author: DeBlanc, J. Manning, C. J.

text:
    No. 6681.
    State ex rel. Fred. Duffel, District Attorney pro tem., et al. vs. Morris Marks.
    The real issue between the parties to a suit, .which has boon formally passed on by the lower Court, will not be considered on a motion to dismiss the appeal. It must be referred for decision to the trial of the case on the merits.
    The filing of the transcript of appeal in the Supreme Court, (in acase wherein a contest for office is involved,) nine days after the judgment in the case was signed by the lower Court, is within the legal delay.
    No acuuiescenee in the judgment of the lower Court made by one of the appellants, or his attorney, can prejudice the right of appeal of another appellant, who was not a party to the act of aeguieseenee, ’
    Any interested person may bring up the record of an appeal from the lower Court, and deposit it in the hands of the cleric oi the Supreme Court.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Maker, J.

      T. C. Egan, Assistant Attorney General. Frederick Duffel, District Attorney pro tern., et al. for plaintiffs and appellants.

      J. D. Augustin, Ous. A. Breaux, etal. for defendant.
   On Motion to Dismiss.

The opinion of the court was delivered by

DeBlanc, J.

In his official capacity as District Attorney pro tempore, Frederick Duffel filed, in the District Court for the parish of Ascension, on the relation of Othello J. Flagg, a petition in which he alleges — in substance — that Morris Marks who claims to have been elected and commissioned as Judge of the Fourth District of the State, did not — when elected — possess the qualifications required by the Constitution of Louisiana to hold said office, and that said Flagg, who — previous to and at the date of defendant’s election, was discharging the duties of that position, is alone authorized to act in that capacity, until a qualified successor shall legally be inducted into that office.

The relation concludes with the prayer that Morris Marks be restrained and prohibited from assuming and usurping the functions and prerogatives of the office of Judge of the Fourth District of this State. On the ninth of December 1876, the in j unction thus applied for was granted by the parish judge of Ascension, and soon after — on motion of the district attorney — “said injunction and all the proeeedings had or orders therein issued were discontinued, reserving what — in said entry — is termed the main action. Defendant then filed his exceptions and answer, and — on application of his counsel — the exceptions and the merits were cumulated.

This done, the case was fixed and tried, the relator’s action dismissed, and defendant recognized as the Judge of the Fourth District. From the decree dismissing that action, the State — through the district attorney, and Flagg — through his counsel — have appealed to this Court. In his petition to that effect, the district attorney avers that the State is injured and aggrieved by the judgment referred to, and here we transcribe his own words, “excepting that portion rendered in the matter of the relator, O. J. Flagg, which is acquiesced in by said State.”

Defendant urges a dismissal of. this appeal, on the grounds:

First — That the transcript was not filed in this Court within ten days after the rendition of the judgment.

Second — That, on the face of the record, Flagg is without interest to prosecute this appeal.

Third — -That the State has acquiesced in the judgment.

Fourth — That he, defendant, has not been properly cited to appear in this Court.

The last ground is not discussed in appellee’s brief, and — -we infer from his silence — has been abandoned by him. The second ground constitutes the main, the real issue of this litigation ; it presents the question passed upon and decided by the lower court: is Morris Marks a judge and the successor of O. J. Flagg ? That question belongs to and must be tried with the merits.

The first ground is untenable. The judgment appealed from was signed on the seventeenth of May, and, nine days after, on the twenty-sixth of that month, the transcript was filed in this Court. We are told that it was so filed at the request of Flagg — and that, inasmuch as he is without interest in this litigation, this act goes for naught and can not inure to the benefit of the State. The frivolity of that strange pretension might be surpassed, but by exclusively the iniquity of its sanction.

The transcript herein referred to was brought to the city and delivered to the Clerk of this Court, not by Flagg, but by another party, under the express instructions of the parish attorney of Ascension. This is shown by two affidavits. Were it, however, as contended by defendant’s counsel, what difference would it have made, if instead of having been deposited by a State officer, that transcript had been deposited by Flagg ?

Had the district attorney openly refused to bring or señd the trans-script — had it become evident that, though placed in his hands, that transcript would not have been filed at all, or not filed within the delay prescribed by law, can it be doubted that, under the presumed circumstances, any interested party would have been authorized to procure, carry and file the transcript, in order to protect — against either the dereliction or negligence of an officer, a constitutional right, the right of appeal? ' If so, in eases similar to this, that privilege could be exercised but with the leave and consent of the State Attorney.

The district attorney, it is urged, has — in the name of the State — acquiesced in the judgment appealed from. In so doing, as in arbitrarily dismissing a fraction of the action, he has transcended his powers, and his unlawful course can in no way prejudice the principal appellant in this case.

It may be that Flagg has ceased to be, and that defendant is now the Judge of the Fourth District. If so we find, so we shall hold. To ascertain that fact, to decide whether justice has or has not been done, it is our plain duty to retain, open and consult a transcript, the filing of which we consider as’legal, and not liable to any serious objection.

The motion to dismiss is overruled.

On the Merits.

Manning, C. J.

The transcript in this case is identical with that in No. 6682, and appears to have been filed to guard against an apprehended motion to dismiss the other appeal.

For the reasons set forth at length in that suit, it is ordered and decreed that the same judgment be entered in this case as was rendered in No. 6682.


source: Caselaw Access Project

author: Egan, J. Manning, C. J.

license: Public Domain

text:
    No. 6650.
    John Anderson vs. John J. Arnette et al.
    Where two parties appeal from a judgment in solido, rondered against them individually, on account of a debt contracted by a commercial firm, then in liquidation, of which they had been the sole mombers, and their appeal bond is signed in the firm name, and also by one of the defendants in his own name, the surety on the appeal bond will he held liable for any judgment on appeal, rendered against the defendant who had signed the bond in his own name. The name of the firm to the bond will be treated as mere surplusage.
    If one of the parties to an appeal dies, pending the appeal, a valid judgment may be rendered against his succession by making his administrator a party to the suit, and prosecuting it to a j udgment contradictorily with the administrator.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Grover & Harding for plaintiff and appellee.

      Benticlc Egan for defendant and surety.
   The opinion of the court was delivered by

Egan, J.

Suit was instituted by the present plaintiff against Alexander Wheeless and Daniel Pratt for debt of the commercial firm of Wheeless & Pratt, then in liquidation, of which firm they were the members. The petition prayed for citation, not to the firm, but to Alexander Wheeless and D. Pratt, and for judgment against them in solido, which was accordingly so rendered in the court below, but reversed, on appeal, as to Pratt, and affirmed as to Wheeless. There was no judgment in either court against the firm, and, as we have seen, none was prayed for; nor was any attempt made to cite or sue the firm, but only the individual members by reason of their obligation to pay a debt contracted by the firm, which was expressly alleged by the plaintiff to be then “ in liquidation.” The appeal bond was signed “Wheeless & Pratt, A. Wheeless, John Kouns, and purports to be given by “Wheeless & Pratt” as principals and John Kouns as surety. It recites the rendition of the judgment in the case No. 7832 of the Seventh District Court of Orleans, the same case, and is the bond by virtue of the giving of which the appeal was prosecuted from the only judgment rendered in it, which, as we have seen, was against the individual members and not the firm. The appeal was considered to be that of Alexander Wheeless and Daniel Pratt, and was so passed upon and adjudged. It is now urged by Kouns, the surety, defendant in the rule, that the appeal was taken by the commercial firm, whose surety alone he was, and that the firm was “ not cast in the appeal,” nor was any judgment rendered against it on appeal, and hence, that the condition upon which he bound himself in the appeal bond has not happened, and the court below erred in holding him liable.

