author: Bermudez, C. J.

text:
    No. 9641.
    Mrs. Celia Williams vs. Dennis McManus.
    In an action in damages for slander, tile only possible defenses are: either a denial, or a justification, or a confession, under mitigating circumstances. There is no such thing in law as a half-way justification An answer which sets forth all those defenses equivocates and is inconsistent.
    Drunkenness is not a defense to such an action, though it may perhaps he a matter in mitigation.
    Neither is apology, unless accepted, to operate a release from responsibility.
    Whatever he the provocation under which one acts, who utters abusive and defamatory epithets, it cannot he imputed to the party injured, who did not participate or is not connected with it.

      The unauthorized use of opprobrious epithets which reflect upon and bring into contempt and disrepute the honor of a female of good social standing, implies malice, as slanderous per se, and suffices to maintain an action in damages without proving special damage.
    Although injuries to the feelings, and to one’s social position, be not susceptible of precise adjustment, still they are recognized as a legitimate ground for the recovery of reasonable indemnity, under the exceptional features of each case.
    Where excessive damages are allowed, they may be reduoed on appeal.
    A PPEAL from the Twelfth District Court, Parish of Rapides. Blackman, J.

      M. and Jno. 0■ Ryan for Plaintiff and Appellee.

      R. J. .Bowman for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from a judgment, based on the verdict of a jury, sentencing him to pay to the plaintiff $2,500 damages, for slandering her.

The charge is that the defendant publicly denounced the plaintiff, on the streets of Alexandria, in the hearing of a number of witnesses, as a damned whore, her daughters as damned shuts, and her sons as dastards; that these epithets were repeated at least half a dozen times; that they are false, wilful, malicious and slanderous; that they were uttered without cause, and have injured the good name and character of plaintiff.

The defendant, after a general denial, answered that, if he used any such epithets, he has no recollection of it; that at the time he was so intoxicated as to be utterly unconscious of anything he said or did; that, when informed of the charge, he offered an apology which was declined; that he was not actuated by malice; that, if he uttered the epithets, they were the mere ravings of one too intoxicated or insane to know what he was doing.

The defendant specially denies that the plaintiff or her daughters were or could be defamed by the said insane ravings and that, so far as their fair name is concerned, no one is more ready to admit, or to sustain it, than himself.

In an action of this character, the only possible defenses are: either a denial, or a justification, or a confession, under mitigating circumstances. R. S. 3640; 14 Ann. 406; 15 Ann. 166; 36 Ann. 469.

The answer includes them all. It equivocates, and is utterly inconsistent. 10 Ann. 231; 28 Ann. 238.

There is no such thing in law as a hglf-way justification. Townshend on Libel and Slander, $ 212 and note (2d ed.).

The defendant has not at all undertaken to justify 1ns conduct. He pleads exoneration from liability, because at the time of the occurrence lie was beastly drunk, saying' that he was not moved by malice, that as soon as he recovered his senses and was informed of his ravings he sent a letter of apology, and that he acknowledges .the respectability of the plaintiff and her family, which could not be and was not injured by Ms defamatory language.

Subterfuges of that description cannot avail him.

The evidence establishes conclusively the facts charged, which may even be considered as admitted by the tergiversating answer.

Drunkenness is not a defense to an action of slander, though it may perhaps be a matter of mitigation. Townshend on Libel and Slander, § 249; Odgers on Libel and Slander, p. 169 in.); 5 Ill. (4 Scam.) 30; 25 Iowa, 87.

Apology implies a fault, whatever merits it may have; it surely does not release from liability, unless where accepted with that intent, otherwise it would place in the power of one to do injury and then discharge himself by an apology. Townshend, § 250; 27 Ann. 219.

In the present instance the amend proposed was a mere letter to plaintiff, which did not even offer to recant'or make retraction before the persons in whose presence the offense was perpetrated.

The evidence shows that on the night of defendant’s marriage a crowd went to his house and commenced a charivari, blowing horns and beating tin pans, and that the defendant, who had become drunk and furious, came out pistol in hand commencing- firing' or trying to, and calling the plaintiff, her daughters and sons the villainous names already stated.

However lawless the crowd and great the provocation offered defendant may have been, surely the plaintiff, who was not present and who is not shown to have had anything to do with the disturbance, cannot be imputed with any fault, the less so, as her good character and social standing are well established.

The use of .the opprobrious epithets employed implies malice, where these are slanderous per se. It suffices to maintain an action to recover damages without proving special injury. N. S. Dig., 1st series, vol. 12, p. 488, No. 67; 14 L. 198; 12 Ann. 894; 23 Ann. 280; 36 Ann, 469.

Every person has a right to enjoy that degree of respect, good will and social or business distinction to which his own acts and his social or business habits entitle him, and any one vdio unlawfully interferes ■with this right by circulating slanderous reports renders bimself liable for. consequent damages. Folkard’s Starkie on Libel and Slander, p. 99,n. § 2.

The plaintiff necessarily must have been and certainly was intensely mortified in her feelings, though she suffered no actual damages assessable in dollars and cents.

It is true that injuries to the feelings and to one’s social standing are not susceptible of precise adjustment, but such injuries are recognized as a legitimate ground of action for reasonable indemnity. 17 Ann. 64; 19 Ann. 322; 23 Ann. 280. Vox semel emissa, non revertit.

The acknowledgment which defendant makes of plaintiff’s respectability, in his answer, is sheer justice, hut it cannot, he invoked successfully in complete vindication of plaintiff’s reputation or in full atonement for the injury inflicted. De.fenda.nt must he held to further reparation.

Considering that the defamatory language used was uttered ou one-occasion only, on which it is easy to conceive that defendant could quickly inflate into a passion; that the occurrence took place in the night time, before a crowd not large; that the actor was in great ebullition and not in the full control of himself; that he is a laborer of general good demeanor and of limited means, — wo think that the jury did not make a proper and commensurate allowance and went beyond the limits to he observed in such cases.

It is therefore ordered and decreed that the judgment appealed from and the verdict whereon it rests, he amended by striking therefrom the words “ two thousand,” so that the verdict and judgment he for five hundred ($500) only, and that thus amended the same he affirmed, the plaintiff to pay the costs of appeal, the defendant those of the lower court.


source: Caselaw Access Project

author: Poohé, J.

license: Public Domain

text:
    No. 9524.
    Henry M. Payne vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    An amended petition which, purports to supply omissions in general allegations contained in the original petition, and to correct clerical errors in other allegations, and which concludes with a prayer for the same amount of money, based on the same cause of action, does not alter the substance of the demand, and. is therefore admissible.
    Touching the corresponding rights and duties of railroad companies in constructing their works, the rule of law requires that a railroad company, in enforcing its right of way over the lands of others and in constructing its road, should leave the adjoining lands and fields which it crosses, in the same condition as regards the facilities of cultivation and as concerns the utility of those lands to their owners as they were before the entry of the company.
    Hence a railroad company which constructs an embankment on the lands of a planter, and thereby stops np his ditches and other artificial drains, is responsible to such owner for all losses of crops and other damages occasioned by such interruption of his drainage.
    PPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Henry 0. Miller and Branch K. Miller for Plaintiff and Appellee.

      H. J. & G. J. Leovy, J. B. Blair and' B. B. Kruttschnitt for Defendant and Appellant.
   Tiie opinion of the Court was delivered by

Poohé, J.

Plaintiff’s demand is for the sum of $12,800 as damages for the loss of a crop of sugar cane and stubble, and for amount of labor used thereon, occasioned by the act of the defendant, while constructing its railroad bed across his plantation, in doing which tho company stopped the ditches and other drains necessary to the proper cultivation of his aforesaid crop, which had been put in the ground in the fall of 1881, for harvest during the following season.

The defense is a general denial, and this appeal is taken by the company from a judgment of $6020 in favor of plaintiff.

A preliminary question grows out of a supplemental or amended petition filed by plaintiff with leave of court.

In his original petition plaintiff, basing his main cause of action on the alleged illegal act of the defendant in interrupting his drainage, had subdivided his demand in three elements of damages, loss of a crop of sugar~and molasses for the year 1882, loss of stubble cane for the years 1883 and 1884, and loss of labor expenses necessary to plant eighty acres of land in sugar cane, for all of which he claimed the aggregate sum of $12,800.

In that petition, as he alleged subsequently, he had erred in the statement of the value of the lost crop, and of the value of the stubble cane — and in omitting to specify the amount expended for labor on the same.

The purport of his amended petition was to supply the omission and to correct the errors, the prayer being for the identical sum of $12,800 on the identical cause of action.

The objection that the supplemental petition alters the substance of the demand, and the plea of prescription of one year in bar of items not included in the original petition, have therefore the appearance of being- strained and very far song-lit; hence tliey fall under their own weight. The supplemental petition merely amplified the allegations contained in the original petition, but it added no new cause of action ; hence it was property received. C. P. 419.

Defendant's contention seems to be that an amended petition is admissible only in so far as it amends nothing.

A proper investigation of the case presents two questions:

1st. Whether the defendant is legally responsible for the loss of plaintiff’s crop.

2d. If so, what is the amount of the loss to be accounted for 1

1. The record is very voluminous and the testimony is conflicting, but after a careful analysis of the same, we find the following facts to be established by the record:

The Barbreck plantation involved herein is situated on both sides of Bayou Boeuf in the parish of St. Landry, and the crop in discussion had been planted on that part of the plantation which lies on the east bank of the bayou. The fall of the land there is from the bayou towards the low lands or swamp in an eastern direction. Hence the drainage of that part of the plantation was operated by means of a large number of ditches of various sizes, some twenty-six in number, beginning near the bayou,' and ending mostly in the low lands on the eastern limit of the plantation.

There was in addition a large canal, which begun in the northern limit of that field, and crossing it diagonally, emptied into the Bayou Boeuf, at a bend formed by that stream in the southern extremity of that part of the place. The defendant’s road bed crosses the plantation from south to north, almost parallel with the bayou, and intersects the twenty-six ditches referred to at right angles or nearly so. It crosses the main ditch known as the “ Graveyard canal,” in a diagonal line.

