author: Egan, J.

text:
    No. 805.
    John Chaffe & Bro. vs. Joseph Morgan. J. P. Shultz, Intervenor.
    A party who ia one suit set up aktitle ©f ownership to certain property, is not estopped from afterward claiming mortgage rights on the property, as against one who in the former suit denied, and contested his title as owner, and who was in no way injured, or induced to change his position by the claim of ownership set up in the former suit.
    The setting aside, for any cause, of the sale of an immovable made by a debtor to his creditor who had a mortgage on the immovable, will not impair any legal rights on the property which the creditor had in virtue of his mortgage.
    The reasons given by the court for its judgment in a particular ease form no part of the judgment, and hence can not be invoked as res adjudicata in a subsequent suit between the same parties.
    Inscriptions of mortgage can only be erased by the consent of the parties to the mortgage, or by the effect of a decree to which the mortgagee is a party.
    APPEAL from the Eighteenth Judicial District Court, parish of Webster. Turner, J.

      George & Taylor for plaintiffs and appellants.

      L. B. Watkins for intervenor and appellee.
   The opinion of the court was delivered by

Egan, J.

On the third of November, 1869, the defendant, Morgan, obtained from plaintiffs, commission merchants in New Orleans, five thousand five hundred dollars, and executed his promissory note in their favor for the amount, due one year after date, with eight per cent interest from date. On the twentieth of May, 1870, he executed in plaintiffs’ favor a mortgage by public act upon certain lands in Bienville parish to secure the debt. This mortgage was duly recorded on the sixth of June, 1870. The debt being still unpaid on the twelfth and thirteenth of June, 1872, Morgan conveyed to the plaintiffs the mortgaged property by two separate acts and took from them a receipt for fifty-five hundred dollars on account of the mortgage debt. On the twentieth of August, 1872, seven or eight days after these conveyances, Shultz, the present intervenor, sued the defendant.and attached the lands embraced in the conveyances to plaintiffs, alleging that the defendant was about to dispose of a large part of his property to defraud his creditors and to give an unfair preference to some of them. Chaffe & Brother intervened, claiming the property as oivners by virtue of their said titles and possession under them. Shultz answered the intervention that the titles set up by Chaffe & Brother were not sales for a contemporaneous price, but really clations en paiement, the consideration of which was an old debt to the intervenors, due by Morgan, who was insolvent; that the same were intended to give Chaffe & Brother an unfair preference; and that there was no actual delivery of the property conveyed, wherefore the titles were void and without effect. He also set up knowledge of Morgan’s insolvency in the intervenors. Upon these issues the case was tried. It resulted in a judgment in the court below in favor of Shultz, maintaining his attachment and rejecting the demand of the intervenors. This judgment was affirmed on appeal. Subsequently the lands were sold under the Shultz judgment and bought in by him for largely less than the amount of the Chaffe mortgage, which, however, had meanwhile, on the seventeenth of May, 1876, nearly a year after the judgment of the Supreme Court, been canceled and erased, as shown by the certificate of the parish recorder, at the instance of Shultz’s attorney upon the production to him of' the written receipt given by Chaffe & Brother to Morgan at the time and in consideration of the before-mentioned conveyances, which, as we have seen, had been finally decreed void and without effect. The present suit was thereupon instituted by Chaffe & Brother against Morgan to enforce their debt and mortgage against the land covered by it; and Shultz in turn intervened, claiming ownership of the lands by virtue of his purchase at sheriff’s sale under his own judgment in the former case, which he pleads as res adjudicata as to all the claims set up by Chaffe & Bro. in the present case, and that plaintiffs’ mortgage was decreed in the former case to have been given in fraud and to be null and void. He furthermore pleaded as an estoppel against Chaffe & Brother, the before-mentioned receipt, and the proceedings in said ease, and the deeds or acts of conveyance from Morgan therein set up by them in support of their claim of ownership therein asserted, which though pronounced void as to him, were and are valid as to Chaffe & Brother for the purposes of the estoppel. He furthermore sets up the cancellation of the-mortgage by the recorder on the production to him of the receipt given by Chaffe to Morgan at the time and in consideration of the before-mentioned conveyances. Wherefore he prays that the demands of Chaffe & Brother in the present case be rejected, and that he be quieted1 in his title and possession of the lands in question, and further pleaded five years prescription against plaintiffs’ note. Upon these issues the-case was tried below, the plea of res adjudicata having been by counsel referred to the merits. There was judgment in favor of the intervenor,. quieting him in his title and possession of the land and rejecting the demand of plaintiffs as to their mortgage, but at the same time decreeing in their favor against Morgan personally the recovery of the full amount of their debt and interest as claimed. From this judgment the plaintiffs alone have appealed.

