor, the sale will be valid, as between them, whether, any delivery was made to the creditor, or not.
    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J.

      E. W. Blake and Barrow & Pope, for plaintiffs and appellees.

      Clay Knobloch and Goode & Winder, for defendants.
   The opinion of the court was delivered by

Spencer, J.

The defendants being indebted to plaintiffs in a large sum, sold, transferred, and delivered to them forty-three head of mules for the price and sum of §7439 21, and on the same day, and it might be said, at the same time and place, the plaintiffs resold to defendants the same mules for the same sum. The plaintiffs paid the price of their purchase by crediting its amount on the debt due them by defendants.. When plaintiffs sold the mules back to the defendants, they took a note for the price, specifying the consideration, and had this obligation recorded in the mortgage office. The defendants in selling to' plaintiffs made delivery by driving the mules out to a common and there giving plaintiffs possession.

Plaintiffs bring this suit on said obligation, and claim the vender’s lien on the mules. The defendants deny “ that plaintiffs made any valid sale of mules to them or either of them, or that plaintiffs have any lien or privilege on any mules belonging in whole or in part to either of defendants, and further plead'failure of consideration of the note sued on.”

There is no doubt that the plaintiffs entered into this transaction for-the purpose of better securing themselves in the debt due by defendants. We see no reason to doubt the bonafides of the transaction. True, they bought the mules with the intention of reselling them at once to the defendants and thereby securing themselves by a vendor’s privilege. We see nothing illegal or immoral in this transaction. On the contrary, we think it was a legitimate business arrangement. When not illegal or immoral, a contract is a law between the parties. Three things must concur to make a sale — the thing, the price, and consent. As between the' parties no delivery is necessary. Third persons alone can take advantage of its absence. We are not called upon therefore to pass upon the question of delivery. As between the parties a counter letter is the only legal evidence of simulation, and parties will not be heard to gainsay their own deliberate contracts, unless they suggest fraud, error, or lesion. There is no merit in the defense set up; there was ample consideration for the note sued upon.

The judgment of the court below is affirmed with costs in both courts.


text:
    No. 6569.
    Mrs. S. A. Conrad and Husband vs. G. LeBlanc, Sheriff, et al.
    Where a wife is authorized by the judge, under the act of 1855 (R. S. sections 2183 and 2131), to mortgage her separate property for a certain sum, and for a certain purpose, and she thereupon executes the mortgage for a different sum, and fora purpose in addition to the one recited in the authorization, whoever endeavors. to enforce the mortgage must prove aliunde, that the debt secured by the mortgage inured to tlio separate benefit of the wife.
    The holder of a negotiable note of a married woman, who has taken it for value, and before maturity, is yet liable to have pleaded against him every defense arising out of the wife’s incapacity.
    APPEAL from the Fifth Judicial District Court; parish of East Baton Rouge. Dewing, J.

      E. W. Robertson and Barrow & Pope, for plaintiffs and appellees.

      C. D. Favrot and J. & G. W. Burgess, for defendants.
   The opinion of the court was delivered by

Egan, J.

This litigation was commenced by executory process by H. P. Ivernoohan claiming to be the holder before maturity of two negotiable promissory notes of Mrs. S. A. Conrad, wife of Dr. Marshall Pope, secured by mortgage executed by her, with the assistance of her husband, before the parish recorder on tlio tenth of February, 1873, as is alleged by Kernochan, in.accordance with an authorization of the judge of the district court, given under the statute in regard to mortgages of married women, on the eighth of February, 1873. This proceeding was enjoined upon various grounds, most of which it is unnecessary to notice, as the plaintiff, by his answer to the petition for injunction, changed his proceeding from via executiva to via ordinaria. The two cases are therefore, in legal effect, but one, as it is immaterial whether the injunction against executory proceedings is sued out by way of opposition under the Code of Practice or by independent petition. The practice seems to be in such cases to consider the petition for injunction as an answer to the original suit when thus converted into an ordinary one. 4 La. 90; 16 La. 109. This disposes of Kernochan’s bill of exceptions to the ruling: of the court below which treated him as plaintiff in the introduction of •evidence on the trial. First, as to the position of Kernochan as indorseebefore maturity of the notes sued on. In Sprigg vs. Bossier, 5 N. S. 56, it was held that when the objection arises from the incapacity of a party to enter into the contract evidenced by promissory note, that which had no binding effect when made can not acquire it by indorsement. In Degallon vs. Mathews, 5 An. 465, the court reaffirms this doctrine in these words : “ When the objection arises from the incapacity of the party, as that she was a married woman, the indorsement of a negotiable note gives no additional effect to the obligation.” And the fact that its face showed that it was given by a married woman is sufficient notice to any one to piit him upon inquiry if the consideration inured to her benefit before discounting it.” The distinction taken is well stated by Judge Porter in Sprigg vs. Bossier to.be .between mere inquiry as to the consideration and that affecting the incapacity of the party to contract.' In both the cases cited the note was in the hands of an indorsee, who, under the ordinary rules applicable to commercial paper, would have been held an innocent holder for value before maturity, but the court held that it was not proven that the debt inured to the benefit of the wife, and the plaintiff could not recover. The case of Davidson vs. Stuart, 10 La., is to the same effect. In the 5 An. case before cited the court says : “Where the consideration of a note given by a married woman is not shown to have been employed for her own separate use, for something lohich the husband ioas not bound to furnish, she ought not to bo held.” In Barnes vs. Burbridge, 15 An. 628, a married woman was held not concluded even by a confession of judgment. In Médart vs. Fasnatch, 15 An. 621, where judgment had gone against husband and wife jointly, it was successfully enjoined by her on the ground that the notes sued on were given in fraud of the law and were void as to her, she being sued for her husband, although the defense was not made in the original suit. In Theriot vs. Voorhies, 12 An. 853, it was held to be “ the uniform practice of the court to look through all the disguises in-which were shown their business dealings, and to protect the wife and her property.” So in Bisland vs. Provosty, 14 An. 172. In Erwin vs. McCallop, 5 An. 173, the wife gave her note and mortgage, in which she acknowledged the debt was for her separate use and benefit. There was no other proof in the ease, and the court lield this insufficient to charge her, and that the burden of proof to make her liable was in the plaintiff. See, also, 14 An. 700; 22 An. 457; 23 An. 196; 24 An. 89. The courts have been uniform in not holding the wife liable without proof -that the consideration inured to her separate benefit, no matter what the form of the contract or who the holder 'in the absence of the statutory-authorization by the judge,* originating with the act of 1855, the provisions of which are continued in the Revised Statutes and Revised Civil Code of 1870. Unless, therefore, there has been a compliance in the ease at bar with these provisions, the plaintiff, Kernochan, can not recover against the wife, defendant. To this inquiry, therefore, we address our.selves specially, -reserving any expression of opinion as to the effect of the statute when complied with. In Stapleton’s case, 24 An. 89, it was held that the authorization must precede the contract or the giving of the mortgage, otherwise the ordinary rule prevails, and the authorization does not make proof. that the consideration inured to the wife’s benefit, nor dispense the creditor or person seeking to enforce it from making such proof aliunde. In the case at bar the authorization, it is true, was given on the eighth of February, 1873, and the notes and mortgage on the tenth, two days after, but the inquiry remains, wore they given in .pursuance of the authorization ? The authorization is to contract a loan or debt of six thousand five hundred dollars, and to mortgage her real estate, situated in this parish, or such part thereof as may be necessary, in order to secure said debt, which is to be contracted for the purpose of borrowing money and obtaining supplies to carry on her farming interest in this parish for the present year.” In the act of mortgage the notes secured by it amount to §6439 60, and are declared to be given for past indebtedness and for advances to bo made during the coming season. It is evident, then, that so far as the past indebtedness is concerned, the contract preceded the authorization, and is not covered or protected by it because not contracted in pursuance of it (see, again, 24 An. 89). It is further evident that no such authorization was given by the judge as that recited in the act, and as even if some part of the consideration for the notes and mortgage were suchas authorized by the judge, the parties have so intermingled it with others, or, as it is called, “ past indebtedness,” that the amount of each is not distinguishable from the notes and mortgage above, and that this proof must be sought aliunde. In other words, the whole notes and the whole mortgage stand affected by this uncertainty, and do not of themselves make that “ full proof ” against .the wife which is spoken of in the statute. The plaintiff seems to have thought otherwise, and has not furnished that evidence aliunde necessary to charge the wife. The admission in the act of mortgage is insufficient. See 7 N. S. 341; 8 N. S. 692: The view of this case which we have taken makes it unnecessary to pass upon the question of homestead, though, to avoid misapprehension in this case, we are not prepared to say that under some circumstances even a married woman may net claim its benefits. As the plaintiff, Kernochan, may be able to supply evidence which he has not furnished in this record sufficient to satisfy us of his right to recover against the defendant, Mrs. Pope, we are unwilling to conclude him by our judgment.