In throwing up the embankment, which is several feet above the level of the soil, the contractors of the defendant company closed up nineteen of the plantation ditches, and in leaving openings for the eight others, thus placed defective and insufficient culverts or boxes, in consequence of which the waters accumulating irom frequent and heavy rains in the ensuing winter, being thus without draining facilities, stagnated on the planted 'lands between the bayou and the embankment, rotted and destroyed the cane therein planted.

It is shown to our entire satisfaction that the land had been carefully and skilfully prepared for planting purposes; that the seed cane used was good and sound, and that the planting had been skilfully done, neither too shallow nor too deep; that the soil was fertile and had heretofore always produced good crops, and that under ordinary circumstances, plaintiff would have realized a handsome crop from that field.

The drainage of the plantation had been intelligently conceived and thoroughly executed, and presents as complete a system of drainage as could be found any where iu the State. Previous to the construction of the defendant’s embankment, the crops cultivated in that field had never lingered or suffered from the action of rain water, which had always been regularly and safely carried off by means of the efficient drainage which we have described.

Throughout the summer and during the fall and winter of 1881, while the embankment was being constructed, and after its completion, plaintiff in person and through his agents made numerous protests against the invasion of Ms private rights by the wanton stoppage of Ins drains, but he could obtain no redress, and a suit iu damages was Ms only alternative.

The crop planted in that field was au entire failure, only five or six acres of scattered cane grew up in the field, representing little or uo value to the despoiled planter. And iu the face of such a showing the defendant resorts to the very aggressive argument that plaintiff was not a careful or skillful planter; that his cane had been planted too deep, and that his drainage, which was hitherto deficient, had been substantially improved by the company’s system. That system involves the proposition that more water will pass, and will run more rapidly through eight ditches or canals than through twenty-seven, and that an opening of five feet is sufficient to freely pass the water which fills a canal fifteen feet wide and seven feet deep.

The argument might he considered sarcastic if it had the slightest reason either in fact or in experience for its support. But it can make no impression on the judicial mind, which must trace proven effects to rational causes.

No argument can be invoked to show that a iailroad company, in entering the lauds of another for the purpose oi building its road-bed. can legally alter the system of drainage adopted by the owner, or dictate to the latter the mode of cultivation which he must follow.

Uuder our jurisprudence, which has been in accord with the adjudications of the Supreme Courts of the leading States of the Union, the corresponding rights and duties of railroad companies, in making the works necessary for the construction of their roads on lands legally expropriated therefor, are clearly defined.

The rule of law requires of a railroad company, in enforcing its right of way over the lands of others and in constructing its road, to leave the adjoining lands and fields which it crosses in the same condition as regards the facilities of cultivation and as concerns the utility of those lands to their owners, as they were before the entry of the company.” Bourdier & Bellieinn vs. Morgan’s R. R. Co., 35 Ann. 947; V., S. & Pacific R. R. Co. vs. Dillard, 35 Ann. 1045; Railway Company vs. Murrell, 36 Ann. 346.

This plain rule which finds its sanction in common sense as well as in justice, and which imports'the reasonable exercise of all rights of property, was not heeded by the defendant company, which left plaintiff’s field practically stripped of its indispensable drainage, thus destroying its utility for cultivation to the owner.

We are not now concerned with the works and other improvements subsequently made by the railroad company on plainniff’s lands as regards his drainage. Defendant’s responsibility must be tested under the condition, as shown by the evidence, in which it left plaintiff’s lands in the summer of 1881, and in which the field remained throughout the ensuing winter, at least to the middle of January.

Our conclusion is that he lost his eighty acres of cane through the stoppage of his draining canals and ditches by the contractors and other agents of the defendant company, and that for such losses the corporation is plainly, justly and legally responsible.

2. The evidence is equally conflicting on the question of the amount of losses sustained by plaintiff in consequence of the destruction of his crop.

But, in comparing the crop realized by Payne on other portions of his plantation, not similarly affected by the railroad embankment, with the testimony of numerous experts as to the probable yield of the eighty acres of cane, we have become satisfied that the amount allowed by the district judge is not excessive but, if anything, under the amount which could have been legally allowed.

From the preponderance of the, testimony, we are satisfied that the area of the field under discussion, is eighty acres, and not seventy-four and a fraction as contended for by the defendant. We must be guided by the testimony of the owner, of his overseer and- other employees, and of other parties who are familiar with the ground, and who swear that eighty acres of cane had been planted therein.

The weight of evidence shows that the expenses for labor in preparing the lands and planting the cane, were reasonably worth $10 an acre which makes up $800.

From the record it appears that the year 1882 was unusually fertile in cane — and hence the testimony satisfies us that a profit of $40 per acre was a very reasonably expectation for plaintiff out of the eighty acres of cane in question, which makes up the sum of $3,200 on that score; we are also satisfied that, for the lost value of the first year stubble, the sum of $2,400 would be a very reasonable allowance, as it is the lowest estimate of the same by the experts; and it appears that these three amounts are in excess in the aggregate of the amount allowed in the judgment of the lower court.

We are not informed by the district judge of the nature of the details which make up the amount which he allowed; the aggregate of ours would be slightly in excess of his; but no motion was made for an increase, hence we have no authority to disturb his finding.

Judgment affirmed.

Mr. Justice Fenner recuses himself on the ground of affinity.


author: Manning, J.

text:
    No. 9562.
    The State of Louisiana vs. F. S. Hahn, alias F. Hahn, alias Meyer.
    Where the name forged to an instrument is, or is supposed, to be, fictitious, and not the name of any real person, and inquiry is to be made of the residence or existence of such person, it is proper to call the police officers or other persons well acquainted with the place where this person is supposed to live, or is sa?d to live, in order to show whether he does live there. And even if inquiries have been made in the place by a stranger, his testimony as to the fact of inquiry and the result of it is admissible, though it may not be satisfactory proof of the non-existence of the person in question.
    If the forged name be that of a fictitious instead of a real person, the offense of forgery is complete if the instrument has the appearance of being valid on its face.
    By our statute the trial judge is expressly forbidden to give the jury in a criminal case any opinion as to what facts have been proved or disproved.
    Where the forgery is of a fictitious name, it would be error to charge the jury that there must be some evidence of similitude to the signature of a real person, because when there is no original there can be no similitude.
    It is not necessary to prove that an accused forged an instrument in order to constitute the crime of uttering or publishing a forged instrument. The two offenses are distinct.
    To constitute the crime of uttering a forged instrument, it is not essential that a fraud has been actually perpetrated by it. It is sufficient that there is the intent to defraud, and this intent may be inferentially proved.
    APPEAL from the Criminal District Court for the Parish of Orleans. BaTcer, J,

      M. J. Cunningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee:
    1. Where the prisoner was acquitted of the charge of forgery, it is unnecessary to determine whether evidence to establish his connection with the forgery was improperly admitted The remedial interposition of courts in granting new trials is wholly for the benefit of parties, and not to compel the good conduct of judges. 3 Gra. & Wat. on H. T. 717; 2 Caines, 85; 3 Gilm. 202; 2 Tenn.’ It. 5; 9 Cowan, 680; 1 Scam. 18; 1 Gilm. 475; 2 lb. 185; 11 Conn. 342; Greenl. E. 442; 4 Day, 42; 10 Ga. 429 ; 1 Brev. 109; 7 Wend. 79; 1 Heo. & Man. 598 ; 4 B- Monroe, 386; 24 Yt. 252,
    2. On a trial for uttering and publishing a forged check, evidence is admissible (to show the scienter) that another check passed by defendant was a forgery. 1 Greenl. on Ev. § 111; Eos. Cr. Ev. (6 Am. ed ) pp. 88, 89, 90, 91; Whart. Cr. Ev. §§ 39, 40, 42; Whart. Cr. Law, § 1733 (8 ed.); Taylor on Evidence, § 322.
    3. It was competent to prove that “ J. L. Miller ” was a fictitious person by establishing that no person of the name kept an account or had funds or credit in the bank upon which the chock was drawn. 3 Greenl. § 109 ; 5 C. & P. 118; 49 Ala. 16. The City Directory, when offered in evidence, would permit it to be established whether in it appeared the name of “ J\ L. Muller.” When inquiries are made as to the existence of any supposed party to a forged instrument, it is usual to call police officers or other persons well acquainted with the place and its inhabitants, and if inquiries have been made in the place by a stranger, his testimony as to the fact and its results is admissible to the jury. 3 Greenl. on Ev. § 109.
    4 The expression of any opinion by the district judge, as to what facts were proved or disproved, is expressly prohibited. E. S. seo. 991; 11 Ann. 395, 535; 12 Ann. 195; 10 Ann. 271, 799; 15 Ann 498 ; 22 Ann. 43 ; 30 Ann. 49-
    5. Where the forged writing is not oí a nature to be familiar to the public, or to the particular individual to be defrauded, the rule of similitude cannot prevail. If a fictitious name he forged, there can be no similitude, since there was no original. 2 Bish. Cr. Law § 593. .
    6. To' constitute the offense of uttering, it is in no case requisite to show that the defendant had been implicated in the forgery. E. S. sec. 833; 1 Whart. Cr. Law (8th ed.), § 712.
    7. Where the appellate court has jurisdiction over questions of fact, it will not grant a new trial: (l) unless the whole of the evidence is shown in the record; (2) unless there be a great preponderance of evidence against the verdict. 3 Gra & Wat. N. T. 1230,1213, et seq.