As to the pleas of res adjudicata and estoppel set up by Shultz versus the assertion of Cbaffe’s mortgage in the present suit, a reference to the pleadings and issues made in the former suit of Shultz vs. Morgan, Chaffe & Brother, Intervenors, as already stated in this opinion, will show that the only issue tendered by Chaffe & Brother was their title to the property seized, and that the validity and legal effect as such of the instruments relied upon by them in proof of title was expressly denied by Shultz. Here then was, to say-the least of it,- estoppel against estoppel, which, according to the law writers, leaves the matter at large, i. e., ■the one offsets the other. In Abbott vs. Wilbur, 22 An. 368, it was correctly announced that estoppels are not barred in the law, for the object ■of the administration of justice is to discover and apply the truth, and ■it is only where one has asserted in some judicial or other proceeding what is false, to his own advantage or the injury of another, that he will be estopped from showing the truth. The same principle is recognized by all the elementary writers. See Phillips on Evidence, vol. 1, sec. 378; Greenleaf’s Evidence, vol. 1, sec. 204 and note; Bigelow on Estoppel, p. 293, Nos. 4 and 5.

It is manifest that Shultz was in no way injured or induced to ■change his position for the sum by Chaffe’s assertion of title. It is ■however well settled that estoppels can not be set up against law, and our own Civil Code, art. 1982, expressly provides that even where both •parties to a contract set aside as having been made in fraud of creditors, are adjudged to have been in fraud, and the only consideration was a sum due from the debtor to the party with whom he contracted, the parties shall be placed in the same situation in which they were before the contract complained of was made. A fortiori then must this be true where, as was adjudged at the instance of Shultz himself, the ■elation en paiement through which alone Chaffe claimed title was adjudged incomplete and inoperative for want of actual delivery of the property.

In Judice vs. Kerr, 8 An. 462, a creditor sued to set aside as fraudulent and simulated a sale by the husband to the wife, who joined issue and claimed title. The sale was set aside as fraudulent and void, but the right of the wife to assert her legal mortgage on the property was reserved to her. In Wilson vs. Curtis, 13 An. 601, where the title to property seized by the creditors of the vendor was decreed to be fraudulent and void in a suit to which the vendor was a party, it was held that the judgment was res acljudicata as to the vendor’s claim of title, but not as to Ms other claims upon the property; and that if he have any ■ other right or privilege upon the property he should have an opportunity of showing it. In Millaudon vs. Allard, 2 La. 551, this court held that “ the purchase of land can not have the effect of destroying the mortgage claim of the creditor unless the title passes to him,” as it was expressly adjudged and shown it did not to Chaffe & Brother in this instance, in which the real nature of the transaction has been clearly .shown. See, also, 1 Greenleaf, sec. 211 and 212.

We agree with Mr. Justice Slidell in the case of Gridley vs. Conner, that “it is very true a man can not at the same time be mortgagee and owner of land, but it does not follow that the assertion of one right estops the subsequent assertion of the other,” and that in that case there was “no res judicata and no estoppel.” In Bowman vs. McElroy & Bradford, 14 An. 504, the court refused Bowman’s claim of title, but reserved to him his mortgage rights upon the slaves in controversy.