It is well settled that judicial bonds must be interpreted as to their obligations by the record of the cases in which they are given, and that the law will supply what is wanting or will correct clerical errors where there is enough to identify the bond with the case. Erom the facts stated already, the pleadings, the judgment, the recitals of the bond, and the title and number of the case, all of which are given in the bond, as well as the court and the date of rendition, and signing of the judgment, it is manifest that the bond in question was given in the case, and to effect an appeal from the judgment rendered in the case in which the individual members of the firm and not the firm itself were sued and condemned.

Nothing can be inferred in favor of the surety from the fact that the name of “Wheeless & Pratt” instead of “Daniel Pratt” is signed to the bond. The individual name of “ A. Wheeless” is also signed, and that of the surety “ John Kouns.” It does not need now to cite authorities to show that the appeal would have been effective and the surety bound had the principals not signed the bond at all. Here, however, A. Wheeless, as whose surety Kouns is sought to be condemned in this proceeding did sign it, and the name of the firm at the foot of the bond was surplusage in a case to which it was not a party, and in which no judgment was or could be rendered against it .or in its favor either below or on appeal. Evidently the Supreme Court considered and gave effect to the bond and the appeal as that of the individuals, and not of the partnership,-and considered the appeal effective in favor of Daniel Pratt who had not signed the bond at all upon the mere signature of his surety. This the court was warranted in doing under our settled rule of decision. Kouns however was at the same time the surety of both “ Daniel Pratt” and “ Alexander Wheeless” or at all events of the-latter, who signed the bond as principal, and who upon the faith of Kouns’ suretyship prosecuted his appeal. He did so unsuccessfully. He was “ cast in the appeal,” and the condition upon which Kouns bound himself in solido to be liable in his place has happened. The distinction between the legal entity, the ideal thing, a firm and the individual members composing it,-is well recognized by all courts as it has been by us in the discussion of the present case; but as there was no firm and no other than the individual members involved in or party to the case in which the defendant’s obligation was given, and as we have held that he was the surety not of the firm but of the individual members, and especially of Alexander Wheeless, who was condemned upon appeal, the cases of Grieff vs. Kirk, 17 An. 25, and of McCloskey, Bigley & Co. vs. Wingfield & Bridges, decided ■ by us in March last on a rule on C. S. Bush, surety, do not apply in the present case. Those decisions are, in effect, that one who is surety for a partnership does not thereby become surety for the individual members.

It is further objected by the counsel for the defendant in the rule that both Wheeless and Pratt were dead before the rendition of judgment upon appeal, which was therefore an absolute nullity. The record discloses the fact that the death of Wheeless was suggested and his administrator made a party to the appeal before the rendition of judgment. It further appears that & fieri facias was regularly issued against the principal and returned by the sheriff “ nulla bona,” after an unsuccessful demand upon the administrator of the principal, Wheeless.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be and it is affirmed, with costs of both courts to be paid by the appellant.

On Application for Rehearing.

Manning, C. J.

The application for rehearing not being accompanied by a printed statement of the points and authorities on which the party founds his application, as required by Rule IX of this court, and time to file the same not having been applied for, the rehearing is refused.


author: Manning, C. J.

text:
    No. 6591.
    Succession of R. H. Bayly. Opposition of Washington and Lee University.
    Tlie State courts have jurisdiction to determine whether a debtor is released Irom certain debts, by his discharge in bankruptcy.
    The executor of a succession is liable in a fiduciary capacity for ail succession funds received by him, or which come under his control; and he can not change the nature, or relax the stringency of his obligation for such funds, by wrongfully allowing them to be received by, or pass into the possession of a commercial firm, of which he is a member.
    The amendment of the Bankrupt Act authorizing compositions to be made, was merely designed to provide another mode by which discharges in bankruptcy could be effected; but it was not intended to enlarge the scope of discharges, and thus enable the debtor to liberate himself from any class of obligations, which a discharge under the original bankrupt act would not freo him from. Hence a composition, under the bankrupt act, will not release the debtor from any fiduciary debt.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Finney & Miller and Fernandez & Kruttsclmitt for opponent and appellant.

      Kennard, Hoioe & Prentiss for executor and appellee.
   The opinion of the court was delivered by

Manning, C. J.

G. M. Bayly is the testamentary executor of the succession of R. H. Bayly, and in that capacity filed an account of his administration April 21, 1876, the homologation of which was opposed by the Washington and Lee University, a legatee of the deceased. The lower court satisfactorily disposed of all the grounds of opposition except one, viz., an item of $18,021 79 which is stated in tire account to be the balance due the Bechnel plantation by G. M. Bayly and Pond.

This plantation is owned by Bechnel and the succession of R. H. Bayly in equal parts. The executor is one of the firm of G. M. Bayly & Pond, which firm was the factor of the plantation for several years, and the sum above mentioned is the balance due by that firm on account. The firm went into bankruptcy, this balance being due at the time of filing their petition.

It is contended on the part of the opponent, that the executor must be compelled to account for this balance as cash, and that no proceedings in bankruptcy on behalf of the firm, or its individual members, can discharge this debt because quoad the executor, it is fiduciary in its character. The executor, on the other hand, insists that the debt is not due from himself but from a juridical person, distinct from him, i. e., the commercial firm, and therefore he is not liable for it as a fiduciary— that even if liable under the original law, a composition made under authority of the amendatory Act of Congress of June 22 1874 extends to all debts due by the bankrupt, and discharges him from them — and.' lastly that only the court having jurisdiction of the proceedings in bankruptcy has jurisdiction to determine whether the discharge is complete or not.

This last objection is waived in the brief of the executor’s counsel, and properly, since there can be no doubt that the State court has the jurisdiction necessary to determine that question.

Upon the first point, we think the debt was fiduciary in its character. The executor had not the right to allow the funds of the estate he was administering to remain in the hands of the firm, of which he was a member. Or rather the instant those funds came into the hands of the firm, they were in his hands, not individually but as executor. He could not be expected or compelled to collect a debt of himself, but he is chargeable with the debt as so much money held by him for the estate. Fuselier vs. Rabineau, 11 Annual, 393.

The second objection involves an adjudication of the scope and extent of a composition, duly made under authority of the bankrupt court. The Bankrupt Act enacts that no debt created by the bankrupt, while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy, but the debt may be proved, and the dividend thereon shall be a payment on account of such debt. U. S. Rev. Stats. Sec. 5117. The act of 1874 provides that in all cases of bankruptcy, now pending, or to be hereafter pending by or against any person, whether an adjudication in bankruptcy shall have been had or not, the creditors of such alleged bankrupt may, at a meeting called under the direction of the court, and upon not less than ten days’ notice to such known creditor, of the time, place and purpose of such meeting, such notice to be personal or otherwise, as the court may direct, resolve that a composition, proposed by the debtor shall be accepted in satisfaction of the debts due to them from the debtor;.and such resolution shall, to be operative, have been passed by a majority in number and three fourths in value of the creditors of the debtor assembled at such meeting, either in person, or by proxy, and shall be confirmed by the signatures thereto of the debtor, and two thirds in number and one half in value of all the creditors of the debtor. * * * * *

The provisions of a composition accepted, by such resolution, in pursuance of this section, shall be binding on all the creditors, whose names and addresses and the amounts of the debts due to whom are shown, in the statement of the debtor, produced at the meeting at which the resolutions shall have been passed, but shall not affect or prejudice the rights of any other creditors. U. S. Stat., 1st Sess., 43d Cong., 182, Sec. 17.