It is therefore ordered, adjudged, and decreed that the judgment of the court below be annulled, avoided, and reversed, and the cause remanded to the court below to be there proceeded with according to law and the opinion. It is further ordered that the seizure, if still existing, be released, and that Kernochan pay the costs of the same and of appeal, the other costs in the case to await judgment.


text:
    No. 6572.
    E. H. Farrar vs. Stephen Duncan.
    Tho principal is bound by any contract made by his agent which is necessary to carry out the objects of the agency ; and no confidential limitation of the mandate, can operate to the prejudice of any innocent third person.
    APPEAL from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      JS. B. White, for plaintiff and appellant.

      Brahe <£• Currell, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff is a lawyer, and sues for remuneration for professional services rendered the defendant in certain legal proceedings before the court of Tensas.parish. The recovery is resisted on the ground that the plaintiff was not employed by the defendant, nor by any one authorized by him.

The defendant owns several plantations in the parish of Tensas. Seven •of these plantations had been sold for taxes, and the professional services consisted in rescuing them from impending total loss to the defendant. The suits instituted by plaintiff, and prosecuted to judgment, are in the record as part of the evidence. The plaintiff was successful in these suits. The value of these plantations ranges from forty to seventy-five thousand dollars, those figures expressing the value of tho whole thus recovered. The fee charged is twenty-five hundred dollars. Three practicing attorneys say the fee is reasonable.

Mr. Winchester, of Natchez, is the agent and attorney in fact as well as at law, of defendant. He has had charge of the defendant’s interests for many years. He leases this property, collects the revenues, and in several instances has employed counsel in' this State to represent and protect defendant’s interests. He has entire control of this property, with power to sue in defendant’s name. Both Duncan and his agent Winchester declare there was an understanding between them that the agent was alone to be responsible for fees of counsel employed by him. Plaintiff had no knowledge of this stipulation of defendant with his agent. Winchester was recognized by defendant as his general agent, and was thus held out to the world by him. There is no attempt by the defendant to deny or conceal the fact' of this agency; on-the contrary, ho unhesitatingly avows it, refers to it in his correspondence with plaintiff, and does not inform him that in the event Winchester employed him he must look to the agent for his fees. Defendant thinks that Winchester ought to pay plaintiff for his services, anti that he ought not to be required to do so. t will not be denied that a general authority empowers the agent to bind his principal by all acts within the scope of his employment, and the consequence of this authority is, that its exercise by the agent is not affected or limited, as to a party dealing with him, by any private order or direction not known to such party. Dunlap’s Paley’s Agency, section 127. Arayo vs. Currel, 1 La. 536. Bergerot vs. Parish, 9 Rob. 346. Forman vs. Walker, 4 Annual, 409.

It has been held that a power of attorney “ to sue or otherwise collect all claims ” implies the authority to employ counsel, and one thus employed was adjudged to be entitled to his compensation, notwithstanding the denial of the defendant of any employment by himself. Morgan vs. Brown, 12 Annual, 159.

The employment by the agent in this case of plaintiff binds his principal to the payment of a just and reasonable remuneration for his services. We are not prepared to say that the estimate of the value of these services made by the plaintiff himself, and by the witnesses, is exaggerated. Defendant has had the benefit of plaintiff’s’ services, which were laborious and protracted, and required two absences from his home, and involved great responsibility, and resulted in success.

It is admitted in the pleadings that plaintiff has received one hundred and sixty dollars in part of the fee charged by him. The judgment of the lower court was in favor of the defendant.

It is now ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that plaintiff have and recover qf the defendant two thousand three hundred and forty dollars, with five per centum per annum interest from the thirteenth day of March, ’ 1876, and costs of both courts, and that the attachment sued out by plaintiff be maintained and enforced.


text:
    No. 6554.
    Mrs. Adelina Luckett vs. Cora A. Crain.
    The advertisement ol property, seized under executory process, on the very day of the seizure, has no invalidating effect, provided there arc thirty days advertisement, and thirty-three clear days intervene between the seizure and the sale.
    ■Whore the process oE the court, in an injunction, does not seem to be seriously abused, special damages need not bo imposed.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J. Trial by jury. ■ .

      Ryan & White, for plaintiff and appellant.

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

Spencer, J.

Defendant obtained an order of seizure and sale against property of plaintiff; after due notice of the order the writ issued, and on fifteenth April, 1876, between twelve and one o’clock, the sheriff seized the property and gave notice thereof to Mrs. Luokett, sale to take place twentieth May, 1876. The sheriff’s advertisement of the' sale appeared in the Rapides Gazette, the official paper, on the same morning of-fifteenth April, 1876. The publisher says the paper was distributed usually between eight and nine o’clock in the morning.

The plaintiff in this suit (defendant in said executory process) enjoins said sale on the grounds—

First — That the evidence on which the process issued was not authentic.

Second — That the advertisement was premature.

Third — That she was entitled to certain credits on the notes,

The first ground seems not to have been insisted upon below or in. this court.

The second ground, the prematurity of the advertisement, is, we think, without much if any merit.

It is admitted, in argument, by plaintiff’s counsel that the sheriff might .advertise immediately after seizure, without waiting the lapse of the three days, provided thirty-three days clear intervened between the day of seizure and day of sale. The law only requires thirty days advertisement. It appears to us that the law has been complied with. The law takes no heed of the parts of a day. The seizure was made on fifteentlr April,and the advertisement was published on fifteenth April, and thirty-four days intervened between that day and day of sale. We express no-opinion upon the case which would bo presented if the advertisement should be published on a day preceding that of the seizure.

The third ground of injunction was sustained, and plaintiff allowed the credits claimed. The evidence • as to one of the credits, @150, paid by Walk, is not very satisfactory; but the case seems to have been tried by an intelligent jury, and we do not feel inclined to disturb the verdict.