In point of fact the mortgage executed by Morgan in favor of Chaffe & Brother was not otherwise involved in the former suit than for the purpose of showing Morgan to be liable to attachment by reason thereof, and it is quite evident under the well-settled jurisprudence of this State that had possession followed the execution of the titles to Chaffe & Brother the attachment of the particular land conveyed would have fallen, and the plaintiff, Shultz, would have been put to his direct revocatory action. This necessity exists in all eases where the transaction or contract, whatever its form, is real and complete, however fraudulent and liable to be annulled it may be. So it was with the mortgage of Chaffe & Brother, the reference to which in the opinion of the court in the case of Shultz vs. Morgan, Chaffe & Brother, intervenors, by no means concluded the latter’s mortgage rights, which, as we have seen, were reinstated to the same position they held before bythe effect of the decree declaring the nullity of their title. It is true that the parties might have waived the revocatory action and tried the validity and effect of the mortgage in the same action had they chosen to do so, as they did not. On the one hand, Chaffe & Brother neither asserted nor sought to enfore their mortgage, but relied upon and put in issue their title only in the former case, while on the other, the answer of Shultz to their intervention neither alleged nor prayed for its nullity or avoidance to be decreed, and the court did not so decree. As before remarked, what was said in the opinion of the court in that case in regard to the mortgage forms no part of the decree, and can only be properly interpreted as one of the reasons of the court for sustaining Shultz’s attachment, which might well subsist even with the mortgage in full force. The reasons for judgment may and often do serve to interpret it and to explain any ambiguity, but it has often, and properly, been held that the thing adjudged will be found not in the opinion but in the decree rendered. See 10 An. 261, 640; 12 An. 736. In Davidson vs. Carroll, Hoy & Co., 23 An. 108, the court said : “The reasons given by the court for judgment form no part of the judgment itself, and the judge of the lower court is not bound by the expressions used by the Supreme Court outside of the decree,” to which we will add, for fear of misapprehension, unless it be in some matter of instructions how to proceed on some point expressly ruled by this court, which then must be obeyed as the thing adjudged. The deeds and receipt of Chaffe to Morgan were not only subject to explanation but have been fully explained, and were at the termination of the former suit without consideration or legal effect, not only as between Chaffe & Brother and Morgan, but as to Shultz, the other party to that litigation, also, and should have been so held as to Shultz as they were as to Morgan in the present case by the district judge. That case was decided on appeal finally in July, 1875, and yet, notwithstanding his full knowledge and notice of all the facts, we find Shultz, through his attorney, on the seventeenth of May, 1876, presenting to the recorder the old and effete receipt of Chaffe to Morgan, and, without the knowledge or consent of the-mortgagee, demanding and procuring the cancellation and erasure of the Chaffe mortgage on the lands in question, and then proceeding to effect a sale of them under fieri facias, q,t which he became himself the purchaser, or rather obtained a sheriff’s deed, regardless of the mortgage and of the fact, as we have before said, that the legal effect of the decree in the former case, to which he himself was so prominent a party, was to restore Chaffe & Brother to the same position they occupied, and the same rights, whatever they were, which they had-before the acceptance of title from Morgan. This was a short process to get rid of the Chaffe mortgage, which, whether liable to be attacked for actual or constructive fraud or not could not be thus summarily disposed of.

Inscriptions of mortgage can only be erased by consent of the parties to the mortgage, or by the effect of a decree in a proceeding to which the mortgagee is a party. See 21 An. 401 and cases cited; R. O. C. art. 3371 et seq. The manner in which this erasure is authorized and procurable is pointed out in the same provisions of the Code in section two, under the head of mortgages, and especially articles 3374 and 3375. Another and very different statute and rule prevails where a'third person and not the mortgagor seeks ex parte the cancellation or erasure, as for instance- in ease of the prescription of the mortgage. See R. S. 1870. sec. —. This ex parte cancellation, without the knowledge or consent of Chaffe, was clearly in violation of law and of their rights, and without legal effect, and can not be recognized by this court. It follows of necessity that as the price bid by Shultz at the sheriff’s sale was greatly below the amount of the special mortgage on the land he acquired no title. See C. P. 68-4; 1 H. D. 62 and 81, and eases cited.

There only remains the intervenor’s plea of prescription to the mortgage note and debt, of which it is only necessary to say that the receipt of Chaffe to Morgan, offered by intervenor himself, and the acts of conveyance for account of the debt, besides the parol testimony of Morgan’s acknowledgment of its continued existence, are conclusive against the plea.

The points raised in the two bills of exception of plaintiffs’ counsel have already been sufficiently considered and disposed of in this opinion, and need not be further discussed.