    At common law, the trial court alone has authority to grant new trials. In most of the States, however, provision is made for a revision by the appellate court, where the evidence is either heard anew verbatim, or that heard at the trial is brought up as taken down by the stenographer, or as contained in the trial court notes and those of the counsel on both sides. Whart. Or. PL and Pr. § 897.
    In this State, the jurisdiction of the Supreme Court is restricted to questions of law only. Const. Art. — . And an unmixed question of fact is an insuperable objection to the exercise of that jurisdiction. 4 Ann. 438; 6 Ann. 311,593, 651; 7 Ann. 47, 122, 531; 8 Ann. 114; 10 Ann. 501; 14 Ann, 79, 673, 785; 26 Ann. 383; 20 Ann. 236; 23 Ann. 149; 22 Ann. 9; 35 Ann. 854-
    8. The uttering of a forged instrument, the forgery of which is only a forgery at eommon law, is an offense even in England, although no fraud was actually perpetrated. It is only requisite that there should be an intent to defraud, which is to be inferentially proved, 1 Whart. Cr. Law (8th ed.), § 705.
    9. Although the person whose instrument the forgery purports to be is a mere fictitious person, yet, if the instrument appear valid upon its face, the offense is complete. 2 Bish. Cr. Law, § 543; 1 Whart. Cr. Law, § 660 ; 3 Greenl. on Ev. §§ 103, 109,
    Defendant and Appellant in propria persona.

   The opinion of the Court was delivered by

Manning, J.

The defendant was prosecuted on an information containing two counts: 1st, for forgery; 2d, for publishing as true a forged order for the payment of money, and upon conviction on the second count was sentenced to imprisonment at hard labor for five years. He has appealed, and relies upon eight bills of exception for reversal.

The instrument charged to have been forged or published is as follows :

No. 302. New Orleans, .February 18, 1885.

Germania National Bank — Pay to the order of F. Haim, twenty-five dollars.

$25 00. J. L. MULLER.

Endorsed — F. Hahn.

1st. The prosecutor offered in evidence an affidavit signed by the prisoner and made by him in forma pauperis in the earlier stage of the proceedings, in order to show that the signer of the affidavit was also the signer of the forged cheque. He also offered in evidence another cheque on the same bank, payable to bearer, and signed Rudolp Schaad, upon which the prisoner had obtained money from one Williams.

The affidavit was objected to because.it “was a part of the record of the court and required no proof,” and the Schaad check was objected to as “irrelevant, immaterial and inadmissible.”

As the prisoner was acquitted of the charge of forgery, and the evidence offered had for its object to sustain that charge, the objections need not be consideied,

2d. Experts in handwriting were examined to prove that the blanks of the Muller and Schaad cheques for date, amount, etc., were filled by the same person who wrote the signature to the affidavit in forma pauperis, and the same objection of irrelevancy, etc., was made, and the same disposition is made of it as of the first bill. The conviction is not of forgery. .

3d and 4th. Portions of the City Directory were offered to show that no such person as J. L. Muller is mentioned therein, and was objected to on the ground of irrelevancy, and further because Muller liad not been represented to be a resident of New Orleans. Two detectives were also offered to prove that they could not find that Muller was or had been here.

The prosecutor’s belief was that Muller was a fictitious person. The cashier of the Germania Bank testified that no person of that name kept an account there. This was prima facie proof that Muller was not a real person until tlie prisoner should produce him or give other proof of his existence. 3 Greenleaf Ev. § 111. The court, in permitting the introduction of the Directory, warned the jury that it could show no more than that Muller’s name was not in it; and Greenleaf says where inquiries are to be made in regard to the residence or existence of any supposed party to a forged instrument, it is proper and usual to call the police officers, penny postman, or other persons well acquainted with the place and its inhabitants, but if inquiries have been made in the place by a stranger, his testimony as to the fact and its results is admissible to the jury though it may not be satisfactory proof of the non-existence of the person in question. Ibid, § 109.

We do not perceive the importance of establishing that Muller was a fictitious instead of a real person, since, if the former, the offense is complete when the instrument has the appearance of validity on its face. 3 Greenl Ev. §§ 103, 109; 1 Whart. Cr. Law, § 660; 2 Bishop Cr. Law, § 543. But we are reviewing the bills as we find them.

5th. This bill is to the charge of the judge and is that the court erred in not charging the jury, when requested by the defendant, that there was no resemblance or imitation of the handwriting of J. L. Muller proved by the prosecution, and without some proof of that fact there was no forgery.

The trial judge is expressly prohibited from giving the jury any opinion as to what facts have been proved or disproved, and he was but mindful of this prohibition in withholding such charge.

6th. Another objection to the charge is that the court erred in failing to charge the jury that there must be some evidence which should show ■chat the cheque purporting to have beeu signed by Muller had been so altered, made or forged by the defendant as to deceive by its resemblance, that there was no such evidence and therefore no forgery.

Again we observe the court could not say anything about the facts or the proof of them, but the legal principle asked to be charged is not correct. Where the forgery is of a fictitious name, there can be no similitude because there is no original, and therefore the rule of similitude cannot obtain where the forged instrument is of that kind. 2 Bish. Cr. Law, § 593.

7th. It is complained that the court erred in not charging the jury that the only evidence of forgery, if any, is the evidence of the experts, and by that evidence either the defendant forged the cheque or no one did, and should they find that the defendant did not forge it they must find a veidict for the defendant on both counts.

The simple answer to this is, that to constitute the offense of uttering a forged instrument it is not necessary to prove that the defendant had forged it. 1 Whart. Cr. Law, § 712.

8th. This bill merely recites that the court denied the prisoner’s motion for a new trial based on the usual allegation that the verdict was contrary to the law and the evidence.

It is beyond our province to say whether the evidence was sufficient to justify a conviction. The trial judge refused to disturb the verdict, and we find no errors of law in his rulings. The contention that the uttering of a forged instrument is no offense unless some fraud has been actually perpetrated by it, which in an earlier edition of Dr. Wharton’s book was said to be the case of instruments, the forgery of which is only a forgery at common law, has been silenced by the withdrawal of that dictum in a later edition, where it is said that principle seems no longer to be the law, the intent to defraud being sufficient, and this intent may be inferentially proved. 1 Whart. Cr. Law, § 705, 8th ed.

Judgment affirmed.


author: Fenner, J.

text:
    No. 9690.
    Fusz & Backner vs. Trager & Noble.
    A suit upon an account by a commercial firm of Missouri against a commercial firm of this State and the members thereof in solido, presents a single controversy, which is removable to the U. S. Courts by parties on either side; but all the parlies on the same side must concur in the application, and one defendant cannot remove in opposition to the wish of his co-defendants. In this case one partner of defendant firm claimed, while the other opposed, the removal, and the application was properly denied;
    In a second application the defendant Trager alleged that there was a separate controversy between himself on the one side and his co-defendant and plaintiffs on the other, and asked a removal on thac ground. We find no such controversy presented on the record, and the judge did not err in refusing the removal.
    APPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      Steele <& Garrett and JSlam <& Luee for Plaintiffs and Appellees.

      JJagg & Mason and Jas. G. Leach contra.

   The opinion of the Court was delivered by

Fenner, J.

The only question presented for our determination in this case is the correctness of certain orders of the judge refusing applications for removal to the United States Court.

The suit was brought by plaintiffs, a commercial firm of St. Louis, against the defendants, a commercial firm of this State, and was accompanied by an attachment of property.

There were two appearances in the name of the defendant firm, one by an attorney employed by Trager, the other by an attorney employed by Noble.

Trager’s attorney filed an application in the name of the firm for a removal. Noble’s attorney filed an opposition to the removal.

The judge refused the application. Thereupon, Trager filed a new application for removal in liis own name, alleging that there, was a controversy between the plaintiffs and defendants, and also a separable controverty between your petitioner on one side and the defendant N.ohlo and the plaintiffs on the other, all of which can he fully determined between said parties in this suit.” This application was also refused.

The both applications were made under the second section of the Act of March 3,1875.

That section contemplates two cases of removal, viz: one where there is a single controversy between citizens of different Btates; the other where there are separate controversies, one of which is between citizens of different States.

The first application was made under the first provision, and the construction of it is well settled that, to entitle to a removal, all the parties on one side or the other must join in the application. Removal Causes, 100 U. S. p. 457; Desty’s Removal of Causes, p. 117, § 10 j.; Peeler’s Law and Eq. in U. S. Courts, p. 164, note 310.

One defendant in a single common controversy cannot remove in opposition to the wishes of his co-defendants. Noble had equal rights and interests with Trager in the defense of the single controversy, and as he opposed the removal, the judge rightly refused the application.

The second application was based on the second clause and on the claim that there was a separate controversy between himself on the one side and his co-defendant Noble and plaintiffs on the other.

It is sufficient to say that we search the record in vain to find anj"such controversy. It is true that we find a petition in the record filed by Trager, in which he asserted individual ownership of certain of the property attached, hut it raised no issue and prayed for no relief. And, moreover, at the time when it was .filed, Trager had already asked and obtained, in the name of Trager & Noble, an order releasing the whole of the property attached on bond, and had actually released the attachment on a bond executed in the name of the firm and conditioned, according to Jaw, to pay whatever judgment may be rendered against the firm.

. It is clear the separate controversy alleged did not exist, and there was no error in the judge’s refusal to grant the removal.

Judgment affirmed.


author: Poché, J. Fenner, J.

text:
    No. 9682.
    P. W. Holliday et al. vs. Zulma Holliday et al.
    A partition by sale of promissory notes belonging to a succession under administration, will not be ordered in tbe absence of proofs to show that such a mode of partition is the only convenient one under tbe circumstances, and when it appears that such a sale could injure some of the heirs who are minors.
    The most convenient and the speediest mode of affecting a partition among the heirs of a succession under administration, of past due promissory notes, is to require the succession representative to enforce the collection of the same, and to divide the proceeds among the heirs according to their respective shares. .
    A PPEAL from the Twenty-third District Court, Parish of Iberville. A Talbot, J.

      David A. Barrow for Plaintiffs and Appellants.

      A. Talbot, contra.

   The opinion of the Court was delivered by

Poché, J.

This is an action for partition among the heirs of a succession, the principal assets of which consist of cash and of six promissory notes, all past due hut one, and all in the hands of the testamentary executor.

Plaintiffs suggest a partition by sale of the notes; one of the defendants wants the partition in kind, the other defendants, among whom are minors, make default, save oue of the tutors who desire a partition according to strict law.

P. W. Holliday, one of the plaintiffs, is the debtor for the largest amount, and his two notes are past due.

The judgment ordered the partition in kind, with the collation of P. W. Holliday’s indebtedness pro tanto.