The judgment of the court below is, however, clearly erroneous in condemning the plaintiff in injunction to pay the costs. She sustained her injunction to the extent of the credits claimed, and did not therefore owe the costs.

The defendant prayed for damages in the court below, on dissolution of the injunction, and has filed answer in this court, asking that damages be allowed. The notes bear eight per cent interest, and we do not think this ease discloses such an abuse of the process of the court as to justify tho infliction of special damages. We think the jury and court below properly disallowed them.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be reversed and set aside; and it is now ordered, adjudged, and decreed that the injunction sued out by plaintiff be perpetuated to the extent of the credits allowed by the jury, to wit: $165 (being credits additional to those indorsed on the notes), and that for the balance of the debt the injunction be dissolved and set aside; and it is further ordered that the defendant in this suit pay costs of both courts.


author: DeBlakc, J.

text:
    No. 5159.
    Charles T. Howard vs. William B. Schmidt.
    A creditor cannot annul a judicial sale of liis debtor’s property, (made attlio instance of another creditor) on account of any informality in the proceedings affecting the sale, unless he proves that such informality has caused him an injury.
    By appointing- an appraiser, tho debtor cures any defect in the advertisement of a judicial salo.
    Where a party sells one of a series of notes, secured by mortgage on certain property, without warranty, and reserving to any holder of any other of said notos equal rights, it will not debar him from subsequently proceeding on another of said notes, and subjecting said property to the ratable satisfaction of each of said notes.
    A Jitigant is required to give parties in interest no other notice of his proceeding, than that prescribed by law.
    APPEAL from the Fifth District Court for tho parish of Orleans. Callom, J.

      Joseph P. Hornor, for plaintiff and appellee.

      H. J. & J. II. Grover, for defendant.
   The opinion of the court was delivered by

DeBlakc, J.

This suit was filed by plaintiff on the tenth of November, 1873. He alleges that Mrs. Mary Jane Borden and William B. Schmidt are, in solido, indebted unto him in the sum of four thousand dollars, with interest thereon at the rate of eight per cent, from the seventeenth of March, 1871, costs of protest, and. attorney’s foes.

As concerns Mrs. Borden, plaintiff’s claim is predicated on a promissory note drawn to her own order, at the aforesaid date, by her indorsed and delivered to Schmidt as part of the purchase price of a lot of ground and the residence thereon, by him sold to the said Mrs. Borden, for sixteen thousand dollars, payable one-fourth cash, and the balance in three notes of each four thousand dollars, with interest from date.

The first of said notes matured on the seventeenth of March, 1872, was protested, and sued upon by Schmidt. Mrs. Borden filed no answer to that suit, and, on the twenty-fourth of April, 1872, a judgment by default was entered against her. -Three days after that default, by act passed before Andrew Hero, Jr., a notary public, defendant, Schmidt, transferred to plaintiff the notq sued upon, the mortgage and privilege securing its payment, and his right of action in the suit filed by him against Mrs. Borden.

That transfer and subrogation was made “without any warranty whatever, and with the distinct understanding that said transfer and .subrogation are not to impair or prejudice the rights under the second and third notes, or any holder thereof, or of either of said holders.”

This clause derives considerable importance from the fact that, by its clear and imperative terms, Charles T. Howard was informed that the note then transferred to him was the first of a series of three notes drawn by th.6 same party, secured by the same mortgage and privilege, and that it was so transferred without any warranty, and with the cxpress stipulation that cmy holder of its twin sisters — not excluding, but including the assignor, at least by inference — would share equally with him in any future distribution of the proceeds of any sale which might be made of the mortgaged property.

As to third parties, that declaration was entirely useless; their right of preference, as against the assignor, would have existed without that declaration. Is it less, in substance and in terms, than an absolute reservation in favor of the assignor, one imposed and exacted by him, the object of which could hardly have been misunderstood by the assignee— one found in his own contract, which bears his signature, and which, either willingly, carelessly, or through necessity, he has accepted and assented to ? That conclusion is irresistible. 2 R. R. 221; 21 An. 529, 624.

The second note matured on the seventeenth of March, 1873, and shared the fate of the first — it was not paid — and Schmidt proceeded thereon via ejecutiva. The property subject to his vendor’s mortgage and privilege was seized, advertised for sale, and sold by the sheriff on the twenty-eighth of May, 1873, under an appraisement partly made by. an expert selected by Mrs. Borden herself.

At that sale Schmidt became the adjudicateo of the property for eight-thousand dollars. . . .

Raid the costs and taxes then due, and amounting to........$1757 40

.And retained the balance of the price, to be applied as follows, to wit: To State and city taxes already levied but not then exigible................................................ 270 00

'To the notes held by Charles T. Howard, the New Orleans, Mutual Insurance Company, and the said Schmidt, each $1990 861, in all........................................ 5972 60

Total.................................................$8000 00

This application and proposed distribution of the proceeds of the sale were made, and appear in the sheriff’s return on the writ, and they have been approved by all the interested parties except Mrs. Borden and Charles T. Howard.

On the thirteenth of October, 1873, with a view of perfecting the title by him acquired at the sheriff’s sale, Schmidt published a monition, to the granting of which, on the tenth and eleventh of November, 1873, the. plaintiff and Mrs. Borden objected, and mostly on the identical grounds now urged in this suit and by plaintiff against Mrs. Borden and Schmidt. In that opposition they pray that the sale from the sheriff to Schmidt be avoided and annulled.

On the day he filed his opposition to the confirmation of the aforesaid sale, Charles T. Howard brought a direct action against Schmidt and Mrs. Borden, in which he charges that, on the fifteenth of April, 1873, without notice to him, and without his knowledge, Schmidt proceeded on the second of the notes subscribed by Mrs. Borden; that,'in his proceed-' ing, he represented that the third of said notes remained unpaid, and prayed that the property mortgaged to secure the balanceclue of the purchase price of said property be sold on the following conditions: for cash to satisfy the two matured notes, and, as to the third note, on a term corresponding with its maturity.

He complains that the writ of seizure and sale applied for and obtained by defendant was issued on terms which are at variance with the order of the court, and different from those fixed in said order, in this: that, according to said writ, the purchaser was to assume payment of the third and last of said notes, and pay on the spot the balance of the price of adjudication; that Schmidt fraudulently concealed from him his intention •to proceed, for the purpose of acquiring said property for less than he (Howard) would have given for it, and that, by his fraudulent course, said Schmidt has made himself liable in solido with Mrs. Borden for the amount of the note ho holds.

There are, then, ponding at this very hour, in this and the Fifth District •Court, two proceedings filed by Charles T. Howard, one in which he prays .for the annulling of the sale from the sheriff to Schmidt, and another in. which he claims that, by reason of his purchase, Schmidt has assumed' payment of the note which he transferred without any warranty. These-pleas are inconsistent, as the former impugns and denies, the latter acknowledges and ratifies the title- from the sheriff to Schmidt.

There are — not in Schmidt’s petition against Mrs. Borden for a seizure and sale, not in the order of the court on that petition, but in the writ issued by the clerk and the advertisement published in the official paper-two slight errors, not calculated to in anyway discourage bidders; one is, that the purchaser has to pay in cash the two, instead of one of the matured notes — that held by the seizing creditor — the other, that the purchaser was to assume payment of the third note, which meant that the purchaser would be bound to pay cash the amount of the note of the seizing creditor, that of Howard on demand, the third one at its maturity; but the purchaser would have had thus to pay and assume payment only in case the price offered would have been sufficient to satisfy the whole claim.