It is therefore ordered, adjudged, and decreed that the judgment of the court below be and it is avoided and reversed, except in so far as it decrees a recovery personally against the defendant, Morgan, in which respect alone it is affirmed; and it is now decreed that the attempted cancellation of the mortgage of Morgan to John' Chaffe & Brother on the seventeenth of May, 1876, be and it is declared null and void and of no effect in law; that said mortgage be declared to be still in existence and operation against the lands covered by it; that the pretended sheriff’s sales under fieri facias, issued in the case of J. P. Shultz vs. Joseph Morgan, John Chaffe & Brother, intervenors, No. 28 of the district court of Webster parish, of the lands embraced in said mortgage, be and they are, as well as all deeds and titles under them, declared illegal, null, and void. It is further ordered and adjudged that the right of Shultz and his succession .and heirs, if any such they have, to sue for and procure the annullment of the said mortgage in favor of John Chaffe & Brother for any legal cause affecting the same in the manner and subject to the rules applicable to such actions, be and it is reserved. It is further ordered and adjudged that this case be and it is remanded to the court below, to be there proceeded with according to law and the principles of this opinion, and that the succession of J. P, Shultz pay the costs of this appeal.

Rehearing refused.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 798.
    J. A. & E. A. Morris vs. J. W. Womble, Sheriff.
    Although it is proper that proceedings for a mandamus should be taken in the name of the State, yet the absence of that form, will not be fatal, when the facts set forth in the petition disclose a right to the writ, and there was a proper prayer for it.
    Where a debtor has specially mortgaged his whole plantation, as a unit, he can not demand that it shall be sold in parts. The creditor may compel the sheriff to sell it as a whole, and in block.
    ÁPPEAL from the Twelfth Judicial District Court, parish of Franklin, Smith, J.

      Bichardson & Boatner for plaintiffs and appellees.

      A. W. Moore for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs having obtained judgment against R. E. Brannin for several thousand dollars with recognition of a special mort,gage (of date 1874) on the undivided three fourths of the “ Bayou Macon plantation,” with all the buildings and improvements thereon, and containing 3530 acres, more or less, took execution, directing the sheriff to r seize and sell said plantation in block and as an entirety. The sheriff proceeded to advertise said property for sale in lots of not less than ten : nor more than fifty acres, in disregard of plaintiffs’ instructions. Thereupon this rule was taken by plaintiffs on the sheriff to show cause why . a mandamus should not issue to compel him to sell said plantation in block. The sheriff, in answer to the rule, excepts that the proceeding is ■ irregular, in that it is not taken in the name of the State. This objection is fully met by the case of Malain et al. vs. Judge of the Third Judicial District et al., 29 An. 793, where we held in effect that while it was usual and proper that proceedings for mandamus should be taken in the name of ■ the State, yet the absence of that form in the petition would not be fatal ' if the state of facts set out .disclosed a right to the writ, and there was . a proper prayer for it — more especially as if the writ be granted it ■ would issue in the name of the State.

The sheriff further answers that his advertisement of said property for sale in lots as stated was made under instructions from the defendant in execution, who under the constitution and Code of Practice had the right to so direct the sale to be made.

We have frequently held of late (and do not consider the question longer an open one) that article 132 of the constitution was inoperative, except to the extent that its execution is provided for by statute, and that the act No. 32 of 1877 repealed all laws providing the modes of carrying that article into effect.

Hence the mode of selling the “ Bayou Macon plantation ” in this proceeding must be governed by the general provisions of our law, and not by article 132 of the constitution.

Where the fi. fa. issues on an ordinary judgment the debtor un- • doubtedly has the right to point out the property he desires sold, pro- ' vided the property pointed out be available and sufficient. C. P. 646. ’ But when the property is specially mortgaged the mortgage creditor '• “ has the right to direct the seizure of the property mortgaged to him.” C. P. 648. In the one case arid the other it is the duty of the sheriff to ■■ seize and sell the property so pointed out, whether it be that pointed out by the debtor or the property mortgaged, pointed out by the creditor. If the thing seized, even under an ordinary fi. fa., be indivisible in its nature, as a horse, a house and lot, etc., the sheriff can not sell the •debtor’s interest in a designated part or portion of that thing. He might, perhaps, with the consent of the parties, sell an aliquot part interest in '«the whole thing, as a half or a third..

But the case we conceive to.be very different where, the debt for -which the sale is made bears special mortgage on the thing to be sold, ■and where the thing has been mortgaged as an entity, a unit, and thus made by contract and in contemplation of the parties indivisible, whether so by nature or-not. See C. C. 2109. “ The mortgage,” says article 3282 C. C., “ is in its nature indivisible, and prevails over all the immovables subject to it, and over each and every portion.” We then have, in such case, an indivisible right operating upon an indivisible thing. This is the idea expressed by this court in 16 L. 163, where it says: “ Property specially mortgaged can not be sold to pay part of the debt secured. The mortgage being indivisible in its nature, clings to overy portion of the thingand again in 10 R. 45, “ each and every part of the thing mortgaged is liable for each and every portion of the debt.” Thus where a plantation, with its accessories, has been specially mortgaged, the stock, implements, etc., thereto attached by the owner and therefore made immovable by accession, can not be sold separately from the plantation itself, no more than can a house or other building on it.

