author: Marring, C. J. DeBlanc, J.

text:
    No. 6937.
    The State ex rel. T. Wharton Collens vs. Allen Jumel, Auditor.
    One who lias a ela'm against the State for a salary, or for money due on other accounts, is entitled to have his right to payment adjudicated by means of a mandamus against the au liting officer.
    In order to maintain the plea of res adju. Ucata there must be an identity of parties, of capacity, of object, and of cause of action.
    When a ju ige has aeauired his office, in the mode prescribed by the constitution, he has a vested ri ?ht to its emoluments, during the term fixed by the constitution for its duration, and his right can not be impaired by an act of Legislature, passed during said term, abolishing the office.
    The Auditor can not be compelled to warrant on the Treasurer in favor of any officer of the Sta'e, for any sum beyond the appropriation made by the Legislature for such officer.
    A PPEAL from the Third District Court, parish of Orleans. J. MonroeP

      F. Howard Me Caleb and F. H. Farrar for plaintiff and appellee.

      James C. Fjan, Assistant Attorney General, for defendant.
   The opinion of the court was delivered by

Marring, C. J.

The relator was re-elected Judge of the seventh district court of Orleans parish in November 1872, and was commissioned, and qualified thereunder.

On December 11th. of that year, an act was passed by the legislative abolishing the seventh and eighth district courts of that parish, and providing for the transfer of the records of those courts to other courts named therein, and also creating a new court to be called the Superior district court. Acts 1873, p. 38.

Judge Collens continued to perform the duties of his office until the records of his court were taken away, the clerk was dispossessed of his place, and the court room was occupied by the Fourth court, to which it had been assigned. After that, he held himself in readiness to perform Its duties, and refrained from resuming the practice of his profession for two years or more.

In April 1873, the relator applied for and obtained a mandamus to •compel the Auditor to warrant on the State Treasury for the two quarters of his salary ending respectively Dec. 31,1872 and March 31, 1873. 'The first of these quarters commenced Oct. 1,1872, at which time Judge Collens was serving under his election and commission of 1868. That case was carried to the Supreme Court; and our immediate predecessors held that he was entitled to his salary up to the promulgation of the Act -of December 1872, which abolished his court, and was not entitled to any salary thereafter. Collens v. Clinton, 26 Annual, 406.

The present suit does not embrace a claim for salary for the period included in that suit, but seeks to enforce the right to salary from April 1,1873, to NovemberT876, the end of the term for which the relator was elected and com missioned.

The respondent pleads the exception of res adjudícala, basiDg the plea upon the prior suit, and in case it should be overruled answers by a general denial, and with the special averment that there is no appropriation for the payment of the relator’s salary. There was judgment for the relator, and the respondent appeals.

As to this last objection the respondent is in error, since it appears that the general appropriation bills for 1873 and 1874, each contain an appropriation of one hundred and twenty-five thousand dollars for the salary of the District judges throughout the State, and refer specifically to the Act of 1868 as the one copied or renewed, at which time the Seventh court was one of those provided for, and besides contain an appropriation of five thousand dollars for the salary of the judge of the Superior district court. The general appropriation bills for 1875 and 1876 provide one hundred and thirty thousand dollars in lump for the same purpose. So far as these bills may be considered as á legislative interpretation of the Act of Dee. 1872, they are an indication that the General Assembly treated the salary as being due the relator.

There are two questions in this case,

1. can the relator sue to recover his salary in this form of actioD,

'2. is his former suit a bar to the present.

The State is a sovereign, and can not be sued by her citizens, in her own courts, without her permission, but a civil proceeding, by which one •officer of the State seeks to compel another officer of the same State to perform a ministerial duty, is not, in the proper sense of the words, a suit against the State. Nothing is more common than for a party who has a claim against the State, whether for salary as an officer, or for money due on other accounts, to have his right to payment adjudicated through and by means of a mandamus against the auditing officer. Tt is recognized by us continually as a legitimate mode of ascertaining what are the rights of persons who have, or who prefer, claims against the State. And to say, that none but an officer of the State can lawfully claim a salary from her, and that the relator can not claim it because his office is abolished,would be to assume in the outset as established, the very thing which is the gist of the controversy.

The plea of res acljudicata is not tenable. To sustain that plea, there must be an identity of parties, of capacity, of object, and of cause of action. One of those at least is lacking here. Marcade says ; — La «cause, qui doit étre la méme dans les deux demandes que pour la seconde soit ócartie eomme deja jugée, e’est le principe qui engendre immédiatement le droit q’une partie pretend exercer et que l’autre lui conteste * * * du reste, Vobjet se tro uve par la réponse a cette question ; que demande le plaideur? et on tro uve la cause par la reponse a cette autre question; sur quoi le plaideur fond-t-il immódiatement sa pretention ? Explication du Code Napoleon, tome 5. p. 172,

. The relator has carefully excluded from his present demand the salary for the two quarters, which formed the object of the demand in the first suit, and upon which there was an adjudication. It seems more probable that, on the part of the respondent, a plea has been confounded with a principle, and that in pleading the judgment in the previous case :as an estoppel, hé meant rather that the principle or ruling made by this •court, as then constituted, was conclusive of the right of the relator, or his want of right, on the principle of stare decisis.

That principle is so deeply imbedded in jurisprudence that it is considered one of its fundamental rules, and is not to be departed from, •except in those instances when a rigid adherence to it would be more detrimental than a disregard of it. A graver and more important principle lies behind that rule in this case. An unreasoning observance of it here would establish the doctrine that legislatures could control the operation of the organic law when it prescribes the constitution of the judicial department of the government, and abolish constitutional offices at their own will. It is marvellous that the danger and the error of so radical a change in that system of checks and balances, which has so-long been justly deemed the supreme excellence of our republican government, was not perceived.

The constitution fias provided that in the parish of Orleans, the General Assembly may establish as many district courts as the public interests may require, and until otherwise provided there shall be seven— that the term of office of a district judge shall be four years, and his salary shall not be increased nor diminished during his term of office— that he, like all other officers, shall continue to discharge t|ae duties of his office until his successor shall have been inducted, except only in cases of impeachment or suspension — and.that he is liable to both of these for crimes and misdemeanors, and is also subject to removal for reasonable cause upon the address of two thirds of the elected members of the General Assembly.

When a judge has acquired his office in the mode designated by the constitution, he has a vested right to its emoluments during the term fixed by the constitution for its duration. The legislature can not deprive him of it. He may be impeded in the exercise of his judicial functions. He may be shorn of judicial power, and be deprived of the opportunity to discharge the duties imposed upon him by the acceptance of his office, but he cau not be divested of the office except by one of the modes appointed by the constitution for that purpose, and he can not be denied his just demand of payment of the salary, which is prohibited from being increased or diminished during his term.

All devices tending to abrasion of the independence of the judiciary, or to subject it to legislative or popular caprice, have been uniformly condemned by the wisest men of our country. Numerous instances have occurred in the States of attempts by the legislatures to oust judges from their constitutional offices, and deprive them of their salaries, and in no instance has the doctrine announced in the relator’s case in the twenty-sixth Annual found any favour. A case in Illinois meets the point exactly. Ballou was elected a judge of the circuit court, was commissioned and qualified, and two years afterwards and before the expiration of his term, the legislature repealed the act which created the circuit of which he was judge, and established another circuit in its stead. The court say; — “ The question is, can the legislature expel a circuit judge from his office by creating anew circuit, and taking from him. the territory which constituted his circuit. The bare reading of the constitution must convince any one that it intended to prohibit such a proceeding. It was the intention of that instrument to place the judges entirely above and beyond legislative control or interference, except by impeachment or address.- It is the constitution which creates the office of circuit judge, and not the legislature. * * * * It is unnecessary now to say whether the legislature may reduce the number of judicial districts by abolishing one and attaching its territory to another. If it may, then the office would cease upon the expiration of the term of the judge, but until the expiration of his term, the constitution has not provided, nor has it authorized any mode of expelling him from his office.” 23 111. 550.

The independence of the judicial department of the government is at once the anchor of our stability, the prop of our strength, and the shield of our defence.. Its necessity was early felt — its importance instantly recognized. Said Mr. Hamilton ; — “ This independence of tho judges is equally requisite to guard the Constitution and the rights of individuals, from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. * * * * It is not to be inferred from the principle (that constitutions may be altered or abolished) that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing constitution, would, on that account, be justifiable in a violation of those provisions ; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body.” No. 78 of the Federalist.