Plaintiffs have appealed, and their contention is that promissory notes, being indivisible without the consent of the debtors, they are uot susceptible of a partition in kind, and that owing to the inequalities of the shares, a partition could not be conveniently made in that mode. But the record contains no evidence on the subject, and we find no steps taken for the appointment of experts to examine into and report on the alleged inconvenience of' a partition in kind.

On tlie other hand, the only defendant who advocates that mode of partition alleges the willingness of certain of the heirs, who are also debtors, to accept certain specified notes in full satisfaction of their respective balances, but she has faded to introduce any evidence on that subject, or in the ease at all. It therefore appears that the record is exceedingly unsatisfactory and that neither of the litigants has made reasonable efforts to enlighten the court on the true issues of the cause.

But taking a common sense and a practical view of the question, we are not disposed to coincide with the views of either of the contesting parties or of the district judge.

Conceding that the fundamental rule, which must control the discussion, is that no one is compelled to hold property in common with another, we are inclined to the opinion that the speediest as well as the safest and most equitable way of dividing past due promissory notes among the heirs of a succession which is under administration in the hands of an executor, is by converting them into money by collection. We had no suggestion from any of the parties that the collection of those notes, four of which are secured by mortgage, would be met by any serious opposition or entail very heavy expense, hence a collection is certainly the speediest plan.

Even if it should appear that some of the notes are bad or not easily collected, we fail to see how they could be improved, either by a sale or by a partition in kind.

Every consideration suggested to our minds leads to the conclusion that the condition of the succession, and above all, the interest of the minors, could be best improved or promoted by a settlement in due course of administration than by either of the modes suggested by the contesting parties now before the court.

It is very plain to our minds that the only party to be benefited by a sale of these notes would be the largest debtor, who is one of the heirs, P. W. Holliday, one of whose notes is not secuied by mortgage and would doubtless be sold at a sacrifice, to his great advantage, and to the detriment of his co-heirs', principally the minors.

It is tlie duty of the courts .in dealing with questions of partition to prevent just such a contingency.

The course which we have concluded to adopt is in keeping with the views taken of a similar condition of things by our immediate predecessors in the case of Rocliereau vs. Maignan, 32 Ann. 47.

In that case the Court refused to countenance a partition by sale of a judgment belonging to a succession, on account of the inevitable losses to result therefrom to some of the heirs, and of the unequal advantage to be derived therefrom by the party who was provoking that kind of partition, although the judgment was then on appeal, and a collection of the same would necessarily be delayed. The Court then held that equity dictated and our laws sanctioned such a course, in order to equally protect the interests of all parties concerned.

As the only unmatured note owned by the succession in this case will be due and exigible but a short time after this judgment becomes final, the inconvenience of delay will herein be avoided, and the rights of all the heirs in the premises will soon be legally and fairly adjusted in due course of administration.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and that plaintiffs’ demand be rejected at their costs in the lower court, as in case of non-suit, and at the costs of appellees on appeal.

Dissenting Opinion.

Fenner, J.

The only authority cited in support of the opiuion herein is Rochereau vs. Maignan, 32 Ann. 47, which held that where several heirs of a succession under administration were owners in indivisión of a judgment, partition by sale of the judgment will not be ordered on the application of one co-owner, when opposed by the others, when no effort has been made to execute the judgment, and when the sale would enure to the benefit of one and to the detriment, of the other co-owners.

I consider the authority entirely inapplicable to the instant case,, where the estate held in indivisión is composed of several mortgage-notes not reduced to judgment, and of cash, and where the pleadings-present no opposition to a partition, but merely a contest as to whether it should be made m kind or by sale.

I think the decree abrades the absolute right of co-owners to terminate indivisión, expressly guaranteed by Art. 1289 of the Civil Code,, and disposes of the case upon an issue not raised by the pleadings.

We should content ourselves with determining the only issue presented in the pleadings of the parties and passed on in the court below,, viz: whether the partition should be made in kind or by sale.

For these reasons I dissent.


text:
    No. 9629.
    The State ex rel. A. M. Davidson vs. the Judge of the Tenth Judicial District et als.
    In applications for the writ of prohibition against inferior courts, wo must necessarily act on the state of facts existing at the Lime of the application. If the particular grievance complained of no longer exists, there is no longer any need of the relief sought.
    An application for a prohibition to an inferior judge, based on an alleged usurpation of jurisdiction, in that the suit or aformer or similar suit had been transferred from the same j udge to the United States Court and was still pending there, must be denied if it appear that the transferred suit has been dismissed from the United States Court prior to the application foi the prohibition.

      APPLICATION for Prohibition.

      Jigan. Pierson & Pagan and J. I). Poach for the Relator:
    Tlio removal under the Acts of Congress of a suit via ordinaria, by the non-resident defendant into the United States Circuit Court for final determination, di vests the State Court of all jurisdiction over the cause of action embraced in such suit. The State Court is thereafter without jurisdiction, under Act, 3d March, 1875, of Congress to proceed any farther in the suit, and is heneo without jurisdiction after such removal of the ordinary notion to grant a decree for a writ of seizure and sale on the same cause of action between the parties, while the ordinary * action is pending in the United States Circuit Court into which it had been removed. Steamship Co. vs- Lugwell, 106 U. S. 122; Kern vs. Hindekoper, 103 U. S. 491; St. Paul and Chicago R. R. Co. vs. McLean, 108 U. S. 216; Davis vs. South Carolina, 107 U. S. 597; Railroad Co. vs. Mississippi, 102 U. S. 135; 19 Wall. 222; 16 Pet. 97; 15 How. 198 and 22 Wall. 250.
    'The writ of prohibition is the proper remedy to relieve the defendant against the improper proceedings under the writ of seizure and sale after such removal. Clark, Assignee vs. Rozenda, 5 Rob. 29; 32 Ann. 554; 34 Ann. 877, 761.

      L. £. Watkins for tlio Respondent:
    1. The writ of prohibition issues to courts of inferior or judges who exceed their jurisdiction, only when it is manifestly injurious to rights of relator. O. P. 845, 840, 834.
    2. When the allegations of plaintiff’s petition [and answer of respondents disclose a prima facie case of jurisdiction, this Court will not perpetuate the writ. 20 Ann 239, 252, 311 ; High, p. 566, sec. 780.
    3. Antecedent to the adoption of the Constitution of 1879, the writ of prohibition would not go in unappealable cases. 4 R. 48; 12 Ann 513; 11 A nn. 187; 2 Ann. 236; 11 Ann. 696; 8 Ann. 92; 2 La. 86; 19 La. 183; 21 Ann. 123, State ex rel. D’Meza vs. Judge, 29 Ann. 360; State ex rel Cummings vs. Judge; High. p. 572, Ho, 788; 10 R. 169 ; 2 La. 236.
    •4. Article 90 of the Constitution gives this Court “control and general supervision over all inferior Courts,” whereby the power of this court, in the issuance and maintenance of the writ of prohibition, is not restricted to cases coming within the appellate jurisdiction.
    Rut to authorize the maintenance of the writ of prohibition there, must “he a plain usurpation of authority, or an arbitrary exercise of power, on the part of such tribunal, and the injury must be actual, or immediately impending.” 33 Ann. 925 ; 32 Ann. 1186.
    5. It is not in all cases in which a court may have no jurisdiction that a prohibition can issue. It is not a writ of right. 19 La, 167, 174; 27 Ann. 336; 29 Ann 360 ; 32 Ann. 1188.

      It is an extraordinary one which can only issue when the court having no jurisdiction clearly usurps jurisdiction. C. P. 846; 4 Ann. H ; IGAnn.lSG; 32 Ann. 549, 1182; 14Ann.7, 504; 2 Ann. 236; 27 Ann. 158; 20 Ann. 240.
    It then issues only after a fruitless attempt in the lower court for relief. 10 R. 169; 10 Ann. 552; 29 Ann. 806; and then only in the sound discretion of the court having appellate or supervisory jurisdiction. 19 La. 174 : 4 R. 48; llAnn.196; 12Ann.513; 14Ann.504; 20 Ann. 240; 27 Ann. 358; High, p. 558, sec. 773.
    *6. Article 90 of the Constitution has received an interpretation in the following cases: 32 Ann. 553 ; 32 Ann. 549; 36 Ann. 711, 578.
    'The use of their supervisory power will bo regulated by the discretion of the court, and will he most carefully administered, and only exercised in cases when there has been a flagrant usurpation of authority, or when serious injury may accrue to parties to whom no other remedies are apparent, or when the intermediate courts are powerless to give ieiief.
    '7. Relator's theory is that the judge a quo usurped jurisdiction the United States Circuit Court had acquired by virtue of the transfer under Act of Congress of March 3, 1875. Of the judgments of that court, this tribunal has no appellate jurisdiction.
    'Those courts are not powerless to give relator relief, because — according to his theory — both respondents and himself are subject to that jurisdiction.
    Relator could have certainly filed an exception of lis pendens in tbat court. If necessary that court could have issued to the interfering State court a writ of certiorari, aiul had the executory proceedings brought up for inspection and comparison.
    Rut relator's object is delay. He has no defense. The exception of lis pendens is an exception, and must bo pleaded before default. Hen. Dig. p. 1166, Ho. 1; 15 Ann. 79.
    8. "When two suits are pending between the same parties, for the same cause of action, before different courts of concurrent jurisdiction, the declinatory exception of lis pendens will lie. C. P. 335, 94.
    In such case the judgment first rendered is valid, and proceedings in the other cause will be stayed. 37 Ann. 409; 0. P. 94.
   The opinion of the Court was delivered by

Manning, J.

The relator seeks to obtain a prohibition against the judge of the district court for Red River parish, proceeding further in a suit pending before him, wherein John Chaffe & Sons are plaintiffs and the relator is the defendant, and the Cliaffes are made co-respondents.