That a composition was made by the bankrupt in due form is not denied, and we are referred to several decisions of the Circuit courts of the United States to shew that all debts of whatever character are dis-chargeable under the authority of this amendatory law. Bechet’s case, 2 Woods, 173. and others in same volume. Woolsey vs. Cade, 15 National bankruptcy Register, 238.

But it is very clear that when the courts in these decisions adjudge that a composition, accepted by the creditors and approved by the Court, discharges the bankrupt debtor from the claims of all creditors, whose names, addresses, and the amount of debts due them, are shewn in the debtor’s statement, they can and do only refer to those debts that are dischargeable by the original Act. There are certain classes or kinds of debts that cannot be discharged by proceedings in bankruptcy. Eor all debts that can be discharged, the bankrupt Act provides the means and forms through which such discharge - can be effected. The amendatory act of June 1874 provided only an additional mode by which the bankrupt should be relieved of dischargeable debts, but did not change the fundamental prohibition against a discharge for certain enumerated kinds of debts.

The ruling in Woolsey vs. Cade is, that a debt due from a factor for the proceeds of goods sold is barred by his discharge in bankruptcy, and the reasoning of the judge in that decision confirms our view of the point now under consideration. He is discussing the difference in phraseology between the bankrupt Acts of 1841 and 18G7, and adopts the language of Blatchford J. in another case; — “But in the act of 1867, the language seems to have been intentionally made so broad as to extend to a debt created by a defalcation of a bankrupt, and while acting in any fiduciary capacity, and not to be limited to any special fiduciary capacity. Therefore, under the act of 1867, no debt created by the defalcation of a bankrupt, while acting in any fiduciary capacity, will be discharged.” In re Seymour, 1 Nat. Bankrupt Rep. 29. Woolsey’s case, ut supra 240. Chief Justice Brickell then proceeds to argue and decide that the debt of a factor for the proceeds of goods sold is not included in or under the debts called fiduciary in the bankrupt Act, but the whole tenor and effect of his decision shews that if such debt of a factor had been regarded by him as fiduciary, he would have ruled that it was not dischargeable by the proceedings in bankruptcy. And ho uses these forcible expressions pertinent to the matter in hand: — “The trustee of an express trust, such as an executor, administrator, or guardian, or a mere collecting agent, can not, without a dereliction of duty more or less censurable, become indebted to his cestui que trust or to his principal. A fiduciary relation between him and the person he represents exists previously to and independent of the particular transaction from which a debt can originate. Because of his want of fidelity and his dereliction of duty, it may be just to withhold from- him the relief intended only for the unfortunate. Trustees and agents, of the character of which we speak, can not mingle with their own the funds they may receive in their representative character. If deposited in a bank, they must be deposited as trust funds. Mingling or depositing them as their own is a destruction of the means of tracing and identifying them, and is a conversion rendering them absolutely liable for them.” ut supra 243.

The debt, acknowledged to be due by the firm of Bayly & Pond, is due by each of the members of that firm, and G. M. Bayly the executor, by mingling or depositing the funds of the succession as his own or those of the firm, effected a conversion of them which rendered him absolutely liable for them, and the debt, being fiduciary in its character, is no more discharged by the composition made under the act of 1874 than it was under the law of 1867. We can not reduce the amount of the judgment to one-half, as the counsel of the executor ask in their brief, because the executor has not appealed, or prayed an amendment of the judgment.

The judgment of the lower court sustained the opposition, and decreed that the amount due to the estate of R. H. Bayly by the commercial firm of G. M. Bayley & Pond, and by its individual members, is that stated in the item of the account, and that it be accounted for in due course of administration by the executor. The opponent prays an amendment of the decree so as to make it conform to his prayer, and it is proper that it be made. Therefore

It is ordered, adjudged, and decreed that the judgment of the lower court be amended, and that the sum of eighteen thousand and twenty-one dollars and seventy-nine cents is the sum due to the succession of R. H. Bayly, by G. M. Bayly the executor, and that he account for that sum as cash. It is further ordered that G. M. Bayly pay the costs of appeal.


author: Marr, J.

text:
    No. 6817.
    State ex rel. Jacob Strauss vs. J. G. Brown, Administrator of Public Accounts.
    In virtue of an act of the Legislature passed March 17, 1870, no creditor of the city of New Orleans, whether he bo the holder of a liquidated, or an unliquidated claim, can compel by mandamus, any auditing officer of the city to issue, or deliver to him, a warrant for any amount due him; or compel any disbursing officer of the city to pay him any sum which he may claim that the city owes him.

      A mere change in the title of an officer who performs certain, described functions in the government of a city, will not make him amenable to the operation of a summary writ, from which, under his former title, he was exempted by special statute.
    An act of the Legislature which leaves to creditors the ordinary legal remedies for the enforcement of their rights, and merely restrains them in certain cases from employing the summary process of mandamus, does not violate the constitutional provision that every injured person shall have adequate remedy by due process of law, and without unreasonable delay.
    APPEAL from the Sixth District Court, parish of Orleans. Rightor, J.

      Hornor & Benedict for plaintiffs and appellants.

      B. F. Jonas for defendant.
   The opinion of the court was delivered by

Marr, J.

Relator seeks to compel, by mandamus, the Administrator of Public Accounts, of the city of New Orleans, to issue and deliver to him a warrant for the amount due on certain pay-rolls, of which he claims to be transferee and owner.

The Administrator excepts that by the Act No. 5, of the extra session, approved seventeenth March, 1870, he is not amenable to the process invoked.

.Section one of the act, upon which he relies, is as follows:

“ That from and after the passage of this act, no court within the State shall have authority or jurisdiction to allow, order, hear, entertain, or enforce any summary process or proceeding, or writ, or order of mandamus, or any order or proceeding in the nature of an order or mandamus, either against the controller, deputy controller, or any auditing officer of the city of New Orleans, the object of which shall be, either directly or indirectly,, to obtain or .compel said controller or deputy controller, or auditing officer, to issue and deliver any order or warrant for payment of money, or against the treasurer, assistant treasurer, or any officer or officers charged with the disbursement of the moneys of the city of New Orleans, the object of which shall be, either directly or indirectly, to enforce the payment of money claimed to be due from the city of New Orleans to any person, persons, corporation, or corporations whatever, but all actions or proceedings for the recovery of any sum of money claimed to be owing by the city of New Orleans shall be in the ordinary form of action, instituted against the city of New Orleans as a corporation, and not against any branch, department, or officer thereof, and shall, in all respects, be conducted in the same manner as other ordinary actions.”

The manifest object of this act was to restrict creditors of the city to the ordinary forms in the enforcement of their demands; to protect the property and means of the City from seizure under execution; and to compel judgment creditors to have their judgments registered, so that they might be provided for, and paid in their regular order out of the annual budget for each year.