The rule that in judicial sales the prescribed formalities are to be strictly observed is rather for the benefit of the debtor and purchaser than the creditor. By the appointment of an appraiser the debtor waives any defect in the advertisement. This Mrs. Borden has done. As to Howard, he has not shown any injury to him which resulted from the alleged informalty, and until he does the rule is inflexible, he can not annul the sale of his debtor’s property. 11 R. R. 533; 5 An. 570; 9 An. 632.

Under the subrogation from defendant to him, plaintiff did not acquire; he renounced his right of action against defendant. When and how, if at all, did that right accrue ? From, he conceives, the sale of the sheriff, and particularly because Schmidt fraudrtlently, he says, acquired for a price ridiculously low the property for which, in his petition, plaintiff alleges he would have given more than Schmidt, and, in his evidence, for which ho might have gone to ten thousand dollars.

What is the nature of plaintiff’s action ? It is not a third opposition, not an action in nullity, and, though it has some of its features, it is not the hypothecary action. As regards Schmidt, it is not and can not be an action on the note. If we except from plaintiff’s pleadings two sentences, two allegations, one which precedes and the other contained in the prayer, his action against Schmidt would be one in damages, based on pretended frauds. Those two sentences are, that in which ho charges that, by reason of Ms purchase, defendant has assumed payment of his note, and that in wlfieh he asks for the recognition of his mortgage and privilege.

Defendant is evidently liable to plaintiff for a share of the proceeds of the sale of the twenty-eighth of May, 1873; that share has been established and informally tendered to plaintiff, who refused it, remarking that he intended to try and get all of it. Has he, against Schmidt, and xrnder the circumstances related, an action to recover more than he was offered ? If he has, it is not under either the subrogation or the note. He so acknowledged himself, for when asked whether Schmidt was liable for the whole of the note, on account of the frauds he complained of, he •answered, “That is one reason.” “Any other,” inquired defendant’s counsel? “No,” replied plaintiff.

The charge that defendant intended to defraud plaintiff is not sustained by the evidence; not even by the latter’s unsworn allegations, and it is repelled by the very acts with which he is reproached, and by every presumption that can be legally invoked. He applied to a court of jus,tice; from that court he obtained an order to which he was entitled, which no pulge could have refused to grant. Under that order a writ was issued, placed in the hands of a public officer, a seizure was effected by that officer, the sale of the seized property was advertised in the official journal, and made at the usual place. Howsoever intimate the relations of interested parties may be, the law requires no other notice than that which was given. Besides, when was defendant himself informed that the sale was to be made? On the day which preceded that sale. To his attorney, who had imparted that information, he said, “ I am glad that you sent me that note, as otherwise I would have forgotten the property was to be sold.” That remark does certainly not suggest the intention of ■perpetrating a fraud. ' *

Plaintiff, in this matter, has a right; but is he pursuing the right he has •and which, at first, was not denied, but recognized, by defendant ? "We believe not. His interest is imperiled, not by his or his adversary’s fault,, but by those fatal causes which have so reduced'the value of property in our State, and in his anxiety and trouble he abandons that which he can justly claim, to claim that which can not be justly granted. Under two of the allegations of his petition we can fix his proportion in the proceeds of the sale made in May, 1873; under his evidence we could allow but damages.

The exception that plaintiff’s pleadings disclose no cause of action has added to the difficulties of this branch of the controversy, and, but for the two allegations already cited, would have.been maintained. We conclude that, in the interest of all the parties, the door should not be left open to any additional litigation between them. Plaintiff is entitled to the amount which was tendered to him. That amount is secured by the vendor’s mortgage and privilege on the property purchased by defendant. 5 An. 306; 16 L. 170.

Plaintiff has referred us to the'case of Yentress against his creditors, in which this court correctly decided “that when the holder of a claim .secured by mortgage assigns a part of it, he can not be permitted to come in competition with his assignee, if the property mortgaged is insufficient to pay the whole claim.” 20 An. 359. Here we have the-parties’ contract, which expressly reserves in favor of any holder, whomsoever he may be, an equality of rights with Charles T. Howard, the assignee. That contract is their law. Under its sweeping terms no holder-can be excluded; they are each entitled to an equal share of the proceeds-of the sale.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court against William B. Schmidt be and it is hereby annulled,, avoided, and reversed, and, proceeding to render such judgment as-should have been rendered below, it is ordered, adjudged, and decreed that Charles T. Howard recover of William B. Schmidt the sum of §1990 86g, and that the vendor’s mortgage and privilege, by which the-payment of said amount is secured, be and they are hereby recognized as having taken effect and bearing since the twenty-second day of March, 1871, on the property purchased by said Schmidt on the twenty-eighth of May, 1873, at the sale then made of the same by the civil sheriff of the parish of Orleans.

It is lastly ordered, adjudged, and decreed that the costs of the lower-court be paid by. defendant, Schmidt, those of the appeal by Charles T. Howard.


author: Taliaeerro, J. Manning, O. J.

text:
    No. 4847.
    Jacob Hawkins vs. New Orleans Printing and Publishing Company.
    Where special defenses have been set up in an answer, in conjunction with the plea of the general issue, evidence is admissible to establish the special defenses.
    In an action for damages for slander, libel, or defamation, the defendant may plead the truth of what he has said, or written, and prove it by any legal evidence.
    Where “perjury” has been charged in an alleged libel, it is fpr the jury to determine, by a scrutiny of the whole publication, whether the word was used by defendant in a popular sense, or as charging the technical crime of perjury.
    The bribery of a juror is good ground for granting a new trial, and it may be proved like any other fact.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J. Trial by jury.

      II. C. DilMe, Cotton & Levy, and Rice & Whitaker, for plaintiff and appellee.

      II. N. Ogden and Randolph, Singleton & Browne, for defendants.
   On Motion to Dismiss.

The opinion of the court was delivered by

Taliaeerro, J.

The grounds on which the appellee mainly relies in support of his motion to dismiss the appeal in this case'are that the-transcript does not contain a true record of the proceedings had on the-trial of tlio case in the court below, but on the contrary that it is erased, interlined, and mutilated in various places referred to by pages in the transcript; that these defects in the transcript are imputable solely to the appellant.

An attentive examination of the parts" of the record containing these alleged erasures, interlineations, and mutilations does not convince us that the transcript is not a true and correct copy of the original record of the proceedings had in the case on its trial in the court below. Two certificates of the clerk and his affidavit besides attest its correctness. It seems that ex industria the clerk has aimed to present an exact fac simile, a photograph, of the record, which in some of its parts presents, on that account, an anomalous appearance.

And we will here remark that the clerk, in making out the transcript in this manner, has made a departure from the established usage which has nothing to commend it as an improvement and nothing to render its adoption desirable. We, however, assume that this transcript represents correctly the alterations, erasures, interlineations, etc., as they appear in the original. There is nothing that we find to induce the belief that the original record has been altered, or that the transcript is not a correct copy of it.

It is therefore ordered that the motion to dismiss be overruled.

On the Merits.

The opinion of the court was delivered by

Manning, O. J.