They had sued Davidson in the district court for Red River on November 21, 1885, upon a lost promissory note for $4000, and several years’ accumulated interest, and had attached his plantation and its rents and revenues, Davidson being a non-resident. Service of process was made on a curator ad hoc, and judgment by default was •entered on December 2, following. The plaintiffs were about to confirm the default on the fifth, or to call the cause for trial when counsel •appeared for Davidson, and moved to set the default aside and also •moved a continuance, and without demanding or waiting for the action of the court on either motion prayed a transfer of the cause-to the United States Court for Western Louisiana, and having filed a bond ■the order of transfer was made and no further proceedings were had.

Davidson made no haste to obtain a transcript of the record but Chaffe & Sons did, and they filed it in the United States Court at Shreveport, and immediately filed their motion to dismiss their suit and paid all the costs.

It seems that the note meanwhile has been found for on December 9. Chaffe & Sons obtained from Judge Hall an order of seizure and sale-of the plantation to pay this note and interest, and the sheriff advertised the sale shortly thereafter. Up to this time the United States Judge had not entered the formal judgment of dismissal in his court. This was not done until January 16, 1886.

Four days afterwards the relator applied to this Court for the writ of prohibition and it was issued provisionally with an order to shew cause, etc.

The respondent judge answers that when the petition for an order of seizure and sale, with accompanying documents was presented to-Mm on December 9, there were also exhibited a certified transcript of the case filed in the United States Court with the motion of the plaintiffs to dismiss the same as of non-suit, and receipts for the payment of all costs in both courts, and although the judgment of dismissal had not then been rendered, he considered the plaintiffs had a right to the order for which they wrnre then applying and he granted the executory process.

The relator bases his right to the writ on the assumption that the suit of the Chaffes against him is still pending in the United States Court. The writ is issued when inferior courts are usurping or exceeding their jurisdiction, Code Prac. Arts. 845-6, and it is because of this alleged usurpation by the State court of a jurisdiction then vested in the United States Court that the relator claims our interposition to check it. But the fact is that the United States Court had already divested itself of jurisdiction by dismissing the case when the relator-applied for the writ. There was, therefore, then no conflict of jurisdiction nor usurpation of jurisdiction, nor any question of jurisdiction, of any kind. Admitting all that the relator claims for the effect of a transfer in completely depriving the State court of jurisdiction and transferring it to the United States Court whenever the pre-requisites for removal have been complied with, the patent and salient fact confronts him and us that when he complained of the State court’s usurpation of jurisdiction, the United States Court had ceased to have or claim it, but on the contrary had formally dismissed the case from its. docket.

Necessarily we must act on the condition or state of facts existing when he seeks relief. However much he may ignore the dismissal of the suit by the United States Court on January 16, we must take cognizance of it; and when, on the 20th, he applies for a writ to which he would not be entitled unless the suit were still pending in the United ¡States Court, we must recognize that it'is no longer pending, since the certified copy of the judgment of dismissal by the United States Court is laid before us.

Possibly the relator did not know that a judgment of dismissal had been formally entered,hut his argument is that the jurisdiction of the State judge must he determined by the state of facts existing on December 9, when he granted the order of seizure and sale, and since at that time the jurisdiction of the State, court of the ordinary suit had been divested by the removal, and no order of dismissal had been made by the United States Court, the State court was incompetent to make any order or take any proceeding touching the subject-matter of the suit.

The answer of the respondents to that is that the judge neither then nor since has made any order in or assumed jurisdiction in any manner of the transferred suit, and that his grant of the order of seizure .and sale was in a totally different proceeding and in an independent suit.

We are not required just now to say anything respecting these pretensions. The validity or rightfulness of the order of seizure and sale is not now before us. Whether the judge could legally grant it at that time isa matter we are not now concerned with. The particular matter in hand now is to ascertain and determine whether the relator had just and legal right to a writ prohibiting the inferior judge from proceeding in a certain cause on January 20, 1886, because a suit the ■same or similar to the one he had acted or was acting in had been transferred to the United States Court and was then pending therein, .and we find that no suit was then pending there touching the subject-matter of the one lie was acting in, and consequently there was then no usurpation of jurisdiction, and therefore

The writ is denied.


text:
    No. 9649.
    Succession of E. S. Powell.—W. H. and S. B. Van Bibber vs. H. S. Bosley, Administrator.
    After a succession lias been fully administered, all its debts paid, and nothing remains in the administration except the property, the purposes of the administration are fully accomplished, and the heirs, all and singly, have an absolute right to require it to be terminated and to be put into possession of the estate.

      The wishes of some of the co-heirs for a continuance of the administration cannot control or destroy the legal right of the others to terminate it to enter into possession of their own.
    A PPEAL from the Tenth District Court, Parish of Red River. A Hall, J.

      Egan & Pierson for Plaintiffs and Appellees:
    J. The debts of the succession being all paid and the rcsidiivtn ascertained, the heir may appear and demand the succession from the administrator. O. P. 1000.
    2. This demand of the heir shall be pronounced upon in a summary manner by the judge. C. P. 1002.
    3. The cases which are to be decided in a summary manner shall not be set down on tlie docket of the suit, bub are decided on a day fixed for the purpose and in a speedy manner. C.P 756.
    4. If the judge finds from the testimony that tlie petitioners are entitled to the succession, he shall put them in possession of it and shall direct an account within a reasonable time, to be fixed by him. C. P. 1003.
    5. Heirs of age can own property and enjoy their inheritance in common with their minor co-heirs. It is only when they are anwilling any longer, thus, to own property and enjoy the same that they must sue for and obtain a petition either in hind or by sale. Succession of Baumgarden, 36 Ann. 50.
    6. After the heirs of age are recognized, there being no further necessity for administration, and the law having accepted the succession under benefit of inventory for the-minor, the succession will have been wound up and the executor under the obligation of rendering an account to the heir of age and to the tutor of the minor. Ibid.
    7. In point of fact, the function of the executor ceased when the debts were paid and the-special legacies discharged. Succession of G-eddos, 36 Ann. 965.
    Tlie legal function of the executor having terminated, and all the purposes of his appointment having been accomplished, nothing more was left for them to do but to surrender the property to the joint owners, leaving them to make all necessary settlements among themselves. Ibid.

      L. P. WatJcins for Defendants and Appellants:
    1. Plaintiffs rule defendant administrator to show cause why the heirs should not he put in possession of the property of the estate, and his administration be terminated.
    Defendant for answer denies that one of the beneficiary heirs of age, and representing one fourth interest in the successions, has ever claimed possession; and alleges that she now demands a continuance of the administration until a final partition cau bo effected, in iiursuance oí plaintiff’s partition suit on file.
    He further assigns that he, as tutor for the minor heirs of Mary B. Powell, his deceased wife, and who are ex necessaria legis beneficiary heirs of W. A. and E. S. Powell, deceased, objects to holding the property in common with the plaintiffs, and demands that the partition bo made before tbo succession is terminated.
    He further assigns in answer that W. P. Scarborough has transferred his eighth interest to-Payne, Kennedy & Co., and that neither the transferees or Mrs. Reid, an heir to another eighth interest, have ever demanded possession.
    Finally, that two heirs, representing two-eigbths interest in a succession, cannot terminate a succession and compel the heirs to the remaining three-fourths thereof to accept of and. hold the property in common.
    In such a case a partition is necessary and must he first made.

      2. From a judgment terminating tlie succession and sending the heirs into possession, the defendant administrator procured an order of suspensive appeal, and therein he was joined “by the heirs opposing, who adopted the administrator’s answer as their own, and likewise appealed suspensively.
    They had this right. C. P. 580, 565, 571; 4 La 567, Hook vs. Richardson.
    The cases cited by and relied upon by plaintiffs’ counsel were not in point. 32 Ann. 889; 33' Ann. 1321. Per contra. 34 Ann. 24; 23 Ann. 369.
    3. "Whether the defendant administrator has or not an appealable interest, the tutor for the minors and beneficiary heirs and the major beneficiary heirs may appeal. C. P. 671, 1000, 1002. 1003; R. C. C. 1192.
    The heirs are not harmonious; they are divided in opinions as to their interest.
    4. The plaintiffs abandoned the judgment in their behalf, by afterwards contesting the defendant’s bond as administrator and testing the solvency of his securities. That can only be done inside of the succession. R. S. 3698; 28 Ann, 801; R. (J. C. 3043.
    5. When some of the heirs are majors, accepting unconditionally, and some aro minors,, necessarily beneficiary, and when theie are no debts, these heirs cannot, by agreement,, enter into possession and terminate the existence of an estate, when one of the majors demands an administration. 30 Ann. 388, Blake vs. Kearney; R. C. C. 1047,1048, 1049; 36 Ann. 414. Picon vs. Dusson ; 2 R. 24, Self vs. Morris.
    6. Minors are beneficiary heirs, though they be at the same time representative heirs. In the instant case, the mother of the minors died before she went into possession of her inheritance, though she died subsequently to her ancestors, W. A. and E. S. Powell.
    The mother, as an heir of W. jl. and E. S. Powell, at her death, transmitted her interest in their successions to her own heirs, with the right and faculty of accepting or renouncing said successions, although she had not herself accepted same. R. O. C. 944, 894; 23 Ann. 291; R. O. C. 1030.
   The opinion of the Court was delivered by

Fenner, J.

The succession of E. S. Powell was opened in 1871, when H. S. Bosley was duly appointed and qualified as administrator thereof, since which time lio lias liad charge of the succession. All of the debts have been paid long since, and there remains now in his hands the free and unencumbered property of the succession, consisting of real estate and cash on hand.

There are five major and two minor heirs, the latter inheriting by representation of their deceased mother, who was the wife of the administrator, and being under the tutorsiiip of the administrator himself. Such being the situation of affairs, two of the major heirs, desiring to put an end to the administration and to enter into possession of their share of the property, have proceeded summarily against the administrator by rule to show cause why he should not be discharged from the administration and why the heirs should not be put in possession.

The administrator opposed this demand and is joined in this opposition by himself as tutor of the minor heirs and also by one of the major heirs, who object to holding or taking possession of the property in common witli the plaintiffs. The remaining heirs have not appeared-

The contention is that part of the heirs cannot require the administration to be terminated and the estate to be turned over to the heirs in opposition to the wish of their co-heirs representing the largest interest therein. If the administration could be divided and continued as to the interest of the consenting heirs, while terminated as to the interest of plaintiffs, effect might be given to the wish of the former.