When the law gives the mortgage creditor the right to seize the whole thing mortgaged it gives him the right to sell the whole thing, if it be indivisible by nature, or only so by the agreement and contract of the parties. In such a case the debtor has not the right of causing the seizure to be reduced as excessive under article •-C. P., for the reason that by the contract of mortgage he has agreed that the thing is a unit, an entity, and has made it indivisible by agreement, and subjected it to an indivisible right which operates in its full extent upon every part and portion of the thing.

The impracticability of the right claimed by defendant will be made more manifest when we consi ler it in connection with other provisions of the Code of Practice. Thus, if the thing mortgaged chanced to be encumbered with a special mortgage prior- to that under which it is seized, there can be no adjudication unless the price bid exceed the prior mortgage. C. P. 684. So, if the price bid exceed the prior special mortgage, only the surplus is to be paid over by the purchaser. C. P. 706, 718. So, when the sale is to satisfy a mortgage debt partly due and partly not due, the sale must be for cash for the part due and on terms to meet the credit installments.

In the case of the prior mortgage, if the thing mortgaged be sold by piecemeal and to different purchasers, what portion of this prior mortgage will each purchaser assume ? What part of that prior mortgage will bear upon each part of the thing thus sold ? And what part of his bid will each purchaser pay over as surplus? So in the case of sale to meet due and undue installments, the same difficulties and inextricable confusions would be encountered.

These difficulties are further augmented when, -as in this case, the mortgage debtor only owns an undivided interest in the thing which he has mortgaged. Joint owners can not be said to own any designated individualized material part of the thing subject to the joint right. Thus it has been often held and is now elementary, that one who is a joint heir in a succession can not sell his interest in any particular thing belonging to that successicn. So one who is a joint owner of a tract of land can not claim a homestead upon it. The reason in both eases is, that upon liquidation and partition the portion in which he sells his interest or on which he claims his homestead may not fall to him.

We conclude, therefore, that where a debtor has specially mortgaged a plantation as an entirety, a unit, to secure his debt he has rendered it by contract indivisible, and that he can not demand that it be sold in parts and by piecemeal. The creditor has the right to have it sold as a whole, and in block.

The court a qua made the mandamus peremptory against the sheriff. The decree is correct, and is affirmed at costs of respondent in both courts.


author: Makr, J.

text:
    No. 843.
    Wm. M. Gillaspie, Guardian, vs. Citizens’ Bank of Louisiana et al.
    Minors, who are beneficiary heirs, are not entitled to sue for the recovery of any specific property belonging to the succession of which they are heirs, or the rents of the same, but only for the .residuum of that succession, after its debts have been paid. But they are entitled to sue to reduce the amount of the debts of the succession, or to bring into the succession any property which belongs to it, and which may be in the possession of, and claimed by others.
    Under the charter of the Citizens’ Bank of Louisiana married women may become stockholders, and as such may lawfully mortgage their property, and bind themselves conjointly and in solido with their husbands. And they may validly renounce their rights on their husbands’ property in favor of the bank, when their husbands own its stock.
    In order to obtain executory process against property mortgaged to it by a deceased stockholder, it is necessary for the Citizens’Bank, like other mortgage creditors, to serve a notice of the order of seizure and sale on the legal representative of the deceased stockholder’s succession, or on his heirs, if they are of age, and have accepted and are in possession of the succession.
    APPEAL from the Fourteenth Judicial District Court, parish of Richland. Parsons, J.

      Cobb & Gunbtj for plaintiff and appellee.

      Armand Pitot and W. W Farmer for defendants and appellants.
   The opinion of the court was delivered by

Makr, J.

Dr. Harrison Jordan and his two children, William T. J ordan and Fannie Y. J ordan, wife of William M. Gillaspie, owned in equal portions a large quantity of land, then in Morehouse parish, now in Richland, cultivated in cotton, together with some seventy slaves, and the necessary stock and farming implements.