In this suit the plaintiff seeks to recover one hundred thousand dollars as damages for an alleged libel, published by the defendant in the DailyPicayurienewspaper. An article styled “the Usurper Hawkins ” contains the alleged libelous matter, it was published on the twehty-third of February, 1873. So much of it as is necessary for the decision of the issues now before us is here transcribed:

“Jacob Hawkins is not a legal judge, nor is the so-called Superior District Court, over which he assumes to preside, a legal court. The investigation before the Senate Committee on Privileges and Elections has brought to the knowledge of the whole people of the United States what was before perfectly well known to the people of this State. All the members of that committee, in their preliminary report, agreed with remarkable unanimity that the Kellogg government was simply a usurpation without foundation in law. They unanimously declared that the Lynch Returning Board never had the official returns of the election before them, and never had any legal or competent evidence before them to enable them to declare what the results of that election were.”

The words particularly complained of as injurious to plaintiff are:

“But why do our people, with these two reports before then;, continue to endure that monstrous party creation, the Superior District Court ? How much longer will they quietly submit to the decrees of a bastard judge of a bastard court created by a bastard Legislature ? Have they any respect for that compound of perfidy and perjury, Jacob Hawkins, who assumes to preside over the court that was specially created to reward him for violating his duty and his oath as a returning officer ? How much longer will the members of our bar continue to recognize this illegal tribunal and its perjured judge ?”

The defendant pleaded the general issue in the usual form, by denying “ all and singular the allegations of the petitioner, except in so far as they may be hereinafter admitted,” and then specially justified with ample averments. Some of these are that the article.was written and published under a profound sense of duty to the public; that the matters therein charged were universally believed to be true in this community; that in printing and publishing the article respondent was not originating, nor was he giving currency to a rumor, but merely as a public journal narrating facts already well known and accepted as true by the public; that the whole subject-matter had been submitted to a committee of the United States Senate, and that committee had, after a full investigation, found in substance the facts to be as stated in said article; that it was apparent upon the face of the article that it was not intended to produce any hew impression upon the public mind as to the character of the plaintiff, but undertook merely to narrate what had already been accepted by the public as true, and upon those accepted truths to advise the public as to its duty at a critical period in the history of the State;' and, finally, that every statement contained in the article wras supported by the strongest proof, and believed by respondent to be true as published, and that the statements as published were true.

The issues were submitted to a jury, who awarded eighteen thousand dollars to the plaintiff as damages. From the judgment of the court, in accordance with that verdict, the defendant appeals.

There are twenty-two bills of exception to the ruling of the judge below. ¥o shall notice as many of them as may be required at this time.

The defendant offered several witnesses to prove the truth of the statements made in the published article, and objection was made to the reception of this proof on the ground that by pleading the general denial the defendant had lost the right to justify, or, in other words, that the plea of -the general issue precluded the plea of justification and any other defense. It has long been a settled rule under our Code of Practice that the general issue is waived by a special plea, and that the latter always controls the former so far as relates to the matter specially pleaded. Lesseps vs. Wicks, 12 An. 739. When there is a special defense relied on, the answer always opens with the plea of general denial, and is followed by the special pleas more or less elaborated, as it usually closes with the prayer for general relief, and it would not be more extraordinary to hold that the prayer for general relief excludes all other prayers of the answer, than that the plea of the general issue once made, accompanied by special defenses, excludes all evidence in support of those defenses. The gravamen of plaintiff’s complaint is, not that defendant made a publication concerning him, but that the publication thus made was false, malicious, and libelous. The defendant averred that it was not false, but true, not malicious, but made with good intent, not libelous, but the reiteration of what was commonly believed to be true. He should have been allowed to substantiate these averments.

In support of the averment relative to the'conclusions of the United States Senate committee; the defendant offered in evidence the published report of that committee. One of the statements in the publication in the Picayune related to the participation of the plaintiff in the acts of the Returning Board of that date as one of its members. The alleged libel as to that participation, and the nature and quality of the plaintiff’s conduct as a sworn member of that board, was justified in the answer as founded upon that report, and the evidence was offered to show that the publication was free from malice, and was only a reproduction of what that committee had upon examination pronounced to be true. In that light, and for that purpose, the evidence should have been received.

So, also, of the rejection of the various witnesses who were offered to sustain different phases of the plea of justification. Whatever was pertinent under that plea, and in its support, should have been received. By express law, the defendant in a civil suit for slander, defamation, or for a libel may plead in justification the truth of the slanderous, defamatory, or libelous words, and may maintain that plea by all legal evidence. R. S. 1870, sec. 3640.

The plaintiff insisted that the expression “compound of perfidy and perjury” as applied to himself must be held to mean that he had been guilty of the technical crime of perjury, and that no evidence could be received except that which would show him to have been guilty of that crime, as defined in the statutes. The modern doctrine upon that subject is that the question to bo left to the jury is not what the defendant meant by the words he spoke, but what reasonable men hearing the words would understand by them. Townsend on Slander and Libel, 173, note. To call a man a thief is not actionable unless it is intended to impute to him a felony; unexplained, it will be construed in a feloni ous sense, but is subject to explanation by the context. Mem. 197. The-jury should have been instructed to take the publication in its entirety, and to consider from its phraseology whether it was the technical crime of perjury or the popular sense of that word that was meant, or that was or would be understood by readers as having been meant by theuttérer of the alleged libel. Trimble vs. Moore, 2 La. 577; Miller vs. Holstein, 16 La. 395.

The defendant offered the plaintiff as a witness, and was proceeding to interrogate him, when objection was made that he could only be interrogated on facts and articles. Formerly a party to a suit could only be interrogated by questions in writing annexed to a petition or answer in which one of the parties to the suit prays that the other be ordered to respond under oath, in order to make use of his answers as testimony in support of his demand, or to aid him in his defense. Code of Practice, article 347 et seq. In 1868 the competent witness in all civil matters was declared to be a person of proper understanding (Acts of 1868, p. 269), and since that act parties to suits have been uniformly held to bo competent witnesses either in their own behalf or in behalf of their adversaries. The only exception to this uniform ruling that we know of is that of the court a qua on the trial below.

Many witnesses were offered to prove the truth of the alleged libelous matter, and, among them, James Longstreet. The bill of exception in this instance states that the object of the testimony was to rebut the presumption of malice, but the court held it inadmissible, because “under the general issue defendant can not prove his charges.” The exclusion of most of the testimony of defendant rested upon the ruling first made as to the effect of pleading the general issue, the judge having ignored the special pleas made in the same answer, and to which the pleader specifically referred as limiting the general denial. It is only when the defendant confines himself to that plea, and altogether omits that of justification, that evidence of the truth of the alleged libelous matter is excluded. Miller vs. Roy, 10 An. 231. The error of the first, ruling e2itailed the errors cf all subsequent ones, and thus totally deprived the defendant upon any hearing upon the merits of his defense.

The case was given to the jury on Friday, June 19, and at six o’clock p. m. of that day, on being brought into court at their request, the foreman reported their inability to agree, whereupon the court ordered the sheriff to remand them to their room, there to remain under his charge until they do agree. At three o’clock p. m. of the ensuing day they were again brought into court, and their foreman made the same report, and the same order was made by the judge. At nine o’clock p. m. of that day the verdict was rendered.