But the administration is indivisible, and must be continued or terminated as to all; and the question is whether the wishes of the majority can control and destroy the legal rights of the minority.

We consider it perfectly clear that when the succession is wound up and all the debts paid, and only its property remains in the hands of the administrator, the purposes of the legal agency confided to him are accomplished, and it is the absolute right of each and every heir to terminate it and to claim possession of his share of the succession, and he cannot be controlled in the exercise of this right by the adverse wishes of his co-heirs. Otherwise the administration might be prolonged and the heir desirous of entering into possession of his own property might be kept out indefinitely. This can work no legal injury to the other heirs; for if they desire to continue the agency of- the administrator in the management of their own Interests, they may do so extra-judicially, and they surely cannot force the continuance of the agency upon their unconsenting co-heir; and if they are unwilling to remain in co-ownership with the latter, the law touching partitions affords them a perfect remedy. We have considered these questions in two recent cases, and we think the principles there laid down sustain the foregoing position. Succession of Baumgarden, 36 Ann. 47; Succession of Geddes, 36 Ann. 964.

The cases cited from 30 Ann. 388, and 4th Robinson, 414, recognizing the right of beneficiary heirs to require an administration before a putting in possession, have no application, because here that right has been enjoyed, an administration has been had and it is completed.

We find nothing in any of the various judicial proceedings referred to by the administrator to estop the plaintiffs in rule from exercising the right to terminate this administration and be put in possession of their property, and see no reason to disturb the judgment appealed from.

Judgment affirmed.


author: Manning, J. Poem®, J.

text:
    No. 9541.
    Leon Holzab vs. New Orleans & Carrollton Railroad Company et al.
    'The joinder of an action against one defendant for damages for breach of contract with an action against another defendant for damages resulting from a tort, is not good ground of exception where the defendants have been allowed to sever in their defence and separate trials have been had even if it he objectionable where there has been no severance.
    Ht is not mis-joinder for a plaintiff husband to sue in his own name for money expended for his wife’s illness caused hy an injury to her, and for damages for her sufferings caused hy that injury, since these damages fall into the community of which he is the head and master.
    'The doctrine that a passenger in a public conveyance is in some way identified with the owner or driver of it so that he cannot recover of the owner of another public conveyance for injuries caused by a collision of the two, when he has exercised no control over the conduct of the driver of bhe vehicle in which he is riding, is unjust, illogical- and indefensible.
    ‘.The correct rule is that where one is riding in apublic conveyance and has exercised and can exercise no control over the driver of it, and a collision occurs between it and another pub lie conveyance, caused hy the joint negligence of the drivers or managers of the two 'vehicles, the passenger is not identified with the driver of the vehicle in which he is adding and is not prevented ftom recovering of the owner of the other vehicle damages for injuries sustained by the collision.
    'Contributory negligence will not avail as a defence when the act charged to he such negligence was the result of tremor and excitement produced by the defendant’s misconduct.
    Damages cannot be increased in favor of the appellee if he fails to answer the appeal and pray therein for such increase. A request for increase in the brief will not suffice.
    The rule is inexorable that when the judgment has given the appellee interest to which he is not entitled and the judgment is amended by disallowing it in favor of the appellant, the costs of appeal must be borne by the appellee.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Henry P. Dart for Plaintiff and Appellee:
    I.
    "When a passenger in a street car is injured by a collision between that ear and a steam railway train, she has an action against both to recover the damages.
    Hn such case, she must prove her own care and non-contribution to the accident, and the negligence of either or both defendants; the contributory negligence of her train, will not affect her however. 71 N. Y. 288; 19 Id. 351; 36 N. J. 225; 2 Mete. (Hy.) 119 ; 9 Bush. 728 ; Shearm and Rdf. Neg. 48; Whart. Neg. § 395; Thom. Carriers, 281. Also, 105111.364; S. C. 44 Am. Reps 791; 46 Mich.596; S. 0. 41 Am. Rep. 178; 36 Ohio St. 86; S. C. 38 Am. Rep. 558; 20 Rep. 598, and Thomphins vs. Clay, St. R. R , 4 Pacific Reporter, 1166, (Sup. Ct. Cal., 1884); 24 American Law Register, 707, (Nov. 1885).
    IX
    \Where an injury is caused primarily by defendant’s violation of a city ordinance, the question of negligence is involved in the greater issue of violation of law and an absolute responsibility for the injury is thereby created, if there bo the least negligence on defendant’s part. Hays vs. Michigan, C. R. R., Ill IT. S., 228; McCloughry vs. Einney, 37 Ann. 31; where a train has been stopping on the street notice must'be given the passers by before moving the train. 51U.Y. 544; 50 Mo. 407; 2317.'W.Rep. 67; 63 17* Y. 530; *Whart. 17eg. § 393 and 80S-

      Bayne c6 Denegre and Farrar ds Simonds for Defendants and Appellants :
    The exception of misjoinder should have been maintained. The action against the Carroll-ton Railroad Company was ex contractu, and against the defendant ex delicto. Chitty on Pleading, Yol. 1, p. 97; C. P. 29, 30, 31, 149 and 152; 14 Ann. Rep. 181 ; 17 La. Rep. 419; 9 Martin Rep. 394; 15 Ann. Rep. 310, 502; 24 Ann. Rep. 613.
    The judgment is in favor of Leon HoJzab personally, and his claim is exclusively tor expenses alleged to have been paid by him, and the evidence shows that these do not exceed-twenty aoven dollars. In his petition he separates his action, and the evidence offered does not sustain the judgment. 33 Ann. Rep. 155; 32 Ann. Rep. 615 ; 30 Ann. Rep. 15, 31 Ann. Rep. 492; the Reporter, Yols. 19 and 80.
    The legislature of the State and the City Council had granted to the railroad company the right to use the street (for moving freight and passengers), for a consideration, and in the interest of the public, and the cars were rightfully on the street detained for a few moments, by a train talcing freight near the railroad depot. Under such facts no civil liability accrued to plaintiff. Act of 1870; Ordinance Uo. 8127; 34 Ann. 974; 10 Cushing, 385; 35 Ann. Rep. 744; 14 G-ray, 249; 40 Maryland, 312; 11 Rhode Island, 456; 84 17. Y. 588. 45 Mich. 74; 129 Mass. 310.
    The allegations of plaintiff and evidence offered show that the Carrollton railroad was guilty of gross and reckless negligence, and damage if any occurred from that negligence of the carrier, with whom plaintiff was identified, and her own negligence in standing up in the oar and jumping out, contributed to the damage if any was sustained, and cannot recover. Thorogood vs. Bryan, 8 Comm. Bench (Court of Common Pleas, 115); Child vs. Hearn, La. Rep. 176; Armstrong vs. Lancashire R. R. Co. 10 Ex. 47; 97 Pa. St 91; 9 Ohio, 484; 15 Ark 118; 34 Ann. Rep. 162 to 180.
    "When the plaintiff’s suit was instituted, he alleged an expected loss of a child which never occurred, and there were no actual damages except for about twenty seven dollars. 11 Ann. Rep. 292; 13 Ann. Rep. 447; 29 Ann. Rep. 792; 33 Ann. Rep. 644; Milwaukee R. R. Co. vs’ Arms, 91 U. S. 489.
    The judgment gives interest upon damages and should be reversed. 1 Ann. Rep. 382; 3 Ann. 702; 18 Ann. 28.
   Tlie opinion of the Court was delivered by

Manning, J.

The action is for the recovery of five thousand dollars as damages for injuries to the plaintiff’s wife caused by a collision of railroad trains, and was instituted against the New Orleans and Carrollton Company alone, but by a supplemental petition the Illinois Central Railroad was made a co-defendant. Mrs. Holzab was a passenger upon the Carrollton road, one of the numerous tramways of' this city, and the collision occurred at the intersection of Baronne and St. Joseph streets, in the middle of which latter street the Illinois Central runs its steam trains.

A train of freight cars of the Illinois Central was standing on the' St. Joseph street track divided into two parts, the gap between them "being at the intersection of Baronne of sufficient width to permit the-passage of the horse-car of the Carrollton road. The driver of the horse-car, in which Mrs. Holzab was seated, entered the gap and while-going through, the freight train was backed and collided with the liorse-car. The plaintiff’s wife was thrown to the floor and was bruised. She was pregnant. The shock caused an illness that does-not seem to have- been severe or dangerous, but she was in bed several weeks and confined to her bed-room longer, undergoing medical treatment with considerable suffering and some expense. Abortion did not ensue but her nervous system was deranged temporarily by the shock and her health suffered in consequence.

The two railroads severed in their defence and a trial was had first with the Carrollton Company which resulted in a judgment for the-company. The trial now under review is that had with the Illinois Central in which the judge below awarded the plaintiff three hundred dollars as damages. The defendant appeals and, although the plaintiff says in his brief, he has prayed an increase of the judgment there is no answer to the appeal or prayer in any other form for increase of' the damages.

An exception was filed of misjoinder in this, that the Illinois Central road was sued for damages for a tort in the same action wherein the Carrollton road was sued for damages resulting from a breach of its contract of safe-carriage, and.also a further misjoinder in the character of thd action, the plaintiff having sued in his own name for money expended by reason of his wife’s illness and as her agent for damages-for her sufferings.

Iu Arrowsmith’s case, 17 La. 419, one defendant was sued on a contract and the other on a tort, and they were allowed to sever in their defence as was done in this case. The court cited Sere vs. Armitage,. 9 Mart. 394, where it was held that if there be several defendants in an action of trespass and they plead separately, they may have the cause tried separately, but if they go to trial jointly and suffer a verdict to be given against them, they cannot afterwards object to it as-error, and then observed there was a much greater connection between trespassers who are sued for the same trespass than that between two-defendants, one of whom is sued on a contract and the other for a tort,, and the action was maintained.