The relator is entitled. to his salary for the term of his office, not included in his former suit, and the respondent should have audited his claim therefor to the extent of the appropriations, and drawn the warrants upon the Treasury in accordance therewith. We can not however make the mandamus peremptory so as to compel the Auditor to warrant for any sum beyond the appropriations for these officers. The extracts from the Auditor’s books shew that there is a balance of the appropriation for each year unexpended, and that this balance is a different sum in each year, amounting to over thirteen thousand dollars in 1873, but to smaller sums in each of the subsequent years. Therefore

It is ordered, adjudged, and decreed that the judgment of the lower court is amended by making the mandamus peremptory so far as to direct the Auditor to warrant on the Treasury in favor of the Relator to the extent only of one half of the unexpended balance for each year on his books to the credit of the District Judges Fund, unless said balance exceeds the amount of the warrants to which he is entitled, in which case the Auditor shall warrant for only such sum as the salary of the Relator amounts to, and as amended, that it be affirmed, the relator to pay costs of appeal.

Dissenting Opinion.

DeBlanc, J.

Relator was elected and qualified as the Judge of the 7th district court for the parish of Orleans. A short time after his election, the Legislature abolished the court over which he was then presiding.

In August 1877, he applied to the State Auditor for warrants on the 'Treasury, for the salary which he-claims as Judge of that abolished court, from 1873 to 1876.

The Auditor refused to comply with relator’s demand : he obtained ■a mandamus against that officer to compel him to grant it, and the mandamus'was made peremptory.

In my humble opinion, this was a mistake.

If due at all, the claim urged by the Relator would be due — not for services actually rendered — but rather as damages for the arbitrary destruction of the office to which he had been elected, and the consequent deprivation of the emoluments to which — otherwise—he would have been entitled.

To allow his demand, we have to decide:

1. Whether the act by which the 7th Court has been abolished was constitutional.

2. If it was not, whether a State can be held liable in damages for the errors and inj ustices of a Legislature.

In this instance, we are called upon — not merely to coerce the performance of a pre-existing duty, not merely to enforce an acknowledged, an ascertained right,, but to condemn the State on a suit brought — not against it — but in its name, to pay a disputed claim. This, I believe, we ean not do on a proceeding directed against the Auditor alone.

Relator’s counsel contends that — in 1873 — the Legislature made an appropriation to pay the salary of the district judges, and that — considering its amount — said appropriation necessarily includes the salary of even the judges of the abolished courts. Had it been the intention of the Legislature to do so, it would certainly have qualified that appropriation, so as to leave no doubt in regard to its destination.

As to its amount, tho salary of a district judge is fixed by the constitution, and — I admit — no act of the Legislature, no decree of any court- can reduce, increase, or change that amount; but — under the pe■culiar circumstances which, surround this exceptional case, is that salary due ? It may be due; but that is a fact which should be judicially ascertained in an authorized action against the State.

High. Ext. Remedies, sect. 10 ; 27th A 430 ; 29th A 267, 850.

For these reasons, I respectfully dissent from the opinion and decree of the Court.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 6720.
    The State vs. J. Ziord alias J. M. Warren
    An indictment for larceny which describes the property stolen as “ ninety dollars in paper currency of the United States of America,” is sufficiently specific. The value of the property need not be alleged. In the absence of proof to the contrary, it will be presumed that a person convicted of -crime was properly represented by counsel in the lower court.
    PPEAL from the First District Court, parish of Orleans. Abell, J.

      H. N. Ogden, Attorney General, for the State.

      Simeon Belden for defendant.
   The opinion of the court was delivered by

Spencer, J.

Defendant was indicted and convicted of larceny. He appeals and assigns as error—

First — That the description of the thing stolen is insufficient, and no value is alleged. The information charges the larceny of “ninety dollars, in paper currency of the United States of America,” and states no value thereof.

In an indictment for the larceny of bank notes it is necessary to aver the value; but not so of government coin or money, which are themselves value. See 1 Whart. sec. 361.

We think the charge is sufficiently specific in describing the thing ■stolen as “ninety dollars in paper currency of the United States of America.”

The prosecution in such cases as this is not supposed to be in possession of, or to have access to, the thing stolen, so as to give a minute and particular description of it. To require such description would virtually defeat all prosecutions for the theft of money. It is sufficient that from the charge in the indictment and the descrffition of the thing, it appears a crime has been committed, if the facts be true. See Whart. vol. 1, see. 358.

It has been held sufficient to charge the larceny of so many dollars in “U. S. gold coin;” also, “in specie coin of the U. S.,” without designating the kind of coin, or the number or denomination of the pieces. Whart. vol. 1, sec. 363.

Second — It is assigned, also, as error, that the record does not show affirmatively that the accused had counsel. But it does appear that witnesses were sworn and examined in his behalf, and that counsel moved for an appeal.

In the absence of proof to the contrary, we must presume that the court a qua did its duty in this regard. A party has the right, the privilege, of being heard by himself or counsel, but is not obliged to have counsel. He may prefer to defend his own cause. It is the duty of tho court, if the accused desires counsel and is unable to employ one, to assign one to him; but we know no law or reason requiring the facts-in this regard to appear as part of the record. Besides, if the party was improperly denied counsel on trial, it should have been made to-appear by motion for new trial.

The judgment and sentence appealed from are affirmed.


author: Egan, J.

text:
    No. 6898.
    Pike, Brother & Co. vs. Hart & Hébert.
    The individual members of a commercial firm may execute a valid note, and a valid mortgage securing said note on their individual property, in favor of the firm, and any third person aeauiring the note from the firm, in good iaith, for value, and boloro maturity, may enforce its payment.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Me Vea, J.

      Sami P. Greves and Lamon <& Favrot for defendants and appellants.

      Thos. B. Dupree and Herron & Bird for plaintiffs.
   The opinion of the court was delivered by

Egan, J.

This case was before us at the last term on an injunction against executory proceedings; see 29 A. 262. It now comes up on appeal from a judgment rendered via ordinaria, to which the form of' action was changed subsequent to our decree.

The plaintiffs’ claim is for judgment and recognition of mortgage, as holders before maturity of a note secured by mortgage, given under the'following circumstances:

On the twenty-sixth of November, 1873, S. M. Hart and F. E. Hebert, individually, executed their promissory note, payable to the order of Hart & Hebert, a commercial firm composed of themselves. The payment of the note was secured by mortgage in favor of the said commercial partnership or any future holder of the same, on property of which 'S. M. Hart and E. E. Hebert, individually, were joint owners.

The mortgage contained the pact de non alienando. The firm subsequently failed, and transferred the mortgaged property with other assets to liquidators for the benefit and account of their creditors. The liquidators, claiming to be third possessors, intervened, and set up that the plaintiffs had no mortgage. That if any ever existed it was extinguished by confusion and compensation. The ground taken is that S. M. Hart and E. E. Hebert, the mortgagors, being the same persons who composed the firm of Hart & Hebert, in whose favor the note and mortgage were executed, they were at once the owners of the property and of the mortgage and note which it was intended to secure. In other words, that they were at one and the same time both mortgagors and mortgagees, and makers and payees of the note. That one can not make a mortgage in his own favor, but only of another, under article 3290 of the Civil Code, and that thus the extinguishment and confusion pleaded took place. C. C. 3374 It is hardly necessary to say that if there were that identity argued for by the counsel for the interven - ors, it could not affect the notes which would then be simply payable to their own order, and when indorsed to third persons be exigible by them. This, however, is not contended. It is, however, true to say that “ the ideal thing,” the partnership, is perfectly distinct from the individuals who compose it; and may have, indeed, always does have properties, rights, and obligations equally distinct, and which the law so recognizes. 'This is elementary. Our own C. C., article 2856, says: “ Every partner owes to the'partnership all that he has promised to bring into the same.” Article 2857 : That, in caso of eviction of a thing promised to be brought into the partnership, he is bound in the same manner as a seller toward the purchaser who buys from him. Article 2858 : That he owes interest on sums promised to be put in the partnership from the day he was bound to pay the same; and so, also, on moneys taken out of the funds of the partnership;.so, also, by the next article, 2859, does he owe the profits made by his skill or industry or credit when he agrees to furnish them, while, on the other hand, he is a creditor of the partnership for any sums paid for its account and obligations, as well as losses incurred for its benefit. C. C. 2864 In view of these provisions, the fallacy of the argument is manifest, for if there may be a principal obligation of the partners toward the partnership, then may it likewise have its accessory security, the mortgage, as well. There is nothing in the law to prohibit it, and it is of common occurrence, either to make up the original capital, or to raise funds for the use of the partnership; and this may be done by one or all of the partners. The argument of intervenors’ counsel proves too much, for, if carried out, it would result in the inevitable conclusion that though the title to the mortgaged property, and. of all their other property, was in the name of the individuals, it belonged to the partnership, because it belonged to the individual partners. This is not true of any property, and it has been often held that land even acquired in the name of a commercial firm belongs not to it, but to the individual members, and is not even liable to be first discussed by partnership creditors. See Poydras vs. Laurens, 6 A. 771; Stillman vs. Purnell, 3 L. 497; Weld vs Peters, 1 A. 432. But, were it otherwise, it was competent for either or both the partners not only to exécute notes, but, also, to give mortgages to secure them in the hands of any future holder, or to secure debts having no legal existence at the date of the mortgage. C. C. 3292, 3293; 7 A. 297; 18 A. 234; 21 A. 668; 22 A. 286.