A motion for a new trial was made on the ground that two jurors had been bribed — one of them, by name Haworth, before the causo was submitted, and the other, D’Aquin, on the afternoon of Saturday after they had been for a few moments in court to announce their non-agreement. This bribery was alleged to be by the plaintiff through an agent. The crier of the court, George Walker, was the alleged agent. It was sworn that he slipped into D’Aquin’s hand a small piece of paper, while the juror with the others was going to their room from the court-room, and whispered to him not to open the paper until he had returned to the jury-room. It was D’Aquin that had said aloud to the judge that an agreement upon a verdict was impossible. The writing upon the slip was:

“Mr. D’Aquin, if you go with the majority there is a five-hundred-dollar note at the store for you.

“YOUR ERIEND ON CHARTRES STREET.”

D’Aquin had been during the jury’s deliberations a pronounced favorer of a verdict for the defendant, and upon his return to the jury-room on Saturday afternoon the impossibility of agreement, of which he had given assurance to the court, was suddenly converted into a hearty acquiescence in the views of the majority. All the facts of this affidavit are said to have been obtained by the confession of Walker, the crier of the court, as well as of the juror himself.

The other juror was alleged to have been bribed by one Thomas Kavanaugli, acting as agent of plaintiff, during the progress of the trial, twenty-five dollars being paid cash and one hundred and twenty-five dollars more to be paid as the purchase price of a verdict for twenty-five thousand dollars in favor of plaintiff.

Upon the hearing of the motion for a new trial, supported by affidavits setting f01 th in externo the occasions and circumstances of the bribery, with the names of the parties, additional evidence was offered to sustain the statements made in the motion and the affidavits. Objection was made to its reception for the reason that a juior should not bo permitted to impeach his own verdict, and as to the witnesses, other than the jurors, that their statements would be hearsay. The presiding judge was then offered as a witness to prove that Walker, the crier of the court, admitted to him (the judge) that he did slip into the juror’s hand the writing offering a specific bribe on the occasion described, and on objection by plaintiff the court ruled out the testimony.

The textual provisions of our Code declare that a new trial shall be granted if it be shown that the jury has been bribed. The applicant for the new trial must annex to his motion his affidavit of the facts alleged in proof of the bribery. Code of Practice, arts. 560, 561; Morgan vs. Bell, 4 Martin, 619; Trehan vs. McManus, 2 La. 216. It has often been held that a juror can not be heard to impeach his own verdict, because the admission of his testimony to that end would open the door to tamperers, and might be the means to destroy a verdict which could be used by a juror who had become dissatisfied with it. Its effect is to defeat his own solemn act- under oath. Campbell vs. Miller, 1 N. S. 514; Cive vs. Rightor, 11 La. 141; State vs. Caldwell, 3 An. 435; Hilliard on New Trials, 196. But it has also been held that the testimony of a juror may be received to prove misconduct of the officer having them in charge. Thomas vs. Chapman, 45 Barbour (N. Y.) 98. And in the special instances of bribery as the alleged misconduct of the jury, the •affidavit of a juror touching that misconduct was held admissible. Ritchie vs. Walbrooke, 7 Serj. & Rawle, 458; Spurck vs. Crook, 19 Illinois, 426. And this from the necessity of the case. The bribery is known, usually, to none but the party using it, or his agent, and his victim. The fear of detection and its consequences imposes secrecy upon the instruments employed for its accomplishment. Without the power to interrogate them, the exposure of the bribery would, in most instances, be impossible. But we do not find it.necessary to decide authoritatively now whether that particular misconduct of a juror, 1 e., bribery, can be elicited by his own testimony. In this case the testimony of the crier to the court was offered to prove his own successful attempt to bribe one of the jurors, and, upon ascertaining that the crier had disappeared, the presiding judge was offered to prove the crier’s admission that he had slipped the piece of paper in D’Aquin’s hand, while the jury were yet undecided, and while the officer was accompanying them to their room lor renewed deliberation.

The refusal of the judge to grant a new trial under these circumstances is not merely an error in law. It is official misconduct, and reprehensible in all its phases. It was his duty to have ordered a new trial ex mero motu. A judge is the conservator of his court. The conservation of its purity is his first and highest function. It should not require the interposition of counsel, or of any subordinate officer of the court, to move the judge promptly to repair an injury to his own administration of justice, effected by such foul moans. The knowledge of the stain on that day and by that act stamped upon his court was brought home to him by protracted and repeated appeals for its removal. His own knowledge of the facts was 'attempted to be .elicited, and, instead of making that knowledge the basis of an instant and voluntary order which should wrest from the briber the fruits of his wrongful act, he permitted the verdict which he knew to have been bought, to tarnish the records until the appeal to a higher tribunal shall have removed the opprobrium thus cast upon the law, and those who administer it.

Nearly four years 'have passed since the verdict was rendered in this case, and we may reproduce here the indignant expressions of Lord Denman, in rendering his celebrated judgment in O’Connell vs. the Queen: “ If it is possible that such a practice as that which has taken place in the present instance should be allowed to pass without a remedy, trial by jury, itself, instead of being a security to persons who are accused, will be a delusion, a mockery, and a snare.”

It is therefore ordered, adjudged, and decreed that the verdict of the jury be set aside, and the judgment rendered thereon be avoided and reversed, and that this cause be remanded to the lower court to be tried anew under the instructions contained in this opinion: and it is also ordered and decreed that the defendant have and recover of Martha J. Hawkins, the legal representative of the succession of the deceased plaintiff, the costs of this appeal.


author: Marr, J. Egan, J.

text:
    No. 6040.
    McCloskey, Bigley & Co. vs. Wingfield & Bridges et al.
    A judgment against a partnership, which has ceased to exist by the death of one of the partners before the date of the judgment, is null and void.
    A surety can not be held under a judgment void as to his principal.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Bentick JSgan, for plaintiffs and appellants.

      George L. Bright, for defendants.
   The opinion of the court was delivered by

Marr, J.

McCloskey, Bigley & 'Co. brought suit against Wingfield & Bridges, described in the petition as “ a commercial firm, composed of James H. Wingfield and H. Q. Bridges.” Process of attachment was issued, under which the property of Wingfield & Bridges was seized, and released on bond given by Wingfield & Bridges, with Charles S. Bush as security, conditioned to satisfy such judgment as might be rendered against defendants.

Plaintiffs prayed “that Wingfield & Bridges be cited to appear and answer this petition, and, after due proceedings had, that said firm of Wingfield & Bridges, and the members thereof, James H. Wingfield and H. Q. Bridges, be condemned, in solido,” etc. .

The citation was addressed to Messrs. Wingfield & Bridges,” and the service was on “Messrs. Wingfield & Bridges, through Bridges in person, a member of said firm.” ' The answer was in the name of the firm, and the judgment was against “ defendants, Wingfield & Bridges, and the members thereof, James H. Wingfield and H. Q. Bridges, in solido.”'

Execution issued on this judgment, and was returned “no property found,” and therefore plaintiff took a rule on Charles S. Bush, the surety in the release bond, to show cause why he should not be condemned to satisfy the judgment.

In his answer to this rule Bush set up a number of objections. We shall notice but one of them, which we think is fatal, and that is that James H. Wingfield, of the firm of Wingfield & Bridges, was dead at the time the judgment was rendered. <

The suit was against the partnership, Wingfield & Bridges; the partnership alone was cited; the release bond was given by the partnership, and Bush was surety for the partnership.

A judgment against a commercial partnership binds the partners in sólido, but to have that effect the partnership must exist and be capable of standing in judgment at the time the judgment is rendered.