In 1859 Mrs. Gillaspie and her brother gave separate powers of attorney to their father, authorizing him to purchase stock in the Citizens’ Bank, and to mortgage their shares in the property as security, and as required by the charter of the bank.

Dr. Jordan purchased of divers persons shares of stock, originally 1000, reduced, in accordance with the amended charter, to 937 shares; and to secure the amount represented by the original stock, $100,000, and such stock loans as they might be entitled to and obtain, Dr. Jordan, in his own right, and as the agent and representative of Mrs. Gillaspie and William T. Jordan, on the 28th June, 1859, executed a mortgage on their lands, part composing the “Trio” plantation, together with the slaves, stock, implements, etc.

As owners of the stock, Dr. Jordan and his children were entitled to a stock loan of $28,000, which they obtained, executing a stock bond, jointly and in solido, for the amount, renewable annually, according to the terms of the charter.

Of the $28,000 some $14,000 were paid to or for the persons from whom Dr. Jordan purchased the stock; and a part, perhaps the whole of the remainder, was put as capital into the firm of Gillaspie, Brewer •& Oo., commission merchants of New Orleans, established about July, 1859, composed of William M. Gillaspie, James Brewer, and Harrison Jordan. This partnership terminated in March, 1861, and was succeeded by Gillaspie, Jordan & Co., W. T. Jordan taking the place of Brewer.

Mrs. Gillaspie died about June, 1870, leaving two minor children, Dannie T. and William Gillaspie, and their father, William M. Gillaspie, surviving; and Dr. Harrison Jordan died about December, 1871, both he and his daughter intestate.

The domicile of Dr. Jordan and of his children was in Louisiana from 1858 until the death of the daughter and her father. There was no administration of their respective estates. The two children of Mrs. Gillaspie were the heirs of their mother, and they are co-heirs of their uncle, William T. Jordan, in the succession of Dr. Harrison Jordan.

In December, 1871, the Citizens’ Bank filed a petition, alleging the indebtedness of Dr. Harrison Jordan, William T. Jordan, and Dannie Yirginia Jordan, wife of William M. Gillaspie, in the sum of $25,000, balance of the stock loan of $28,000, with ten per cent interest from the first of January, 1863, secured by mortgage and by pledge of the 937 shares of stock; and praying for the seizure and sale of the mortgaged property and pledged stock. No mention is made of the death of Mrs. Gillaspie or of Dr. Jordan; but the petition alleges that William T. Jordan is the actual possessor of the mortgaged plantation, and prays that demand of payment and notice of seizure be served on him. The judge granted the order, and directed that “ notice of this order of seizure and sale be given to William T. Jordan, actual possessor of the mortgaged property,” which was accordingly done.

The sale was made on the third of February, 1872, and the mortgaged property and the stock were adjudicated to the bank at the price of $20,000, being two thirds of the appraisement. Pursuant to this adjudication, the sheriff conveyed the property to the bank, with all the rights “which the former owners, Harrison Jordan, Mrs. Fannie Virginia Gillaspie, and William T. Jordan, had in and to said property.”

The bank did not take possession ; and it seems to have been understood that the parties in interest should redeem the property. In June, 1872, Mrs. Jordan brought suit against her husband for a separation of property, alleging his embarrassment, and that she was a professional teacher when she was married, that she had supported herself, and was still able to do so. , Service was accepted, the petition was filed, put at issue, and judgment of separation rendered and signed, all on the same day. The evidence offered was the testimony of a single witness, proving that Mrs. Jordan was a teacher, had taught school at his house, and in his opinion was capable of supporting and providing for herself.

Whatever may have been the intentions of these parties originally, there was an agreement in writing between Jordan and Gillaspie, dated January 14, 1874, that the title to the property sold to the bank in February, 1872, which was purchased by them from the bank after that sale, should be one undivided half to W. T. Jordan, one undivided fourth to Gillaspie, and one undivided fourth to his children, William and Fannie T. Gillaspie.

On the fourth of May, 1875, the Citizens’ Bank sold and conveyed to Mrs. Jordan, separate in property from her husband, by judgment, the entire mortgaged property and bank stock, for the sum and price of $33,987, of which $8665 in cash, a note to her own order for $13,322, bearing interest at eight per cent, with the privilege of extending the payment from year to year, on paying the interest, and the sum of $1903 of the principal, and the remainder, $12,000, in a stock note, renewable* and bearing ten per cent interest.