We recently held, in the case of Billgery vs. Ferguson, see 30 A. p. 84, that a mortgage, if even given without any consideration, arising between the parties at the time, but on its face to secure certain promissory notes named therein, which subsequently passed into the hands of a third bona fide holder, was enforceable in law at the instance of such holder, and for his benefit.

In the present case the note sued on did so pass before maturity, and there is nothing to question the good faith, either of the makers or of the holders, nor is it in any manner shown, or even pleaded, as it was in the Billgery case, that the transaction was simulated or unreal. On the contrary, there is every thing to support the reality and legality of both note and mortgage. Indeed, it is in evidence that another note of the same class and amount, secured by the same mortgage, had been actually paid. The intervenors claim to be third possessors, but are not under the evidence entitled to occupy even that position, as they are shown to be and allege themselves simply liquidators of Hart & Hébert, and in that capacity to have received from the partners a transfer of the land mortgaged for the benefit of creditors. This is at best but a security and means for the payment of the debts, coupled with the power to sell the property for that purpose, the real title being still in the hands of the debtors. This, however, is immaterial, as we have already seen that the mortgage contains the pact de non alienando, which entitles the mortgagee to proceed directly against the property, without resort to the delays and formalities of an hypothecary action.

The judgment appealed from is correct, and is affirmed. It is further ordered that the appellants pay the costs of appeal.


author: Marr, J.

text:
    No. 6789.
    Workingmen’s Bank vs. Blaise Lannes et al.
    In a suit to annul a tax sale o£ roal estate made by a State tax collector, the State is not a necessary party.
    Act No. 7, passed by the Legislature at its extra session. May 1875, postponed the payment of all taxes then due the State until the first of November, and any sale of lands made by a State tax collector between the passage of said act, añcl the first of November, 1876, on account of delinauent taxes, is null and void.
    Before a valid sale of real estate can be made by a State tax collector, on account of unpaid taxes, it is necessary that the owner of the real ostate should have had ten days written or printed notice to pay the accrued taxes.
    Any absolute nullities in a tax sale of property may be set up, and availed of by the creditors of the owner.
    A tax sale of property assessed in the name, and for the taxes of one person, which belongs to another; or made under a seizure recorded as against one not the owner; or made under an advertisement describing it as the property of one not the owner is illegal and void.
    In forced alienations without legal process, all the formalities prescribed must be observed, under pain of nullity.
    j^PPEAL from the Fifth District Court, parish of Orleans. Rogers,

      Hornor & Benedict and F. W. Baker for plaintiff and appellee.

      B. Emg Cutler and Horace C. Upton for defendants and appellants.
   The opinion of the court was delivered by

Marr, J.

The Workingmen’s Bank proceeded via executiva on certain notes of Blaise Lannes, representing the credit portion of the price of two lots of ground, sold by Martin, Lannes to his brother Blaise, in October, 1873, secured by vendor’s mortgage on the property. Pierre Lannes injoined the sale, claiming to be the owner of the two lots, in virtue of the sale and conveyance made to him by the tax collector, in August, 1875, and the deed subsequently made to him by the Auditor of Public Accounts, for the taxes of 1873, due by Martin Lannes.

The bank, in answer to this injunction suit, alleged the nullity of the tax sale. The district court decided that the title conveyed to Pierre Lannes could not be attacked otherwise than by direct action, and perpetuated the injunction, reserving.to the bank the right to proceed by direct action; and this judgment was affirmed on appeal. 29 An. 112.

The bank then brought this suit against Blaise Lannes and Pierre Lannes, alleging the nullity of the tax sale; and praying to have it declared void, and for judgment against Blaise Lannes, for the amount of the mortgage debt, with recognition of the right of vendor’s mortgage on the property. • .

Defendants excepted that the title of Pierre Lannes could not be disturbed without making the State, his vendor, a party; that the allegations of the petition are too vague to enable defendants to answer until plaintiff’s cause of action is set forth with more certainty; and that the petition discloses no cause of action.

These exceptions were properly ovei ruled. The State can not be sued except with its consent, specially granted. The allegations of the petition, the claims of plaintiff, and the causes of nullity, are set forth in very clear and distinct terms; and, if true, they show perfect cause of action.

Defendants then plead the general issue; and the judgment of the court, from which they have appealed, declared the nullity of the title of Pierre Lannes; and condemned Blaise Lannes to pay the mortgage debt, as prayed for in the petition, reserving to Pierre Lannes the right to claim such sums as he may have legally paid for taxes on the property.

Eight causes of nullity are set out in the petition:

First — That the tax sale was made in violation of the laws of the State, and particularly act No. 7 of the extra session of 1875.

Second — That the property .was not assessed according to law, neither the name of the owner nor the proper description being given.

Third — That demand and notice to pay the taxes was never given according to law.

Fourth — That no legal seizure was ever made, no legal notice of seizure, no legal recordation of seizure caused to be made.

Fifth — That the owner of the property owned personal property liable to seizure of sufficient value to pay the taxes.

Sixth — That no legal advertisement of the sale of the property was made.

Seventh — That no legal deed or act of sale was ever passed, executed, or recorded.

Eighth — That no money was paid by Pierre Lannes; that the sale was fraudulent, made at the instance of Blaise Lannes, to defraud petitioner; and Blaise Lannes is now and always has been the true owner, notwithstanding said pretended sale.

The act of 1875, p. 106, is entitled “an act to relieve delinquent taxpayers from the payment of penalties in certain cases.” The ñrst and second sections relate exclusively to taxes due on lands overflowed during the flood of 1874; and the delinquents are relieved of all penalties, provided the past due taxes are paid on or before the first of December, 1875. The third section declares that “upon payment of the principal or the amount of the tax itself on or before the first of November, 1875, all interests and penalties thereon shall be remitted on all taxes due throughout the State.”

The last clause of section one declares “ that the provisions of this act shall apply only to taxes due on lands overflowed during the flood of 1874.” Construed strictly, this would make the third section nugatory; but the third section is a later expression of the legislative will. The statute is remedial; and it must be liberally interpreted, and in such manner as to give effect to the whole. Day of grace is given to the first of December, 1875, only to those owing taxes on lands overflowed in 1874, on their complying with the requirements of section two, stating under oath that the lands were overflowed, and that they were unable to derive revenue from them sufficient to support themselves and families, and to pay the taxes due.

Section three is broader; and it covers delinquents throughout the State; the only difference being that delay is given them to the first of November, one month less than to the sufferers by the flood; and they are not required to make oath or to do any thing else except to pay the amount of the tax itself, without interest or penalty, on or before the first day of November, 1875.

Section four repeals all contrary or inconsistent laws, and gives effect to the act from its passage, May, 1875. Certainly any law which authorized or enabled a tax collector to compel the payment of taxes due at the date of this act, by any means or process, before the first of November, 1875, would have been not only inconsistent with the act of May, 1875, but would have left the tax payer at the mercy of the tax collector, the will of the Legislature to the contrary notwithstanding.

Act No. 47 of 1873, section one, authorized tax collectors, after the public notice required by law, to give ten days written or printed notice to the owner to pay the tax assessed on his property, after which delay, if the tax was not paid, the tax collector might seize the property, by recording a description of it, with the amount due, in the mortgage book of the parish, and on the fourth day of such recordation “ shall proceed to sell said property, without legal process, after advertising three times, within ten days, in the official journal. Provided, that when personal property sufficient in amount is found to satisfy the State’s claim against such tax payer, the same shall be seized to satisfy such claim in preference to real estate.”

It was under this statute that the tax collector in the Sixth Municipal District sold the property in question, on the fourth of August, €875.

There is nothing in the deed or the record to show that any written or printed notice to pay the tax was ever given to the owner, or agent of the owner of this property, or to any other person whomsoever.

On the twelfth July, 1875, an entry was made in the mortgage book of the parish of Orleans, beginning “ By virtue of a writ of seizure and sale issued by John Garstcamp, tax collector, * * * in obedience to section one of act No. 47, * * * the said tax collector has seized and taken into his possession the following described property to pay and satisfy the amount enumerated and due by the owner thereof for State taxes for the year 1873, to wit:

2129. — Martin Lenas. Cancelled August 6, 1875, J. M. Oonway, Deputy Rec.