Counsel for relator maintain that this act conflicts with the articles of the Code of Practice authorizing the writ of mandamus. The Code of Practice is the general law; the act in question is a special law, which relates to the city of New Orleans and its officers alone. In certain cases, contemplated and provided for in the Code of Practice, suitors may enforce their rights by process of mandamus; but by the terms of the special law of 1870 all the courts of the State are forbidden to allow this writ to compel any auditing officer of the city of Now Orleans to issue or deliver any order or warrant for the payment of money, or to compel any disbursing officer of the city to pay any money claimed to be due from the city. These officers of the city government are therefore, by this act, exempted from the summary proceedings to which other officers of other corporations may be subject by the general law, the Code of Practice. ■ The articles of the Code of Practice which allow and provide for this process are not repealed; they are simply not to be applied to the auditing and disbursing officers of the city of New Orleans for the purposes specified in the act.

The Code of Practice is a general statute, which was approved fourteenth March, 1870; the act in question is a special statute, whicli was approved seventeenth March, 1870; and if they were in conflict, the last expression of legislative will would prevail.

It is objected that in this act No. 5 the auditing officers are designated as the controller and deputy controller, and the disbursing officers as the treasurer and assistant treasurer; and that in the act No. 7, approved sixteenth March, 1870, amending the city charter, these offices were abolished, and their places supplied, respectively, by an auditing officer styled the Administrator of Public Accounts, and a disbursing officer styled the Administrator of Finance, under the new charter.

The act does, indeed, designate the auditing officers as the controller and deputy controller; but it adds immediately, “or auditing officer;” and it designates the disbursing officers as the treasurer and assistant treasurer; but it adds, immediately, “or any officer or officers charged with the disbursement of the moneys of the city of New Orleans.” The Legislature had in view the officers performing certain functions, and designated them by the official titles under which those functions were performed at the time the act was passed; but the language used is sufficient, and it was evidently so intended, to apply to the officers of the city government, by whatever titles they might be designated, charged with the functions which, at that time, were performed by the controller and deputy controller, and the treasurer and assistant treasurer, respectively.

Again, it is urged that this act No. 5 was intended to apply to unliquidated demands, contested claims, and not those admitted to be due and owing. The act makes no such distinction; and its terms include any and ail orders or warrants for the payment of money, and any and. all moneys to be paid, claimed to be due from the city, whether such claims be unliquidated and contested, or be liquidated and admitted to-be duo. Mandamus will not lie to compel payment of unliquidated demands or contested claims. The payment of demands against the-city, liquidated by judgment in solemn form, can not be enforced otherwise than as provided in the second and third sections of the act; and. it would be extraordinary if claims merely admitted to be due, not-liquidated by judgment, could be enforced by this summary process, to which even judgment creditors are not permitted to resort. The disbursing officer pays only on orders or warrants. Orders and warrants-pro-suppose liquidated demands, admitted to be due; and the restriction, of the prohibitions of the first section to unliquidated or contested demands, would make any reasonable interpretation of the entire act impossible, and would defeat its manifest purpose and intent.

Counsel for relator argue that ho has no adequate remedy otherwise than by writ of mandamus; and if the act of 1870 be so interpreted! as to deny him this remedy, it will bo in conflict with article ten of the constitution, which provides that every one injured in property or person, or reputation, shall have adequate remedy by due process of law, and justice shall be administered without denial or unreasonable delay.

The act does not deprive the creditors of the city of adequate remedy; that is, such remedy as creditors in general have against theii’ debtors by suit in the ordinary forms. The creditor who has recovered judgment against an executor or administrator is not permitted to seize and soil, under execution, the property which belonged to the deceased, nor to enforce payment otherwise than in due course of administration. The creditor who has recovered judgment against his debtor can not seize under execution the homestead or certain other property and rights specially exempted by law; and in many cases the debtors have no other property or rights than such as aro not subject to the pursuit of creditors.. The creditors of the city of New Orleans may sue and obtain judgment; but the city has no property or rights not exempt from seizure under execution, because the statute forbids the issue of execution against the city. The city can pay its debts only out of its revenues, whether derived from taxes or from other sources; and if the city could be interfered with by seizure under execution in the collection and control and disbursement of its revenues, as current exigencies require, the city government could not be administered — could no longer subsist. The second and third sections of the act provide for the registry of all final judgments against the city, and for their payment out of the annual budget; that is, in due course of administration, by the administrators chosen and appointed by law.

An act designed to deprive the citizen of a remedy, by due process of law, would be in violation of the constitution, and would defeat the grand object of political organization, the protection of the citizen in the enjoyment of his life, his liberty; and his property; but it is no violation of the organic law, nor is it an infringement of the rights of the citizen, to prohibit resort to certain summary proceedings, certain extraordinary'remedies, to enforce claims and demands of a specified character, for the enforcement of which by other means and process, special provision is made by law.

The claims asserted by relator accrued in 1S76, under the dominion of the act of 1870: so that there is no question as to legislative interference with vested rights and pre-existing contracts or obligations. The act in no manner violates the organic law; nor is it controlled by the articles of the Code of Practice relative to the writ of mandamus. The judgment of the district court maintaining the exception and dismissing the proceeding is in conformity with the expression of the legislative will; and the relator must seek, his remedy, and enforce his demands in subordination to that will.

The judgment appealed from is therefore affirmed with costs.


author: DeBlanc, J.

text:
    No. 6657.
    State ex Rel. James D. Houston vs. the City of New Orleans.
    The approval by the Clerk and Judge of the Criminal Court of the parish of Orleans, • of the account of the Criminal Sheriff, for foes and expenses of his office, does not amount to a judicial decree in his favor for the amount of the account, nor conclude the city of New Orleans from contesting the account. And if the city should dispute the correctness of his bill, he must, like the holder of any other contested bill, sue and obtain judgment on it, before he can ask for a mandamus to compel its payment.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

      C. H. Luzenberg and L. A. Sheldon for. plaintiff and appellee.

      B. F. Jonas for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

James D. Houston, the sheriff of the Criminal Court and keeper of the prison of the parish of Orleans, applied for and ■obtained — from the Superior Criminal Court, a writ of mandamus directing- I. G. Brown, and J. C. Denis, the first as administrator of accounts, the other as administrator of finance of the city of New •Orleans, to pay him — for fees and expenses of his office — the sum of •eleven thousand five hundred twenty four dollars and ten cents.

From that decree, those officers and the city have appealed. They contend:

1. That the Superior Criminal Court is one of limited and exclusively criminal jurisdiction, and that it can issue the writ of mandamus only in aid of its own jurisdiction.

2. That the bills presented and sued upon by said sheriff are not correct.

3. That — if correct — the City Council has made no appropriation for their payment, and that — under the city charter — they can not be paid without and before such an appropriation.

4 That, under act No. 5 of the extra session of the legislature of 1870, no court, within tho State had authority or jurisdiction to order, allow, hear, entertain, or enforce any summary process, or writ of mandamus, to compel- the payment of money claimed to be duo to any one by tho city of New Orleans.

Wo presume that plaintiff relies on the fact that his bills have been •approved by the Clerk and tho Judge of the Criminal Court. That ■approval is necessary; but — when the correctness of the bills is disputed — that approval does not close the door against any real and legitimate defense.

The services of the sheriff are as important as valuable to the City and the State ; the compensation fixed by law for his services should not be arbitrarily resisted, or causelessly retarded — : but, when disputed — the sheriffs account is but a claim, and — until acknowledged by the final decree of a competent court — that claim can not bé enforced by mandamus.

The city officers should not slightly refuse to pay or provide for the payment of an account which — as that of relator — bears on its face the sanction of a district judge; but — when beside that sanction, they find an error, or detect an illegality, they have the incontrovertible power to protect the city against the illegality or the error.