The proof is that James H. Wingfield died on the second of April, 1874, more than a year before the judgment, which was rendered on the twenty-first of May, 1875. The judgment, therefore, against the firm of Wingfield & Bridges, and against James H. Wingfield, was a mere nullity, absolutely void.

The condition of the release bond is that the defendants, the principal obligors, Wingfield & Bridges, shall satisfy such judgment as may be rendered against them: A judgment against one of the individuals who was a member of that firm while it existed is not a judgment against the defendants, the partnership; and the surety did not undertake to satisfy any other judgment than such as might be rendered against the principals, the partnership.

After the death of Wingfield no judgment could be rendered against the partnership without making his representative a party, and until such judgment is rendered the surety of the partnership is not liable.

• In Grieff vs. Kirk, 17 An., it was decided that the surety of a partnership in an appeal bond was not the surety of the individuals comprising that partnership, and that he was not liable on a judgment which discharged the partnership but condemned one of the partners individually.

The judge of the court below did not err in dismissing the rule taken by plaintiffs on Bush, the security, and the judgment appealed from is affirmed with costs.

On Application por Rehearing.

The opinion of the court was delivered by

Egan, J.

This application has boon earnestly pressed upon-our attention, and we have given it due consideration.

The question is not merely as to the manner of enforcing judgment against the principal before pursuing the surety. It is as to the existence of judgment against the principal. The death of a partner dissolves the partnership. R. C. C. 2876. If this arises alter answer filed, suit does not abate, but may be continued by making the heirs or legal representatives of the deceased partner parties to the suit. No valid judgment can be obtained otherwise, as held by us. This was not done in the present case, and is an insuperable obstacle to the pursuit of the surety in the present attitude of the ease.

The rehearing is refused.


author: Spenoer, J.

text:
    No. 6536.
    F. S. Goode vs. John Nelson et al. E. J. Gay, Third Opponent.
    A third opponent who claims a privilege on property seized under a fieri facias, sets forth his demand in a sufficiently specific manner when he states its nature, the special transaction in which it founds, its exact amount, and the particular property on which he claims a privilege.
    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J.

      Goode tC: Winder, for plaintiff and appellee.

      Barrow & Pope, for defendant.
   The opinion of the court was delivered by

Spenoer, J.

Plaintiff, F. S. Goode, under fieri facían seized a number of mules as the property of defendants. Gay & Co. filed a third opposition, claiming the proceeds of the sale. Plaintiff excepted to this opposition, on the ground that its allegations were vague and not sufficiently explicit and definite to inform him of the nature of the claim. The court a qua sustained this exception and dismissed the opposition, from which decree Gay & Co. appeal. The allegations of Gay & Co. are, in substance, as follows: That there is now pending in said court a suit, No. 1425, wherein they claim of the defendants, John Nelson et al., $7439 JX, and for payment thereof they also claim a vendor’s privilege on certain mules therein described and which were then on the Coulon Plantation, as the whole will appear by the record of said suit; of which a certified copy is annexed and made a part hereof. That the sheriff under a writ of fieri facían issued in the suit of F. S. Goode vs. John Nelson et al. has seized and will sell as the property of said defendants the aforementioned mules, on which your petitioners have the vendor’s privilege aforesaid; that petitioners’ said privilege was duly recorded and preserved; that Goode was •a party consenting to the transaction by which petitioners became owners ■of said mules, and had full notice of their title to the same; that they ■are entitled to be paid by preference out of the proceeds of the sale, etc. Wherefore they oppose, etc.

The record of the suit No. 1425 was in the same court and office as the pending suit, but no copy was served or filed with, it as stated. The plaintiff insists that, not having been filed with this opposition, the allegations of said suit No. 1425 can not bo used to supplement the allegations of this opposition. We do not deem it necessary to pass upon this point. We think the allegations of this opposition, the substance of which we have before stated, are in themselves sufficient. -The opponents inform the plaintiff and the court that they have a suit pending against the same defendants, wherein they claim a vendor’s privilege on certain mules on Coulon Plantation for §7,439 21; that the plaintiff has caused the sheriff to seize these identical mules under a fieri facias in this suit, and that opponents having a duly-recorded vendor’s privilege on these mules are entitled to bo paid out of the proceeds of their sale, by preference to-plaintiff, and pray for judgment accordingly. The opponents state the nature of their demand, to wit: a vendor’s privilege growing out of a transaction of which plaintiff had full notice. They state its amount. They identify the property subject to their alleged privilege, by stating it to be certain mules on a certain plantation, being the same mules seized by plaintiff in this case. Wo think this is a substantial compliance with the requirements of the Oodo of Practice. The exception should have been overruled.

It is therefore ordered, adjudged, and decreed that the judgment of the court below be avoided and'reversed; and it is now ordered and decreed that the exception filed by plaintiff to the third opposition of E. J. Gay & Co. be overruled, and that this cause be remanded to be proceeded with according to law, plaintiff and appellee paying costs of this appeal.


text:
    No. 6571.
    August Bohn, Applying for a Monition; J. Stanford Bossier, Opponent.
    The act o£ 1809 (Revised Statutes, section 3759) which limits the application oí article 132 oí the eonstimtion, (providing lor the subdivision o£ land sold at public sales into lots), to sales made after the adoption of the constitution oí 1868, is constitutional.
    APPEAL from the Sixth Judicial District Court, parish of St. Tammany. Duncan, J.

      McEnery, Ellis & Ellis, for appellant.

      Thompson & Bussell, for opponent.
   The opinion of the court was delivered by

Spencer, J.

The facts of this case are thus stated by counsel for applicant, .and are conceded by counsel for opponent:

On the second of June, 1869, in the suit No. 1150 of the docket of the court a qua, entitled Mrs. E. A. Bossier, executrix, vs. J. Stafford Bossier et al., judgment was rendered against defendant for seventy-three hundred. dollars, and directing the seizure and sale of certain land which had been specially mortgaged on tlio third of November, 1865, to pay and satisfy the same. The defendant in execution formally acquiesced in said judgment and order of sale. A writ of fieri facias issued against the defendant (opponent herein) for the sale of said property mortgaged, and of the seizure made thereunder by the sheriff the defendant took notice, and in furtherance of the sale appointed an appraiser, who. assisted in appraising the property at fifteen hundred dollars.

On the seventh of August, 1869, after full advertisement, the property was sold by the sheriff, and August Bohn (appellant herein) purchased it for two thousand dollars paid in cash.

On 'the ninth of May, 1870, said purchaser, A. Bohn, filed the usual petition for a monition. It appears that no publication of the monition was ever made, and that the petition slumbered as filed in the clerk’s office, wholly neglected, until November 26,1875, when said debtor in execution, J. Stanford Bossier, appellee, filed an opposition to it, declaring that the sheriff’s sale to Bohn was null, because the land sold was not subdivided into lots, as directed by article 132 of the State constitution, and that therefore he (opponent) was still owner of the land, and he prayed for the nullity of the sheriff’s sale to Bohn, and to be restored to the possession of said land.

In May, 1876, a trial was had. The plaintiff, A. Bohn, was neither present nor represented, and the trial was wholly ex parte. George H. Penn, Esq., the attorney who filed the petition for the monition, was dead, and plaintiff, residing in Neiu Orleans, was not notified of the trial, nor was he served with any copy of the opposition, or demand of opponent, which prayed for .the nullity of the sale of the property, for which ho had paid two thousand dollars.