Lots Nos. 5 and 6, square No. 13, bounded by Tchoupitoulas, Jersey, Marengo, and Milan streets, measuring sixty feet front on Tchoupitoulas by a depth of 117 feet.”

Next follows the advertisement-in the official journal of twenty-seventh July, third, fourth August:

“Tax Collector's Sale, No. 2129. * * * State of Louisiana vs. two lots of ground, fronting on Tchoupitoulas street, in square No. 113, assessed in the name of Martin Lenas.” * * * “I will proceed to sell at public auction, at my office, No.-Berlin street, in the Sixth District, , * * • * on August 4, 1875, x * * for taxes of 1873, amounting to $40 60, together with all costs, penalties, and charges. At said sale the property will not be adjudicated unless the bid is for .a-sufficient amount to satisfy the aforesaid claim, together with the penalties thereon, and all costs and charges which may have accrued. The purchaser at this sale will be put in immediate possession.”

The next is the tax collector’s deed, dated fifth August, 1875, reciting the sale and adjudication to Pierre Lannes, for the taxes due by Martin Lenas, for the price of $110 cash, of which $58 85 were applied to the taxes, costs, and charges, and $51 15 remained in the hands of the tax collector as “ overplus,” to use his word; and on the fourteenth February, 1876, the. Auditor of Public Accounts conveyed the property to Pierre Lannes. In this deed it is stated that the property had belonged to Martin Lannes, in whose name it was assessed for the taxes of 1873; and the Auditor conveys to Pierre Lannes all the right, title, and interest of Martin Lannes in and to the property.

And this is the title which Pierre Lannes sets up and relies upon against the creditors of his brother having vendor’s mortgage on the property for four fifths of the purchase price.

We do not think it necessary to proceed further in the investigation of this case. It exhibits an outrageous violation of the right of property by the tax collector; a bold defiance of the remedial act of 1875„.which Blaise Lannes would hardly have submitted to if his mortgage notes for the price had been paid.

The sale on the fourth of August, 1875, for the taxes of 1873, was a nullity. It is to no purpose to say that Blaise Lannes, the owner, did not complain. His creditors have rights of which he can not deprive them; and when a title adverse to the claim set up by them is'interposed, they may oppose the absolute nullities of that title, even if he should prefer to waive them in favor of his brother. The tax collector was divested by the act of 1875 of all power to enforce the collection of taxes by sale or otherwise before the expiration ol the delay fixed by the Legislature, first November, 1875.

It would not have been lawful to sell property assessed in the name of Martin Lannes, belonging to Blaise Lannes, for taxes due by Martin Lenas; nor under a seizure recorded as against Martin Lenas, nor an advertisement describing it as the property of Martin Lenas; nor was it lawful for the Auditor to convey the property of Martin Lannes in. confirmation of a sale and conveyance by the tax collector of the property of Martin Lenas. We do not think the tax collector could legally have made the sale at his office, especially under an advertisement which gave no other description of the place than “ at my office, number Berlin street, Sixth District: ” nor do we understand the. act of 1873 as authorizing the sale by the tax collector without the previous ten days written or printed notice to the owner or his agent to pay the taxes.

In forced alienations, without legal process, all the formalities prescribed must be strictly observed under pain of nullity; and it must appear that all has been done that the law requires to authorize the-sale, and to make it complete and perfect. It should be shown, in a case like this, by the recitals in the deed, if not otherwise, that the notices required by law had been given. Nothing would justify the tax collector in selling two lots of ground to pay the taxes when one .would suffice; nor to retain the “ overplus ” resulting from an excessive sale.

Pierre Lannes knew that this property did not belong tp Martin Lenas. The act of sale by Martin Lannes to Blaise Lannes was recorded on the day of its date, October 10, 1873; and the tax collector- and Pierre Lannes, were, by operation of law, affected with notice and knowledge of the title as it stood upon the public records. The tax collector knew that the property had been assessed in the name of Martin Lannes; and the use of the fictitious name of Martin Lenas, in the recording of the seizure, and in the advertisements and the tax collector’s deed, can not be attributed either to error or ignorance on the part of the tax collector or of Pierre Lannes. Perhaps it was designed, certainly it tended, to conceal the fact that the property of Blaise Lannes was about to be sold for the taxes of 1873, assessed against the-former owner, Martin Lannes, and assumed by his vendee, Blaise Lannes. •

After the six months allowed for the redemption had expired, when, the Auditor made the final confirmative conveyance, he gave correctly the name of Martin Lannes as the person who was the owner against-whom the assessment for the taxes of 1873 was made: and as the person, whose property was seized and sold by the tax collector, on the fourth August, 1875, for the taxes so assessed, and purchased by Pierre Lannes-, and this conveyance was not of property belonging to Martin Lenas,, the fictitious tax payer, but of “ all the right, title, and. interest which the said Martin Lannes has or had in or to the same.”

The pretensions of Pierre Lannes have the support neither of good , faith nor any equitable consideration whatsoever. They are equally unsupported by the law under which he claims; and the judge of the ■district court has done justice between the parties on the issues made and submitted to him.

The judgment appealed from is therefore affirmed with costs.


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    No. 6039.
    City of New Orleans vs. The Mechanics’ and Traders’ Insurance Company.
    Tlio notes, bills, etc., representing the money loaned al Interest by a corporation, constitutes a part oí its property, and are liable to taxation.
    APPEAL from the Superior District Court, parish of Orleans. Haioláns, J.

      Sami. P. Blanc for plaintiff and appellee.

      II. N. & O. N. Ogden for defendants.
   The opinion of the court was delivered by

Spencer, J.

This is a suit to recover of the defendant $1846 25, taxes of 1875, on an assessment of “personal property,” to wit; “merchandise, capital, and money at interest.”

The defense relied upon in this court is, that credits,” “ money at interest,” are not property within the meaning and intent of article 118 of the Constitution, and that the Legislature has no authority to impose, therefore, a tax upon them.

The argument is, that to tax credits, promises to pay, notes, bills, etc., is double taxation. Thus, if A loans B one thousand dollars, and takes his note therefor, you tax the money once in B’s hands, and the same money again in A’s under the name of credits. It is argued that this process ultimates in the borrower paying a double tax; for it is said that the lender will increase his interest to the extent of the tax, and thereby throw upon the borrower eventually both taxes. If this be so, it might afford the borrower a strong argument for resisting his taxes, but we are at a loss to see why the lender should complain, since the theory is that he ultimately pays no tax at all — imposing his taxes on the debtor’s shoulders. At all events, it is not pretended that the creditor pays two taxes. At most, he pays but once, and we do not see what mission he has to protect anybody but himself from wrongful taxation. Credits represent value; so much so that it is admitted that to the extent that a man is in debt, to the same extent his creditors may be said to have an eventual title to his property. Now the proposition is that this creditor class, who may in. reality own thus, indirectly, the whole-property of a State, shall pay nothing for the support of the government. It seems to us that this result is exceedingly inequitable, and that if anybody is to be exemj t id from taxation on the amount of these credits it should be the man who owes them, and whose property and possessions are diminished in value by the amount thereof.

The argument by which it is attempted to be shown that notes, bills, bonds, stocks, etc. are not property is too sublimated and metaphysical to be practical in matters of legislation. If theyarenot property, they represent value and produce revenue. But to say that our constitution forbids them to be considered as property, would be to expunge from our Codes provisions and principles that are as old as the civil law. See C. C. 474, 481, 483, 484, 491, 2642, 3155, and many others ; C. P. 642, 676. They are classed as “things;” maybe bought, sold, appraised, seized,- and make up and constitute the wealthiest patrimonies in the world. Is it not rational, in seeking the meaning of the ■word “property” in the constitution of 1868, that we ascertain what has always boen its acceptation in our law, in our jurisprudence, and by common usage? And when we ascertain that, from time immemorial, “ incorporeal things ” of the kind in question have been held and treated as embraced in the term “property,” shall we turn our back on all this and run away after the metaphysical abstraction that " property is always and of necessity a physical actuality ?”

It is our duty to interpret words in a statute “ in their ordinary and usual signification,” as they are “ popularly used.” C. C. 14.

We are referred to no authority for the proposition that notes, bonds, stocks, etc. are not property, except that of the Supreme Court of California in “ The People vs. Hibernia Savings Society,” lately delivered, and that of a writer in the Atlantic Monthly for September, 1877. These productions are certainly able and ingenious discussions of the abstract nature of property. But it is a full answer for us to say that we are here to interpret the laws of this State as the framers thereof intended and understood them ; and we are tempted to say of this California decision what Mr. Walker in his work on “Taxation,” p. 59, says of it: “ We venture to affirm that the idea that these evidences of debt are not property in the legal acceptation of that term never before entered the brain of a lawyer.”