That does not decide the point now made, but it is apparent the court did not consider the joinder of the action on a contract with one-for a tort objectionable, and where severance in defence has been, allowed and there have been separate trials, we do not think the joinder can be complained of even if it could have been without such severance.

On the other branch of the exception, the defendant has no concern with the distribution of the damages between the husband and the wife as the payment of the judgment will discharge the company’s liability to both. But besides, the action for the personal wrong to the wife is properly brought in the name of the husband since the damages recovered will fall into the community of which he is the head and master. Cooper vs. Cappel, 29 Ann. 213.

The ordinances of this city impose the duty upon the defendant railroad to station a watchman with a red lantern or signal flag at the intersection of streets upon which cars run at least two minutes before the approach of the trains, and also to ring a bell at intervals wdiile the trains are passing within the limits of the city. They further require that this railway shall use a smokeless dummy on St. Joseph street, and that it must be kept always in front of the train while in motion, and all railroad companies are prohibited from permitting their engines or trains to remain standing upon' any street or crossing within the city so as to obstruct crossing in any manner whatsoever, ■except in so far as may be done by trains in motion.

There wTas a conspicuous violation of all these ordinances by the •defendant. The train was backed by a reverse engine instead of being propelled by a dummy in front, and two freight trains were standing on the street. No bell was rung, and no flagman was stationed at the intersection of the streets. A horse car had passed through the gap two minutes before, so that the train must have started to back within two minutes of the collision. Negligence is thus fastened upon the defendant. Its defence is that if any damage wos suffered by the plaintiff’s wife, it resulted from the gross carelessness and contributory negligence of the Carrollton road, in whose car she wras riding, and that she is identified with the negligent driver or owmer of that car and cannot recover.

More elaborately stated, the doctrine is that a party who is a passenger in a public conveyance is in some way identified wdtli those wdio own or have charge of it and that he can recover of the owner of another public conveyance that has collided with it and injured him only when they wdio own or have charge o£ the conveyance in which he is riding can recover, the principle being that their contributory negli.gence is imputable to him so as to preclude his recovery for any injury when they cannot recover in consequence of this negligence.

The doctrine was first asserted in Thoroughgood vs. Bryan, 8 C. B„ 115, decided by the English court of Common Pleas, and while generally followed in that country since, its correctness has been questioned there by high authority. In this country it has been followed by some courts and rejected by others. It is so unjust to attribute to a passenger the negligence of the agents of the company in whose carriage he is riding, so untrue in point of fact that any identity exists between them, and so true that it can only be field to exist by a sort of legal fiction, tfiat it is not surprising there has been a judicial revolt against the doctrine. The only way in which the identification of the passenger with the driver or train conductor can result is by holding the latter to be the servant of the former, but that cannot be, because the passenger has no control over the conductor, and the right to control the conduct of the servant is the foundation of the doctrine that the master is affected by such conduct and is responsible for it. We should reject the doctrine as illogical and unjust, even in the face of authority as high as the English courts, but the question is set at rest for ns by a decision just rendered by the United States Supreme Court and published in the February No. 1886, of The Reporter.

The case is Little vs. Hackett. The plaintiff hired a public hackney-coach for a drive to a park, and the vehicle was crossing the railroad track en route to the park when it was struck by the engine of a passing train and the plaintiff was injured. The hackney-coach belonged to a livery stable keeper, and was hired at a stand for such coaches near an hotel and was driven by a person in the employ of the liveryman. The evidence shewed that the accident was the result of the concurring negligence of the managers of the train and of the driver of the carriage — of the managers in not giving the usual signals of the approach of the train by ringing a bell and blowing a whistle, and in not having a flagman on duty — of the driver in turning the horses upon the track without proper precautions to ascertain whether the train was coming. The defence was contributory negligence of the driver in driving upon the track under those circumstances, and that, his negligence was imputable to the plaintiff under the doctrine of identification as already set out.

The court reviewed all the decisions on that question, beginning with Thoroughgood vs. Bryan, the ruling in which the court said was indefensible, and after marshalling the American cases that followed that decision and those that rejected it, summed up by ruling that one w'ho hires a public hack and directs the driver to convey him to a par•ticular place but exercises no other control over his conduct, is not responsible for his negligence and is not prevented from recovering from, ■a railroad company for injuries suffered from a collision of its train with the hack, caused by the negligence of the managers of the train and of the. driver of the hack.

The case at bar is stronger for the plaintiff than that just narrated. In that case the plaintiff! had given directions to the hack driver where to go, and the route to that destination led across the railroad track near the station. There might have been a pretext or a reason for holding that the plaintiff was identified with the driver in consequence of the driver being for the time under his control and compelled to drive whither he should order, and because lie actually did order the ■driver to convey him to a place, to reach which the carriage must cross the railroad track.

In the case at bar the plaintiff’s wife was a passenger in a liorse-car that ran over a certain track as fixed and immovable as that of a steam train, and she had and could not have had any control over the driver as to lror route, nor indeed in any other particular.- If the principle of non-identification be correctly applied in Little vs. Hackett, and we have not a doubt that it was correctly applied, a fortiori must it control the -liability of the defendant in this case. There, is no obstacle on that ground to the plaintiff’s recovery.

The defendant pleads also personal contributory negligence of Mrs. Ilolzab, in this, that she rose from her seat when she saw that the collision was imminent, and was in consequence thrown with violence on the floor of the car, whereas if she. had remained seated, she would not have been thrown down and would have escaped injury.

The alarm of the woman was caused by the defendant’s own act in backing its train in a manner violative of the city ordinances. Her natural and irresistible impulse was to rise from her seat and get out of the car, as she saw the steam , train coming down upon it. Her tremor was caused by the defendant’s own negligence, and the rule is recognized as established that contributory negligence will not avail as a defence when it was the result of excitement and tremor produced by the defendant’s misconduct. Lehman vs. Railroad Co., 37 Ann. 705.

There is really no excuse for the defendant’s flagrant contempt of the city ordinances and its disregard of the conditions imposed upon it when the permission was given to use one of the streets of the city for a track. Its own convenience and economy were the moving' causes for obtaining such permission, and a due regard for its own obligations and for tile sanctity and safety of human life should induce a more careful observance of the precautions imposed upon it. We are inclined to increase the damages somewhat, but there is no answer to the appeal, and without a prayer for such increase elsewhere than in the brief we cannot do so.

The judgment allows Interest upon the damages from judicial demand, and must therefore be amended in favor of the appellant. Interest can run only from the date of the judgment. The plaintiff’s counsel earnestly pleads for a relaxation of the rule that mulcts his client in the costs of the appeal, because, he says, the insertion of the interest allowance in the judgment was not his work nor the judge’s, but must have been done by the clerk, and that he would have entered a remittitur of the interest had he discovered the mistake. The rule is unbending and we cannot deviate from it.

It is therefore ordered and decreed that the judgment of the lower court is amended by allowing interest from the date of the judgment, and as thus amended it is affirmed, the plaintiff paying the costs of this appeal.

On Application to Amend the Opinion.

Poem®, J.

Appellee’s counsel call our attention to our refusal to increase the allowance of damages, on the ground, as stated in the opinion, that he had failed to make a timely motion to that end.

Justice to him requires from us the statement that such a motion had been filed in time, and equal justice to ourselves calls for the statement that the motion had not been attached to the transcript, or in any manner placed under our eyes or under our control, but that through inadvertence it had been kept in the clerk’s office, where on inspection •it was found by counsel after the announcement of our conclusions in the ease..

Hence, counsel is and has been all through this appeal right on the record, and therefore the references to his failure to file a timely motion for an amendment of the judgment appealed from must be stricken out of the opinion, and are to be considered as unwritten.

Counsel of both parties now jointly inform the court that they have amicably arranged the question of the quantum of damages, hence our decree will remain undisturbed.

It is therefore ordered that the two references in the opinion to the failure of appellee to pray for an amendment of the judgment of the lower court be stricken out of the opinion, and that as. thus amended said opinion and the decree predicated thereon remain in full force.

Opinion amended.


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    No. 9681.
    John B. Lallande vs. A. W. Crandell.
    "Wlien the judge has granted an order authorizing the defendant to release writs of attachment and sequestration on bond, which order has not been executed, he may order the suspension of its execution until hearing of the parties, when he discovers reason to believe that'it was improvidontly granted.
    Nothing in the law prevents a defendant from releasing the crop gathered and ungafchored on a plantation by giving a bond for one-half more than its value, without being under the necessity of bonding the plantation which was also attached. The right of defendant in attachment to bond should be favored, as mitigating the harshness of the remedy and as restoring the property to commerce or to use.
    APPEAL from the Eighth District Court, Parish of Madison. Delony, J.

      Stone & Murphy and W. S. Benedict for Plaintiff and Appellee.

      A. L. Slack for Defendant and Appellant.
   Ttte opinion of the Court was delivered by

Fenner, J.

Lallande, claiming to be a creditor of the defendant for about $11,000, brought suit therefor, and took out simultaneously writs of sequestration and attachment.

Under the sequestration the sheriff seized certain corn, cottori-secd, baled cotton and seed-cotton gathered and ungatherod, the whole appraised on the sheriff’s return at $2955.

Under the writ of attachment he seized the same property above mentioned, and also defendant’s plantation, estimated by the sheriff in his return to be worth $30,000, besides mules, horses, implements, wagons, etc., attached thereto, appraised at a considerable additional value.

Defendant, desiring to release the property sequestered, applied to and obtained from the clerk of the court, in the judge’s absence, an order for its release upon executing two bonds, conditioned according to law, one, for the sequestration, in a sum equal to the appraised value of the property, and the other, for the attachment, m an amount, exceeding, by one-half, said value.

The defendant tendered to the sheriff two bonds executed in accordance with the order, but the sheriff, after some consultation with the clerk, refused to comply with the order on the ground that it was illegal, because directing the release of part, instead of the whole, of the property attached.

We have no occasion to consider further this order or the action of the sheriff in relation to it, because the defendant undoubtedly abandoned his rights under it by his subsequent action.