William M. Gillaspie having qualified as guardian of his two children in March, 1876, brought this suit in order, as stated :

1st: To annul the sale made by the Citizens’ Bank, on the fourth of May, 1875, to Mrs. E. F. Jordan ;

2d: To annul the judgment separating Mrs. Jordan and her husband, so far as it may prejudice plaintiff’s rights ;

3d: To annul the sale made by the sheriff to the bank on the third of February, 1872;

4th: To annul the mortgage of the 28th June, 1859, in favor of the Citizens’ Bank, on general grounds applicable to the whole contract and special grounds applicable to the one undivided third of Mrs. Gillaspie in the Trio plantation ;

5th: To have plaintiff, in his capacity of guardian, recover for the minors and obtain possession of one undivided third of the plantation, as heirs of their mother, and one undivided half of one undivided third, as heirs of their grandfather, Harrison Jordan.

The bank excepted that plaintiff was not guardian; and this was overruled on the production of authentic proof of his appointment as such by the proper court in Mississippi. The . bank excepted on other grounds, one of which was that the court was without jurisdiction so far as the demand of plaintiff for rents an’d for the value of the personal property sold under the mortgage is concerned, the domicile of the bank being in the parish of Orleans ;

2d: Prescription of one, three, four, five, and ten years ;

3d: That the heirs of Mrs. Gillaspie can not maintain an action to recover the property without tendering at least the one third of the debt to the bank for which she was liable in sólido, viz., $9333 33 ;

4th: That they can not maintain a suit for the ownership and possession of the property of their ancestor, Harrison Jordan, without paying the debts;

5th: That out of the bid by the bank, $20,000, the costs, taxes, and $19,392 73 of the debt due on the property, were paid, which sums have neither been refunded nor alleged to have been offered ;

6th: That plaintiff does not allege that the minors have accepted the succession of their mother unconditionally, as in fact they have not done.

The bank also answered, giving the entire history of this business, which we have endeavored to condense.

Mrs. Jordan by way of exception alleges the reality of the judgment of separation; and that it can not be attacked collaterally. She also pleads the prescription of one, two, three, four, and ten years ; and she charges that Gillaspie was well aware of the rendition of said j udgment, and took an active interest in having it rendered ; and that his attack on it is in bad faith and fraudulent.

She also alleges that she has reduced the original mortgage by payment of interest and part of the purchase price more than $12,000 ; and that it is inconsistent and illegal pleading for plaintiff to claim one half the property without first having said mortgage annulled and canceled, or without first tendering to her the one half of the amount which she has paid in reduction of the mortgage.

She also answers, stating the history of her connection with the property ; and concluding with a prayer that in the event of her eviction •she be not turned out of possession until the sum of $13,218 95, expended by her for taxes and improvements, be re-imbursed, with interest.

William T. Jordan answers at length, alleging advances made to the mother of the minors, and large payments made by him for taxes in 1869.1870.1871, for levees, etc., and to the bank, for which he prays for judgment in reconvention.

The judgment of the district court recognized the minors as heirs of their mother and of their grandfather, and decreed them to be owners of one half the property in indiviso. It also decreed the nullity of the ■sale to the bank of February 3,1872, as well as of the sale by the bank 4o Mrs. Jordan, May 4,1875 ; and condemned the bank and William T. Jordan, in solido, to pay rent at the rate of $1500 per year from December 27.1871, to May 4,1875, and the Citizens’ Bank and Mrs. Jordan to pay, in solido, rent at $1500 a year from May 4, 1875, until delivered, being the one half of the rental value of the property.

From this judgment all the defendants appealed : and the plaintiff, in his answer, asks that the judgment be so amended as to decree the nullity of the mortgage of June 28, 1859, as a whole, and specially as to the one-third interest of Mrs. Gillaspie ; and that the judgment of separation be decreed a nullity in so far as it affects the rights of the minors.

So far as the exception of want of tender is concerned, but little need be said. The case is not analogous to that in which a third person, a .stranger, buys at a j udicial sale, and pays the price, which is used in discharging liabilities for which the heirs were bound. The bank, the seizing creditor, was the adjudicatee; and the debt was not actually paid.