But it seems to us that if it were conceded that these credits are not property, it would not follow that the Legislature could not tax them. The theory of our government is that a State Legislature may do any thing which is not prohibited in the State or Federal constitutions. Now strip these “credits” o£ their title as “property,” and you thereby make them' nondescripts, and there is no prohibition in the constitution ■against taxing them “ as credits ” ad libitum, for it is only “ property,” “ incomes,” and “ trades ” the taxation of which is restricted by the ■constitution. We think it better and safer for capitalists that we adhere to the old landmarks, and treat them as “ property holders,” in duty 'bound to contribute, like other people, in proportion to their means and the protection accorded them, to the expenses of the government.

The judgment appealed from condemned the defendant to pay the ■amount claimed, with interest and costs, and it is affirmed.


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    No. 6862.
    John A. Morris vs. Neuville Bienvenu et al.
    ■One of the defendants in a suit in which a formal judgment has beon rendered can not disturb that judgment either by an action of nullity, or by appeal, without' making all parties to the proeeodipg who were parties to the original suit.
    An action of nullity can not be maintained pending a suspensive appeal involving the same issues.
    One who is a citizen of another State, although he have a dwelling here, and reside in it, for some months during each year, is nevertheless an “ absentee” and hence, if ho have no known representative here, may be legally represented in a suit brought against him by a curator ad hoc.

    When an absentee is brought into court not by attachment, but by service of citation on a curator ad hoc,'it is not necessary to post the citation on the door of the court-room.
    'It is only where a judgment for money has been enjoined that damages can be awarded on the dissolution of the injunction.
    j^PPEAL from the Sixth District Court, parish of Orleans. Bighior,

      B. B. Forman for plaintiff and appellant.

      Chas. F. Claiborne for defendant and appellee.
   The opinion of the court was delivered by

Marr, J.

This suit was brought to injoin, and to have declared null, the judgment in the suit of Bienvenu v. Factors’ and Traders’ Insurance Company, and others, Morris, appellant, which we have just disposed of on the motion to dismiss.

The petition charges that Morris is the ownei’, and has been in possession for some three years, of the property claimed by Bienvenu in the suit against the Factors’ and Traders’ Insurance Company, and others : that he is a citizen of the State of New York : that while preserving his citizenship in that State, where he has a summer residence, Jhe has for six or more years past had a dwelling-house, and been a housekeeper in the city of New Orleans, where he spends the winter; and that he is not an absentee within the meaning of the Codes, which authorize the fictitious citation through a curator ad hoc.

The petition goes on to state the bringing of the suit by Bienvenu, and his prayer that Morris be cited through a curator ad hoc, and judgment rendered against him for the ownership of the property; and it charges that, “ your petitioner was not an absentee, but had a residence in New Orleans, and could not be brought into court by a curator ad hoc; that, in fact, no curator- ad hoc was ever appointed; and that no citation was ever served by posting on the door of the room where the court is held, as required by law.”

The defendant, Bienvenu, excepted on several grounds, one of which was that a suit to annul a judgment can not be maintained without making all those who were parties to the original suit parties to the suit in nullity; and another was that the action of nullity will not lie pending an appeal involving the alleged causes of nullity.

The judgment of the district court maintained the exceptions, and dismissed the suit, with $250, in damages against plaintiff and his surety on the injunction bond in solido; and they appealed.

The original suit was an action of partition; and Morris was made a party because he claimed to be the owner of the property which Bienvenu claimed. The judgment decreed that the property belonged equally, in indiviso, to Marchand, the Factors’ and Traders’ Insurance -Company, and Bienvenu; and it referred them to a notary to make the partition in kind. We do not think that Morris, a defendant in that suit, could disturb that judgment without making all the parties to it parties to the proceeding, whether by appeal, or by action of nullity.

We do not think an action of nullity can be maintained pending an appeal involving the same issues. Possibly there might be such a showing mad e, prima facie, of the absolute nullity of the judgment as would authorize the court in which it was rendered to suspend the execution by injunction pending an appeal not suspensive; but it would be the right of the appellee, thus injoined, to have the reality and the sufficiency in law of the alleged causes of injunction determined summarily on exception or motion to dissolve.

Counsel for appellee argues that there is no proof in the record that the value in dispute exceeds $500 ; and, therefore, it is not shown that the case falls within the jurisdiction of this court. The description of the property, and the admission on the trial in the district court, ■that it is leased for $30 a month, suffice to establish a value exceeding $500.

The distinct grounds of nullity set up in the petition may be thus -condensed and stated:

1. That plaintiff in injunction was not absent in the sense that the court was authorized to appoint a curator acl hoc to represent him.

2. That no curator ad hoc was appointed.

3. That no citation was served by posting on the door of the cour-troom.

First. The R. C. C., article 56, requires the judge before whom a suit is pending against an absentee who has no known agent in the State, etc., to appoint a curator ad hoc to defend him in the suit'; and' the R. C. P., article 116, requires the plaintiff who intends to institute a suit against a person who is absent and not represented in the State, to demand that a curator ad hoc be named to defend the suit. If, therefore, Morris was an “.absentee,” within the meaning of the Civil Code, or was “ absent,” in the sense of article 116 of the Code of Practice, he was in that condition which authorizes and requires the appointment of a curator ad hoc.

According to the Civil Code, article 3556, number 3 : “An absentee is a person who has resided in the State, and has departed, without leaving any one to represent him.

“ It means, also, the person who never was domiciliated in the State, and resides abroad.”

By the Constitution of the United States, fourteenth amendment, all persons born or naturalized in the United States are citizens of the United States, and of the State wherein they reside ; and by the Constitution of Louisiana, article 2, all persons born or naturalized in the United States, “and residents of this State for one year, are citizens of this State.”

No one can claim the privileges of a citizen of two States at the same time. He may have dwelling-houses in two States, and he may occupy and keep house in them at different times ; but he is a citizen of the State in which he resides; and he resides in the State of which he is a citizen, although he may absent himself temporarily. The allegations of the petition fix the legal residence of Morris in the State of New York; and the fact that he has had a dwelling-house, and been a housekeeper in New Orleans for six or more years past, where he spends the winter, is of no greater significance than if he had occupied,apartments in a hotel or boarding-house during the winter.

In the sense of the Civil Code Morris was an absentee. He was a mere sojourner in New Orleans during the winter, and he was absent from the State whenever he was not actually present in it. It is not pretended that he was present in, nor was he residing in the State when the suit was brought; and in the motion for an appeal, by the curator ad hoc, in February, 1876, he is described as “ a resident of New York.” We entertain no doubt that his status was such as to authorize and require the appointment of a curator ad hoc, to defend the suit brought against him. ->

Second. In Bienvenu v. Factors’ and Traders’ Insurance Company, and others, we have sufficiently considered this ground; and we refer to the opinion just read in that case, in which we decided that Morris was legally represented by B. R. Forman, Esq., appointed by the court curator ad hoc, within the terms and meaning of the Codes. -

Third. We attach no importance to the fact that citation was not posted. Where the property of an absent defendant is attached, the attachment and citation must be served “ by affixing copies of the same on the door of the room where the court in which the suit is pending is held.” R. C. P. article 254 By express law this formality is required in suits by attachment; but it is of so little real value, as notice to the absent defendant, that it can not be extended by implication to cases in which it is not specially required. Cox v. Bradley, 15 A. 529, and Ticknor v. Calhoun, 28 A. 258, relied on by appellant’s counsel, were suits by attachment. In other cases, where an “ advocate,” or “ attorney,” or “ curator ad hoc ” is appointed, service is made by delivering to him in person, or by leaving at his domicile, a copy of the petition and citation. R. C. P. articles 195, 294, 737.

The district court erred in allowing damages against plaintiff and his surety in the injunction bond. It is only where a money judgment is injoined that damages can be awarded on the dissolution, under the acts of 1831, 1832, re-enacted in 1855, p. 325; Rev. Stats. 1870, l 1754, 1755. In other eases, where damages can not be claimed in reconvention, under C. P. article 375, as amended by the act number 53, of 1839, sec. 7, the remedy is by suit on the bond. Robinson v. Freret, 9 A. 303.

It is therefore ordered, adjudged, and decreed that so much of the' judgment appealed from as condemns appellants to pay two hundred and fifty dollars, damages and costs, be avoided and reversed ; that the right of appellee to proceed on the injunction bond against appellants for damages be reserved; and that the said judgment be, in. all other respects, affirmed ; the costs of this appeal to be paid by appellee, and the costs of the district court by appellant, John A. Morris.