“Where officers, whose functions are chiefly ministerial, are yet intrusted with the performance of certain special duties requiring the exercise of judgment and discretion, they can not — as to such duties— be controlled by mandamus, and while they may be set in motion and compelled to act, tho courts will not decide what their action shall be. ” High’s Ext. Remedies, p. 46, ante State Ex. Rel. Louis Fix vs.

As it is evident that — whatever may be his right — the relator has mistaken, bis remedy, it is useless to decide whether — if properly-resorted to — that remedy could have been legally granted by the court-in whose jurisdiction it was sought.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and itis hereby annulled, avoided and reversed, and the-alternative writ of mandamus granted on the thirtieth of April 1877' discharged at the costs of relator in both courts. •


author: Egan, J.

text:
    No. 6813.
    Joseph Billgery vs. Thomas Ferguson.
    A writ of seizure and sale can not legally issuo, until three days after notice of the-decree of court, granting tho writ, has been served on the debtor.
    The notice of judgment in executory proceedings, which must bo served on tho debtor three days previous to the actual seizure of the mortgaged property by the sheriff, must be signed, and issued by the cleric oí the court, and not by the sheriff.
    If such notice has been issued by the sheriff, and objection to it is formally mado before any sale of the seized property has taken place, tho objection will bo sustained, and no rights or liens will accrue to the seizing creditor, in virtue of tho-seizure.
    An adjudication of properly under a judgment subsequently annulled by a regular decree of court, conveys no tille.
    Whero property, within the parish of Orleans, has been seized by the sheriff undora writ of fi. fa., and remains in his hands unsold until the return day of tho writ,, he must, in order thereafter to legally hold the property, and thus maintain on it the lien acquirod to the circditor by his seizure, make due return of tho writ on its return-day, and cause tho clerk of tho court to make and give to him a duly certified copy of the writ, within twontv-four hours after tho return of the-original. Otherwise, the sheriff will bo without authority thencoforth to maintain the seizure.
    An act of sale which contains the stipulation of a real price, no matter how fraudulent the sale may be, can not- bo disregarded, and assailed collaterally, like a simulated sale.
    Counter letters can liavo no effect against creditors, or bona fide purchasers.
    A mortgage primarily without any consideration given to secure certain negotiable notes in the hands of any future holder, becomes a valid mortgage in favor of. any innocent third person who may acquire one of the notes before its maturity, and for value.
    APPEAL from the Sixth District Court, parish of Orleans. Rightor, J.

      Louque & Fernandez, J. C. Peirce, and Paul Capdeville for plaintiff and appellee.

      McGloin & Nixon for defendant.
   The opinion of the court was delivered by

Egan, J.

On the first of September, 1876, the plaintiff, as the holder of certain mortgage notes of the defendant, sued out a writ of seizure and sale against the mortgaged property. The writ issued the same day the order was granted without the issuance or service of the three days notice to the seized debtor required by arts. 735 and' 736 of the Code of Practice.

On the second of September, 1876, however, the sheriff, as seems to have been heretofore customary in New Orleans, issued a notice or demand -of payment to the defendant, and on the fifteenth of November, 1876, a further notice of the seizure of the mortgaged property, which was served upon the defendant on the next day, the sixteenth. The property remaining unsold, the sheriff collected the rents, and on the fifth of March, 1877, the plaintiff took a rule upon him and upon Mrs. Baranco to show cause why the rents and revenues should not bo paid over to him. Mrs. Baranco answered the rule, claiming to be entitled to the revenues in preference to all others, first, by reason of priority of seizure; •second, by virtue of the sale made to her “ of all the rights, titles, and interests of Raymond in and to the contracts under which said market was built, and in and to said market,” on the twenty-eighth of July, 1876, by virtue of and under an execution from the Fifth District Court ■of Orleans, issued upon a judgment in favor of the New Orleans National Bank vs. Joseph Raymond.

Mrs. Baranco’s counsel claims, also, to have set up orally other objections to the plaintiff’s rule, which, under the view we have taken of the case, it is unnecessary to consider.

Joseph Raymond was subsequently made a party to the rule and -answered, denying that there had been any legal seizure herein, for this, that this being an executory process, no legal notice of issuance of same has been made.” The right of either Mrs. Baranco or Raymond themselves to assort claim to the fund in controversy, by way of third opposition, regularly filed by themselves, under the facts presented in the record may well be questioned. Yet when brought into court at the instance and under the rule of the plaintiff, the former, a judgment creditor of Raymond, and the latter, himself the holder of other mortgage notes of the same series as those upon which the seizure and sale was .sued out, may be held to have sufficient interest to contest plaintiff’s right to the fund in controversy. The one that she may have opportunity to contest with all the parties before the court, (as Ferguson is not), the reality and good faith of the sale and mortgage from Raymond, a judgment debtor, to Ferguson, upon which these proceedings are based, •and the other for the reason before stated, that ho appears to be the mortgagee and vendee of the defendant and to have received from him ■other notes of the same series with those of the plaintiff, a,nd further, according to the terms of what is called a counter letter found in the record as between himself and Ferguson, at least to be entitled on certain •conditions to retake the property of the market itself.

In the case of Hart & Hebert, in Liquidation vs. Pike Brothers & Co., 29 An. 262, we held, and still adhere to that view of the law, that in matters of seizure and sale, the preliminary three days notice to the-debtor, of the granting of the judge’s order required by articles 735 and 736 of the Code of Practice, must be issued by the clerk of the court in which the order is obtained, and not by the sheriff, whose only duty is to'serve it upon the seized debtor, and that the writ itself “ can Dotlegally issue until that notice has been given.” No such notice was either issued or served in the present case at any time, either before or since the issuance of the writ and the seizure under it. On the contrary, as we have-seen, the writ was issued on the same day the order for its issuance was-obtained. The notices emanating from the sheriff which are found in this record are not those required by law, and do not supply in the present case the want of those which are required.