'There was judgment sustaining- the opposition and annulling the sale to Bohn. From this judgment ho prosecutes this appeal.

The evidence in this record, and produced by the opponent himself, shows that the proceedings were regular, and had the monition been published and offered in evidence, we would be bound to homologate the sale. The only objection urged by the opponent to its validity is that the land was not subdivided and sold in lots according to article 132 of the constitution. The act of 1869 (Revised Statutes 3759) providing for carrying into effect said article, expressly provides that the provisions of said act shall not apply to sales made in execution of contracts entered into* prior to the adoption of the constitution of 1868. The opponent says this law is unconstitutional. The courts of this State have uniformly given effect to it, and we would hesitate now, at this late day, to declare it unconstitutional, and thus unsettle great numbers of * titles. 24 An. 215. Blit we do not think it unconstitutional. Article 132 is of that class of provisions which remain necessarily inoperative until the mode of giving them effect is provided by statute. The Legislature has seen fit to provide such mode only for sales in execution Of contracts bearing date subsequent to the adoption of the constitution. This court interprets, but does not make laws, and as long as there is no statute of the State providing for the application of this article to sales under contracts antedating the constitution, this court can not make such application, even if it be conceded the Legislature has such power. The contract sued upon in the case of Bossier, executrix, vs. J. Stanford Bossier, and in execution of which the sale to Bohn was made, bears date the third of November, 1865. It was not, therefore, necessary to the validity of the sale that the property be divided and sold in lots. We think, therefore, that as against the opponent, the sale must be maintained.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, and it is now ordered and decreed that the opposition of J. Stanford Bossier be rejected, and that this cause be, in other respects, remanded to be proceeded with according- to law, appellee paying costs of his opposition in the court below, and costs of this appeal.


text:
    No. 6516.
    State ex rel. N. St. Martin vs. the Police Jury of the Parish of St. Charles et al.
    A mandamus will not lie to compel an officer to do a thing, as to the performance of which lie has discretionary power. Ho can only be compelled by mandamus to perform a duty, when it is purely ministerial. The taxpayers of oa parish have a right to Appeal from any judgment of court, ordering the police jury to levy and collect a tax, and no acquiescence in the decree by the latter, can affect the former’s right of appeal.
    A police jury can not be compelled by a mandamus to levy a lax for the payment of a claim which they deny, and which has not been passed on judicially.
    A mandamus will not issue, where an adequate remedy can be obtained through the ordinary legal processes.
    APPEAL from the Fourth Judicial District Court, ptarish of St. Charles. Flagg, J.

      J. B. Augustin and Julien Michel, for relator and appellee.
    ■ Lesassier & Binder and Breaux, Fenner & Hall, for appellants, the taxpayers, and <?. A. Breaux, for the police jury.
   The opinion of the court was delivered by

Manning, C. J.

The relator, alleging that he is the Parish Attorney and District Attorney pro tempore of St. Charles parish, and is entitled to receive $1789 47 from the police jury thereof as compensation for back salary and perquisites for 1874 and salary and perquisites for 1875, prayed and obtained a mandamus to compel the assessment and collection of a tax sufficient to pay his claim. The writ was directed to the members of the police jury, ordering them to convene, and make an assessment of a tax of two mills on the dollar; to -the collector, ordering him forthwith to collect that tax; and to the parish treasurer, ordering him to pay the proceeds to the relator.

The police jury except to relator’s petition for this, that his allegations are not sufficient in law to entitle him to the writ of mandamus, and after pleading the general issue, allege that in preparing the tableau of •expenditures for 1875 and levying a tax for their payment, the jury exercised discretionary powers which are not the subject of judicial inquiry; that one of the items upon this tableau is three hundred dollars for relator’s salary for 1875 and another like sum for his fees in criminal prosecutions, and that there are no other legal expenses of the parish than ■those included in that tableau, the collection of a tax having already been imposed to pay them, and that the jury have no authority to impose a tax to pay any claim not acknowledged and liquidated, and not included in that tableau, except such tax be levied by virtue of some -special legal provision for a special purpose.

The mandamus • was made peremptory, and the parish officers proceeded to obey it. Lesassier & Binder, and eleven other taxpayers of that parish, petitioned for an appeal to this court, and their appeal was granted by the court a qua, and is now before us.

The appellee moves to dismiss the appeal because the defendants have “voluntarily executed the judgment in whole or in part. The appellants -are taxpayers of the parish, whose right to the appeal can not be prejudiced by any acquiescence of the officials in the judgment.

The object of the writ in this case is to compel the police jury to assess, levy, and collect a tax sufficient to pay an alleged claim of relator for services which the defendants deny to be due him. They answer that they have provided in their annual budget for the collection of a tax to pay what they admit to be due, and that the list or tableau of expenditures for which they have provided contains every item that they can provide for under the general laws.

The writ of mandamus never issues to officers, charged with a public duty, to do an act where the law vests them with a discretionary power. Louisiana College vs. State Treasurer, 2 La. 394. Nor will it be issued, where the law affords adequate relief by the ordinary means. Code of Practice, articles 830-31. It was a matter of discretion whether the police jury should pay a claim preferred against the parish before that claim had been adjudicated judicially, and it was a wise discretion to refrain from paying it if, as in this case, the justice of the claim was denied. Adequate relief by the ordinary process of courts could be afforded the relator, since the police jury was amenable to his suit, if they refused to pay. It is only where a specific ministerial duty is imposed by law on an officer that the writ of mandamus can properly issue against him. Baldwin vs. Dubuclet, 27 An. 29. Thus a mayor of a city may be compelled to issue a commission to an officer, if it is made his duty by law to issue it, (Hubert vs. Auvray, 6 La. 595) and a recorder of mortgages may be compelled by mandamus to erase mortgages, that being one of his legal duties. Diggs vs. Prieur, 11 Rob. 54. and the Auditor may by this process be compelled to warrant on the Treasurer of the State for a sum of money specifically appropriated by the Legislature. State vs. Bordelon, 6 An. 68.

In the case at bar there was not a ministerial duty to perform. On the contrary the phraseology of the law defining the duties and powers of police juries, not only imports, but expressly requires the exercise of discretion. The police juries shall have power to make all such regulations as they may deem expedient for their own government, and specifically to lay such taxes as they may judge necessary to defray the expenses of their respectivo parishes. Revised Statutes 1870, section 2743. This is to be done by preparing and publishing the estimates for the year, and laying the tax necessary to raise the amount, subject to the limitation as to the por centum which the law has imposed.

What are the ordinary means ” by which the relator can have adequate relief ? Whenever one, having a claim against a parish, is denied payment, the police jury of that parish can be sued, and if the validity and justice of his claim is recognized by a judgment of a court, the judge who shall render the judgment is required to order the board of assessors of that parish to assess forthwith a tax at a sufficient rate per centum upon the assessment roll of the current year to pay and satisfy the judgment in full. Revised Statutes 1870, sections 2747-9.

Nearly two hundred pages of this record are occupied by testimony, the' object of which appears to be to satisfy the court that the police jury ought to pay the relator the sum demanded by him. This of itself precludes the idea that it is a pure ministerial act that the jury was to perform. Certainly it is not such an act as they may be compelled to perform by mandamus.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and the writ of mandamus-granted by that court is rescinded at the costs of the relator in both, courts.