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    No. 6587.
    The State vs. Lee Johnson et al.
    The State must affirmatively show that the confession made by an accused was voluntary. A confession made by a prisoner under any promise of advantage to him. in consequence of it, must be rejected.
    ^PPEAL from the Superior Criminal Court, parish of Orleans. Shaw,

      H. N. Ogden, Attorney General, for the State.

      Gabriel Santini and P. W. Kramer for defendants.
   The opinion of the court was delivered by

Spencer, J.

The only question presented by the defendants on this their appeal from a conviction.of breaking and entering, etc., and grand larceny, is as to the admissibility of evidence of the confession made by one of them to an officer in charge.

The bill of exceptions, as prepared by defendant’s counsel, recites that in answer to the question whether he had made any promises to the prisoner, by stating to him that he would be permitted to turn State’s evidence, the officer replied, “ I did.” The district attorney adds that his recollection of the answer was that “ he may have said to him that he might be used as a State loitness.” The judge adds that his attention was not drawn to the officer’s answer particularly at the time, and his recollection is not distinct, but thinks the district attorney’s version is .correct.

In our opinion either version suffices to show that the confession •ought not to have been allowed to go to the jury.

The prosecution must show affirmatively that the confession was voluntary and not made under improper influences. State vs. Nelson, 3 An. 499. The words used by the officer clearly indicate a promise of .advantage to the prisoner in consequence of his confession. Archbold, 7th ed. p. 413; Wharton, p. 686; Boyd vs. State, 2 Humph. 390. The evidence should have been excluded on the showing made.

It is therefore ordered, adjudged, and decreed that the verdict and sentence appealed from be set aside and reversed, and that this cause be remanded as to all the defendants for a new trial according to law.


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    No. 7028.
    John McCaffrey, Administrator, vs. Charles Cavanac, Administrator.
    Under the present charter of the city of New Orleans the Common Council may lawfully assign to the Administrator of Commerce the superintendence, and management of the bridges across the navigable canals of said city.
    A PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Singleton & Browne and W. B. Lancaster for plaintiff and appellant.

      Franlc C. Zacharie and Samuel P. Blanc for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

This is a controversy between the plaintiff as administrator of improvements and the defendant as administrator of commerce, under the city government, as to which of said officers has the superintendence and management of the bridges across the navigable ■canals of the city of New Orleans. The city charter, section nine, provides :

•‘In the administration of the government and affairs of the city there shall be, in addition and subordinate to the executive powers of the mayor, seven separate departments, the heads of which shall be known as the administrators of said departments, and shall have the administration and control of the same, subject to the limitations imposed by this act, or other laws, or the ordinances and resolutions of the council, to wit:

First. A finance department, etc.

Second. A department of commerce, which shall have general ■superintendence of all matters relating to markets, railroads, canals, weights and measures, the fire department, and manufactories, and ■shall be vested with and perform such other functions and duties as may from time to time be prescribed by the council.

Fourth. The department of improvements, which shall have general superintendence of all matters relating to the streets, sidewalks, pavements, and wharves, and to the construction, cleansing, and repair of the same, the construction and repair of bridges, and the drainage of the city, and shall be vested with and perform such other functions and duties as may be prescribed by the council.” Acts of 1870, number seven, page 33-34.

■On July 18,1877, the city council adopted an ordinance reciting that:

Whereas, under article two, of section nine of the charter, the administrator of commerce had general superintendence of all matters relating to canals, etc., resolved, that the administrator of improvements turn over and transfer to the administrator of commerce all canals and bridges over the New and Carondelet canals.”

John McCaffrey brought the present suit to prevent and enjoin the execution of the above ordinance, alleging that the control, management, and superintendence of the bridges of this city, including the selection of employees to watch and tend the same, belonged to his department under the provisions of the charter above recited.

Cavanae, the defendant, answered by a general denial;'averring the validity of the above ordinance, and that by virtue thereof, and by the terms of the charter, the superintendence of the bridges over navigable canals belonged to his department.

There was judgment for defendant, and dissolving the injunction. Plaintiff appeals.

Our opinion is that the charter is paramount to any ordinance of the city council. That where the charter is silent, or not prohibitory, the ordinances and resolutions of the council ” must govern.

The language of the fourth clause of section nine of the charter give® the administrator of improvements, and seems to confine his powers to “the construction and repair of bridges;” which does not, by its terms or by necessary implication, embrace the superintendence, management, or control of such bridges, after construction or repair. This proposition gains strength when applied to bridges over navigable canals, since article second of section nine gives the administrator of commerce “superintendence of all matters relating to * * * canals, etc.”

We think there is nothing in the charter in conflict with this ordinance, and, therefore, that the matter is within the control and disposal of the council.

The judgment appealed from is affirmed with costs.


author: Spbnoeb, J.

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    No. 6956.
    The State vs. Washington Tazwell et al.
    When the record in a criminal case shows that the grand jury came into court and presented an indictment in due form, it will bo presumed, in the absence of specific objection and affirmative proof to the contrary, that the grand jury was properly organized.
    The question whether a person tendered as a member of a petit jury sufficiently understands the English language to try the issues of a criminal case, is a question of fact confided exclusively to the decision of the lower court.
    Being under the charge of larceny disqualifies a person from serving as a petit juror.
    Because a confession of the accused to a prosecuting witness was made in response to a question put by the witness, the confession is not thereby rendered involuntary.
    Where the indictment charges that an offense was committed at a certain hour of a certain night, it is sufficient to prove that it was committed at any hour during .the alleged night.
    It is not necessary, in order to convict ono as accessory before the fact to the crime of burglary, to prove that the instrument ho furnished his confederate to commit the offense with was actually used by the latter.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      II. N. Ogden, Attorney General, for the State.

      John H. Dinkgrave for defendant.
   The opinion of the court was delivered by

Spbnoeb, J.

Washington Tazwell and Wilson Healey, as principals, and Zeke Hall, as accessory before the fact, were indicted and conVicted of the burglary of a barn with intent to steal. Errors are assigned upon the face of the record, and a number of bills of exception were taken.

The assignment of errors is to the effect that the record does not ■•show that a grand jury was ever empanelled for the November term, 1877; nor that the person signing the finding on the indictment as foreman was ever selected as such, or had authority so to sign. The record does show that on the thirtieth November, 1877, the grand jury came into court, and, all being present and answering to their names, presented, through their foreman, the indictment in this case; which indictment is endorsed: “A true bill. J. S. Murphy, foreman of the grand jury.” The record does not show the names of the grand jurors, nor does it contain the entry on the minutes appointing the foreman; but •commences with the “opening of court” on the day the indictment was presented. We do not consider it sacramental that these preliminary proceedings for the organization of the grand jury should be ■copied into the record. It is enough if it appears that the grand jury •came into court and presented an indictment in due form. We will, then, in the absence of specific objection and affirmative proof to the contrary, presume that it was properly organized. The cases cited by defendants have reference to the petit j ury organized to try the case. That jury is specially organized with reference to the particular case to be tried, and it might well be that its organization, etc., should appear by the record, but the same reason does not exist as to the grand jury’s organization.

The first bill of exception is to taking the case up out of its order, •and in violation of rule third of the court. That rule was as follows:

“There will be two calls of the docket. The first for the trial of ■cases by consent, and for fixing causes for a particular day. On the second call, all causes are set for trial in their order on the docket, except preference and jury cases, and such causes as may be assigned for- a particular day, and each case when reached must be tried or otherwise disposed of.”

This case was a “jury case,” and by the very terms of the rule not embraced within the class “set for trial in their order on the docket.”

The second bill of exceptions is taken to the ruling of the court on certain challenges for cause by the State of certain colored jurors. “ The cause was that they did not sufficiently understand the English language; ” they, having been asked, “ Do you know what a verdict means?” answered, “No.” The act of 1877, number declares the qualifications of jurors, and gives the judge, properly, much discretion in the matter of its organization, and we would be loth to interfere with it, unless it was manifestly exercised in an arbitrary manner. The question whether or not a juror sufficiently understands the English language is one of fact and not of law. We see no reason to doubt the power of the Legislature to fix the qualifications of jurors upon the basis of intelligence or education, and. if it do not discriminate on account of race or color, etc., it does not violate the Constitution of the State or of the United States. The law certainly does not require that jurors must be scholars, or even that they have any education; but it does require that they comprehend ordinary' discourse in the English language, and wisely gives the judge power to determine this important fact, and we have no authority to review his decision thereon. No greater farce could be enacted than to try a man for his life or liberty by a jury who did not understand the meaning of the ordinary words of our language. The judge had the jurors before him, and had better opportunity of knowing this matter than we have, and even if we had the power to review we have no reason to believe that he abused the discretion the law vested in him.

Another juror was set aside because he was under a charge of larceny. A bill of exceptions was reserved, but we presume is abandoned, as it is not \irged. At all events, the exception was not well taken.