In the case of Jouet vs. Mortimer, 29 An. 206, we declined upon the-facts of that case to set aside an accomplished sale where title had passed without objection by the seized debtor for the want of such preliminary notice. Here, however, the state of facts is entirely different— no sale has been made under plaintiff is writ, nor is there any question of title to property acquired under such sale. On the contrary, the . plaintiff himself comes into court by way of rule upon the sheriff and other parties named, to show cause why certain rents and revenues, collected by the sheriff should not be paid over to him, as seizing creditor, with the distinct allegation that the sheriff “refuses” to pay the same over to him. It is not even a question of recovery back from the plaintiff, after the receipt of funds so derived from the sheriff. In other-words, he is asserting affirmatively and originally a right to a fund in the hands of the sheriff by virtue of a writ issued without warrant of law where this right depends solely upon the writ so illegally issued and served: at his own instance, and before the acquisition of any other or greater-right than those resulting from the mere seizure alone. Let us now consider the rights of Mrs. Baranco — those of Joseph Raymond need not be further considered for the reason that he does not even ask to receive the fund from the sheriff but only to defeat the plaintiff’s right to it, and besides he neither alleges nor proves any seizure on his own behalf. Of the-second ground set up by Mrs. Baranco in her answer to the rule in which she “ assumes the character of plaintiff in reconvention,” (i. e.) hec rights by virtue of the alleged adjudication to her of the property seized on the twenty-eighth of July, 1876, under suit 5938 of the Fifth District Court of Orleans, it is only necessary to say that the alleged adjudication has been, annulled and set aside by a judgment of this court, and is not now urged- or relied upon. The first ground: that is, her alleged priority of seizure- and consequent right to be paid by preference to the plaintiff and' “ all others,” depends upon a fi. fa. issued upon a judgment of the Fifth District Court of Orleans, in the same case in which the adjudication was set aside. It is true that the sheriff’s return shows that the same property was seized under this suit on the fourth of September, 1876, while the seizure under the writ of seizure and sale of plaintiff was not made till November 15, 1876. Were this then a contest'over rents and revenues collected by the sheriff between these dates, and were both seizures valid and subsisting, Mrs. Baranco’s superior right would unquestionably have to be acknowledged and adjudged. The contest is not, however, over any rents or revenues prior to the,last seizure, which the sheriff expressly tells us were never collected by him, but the present controversy is confined entirely to the fund derived from rents and revenues collected by the sheriff since November 15, 1876, and as he testifies under the plaintiff’s writ, and by virtue of instructions from his attorneys. It is not necessary to determine in this case, but yet proper to remark, that it is the duty of the sheriff without any specific instructions to collect the rents and revenues of property under seizure in his hands, and that the mere absence of specific instructions to that effect by one of two seizing creditors, and the fact that they are given by the other, will not authorize the collection for account of one of the seizing creditors only, nor can the rights of the other be affected by or made to depend upon such state of facts. The existence of an injunction for a time, however, and of conflicting claims to the money, to the knowledge of the sheriff, accounts satisfactorily not only for his not at once collecting rents and revenues but for his refusal to pay over those subsequently collected, otherwise than under order of court, without assuming that an efficient officer failed to do his duty under either process. Now, as to Mrs. Baranco’s seizure : The fieri facias in her case, that of the New Orleans National Bank vs. Jos. Raymond, was dated September 2, 1876, and levied on the fourth of September, 1876, and had expired on the fifteenth of November, 1876, the date at which the plaintiff’s seizure under the writ of seizure and sale was made, unless it was kept alive by the demand by the sheriff from the clerk of a copy in accordance with the provisions for the parish of Orleans contained in article 642 of the Code of Practice. By that article, in all cases whore a seizure is made under fieri facias, except in the parish of Orleans, it is the duty of the sheriff to return the original writ on its return day, and to malee and retain a duly certified copy of the wi it and to proceed under such certified copy in the same manner as though the original writ was in his hands-; and to make due return thereon; and in the parish of Orleans, the officer at the time of making return of the original writ “ shall cause io be made by the clerle of the court issuing said writ a duly certified copy hereof,” which must be delivered by the clerk to the officer making the return within twenty-four hours from the time of his returning the original; and the officer shall proceed under such certified copy so furnished him in the same manner as though the original writ was in his hands, and make due return thereon.” We have been unable to find any such copy or any copy at all of Mrs. Baranco’s writ, or of any return upon it in the record. So far as this record discloses the facts, the sheriff had no process, nothing under which “ to proceed ” on her behalf issued upon her judgment. As, however, Mrs. Baranco’s writ and seizure were directed against Joseph Raymond and his property and that of Billgery against Thomas Ferguson and his property, and as wo do not think tho' former can proceed otherwise than by a direct action, we ■are not called upon to decide what was the legal effect of the expiration and return of the writ without obtaining a copy upon tho seizure already made prior to that time. He was, therefore, without either power or authority to proceed for either purpose after that date.

There is, however, another reason why giving to her the largest liberty to attack the sale from Raymond to Ferguson as a mere simulation, it can not be so regarded, certainly in this proceeding. That is, that whatever its purpose, and even though designed to defraud the creditors •of Raymond, there appears to have been at least some of the elements of a real sale in it, and those very important ones, as this litigation demonstrates, that is, there was a real price evidenced by the payment of five hundred dollars each, and by tho execution of the negotiable notes of the purchaser Ferguson, to a large amount, under some of which the money now in controversy has been realized. An inconsiderable price, or one stipulated to bo paid in an unusual manner, may be a badge of fraud, but it is well settled that if there is a real appreciable price at all, however fraudulent the sale may be, it is not simulated. As to the so called counter letter, the plaintiff Billgery who appears in this litigation as the bona fide transferee, and holder for value of some of the mortgage notes given by Ferguson to Raymond in tho sale as part of its price, was neither party nor privy to it, so far pis appears from tho evidence. Our own Civil Code provides, art. 2239, that “counter letters can have no effect against creditors or bona hde purchasers; although they arc valid as to all others. That instrument in the present case is as follows: “I, tho undersigned, do hereby certify that tho sale made to me by Jos. Raymond, per act before T. Dueros, Notary, on the twenty-eighth day of October, 1874, of his rights, title and interest on tho Second Street Market, I bind myself to re-transfer the said property to him when the said Joseph Raymond delivers to Thos. Ferguson the notes, that the said Thos. Ferguson has given to him as payment for the Revenue of Second Stroet Market.

“Signed, Thos. Ferguson.”

And taken in connection with the proof of the execution and real delivery of the notes to which this controversy itself bears testimony, this paper ■shows that Raymond himself, whatever his intentions, either in the sale or in the transfer of the notes, could not demand or obtain a re-conveyance of the property without delivering them up to Ferguson.

There was, then, sufficient reality in the execution of the sale and mortgage to prevent its being treated as against Billgery, at least, as a mere simulation, and therefore disregarded by Mrs. Baranco in making her seizure of the property. In Brewer vs. Gay, 24 An. p. 36, it was held, and we think properly, “that although there was primarily no consideration for the mortgage, yet it having been made to secure any futuro holder of mortgage notes, the moment they changed hands for a valuable consideration tho mortgage bocamo valid. ” This, however, is no new doctrine, but one of every-day practice, and, however unreal the original sale and mortgage as between the parties, the equitable doctrine which is recognized and enunciated in.the article of tho Code in regard to the effect of counter letters would come in aid of the plaintiff as against -both Raymond and Ferguson and wo may add all holding or claiming through either of them, while in order to sustain even a direct action in avoidanco of the contract it would be necessary to connect Billgery with the fraud or simulation involved in it; and to have Ferguson before the court, also, as he is not. It is thardly necessary to cite the article of the Code, 2645, to show that if Billgery became transferee of the notes of Ferguson, or of any part of them, that such transfer carried with it and included the privileges and mortgages which were attached to them. This mortgage and vendor’s privilege was recorded on tho thirtieth of October, 1874, (the same day it was executed) both in the office of conveyances and of mortgages, and is admitted to have been so recorded anterior to the judgment of the New Orleans National Bank vs. Raymond, the same set up by Mrs. Baranco as subrogee. If, then, both her seizure and that of Billgery were even subsisting and legal she would havo to yield to the superior claim and rank of the plaintiff in the rule on that, her only remaining ground for assertion of superior right. But as we have seen, under the facts of the case, that Mrs. Baranco could not directly seize and soil under her judgment against Raymond property standing on the public records in tho name of Ferguson, to the prejudice of rights of mortgage acquired by Billgery quoad this proceeding a creditor not of Raymond but of tho title holder Ferguson, and if she could not seize directly she can, of course, assert no right to the rents and revenues of the. property. Upon consideration of tho whole case—

It is, therefore, ordered, adjudged and decreed that the judgment of the court below bo avoided and reversed ; that tho demands of Mrs. Baranco be rejected, that she pay the cost of her reconventional demand, and Joseph Billgery all other costs, including those of appeal..