Instead of standing upon this order, he made a new and independent application to the judge, without any reference to the former proceeding, and obtained from him an order identical in substance with the one which the cleric had granted.

This new order he then presented to ,the sheriff, who refused to execute it, until he had communicated with the judge. Counsel for plain* tiff thereupon telegraphed to the judge-informing him of the fact that the order for release of attachment embraced only a part of the property attached, and asking him to order the sheriff to suspend execution of the order until hearing could be had. On receipt of this the judge telegraphed the sheriff to hold the property until further orders.

Then followed a rule by plaintiff to show cause why the order of release should not be revoked and cancelled, and a counter-rule by defendant to show cause why they should not be executed.

These rules were tried together. The judge revoked the former order and rendered a new order permitting the defendant to release the property sequestered on a bond for its value and to release the attachment on a bond for one-half over and above the value of the whole property attached.

The bonding of the sequestration alone would be of no service to the defendant, since it would leave the property still in the grasp of the attachment, and in order to release the latter, he must give a bond for something- like $60,000. Although the whole debt claimed by plaintiff is only about $11,000.

The judge bases his ruling upon the ground that under article 259, C. P., there can be no release on bond of part of the property attached, but that the whole must be released or none, and the bond must cover the value of the whole.

The point is a new one in our jurisprudence; for the case of Taylor vs. Penrose, 12 La. 137, on which the judge relies, is not in point. That was a case of sequestration of slaves which had been conditionally sold to several defendants jointly, who had not complied with the conditions, and in which the plaintiff sued for the recovery of the slaves themselves.

One of the defendants alone applied to bond a part of the slaves of his own selection, while the plaintiff offered to bond the whole of them.

The court refused the defendant’s and granted the plaintiff’s application. On appeal this court affirmed the judgment saying: “the court did not err in refusing to permit the defendant to bond a part only of the slaves; otherwise he might have selected the most effective, and left the young and old a burden and expense upon the plaintiff. Moreover, the other defendants, in such case, might have claimed the same right and have split up the contract and increased litigation, by compelling the plaintiff to bring as many suits as there were bonds.”

These reasons have no application to the instant case, which is by attachment, which is brought on a moneyed demand, in which the right to the possession or ownership of the property seized is not in question, and in which there is but a single defendant.

The writ of attachment is a conservatory process, the only object of which is to secure the payment of the judgment which the plaintiff may recover. The plaintiff has no right to bond in any case. That privilege is secured to the defendant alone, the object being to enable him to recover the possession of his property, in order that he may use it and save expense and risks of the sheriff’s custody ; provided he secure the rights of the plaintiff by substituting a proper bond in place of the property released. It is a right which should be highly favored because it mitigates the harshness of the proceeding under which a man’s property is wrested from his possession in advance of judgment and while the plaintiff’s right is still undetermined, and also because it restores the property to commerce or to use.

We can see no reason why the defendant should not be permitted to release any part of the property attached when he gives a sufficient bond exceeding, by one-lialf, its value. Such a bond is a sufficient substitute for the property released, rvhile, for any surplus of the judgment, the remaining property is retained in the sheriff’s hands. The suggested difficulty of the defendant’s substituting, for the property, a multitude of small bonds, is purely imaginary, because motiveless, and in view of the summary proceeding provided for the enforcement of such bonds, could serve no purpose except to mulct the defendant and his sureties in heavier costs.

The hardship of a contrary ruling, especially in such a case as this, is very evident, where, in order to recover control of his crop and to liquidate the claims upon it, the defendant is not only required to furnish two bonds, one for its value and the other for one-lialf above its value, but in addition to give an enormous bond for the value of a plantation and its appurtenances which he is willing to leave subject to the attachment.

We will not say that there might not be cases in which such a right might be properly denied or restricted, as where the part sought to be released is so essentially connected with the rest that its severance 'would greatly impair the valve of the residue. But this is not such a case.

We therefore, think the judge erred in requiring for the release of the property specified in the application, a bond greater tliau one-half above its value, and shall amend his judgment accordingly.

As to other points: We think the judge had an unquestionable right to suspend the execution of his order, when satisfied that it had been improvidently issued and on receiving information of facts of which he was ignorant when it was granted.

So also, we consider him fully justified in permitting the sheriff to amend his return as to the value of the property seized under the circumstances of this case and in finally fixing the amount of the bonds according to the true value. When the first estimate was made, a large quantity of the cotton was unginned or ungatliered and the estimate of quantity was necessarily guess-work; but, before the trial of these rules, it had been nearly all gathered and ginned and .turned out much more than had been estimated. Of course, in finally fixing the amount of the bond, be rightly did so at the true and ascertained value of the property to be released.

The motion to dismiss the appeal on the ground_ that such a judgment is not appealable, is untenable under the very authority relied on in this case by plaintiff, viz: Taylor vs. Penrose, 12 La. 137.

That point was not considered in State ex rel. Gerson vs. Judge, 37 Ann., for reasons therein stated.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be amended by fixing the amount of the bond required of defendant to release the property specified in defendant’s application from the attachment at a sum exceeding its value as fixed in the judgment by one-half; and that as thus amended, it be now affirmed, plaintiff and appellee to pay costs of this appeal.


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    No. 9642.
    Adathea Cooley vs. Ben. C. Cooley, her Husband.
    A wife cannot be a witness in her suit against her husband for dissolution of the community, separation of property, and the recovery of her moneyed claim against him. The prohibition is not personal to the husband, and cannot be waived by him. It is founded upon public policy and considerations of social order and is peremptory.
    The right of a creditor, of the husband to appeal from the judgment obtained by the wife against the husband is included in the express grant of the right of appeal to third persons who allege they have been aggrieved by the judgment.

      When the creditor alleges in his petition of appeal that the execution of the judgment has or would deprive him of all means of satisfying his debt, he has specified the manner in and the means by which he will be irretrievably aggrieved, and has shewn sufficient reason for an appeal to be granted him.
    APPEAL from the Fifteenth District Court, Parish of Pointe Coupée. Toist, J.

      A. VoorJms and James Vignes, Jr., for P. G. Gibert, Appellant.

      Sample <& Boymiehaut for Appellee.
   The opinion of the Court was delivered by

Manning, J.

This is an appeal by petition of a creditor of the defendant husband from a judgment in favour of the plaintiff, his wife, for separation of property and for a moneyed demand.

Mrs. Cooley alleges her marriage in 1867 and her ownership of lands in Texas and of certain machinery, as set forth in the account thereto annexed — that her husband used the sums of money detailed in the account in his business and has never returned any part thereof — that Ms affairs are damaged, etc., and pray? that the community be dissolved, the property be separated, and that she recover the amount of the account and her mortgage be recognized.

The account annexed is as follows:

Adathea Cooley,

In account with B. C. Cooley, her husband.

Proceeds of tract of land, September 18,1879..................$ 700

Cash for rent of above land, 1869..............:............... 250

Cash for rent of above land, 1870.............................. 250

Cash for rent of above land, 1871.....................;........ 250

Cash for rent of above land, 1872 .............................. 200

Cash for rent of above land, 1873.............................. 200

Cash for rent of above land, 1874.............................. 250

One lot leather, 1869......................'..................... 280

Cash from estate J. Marshall, 1868............................. 300

Cash proceeds cotton from same estate, 1868................... 350

One lot machinery, 1870 ...................................... 450

$3,480

The answer is a general denial.

The sole testimony is as follows:

Mrs. Cooley, sworn, says: “Account marked A handed, submitted to witness, is said to be correct. Mr. B. C. Cooley has never paid back any part of that money to me. I believe that my husband, B. C. Cooley, is insolvent.” 1

R. Semple and A. Conrad swear to tlie defendant’s insolvency.

A deed of land in Texas, dated September 15,1879, from B. C. Cooley and his wife to one Robertson for $700, was offered and received in evidence.

There’ was judgment for the amount of the account and otherwise as prayed, on September 18,1885; and on October 6, Cooley conveyed all his property to His wife in satisfaction thereof.

In December following, P. G. Gibert, alleging that he is a creditor of the husband and that the judgment and elation en paiement deprived him of all means of realizing his claims, petitioned for and obtained an appeal therefrom.

Mrs. Cooley answers the appeal and alleges that Gibert, not being a party to the suit below, has no right to appeal on his ex pm-te affidavit that he is a creditor of the husband — -that tile appellant does not allege any fraud and has no right to obtain a reversal of the judgment — that he does not allege any ground for appeal except that he is deprived of all means of realizing his debt, which is not sufficient of itself, and that the objectio'n to the wife’s testimony is personal to the husband and no other person can avail himself of it.

The appellant urges that the testimony upon which the judgment was rendered is both illegal and insufficient. His objections are well founded.

It is illegal because the wife cannot be a witness for or against her husband except where they are joined as plaintiffs or defendants and have a separate interest. This is a suit by the wife against the husband, and falls squarely within the prohibition. The objection to her testimony is not personal to the husband, the prohibition being founded upon public policy and considerations of social order. Tulley vs. Alexander, 11 Ann. 628.

The testimony is insufficient even if it were legal. The detailed statement of a price received for land and of its rents in the form of an account, and the oath of the wife that “the account is said to be correct,” is no proof at all. The deed is from husband and wife, and for aught that appears thereon the land may have been the property of the husband. It is in the common law form and does not even recite that the land is the property of the wife, although that would not be proof of her ownership if it did so recite. Her renunciation appended to the deed may well have been a renunciation of her dower in the land.

The right of third persons, who allege they have been aggrieved by a judgment, to appeal therefrom is expressly given by Art. 571 Code Prae., and they may avail themselves of everything in the record that affects tlieir rights. Griffing vs. Bowman, 3 Rob. 113. The allegation of the appellant that the judgment and the attempted satisfaction thereof wholly deprives him of all means to realize his debt is but an amplification of the averment that he has been aggrieved by the judgment and a specification of the manner in and the means by which he is aggrieved.

Against such an attack the judgment cannot stand.

It is therefore ordered and decreed that the judgment of the lower-court is avoided and reversed, and that the appellant recover of the plaintiff and' defendant the costs of this appeal.