The next bill is taken to the courts allowing the party whose barn had been entered to state that “ he had -lost corn prior to the date alleged in the indictment.” It does not appear that the witness in any way connected or attempted to connect the accused with these previous takings. We do not see, therefore, that-this statement was open to the objection that it was proving another and different offense from that charged. The next bill is to the same party being allowed, on re-direct examination by the State, to testify to a voluntary confession by one of the accused. The bill recites that it was objected to, first, because no question touching said declaration had been asked on the direct or cross-examination; and, second, because the declaration did not appear to have been voluntary, since it was made in response to witness’s question whether “ he (the accused) did not want to tell all he knew about stealing his (witness’s) corn?” We can see nothing in this question calculated to render the declaration involuntary. As to the first objection the court says in its addenda to the bill that the objection made was “ as to the voluntary character of the statement.” Of course, we can only know the facts from the statements and certificate of the judge in the bill, and can not take the statements of counsel, except so far as. they are agreed to by the judge.

The next bill of exceptions is taken to the refusal of the judge to-charge, first, “ That as the time at which this offense is said^to have occurred is stated by dates (hours, days, months, and year), no evidence of a piior offense should be noticed by the jury.”

' Second. “That if there be no evidence to show that an instrument furnished by one accused as accessory before the fact was used for the purpose for which it was made, but another and different one is used to commit the offense, that it has not been sufficiently proved to justify a verdict of guilty as accessory before. the fact. That the instrument said in the indictment to have been furnished for the purpose of committing an offense must be proved to have been used for that purpose.”

We think the court properly refused to give the first charge, for the reason that it was calculated to mislead the jury into the belief that the State must prove the very hour of the night charged in the indictment. Thus, under that charge, if the evidence had shown the offense to have been committed at eight o’clock p. m., instead of between “nine p. m. and five a. m.” of the next day, as charged, it would have led the jury to believe it their duty to acquit. It was certainly sufficient to have proved the commission of the offense at any time during the night laid in the indictment, and such proof would not have been “ of a prior offense,” within legal intendment.

The second charge requested is manifestly wrong. It would be strange, indeed, if one who had so far counseled,'aided, and abetted a burglary as to provide and furnish implements to effect it, could escape because when the burglar reached the place of his crime he found more convenient tools, and did not actually use those furnished him for the purpose by his confederate.

We see no error in the judgment and sentence, and they are affirmed.


author: Manning, C. J.

text:
    No. 6871.
    Succession of Frances Parke Butler.
    Testaments made in other States can not be carried into effect on property in this State, until registered in the court within whose jurisdiction the property is situated, and their execution ordered by the judge.
    A foreign will, when duly authenticated, and admitted to probate at the testator’s domicil, is entitled to be admitted to registry and execution in this State.
    The executor of a foreign will is not permitted to exercise his office in Louisiana by virtue of his foreign appointment, but must first obtain the authority of the ■ court here.
    ^PPEAL from the Parish Court of Iberville parish. Crowell, J.

      Favrot & Matthews for Elliott Henderson, appellant.

      George Wailes for administrator and appellee.

      Barrow '& Pope for intervenors and appellees. .
   The opinion of the court was delivered by

Manning, C. J.

Mrs. Butler died in July 1875 in Mississippi, where she was then, and for some time before had been, domiciled. Her olographic testament was duly probated in March ensuing, by and before the proper court, upon the petition of Charles M. Conrad, the executor named therein, who however declined to qualify. At his request Elliott Henderson, a resident of Mississippi, applied for and obtained letters of administration cum testamento anneooo from the local Chancery court, and qualified by giving the prescribed bond, and taking the official oath.

In July 1876, the suit now before us was commenced by an application of E. Or. W. Butler, the surviving husband of the deceased, and A. H. Gay, to the parish court of Iberville, praying that the latter be appointed administrator of Mrs. Butler’s succession. He is not an heir, and his application is not made as an alleged creditor. The motive of the husband in the selection would appear to be personal confidence. Legal notice of the application was given, and after expiration of the time for delay, no opposition having been made, Mr. Gay was appointed administrator and qualified, September 4,1876. No mention is made in these proceedings tnus far of the will of the deceased.

In April 1877, Elliott Henderson presented his petition to the Court of Iberville, setting forth that Mrs. Butler had left a will, which had been duly probated before the court of her last domicil, and of which he was the duly appointed and qualified administrator with the will annexed, in the stead oE the executor named in the will — that the deceased owned property in Iberville parish which must be administered, and that Gay had been appointed administrator of her succession without any knowledge being imparted to,the Court of the existence of a will — -and praying that this appointment be annulled and revoked, and that he (Henderson) be appointed dative testamentary executor of- the will, a copy of which, with all the proceedings of the Chancery court probating the same, was filed in the Iberville court.

Gay answered, that the will had not been probated, nor its execution ordered by any court of this State, and that it had no legal existence— that it was void for ambiguity and for provisions reprobated by law— and if not void, that he was the proper person to execute it.

Lawrence L. Butler, a son of the deceased, intervened and attacked the will as absolutely null.

Henderson then presented his petition in form to the Court praying the registry of the will, and an order for its due execution, which was made.

Finally, in August 1877, the husband of the deceased intervened, and prayed his appointment as dative testamentary executor, in the event that Gay’s appointment as administrator should be set aside.

The trial was had on these pleadings-, and resulted in the following judgment;

It is ordered by the Court that the will of Frances Parke Lewis be probated and recorded, and that the intervention of the forced heirs and Col. E. G. W. Butler be allowed, and that the administratorship of said succession be decided on the petitions of claimants before the Probate Court, and he who is most entitled by law shall receive the said administratorship, and that said administrator so recognized shall settle the said succession in accordance with the laws of the State of Louisiana.

The counsel of Gay and the Butlers, defendant and intervenors, insist that no appeal lies from this judgment, because it decides nothing except that no notice of Henderson’s application had been given, and they move its dismissal. We see nothing in the record, and there is certainly nothing in the judgment, from which it may be inferred that want of notice was the point decided. On the other hand, the counsel of Henderson, the plaintiff, construe the judgment as annulling the will for the causes set forth in the interventions, and deferring the adjudication of the conflicting claims for the administration to an indefinite and future time.

It is not possible that this can be a correct interpretation of the judgment, since the will is ordered to be probated and recorded in express terms. The expression, that the interventions be ‘allowed,’ can not mean any thing more than that they are permitted to be filed, or their, previous filing is approved, and the intervenors are ‘allowed’ to litigate in that form of pleading.

If this be a correct construction of the language of the judgment, the plaintiff has appealed from a decree in his favor, and the defendant and intervenors have moved the dismissal of the appeal, which if granted, would lose them their ease. And yet the judgment, to our apprehension, can mean nothing else, if it be conceded that- it means any thing.

We are not disposed to conclude the rights of parties in so grave, and to them interesting, a contestation because of a mistaken construction of the phraseology of a judgment, which is so vague and ambiguous as to admit a double doubt; — first, the customary and natural doubt of the defeated party whether the judgment is right; and second, the unusual and unnatural doubt of the successful party of the soundness of the judgment, ripening into such disbelief as to prompt an appeal for its reversal.

We shall therefore remand the case, and in doing so, it will be.useful to all the• parties to recall to their recollection certain established legal principles which are preliminarily connected with the main questions the lower court will have to solve.

Testaments made in other States, as this was, can not be carried into effect on property in this State, without being registered in the Court within the jurisdiction of which the property is situated, and the execution thereof ordered by the judge. When the form has been observed of registering the testament, the fact of its having been duly probated at the domicil of the decedent being first established, as was done in this case, the order for its execution is granted as a matter of' course. Civil Code, arts. 1681 — 2, new nos. 1688 — 9. The foreign will, when duly authenticated and admitted to probate at the testator’s domicil, is entitled to be admitted to registry and execution here, even if the appointment of a dative testamentary executor is not asked. Bermudez’ case, 13 La. 221. The object of the law is to give to foreign wills the same effect in this State, which they would have in the country in which they are executed, so far as concerns the form and effect of the probate. A court of probate can not therefore refuse to order the execution of a will made out of this State, if it be shewn to have been duly proved before the proper court having jurisdiction of that matter attire foreign domicil. Robert’s Sue. 2 Rob. 427.

But the order of the Court for the registering of the will, and even for its execution, does not preclude interested parties from attacking its validity either in whole or in part. The intervenors can as well claim its nullity for the vices alleged by them, as for instance because it is said to contain a prohibited substitution, after the order for its registry and execution has been made, as before.