It is further ordered that the rule taken by said Billgery upon the sheriff be discharged, aud that his writ of seizure and sale be returned as having been prematurely issued and levied, and the seizure under it. released and that his right to procure the issuance of a new writ according to law, and after proper and legal notice be reserved to him.


text:
    No. 6679.
    State vs. Moses Harris et al.
    On the trial o£ a motion in arrest ol judgment in a criminal ease, evidence will not bo admitted to prove any error complained of, unless tho error appears on the face of the indictment, or tho proceedings.
    Alter a verdict has beon returned in a criminal case, it is too late to object to the composition oí the jury that rendered the verdict, on the ground that some of the jury were too ignorant, or too illiterate to understand tho evidence. Such objection should have been made a ground of challenge to the disqualified jurors.
    The objection that tho jury in a criminal ease wore not summoned under an ordor of tho court before whicli tho accused was tried, will not be sustained, on a motion in arrest of Judgment, when it appears that tho jury was summoned by a competent officer, before a competent court.
    In criminal eases this court have no jurisdiction of questions of fact.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. McVea, J.

      J. H. Lamon, District Attorney, for the State.

      Charles O. Lauve for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

On the tenth of February, 1877, one George Washington was killed in the parish of Iberville. Four brothers, Moses, Robert, Henry and Joseph Harris, accused of the homicide, were arrested, indicted for manslaughter, tried, found guilty, and sentenced to hard labor-in the State penitentiary for the space of seven years.

Three of the defendants — Joseph, Henry and Robert — attempted, but iu vain, to obtain a new trial and arrest the judgment. They are now before us — and, as they did in the lower court — they contend here, that:

First — After the judge’s charge to the jury, three of the jurors were . taken out by the sheriff in the court-house yard, whilst the others were locked up in their room, and that this amounts to the prohibited separation which vitiates a verdict.

Second. — The jurors by whom they were tried and convicted are illiterate and not able to understand either the evidence adduced or the law cited on their trial.

Third — The order commanding the sheriff to summon the jurors for the term at which they were tried, was issued by the clerk, not — as' it should have been — under the authority of Charles McVay, who was then the judge of the Fifth District, but under the usurped authority of James L. Cole, who — at that date — had ceased to be a judge.

Fourth — They—the appellants — were already engaged in a scuffle with George Washington, when Moses joined them in the fight, stabbed and killed said Washington. That — as there was no complicity, nor concert of action between them and Moses, they — if at all guilty — are only guilty of an assault and battery.

1. There is — in this transcript — but one bill of exceptions; we are informed, by its recital, that — on the trial of the motion in arrest of judgment, three of the prisoners — Joseph, Henry and Robert — offered to prove the alleged separation of the jurors, and that the Judge excluded the evidence of that fact, on the ground that the error of which they complain is not apparent on the face of either the indictment or the proceedings.”

■ The Judge held correctly.

8 R. R. 513 ; 10 A. 265 ; 14 A. 827.

2. The defendants were tried together, and — as they were entitled to forty-eight peremptory challenges — they must have been tried by a jury of their choice. If — as contended — the members of that jury could understand neither the evidence nor the law, and their ignorance rose to the height of a disqualification, they should have been challenged when tendered to the accused. It is now too late to urge that objection. They took the chances of a verdict in their favor, speculated — it may be — on the pretended ignorance of the jurors, and can not be allowed — after conviction — to again rely on that ignorance to claim the reversal of an unexpected verdict.

7 A. 284 ; 8 A. 515 ; 25 A. 537.

3. The jury was properly drawn and properly summoned. This is not contested. The jurors themselves might have objected that, though regularly drawn, though summoned by a competent officer, to appear bofore a competent Court, the order to summon them was not issued under the authority of the j udge of that court, and that objection— on their part — might have justified their disobedience to that order, but it neither does, nor can justify the too tardy complaint of the throe prisoners.

If tenable, that objection could have been successfully urged but on the first day of the term, and not after trial and conviction, not in a motion to arrest the judgment.

A Three of the defendants insist that there was no complicity, no concert of action between them and Moses, and that it would be an infamy to allow the verdict returned against him. to stand against them. This constitutes a question of facts, one which was heard and passed upon by the jury and the district judge, one which — under the plain article of the Constitution of the State, we are -not authorized to examino and review.

C. 1868, Art. 74.

The faithful counsel representing the appellants has attached to the transcript the evidence taken on the preliminary examination of his clients. He appeals to us to weigh that evidence, and to protect — against what he denounces as a great injustice and a terrible wrong, these guiltless unfortunates.

We have read every page of that examination, and ascertained that on the tenth of February 1877, one George Washington was assaulted and pursued by four ruffians. That — when knife in hand, moved by the manifest intention of inflicting death, Moses was following and threatening his victim, his brothers who had seen the knife, who could not be mistaken as to his intention, continued both the assault and the pursuit.

Whilst retreating, Washington fell, and — when the constable reached the spot, he found the four monsters on the dying man. In his own words, one held him by the throat, one by the hair and ear, one was across his breast, and one appeared to be holding the feet.

When wrested from the grasp of those fiends, Washington was a-corpse. A physician was called, examined the body, found that two mortal wounds had been inflicted, and inflicted — in his opinion — with two different blades; one had penetrated the heart, and — through the opening cut by the other, the deceased’s intestines were protruding.

If we could consider the facts relied upon by three of the defendants, we would certainly conclude that the grand jurors by whom they were indicted have reduced the proportions of their crime — the Court, the proportions of a richly deserved penalty — that every one of them was a principal in a most revolting and cowardly murder, and that — under a proper charge — every one of them should have been hanged.

The hour has struck when felons of all grades should realize — or, if they fail to realize — should be taught that the mission of courts is not to protect them against the recoiling of a violated law, but to protect society against them, their criminal attempts and nefarious deeds. They should be effectually terrified, or inflexibly punished — and when, as defendants, they enter the court, reeking with the blood of murder, they should tremble and not hope.

The judgment appealed from is affirmed.


author: Spencer, J.

text:
    No. 6658.
    Martin Soye vs. M. A. Price et al.
    It is not necessary that a succession which has boon accepted witli benefit o£ inventory should be entirely administered and liquidated, before the property of the succession can come into the legal possession of the beneficiary heirs.
    Unless opposed by creditors, or heirs oí age, the natural tutor o£ minors may take in charge and administer, as tutor, the property of the minors; and his possession of the property, in contemplation of law, is their possession.
    Heirs of age who aro in possession of the property of a succession, and minor heirs ' in possession of it by virtue of its being under the control and administration of their natural tutor, may be sued by any creditor of tho succession, in a court of ordinary jurisdiction.
    APPEAL from the Sixth District Court, parish of Orleans. Rightor, J.

      E. Bermudez for plaintiff and appellee.

      Ogden & Hill for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

The only question urged in this Court, is as to the jurisdiction of the Sixth District Court, parish of Orleans, so far as relates to plaintiff’s demand against the minors Alice and Frank Nairne, represented by their natural tutor, George L. Nairne.

Mrs. Amelia Nairne, wife of George L. Nairne, during her life borrowed $2500 from the plaintiff and, with the authority of the Court, executed a special mortgage to secure it. She died leaving three minor children ; one, Miss M. A. Price, by a previous marriage, and the two named by the marriage with George L. Nairne. Miss Price was soon after emancipated and dispensed from attainment of majority. George L. Nairne caused an inventory of his deceased wife’s estate to be made and qualified as natural tutor of his two minor children. He applied for, and upon advice of family meetings, obtained authority from the Second District (Probate) Court, to enter into an arrangement with plaintiff on behalf of said minors — Miss Price joining him therein — for an extension of time on said debt; and in order to pay the interest thereon in advance, and taxes and insurance due upon the property of the estate, he obtained authority to mortgage on behalf of said minors, joined by Miss Price, certain other property of the estate to amount of one thousand dollars. These arrangements were all carried into effect —the interest paid, debt extended and additional mortgage executed In his applications for these orders, the tutor represents that the revenues of the estate were barely sufficient, under the existing depression, to maintain the children, and that it was to their evident interest that the property of the estate should not be forced to a sale. There is no doubt, and we believe no dispute, that the tutor, and the (emancipated) heir who had accepted unconditionally were in the full possession and enjoyment of the estate of the deceased. There was no administrator appointed, nor was there any one demanding such appointment. The estate so far as it belonged to the minors was in fact in the hands and under the administration of their tutor and,, so far as appears is so yet. Soye, the holder of said mortgage notes, brought this suit in Sixth District Court, vid ordinaria for foreclosure and for judgment against Miss Price and the minors, and there was judgment accordingly — the plaintiff renouncing any right against the minors upon the §2500 note beyond the property inherited. The minors appeal and present as ground therefor that the suit so far as it was against them on the §2500 note, a debt of their mother’s estate, should have been brought in the Second District Court — the Sixth District Court, having ordinary jurisdiction only, being without authority to entertain it. In reply to this objection plaintiff refers to Art. 996 of C. P. which is as follows:

“ The case is different when such estates are in the possession of heirs, either present or represented in the State, although all or some of those heirs bo minors ; for in such cases the actions for debts due from such successions shall be brought before the ordinary tribunals, either against the heirs themselves, if they be of age, or against their curators, if they be under age or interdicted. ”

In 2 A. 840 this court, citing 6 N. S. 521, held that an action for a debt of the succession was maintainable in the courts of ordinary jurisdiction against minors represented by their tutor, when in possession of the estate.

In Martin vs. Cannon, 25 A. 225, it was held that the Second District Court has no jurisdiction of a suit for succession debt, against the heirs who are in possession, citing Art. 996 C. P. It is not stated whether the heirs in this case were or not beneficiary.

A similar doctrine was hold in Swin vs. Gordon’s succession. 25 A 221 and 231 — also 25 A. 230.

But the defendant contends that minors being of necessity beneficiary heirs, can not have technically a legal .possession of the estate until there has been an administration thereof and that administration is terminated.

He cites in support of this proposition a series of decisions, commencing with Ingram vs. Ingram, 3 N. S. 371, where it was held that heirs of age and who receive an estate purely and simply may be sued in courts of ordinary jurisdiction. Also, 17 La. 500, where it was held that until a succession accepted with benefit of inventory be administered upon and liquidated, it must of necessity remain under the control of the Probate Court.

In 2 R. 30, it was said that it was not easy to reconcile the Code of Practice with itself on this subject — and the Court says that Art. 996 refers either to heirs absolute, or beneficiary heirs who have come to the possession of an estate after it has been fully administered. ”

So in 4 L. 220 — “Where some of the heirs are minors the succession must necessarily be accepted with benefit of inventory, and all claims against it brought, an administrator having been appointed, in the Probate Court.” Again it is said :

“Art. 996, C. P., applies to estates accepted absolutely, or those which having been administered by a curator, etc., have come into possession of the heirs. If they bo all of age, and accept unconditionally, they are immediately put in possession, and are suable before the ordinary tribunals for their virile portion of the debts as if contracted by them. If some of them be minors the succession can not be accepted 'by, nor for them, but with benefit of inventory.
When thus accepted it can not be partially administered but must bo placed under an administrator, and no part comes legally into their possession as heirs, until the administration be terminated, or a partition be legally made among them. ” 4 R. 20, 412 ; 7 R. 24 ; 17 L. 109; 13 L. 379.

It may, therefore, at least be said that all the decisions are uniform to the effect that where the heirs, whether pure and simple, or beneficiary, are legally in possession of an estate, they may be sued for its debts, in courts of ordinary jurisdiction. So that the controversy narrows itself down to this: Can beneficiary heirs, (minors are always such,) come legally into possession, without the estate having been previously fully administered and liquidated ?

Notwithstanding the numerous authorities cited by counsel of defendants, from our earlier reports, we think it is now well settled that minors (who are beneficiary heirs of necessity) may come lawfully into the possession of the estate of their deceased parent without there having been any previous administration thereof. In 4 A. 561, “Labranche vs. Trepagnier, ” it was held to be settled “that the natural tutor or tutrix, as such, has a right to administer the succession of the deceased spouse, unless the heirs of age or creditors require the appointment of an administrator. ” This was but the affirmance of the same doctrine in effect, held by this Court in 1 A. 239 ; 2 A. 462 ; 3 A. 502.

In Monget vs. Penny 7 A. 134, it was held that “ the wife’s creditors need not provoke the appointment of an administrator to her succession, but may sue the natural tutor of its beneficiary heirs as its representative. ” See also to same effect 5 A. 180 ; 10 A. 534; 14 A. 641.

These cases clearly recognize the right of the natural tutor of the minor heirs of the deceased spouse, in the absence of opposition, to take possession of the estate in his capacity as tutor, and to administer it as other property of his wards for their benefit. The possession of the tutor is the possession of the minor, and all his acts are in the name and on behalf of his wards.

But as an original proposition, and aside from these decisions, we think that a fair interpretation of Art. 996 itself shows that minors and beneficiary heirs may come into possession beforo the estate “ has been fully administered and liquidated.” When an estate has been fully administered and liquidated, there remain no debts due from the succession.” Why, therefore, does the Article speak of suing beneficiary heirs before the ordinary tribunals, “for debts due by the succession,” if such estate can not come into tlieir possession until these debts are all paid ? The very fact that the Code gives a right to sue them for such debts, when they are in possession, shows conclusively that they can obtain possession before these debts are paid and, thoroforc, before the estate has been “ fully administered. ”

The true doctrine is this — that successions accepted under benefit of inventory should and must bo administered where the creditors or heirs of age require it. But if no such demand for administration is made, the natural tutor of the minor heirs of the deceased may, as such, take possession and administer their interests therein, and that any creditor of the deceased may, under Art. 996, bring suit for their debts against the tutor in the courts of ordinary jurisdiction.

The well established jurisprudence under Arts. 65 and 66 of the Code of Practice confirms us in these views. Had the creditor in this case proceeded via executiva instead of via ordinaria, there being no administrator, his right' to proceed, contradictorily with the tutor to enforce his mortgage can not be doubted. Again Art. 1671 of Revised C. C. gives the heirs, without qualification, the right when the estate is in the hands of executors to take possession, on tendering the amount of the movable legacies and giving security to creditors, as provided by Art. 1012. See Swin vs. Gordon above cited. We think, therefore, that the minors in this case were in the legal possession through their natural tutor.

We conclude, therefore, that the exception to the jurisdiction of the Sixth District Court was properly overruled, and as no other defenses are urged, and as we see no error in the judgment appealed from, it is affirmed with costs.