What person is entitled to appointment to execute the will is left an open question by the lower court, and as we have no authority or power in the premises, except to say whether he has conferred it upon the party legally entitled to it, after his appointment is made, it is only necessary to note here that the executor of a foreign will is not excluded from the appointment because of non-residence, neither is he entitled or permitted to exercise his office here by virtue of his foreign appointment, but must first obtain the authority of the court here. Chiapella v. Couprey, 8 La. 84. Henderson v. Rost, 15 Annual, 405. And if appointed, he must give security like an administrator but whether an administrator with the will annexed, under appointment of a common law court, is entitled to the same privilege as a testamentary executor, may well be doubted.

The terminology in use at the common law, and here, must not induce the impression of a distinction between offices that does not exist. There is no such thing at common law as a court appointing an executor of a will. That office can only be conferred by a testator. If the executor named in the Will dies, or will not act, the Court appoints an administrator as it does in cases of intestacy, only in the former, he is administrator with the will annexed. With us, he who is appointed to execute a will, whether by the testator or by the court, retains the same name in either case.

It is ordered and decreed that the judgment of the lower court is set aside, and the cause is remanded to try and determine two issues;

1. the validity or invalidity of the will, whether in wholo or in part.

2. What person is entitled to the appointment as dative executor thereof.

And it is further ordered that the appellees pay the costs of appeal.


text:
    No. 6053.
    James Sharkey, Tutor, vs. Leslie Bankston.
    A suit instituted in one parish before a cox-tain district judge, may, by consent of all the partios, be legally tx-iod, and decided by the same judge while holding court in another parish of the district.
    A judgment against a party in a suit brought by her, as owner, for the recovery of' certain land, may be pleaded as res adjudicata in a subsequent petitory action for the same land, brought by her heirs.
    So long as a government exex-cises sway over a territory, and has the physical power and means to enforce obedience, the civil acts of Its officers are valid and legally binding. p ■
    When a testamentary executrix has been destituted of her office, a dative testamentary executor may be legally appointed to administer the succession.
    The contents of a judgment may be proved by parol, when the loss of the court records containing the judgment has been accounted for.
    When the money paid fox- the property of a decedent sold by an order of court, has been used to pay his debts, his lxeir can xxot x-eclaim the property without first paying back, or tendering the sum thus used.
    APPEAL from the Sixth Judicial District Court, parish of Tangipahoa. Kemp, J. Trial by jury.

      H. 3. Briján, Jr., G. Iveson Bradley, and J. M. Wright for plaintiff and appellees.

      Jas. 3. Muse and B. F. Bussell for warrantor and appellants.

      McFnenj, Filis & Filis for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiffs seek in this petitory action to recover-certain lands, as heirs of their father and mother. The defendant pleads res adjudicata, basing the plea upon a judgment rendered in a suit, wherein the mother was plaintiff, in the several capacities of executrix of her husband, of widow in community, and of legatee of her husband of the same land, and the defendant in that suit being- the defendant in this, other defences are made, and among them is prescription.

John Sharkey, the father of the plaintiffs, died the owner of the-land, which was sold under order of the court of proper jurisdiction to pay his and his succession’s debts, and was then bought by the defendant at its appraised value. The price was paid cash, and was appropriated to the payment of the debts as directed in the mortuary proceedings. The process of monition was afterwards obtained by the defendant, and the sale was approved and confirmed. He then expended a large sum, $12,000, in improvements upon the land, the purchase price of which was only $2,500, and in this suit called Bach, who was the executor of Sharkey, in warranty. The alleged warrantor pleaded the sale under order of the court, the disbursement of the price among Sharkey’s creditors, and his discharge by the court upon an account duly rendered of his gestión as executor.

The jury found for the plaintiffs against the defendant, awarding the land and improvements to them,-and for the defendant against the warrantor for $2,500. From a judgment in accordance with this verdict, the defendant and the -warrantor appeal.

The judgment pleaded as res adjuclicata was rendered in a suit instituted in the district court of Washington parish. At the December term 1868 of that Court, being unable to try the cause for want of time, all the parties agreed to take it over to St. Helena parish-, where the district judge had to go to hold his court for that parish, and there try it. This was done. The cause was not transferred. It was heard as agreed on, and the judgment was sent, with the record, back to Washington parish, and at a subsequent term of that court, the judgment was ■signed in open court and was entered on the minutes of that court. We discover neither irregularity, nor other objection to this proceeding, -which was mutually agreed to and desired by all the parties. Rust v. Faust, 15 Annual, 477.

Mrs. Sharkey was plaintiff in that suit as widow in community, and the judgment rendered therein concluded her rights to her moiety of ■the land, and as to that moiety, the plaintiffs, who derive title from her, are also concluded. Her additional capacity of legatee of the land under the husband’s will, in which she also sued, would seem to have the same effect as to the other half, in the absence of any suit or allegation by his heirs that the property thus bequeathed exceeded the disposable portion, and in the absence of any proof that the will had ever been attacked, or annulled, quoad that bequest.

But the sale provoked by Bach, executor, is attacked as null for want of representative character in him. He was not dative executor of 'Sharkey’s will, it is said, because Mrs. Sharkey, the testamentary execu•trix, was the proper and legal representative of the succession.

Sharkey died in March 1862, or his will was then probated; and his widow qualified under it as executrix. A few weeks thereafter, the city of New Orleans was captured by the naval forces of the United States, ■and the circumjacent territory fell under the military domination of that ■Government. The parish of Washington remained under the control of the Confederate States. Its courts, officers, etc. continued to perform their functions as before. That the official acts of civil officers, performed within and. upon a territorial area, possessed, held, and controlled by a government, as this was by the Confederate States, are valid and legally binding, is an unquestioned principle in the law- of nations, and has never been denied by publicists. So long as a government exercises sway over a territory, and has the physical power and means to enforce obedience, the civil acts of its officers are validated from considerations of public policy and international interest, and the highest court of the United States has enforced this rule against itself. U. S. v. Rice, 4 Wheat. 246. Lay v. O’Neil, 29 Annual, 722.

Mrs. Sharkey abandoned her home in Washington parish, and went to New Orleans, and there remained, and became subject to the laws, and to the military control, of the Power then supreme there. Her oath of allegiance to that Power was taken. In June 1868 an act was passed by the legislature declaring all offices vacant, whose incumbents had taken that oath after January 1861. Acts 1863, p. 11. Mrs. Sharkey’s office of executrix was alleged thus to be vacated, but was not filled until 1866, when Bach was appointed dative executor of the will of her husband. Manifestly, she could not then longer perform its functions. Legally she was an enemy to the government that alone discharged the duties of a government at and over the place where the succession was administered. Yattel, 399. Woolsey, Intern. Law, $ 117.

It is said however that her office was never judicially declared vacant, and if it were, there is no proper proof of it. The plaintiff himself, moved by what ho then deemed a patriotic zeal, actually instituted suit to destitute Mrs. Sharkey of her office in October 1864, on the grounds that her sworn allegiance to another and a hostile government prevented her from performing any legal functions, and Mrs. Sharkey was present there during 'that proceeding, and knew of its pendency. A judgment was entered as the plaintiff prayed — he who was plaintiff then being plaintiff now. In May 1866, Mrs. Sharkey, by petition to the circuit court of the United States in New Orleans, alleged that on Oct. 24,1864 James Sharkey obtained a judgment against her, removing her as testamentary executrix, and that latterly Bach had been appointed, and praying to be reinstated. She did not obtain the desired judgment, and never afterwards attacked Bach’s title.

The defendant could not produce the copy of the original judgment of destitution, because it could not be found, but he proved that in December 1864, a body of cavalry made a raid in that locality, and destroyed or mutilated the records of the courts, and tore and scattered the papers taken out of the different offices for miles on their retreat. The loss or absence of the paper was thus accounted for.

If all other defences fail, the defendant holds the impregnable position which our law, and the general principles of equity, alike sustain, viz that where money paid for the property of a decedent has been used to pay his debts, his heir can not reclaim the property without first pay-, ing back, or tendering, the sum thus beneficially used to extinguish the ancestor’s obligation. This principle is not new to our jurisprudence. •Our earliest sages consecrated it, and we have already availed ourselves of a fitting opportunity to re-affirm and proclaim it anew. Daquin v. Coiron, 6 New Series, 675. Andrews v. Ackerson, 8 New Series, 205. Elliott v. Labarre, 3 La. 541. Foutelet v. Murrell, 9 La. 299. Brown v. Buony, ante, 175. Beauregard v. Leveau, ante, 302.

The verdict of the jury ignored this sound principle of ethics and of law, and the judgment upon that verdict is erroneous. Therefore

It is ordered, and decreed that the verdict of the jury is set aside, the judgment of the lower court is avoided and reversed, and that the appellants do now have judgment against the plaintiffs upon their demand, and for the costs of the lower court and of appeal.

Mr. Justice Marr took no part in the decision of this cause.