As to the same plea set up by Mrs. Jordan, her purchase from the bank was at private sale ; and she can not invoke the rules applicable to judicial sales. Moreover, and this is true with respect to both these parties, these minor children can not recover and obtain possession of the property. The law makes them beneficiary heirs; and they can only receive their share of the residuum after the payment of the debts of the two successions.

The pleas of prescription need not now be noticed, nor the other exceptions specially. The beneficiary heirs, while they can not be allowed to recover and obtain possession until the debts are paid, may .certainly maintain any action that may be necessary either to reduce ■¡the amount of the debts of the succession, or to bring into it property which belongs to it which may be in the possession of and claimed by ■others.

With respect to the rents of this property, as these heirs are beneficiary heirs the rents do not belong to them: they belong to th.e successions of their mother and grandfather: and will be assets for the payment of the debts, if such rents are due and recoverable.

As to the mortgage of June 28,1859, we can not imagine what law is violated by it. The bank did not sell the stock to Dr. Jordan and his-children. The owners of the stock sold it with the consent of the bank. So much of section four of the charter as declares that the mortgages-given by the stockholders shall remain as a perpetual pledge to the-holders of the bonds, etc., must be construed in connection with section. 28, which specially authorizes the stockholders to sell and transfer their-stock, provided the proposed transferee “shall furnish a mortgage to-the satisfaction of a majority of the directors.”

There is nothing in the law, nor is there any thing in the charter,, which forbids women, married or single, to become stockholders, and to-mortgage their property to the bank. Section 25 of the charter enables-wives to bind themselves conjointly and in solido with their husbands and to renounce, cede, mortgage, and hypothecate their rights, privileges, or property; as well dotal, as of any other nature or kind.

This section must be construed with reference to the general laws,, which forbid the wife to bind herself or her property for the debts of the husband. The charter of the bank does not profess to repeal these-general laws; and it simply enables the wife to mortgage her property and to bind herself conjointly and in solido with her husband when she-exercises her lawful right and becomes a stockholder.

The power of renunciation was necessary, or thought to be so, because, at the time this charter was adopted, April, 1833, the opinion prevailed to some extent that the wife was forbidden by article 2412 of the O. C. to renounce, in favor of the mortgagee or vendee of her husband, her matrimonial rights on his property. In Gasquet vs. Dimitry, 9 La. 585, decided in June, 1836, this court so decided, after able and exhaustive argument, Judge Mouton dissenting. The Legislature put the matter at rest by the act of 1835, p. 153, which is the existing law What this section 25 of the charter means is that the wife may mortgage-her property and bind herself with her husband when she owns the-stock; and that she may renounce her matrimonial rights when her-husband owns the stock and mortgages his property.

The last clause of section 24 of the charter has been evidently misinterpreted by the defendants. It declares that “ all property mortgaged to said corporation, for any purpose, may be seized and sold at any time, according to law, in whatsoever hands or possession the same-may be found, notwithstanding any alienation thereof, or change of possession by succession or descent to heirs or legatees by last will and testament, or otherwise, in the same manner as if the same was in the-possession of the original mortgagor.”

To understand the meaning of this clause in the charter we must, recur to the jurisprudence then existing.

As late as 1843, in Erwin vs. Lowery, vi. Rob. 28, this court held thatexecutory process could not issue where the mortgagor was dead : and in the case of Lowery vs. Erwin, vi. Rob. 192, the court decided that the-order of seizure and sale can not issue against a succession in course of administration.

Boguille vs. Faille, 1 An. 205, decided in 1846, settled the law differently. The court said the mortgage creditor was entitled to go into the-courts of ordinary jurisdiction and have the mortgaged property seized', and sold; and subsequent jurisprudence has confirmed this doctrine.

Section 24, therefore, means that the bank shall have the right, which: without such special law it would not have been permitted by the courts-at that time to exercise, to seize and sell the property mortgaged to it,., although the mortgagor be dead, and his succession in process of administration. According to the present jurisprudence, the pact de non alienando secures to the mortgage creditor all that this clause in the charter secured to the bank ; but, as we have seen, for more than ten years after-the granting of this charter the courts maintained that, in case of death the mortgage creditor was compelled to go into the probate court and there enforce his rights “ in concurso according to his rank in relation to the other creditors, and in due course of administration.” VI. Bob.. p. 28.

It never was intended, by this section 25, to permit the bank to seize- and sell the mortgaged property otherwise than “according iolaw;’7’ that is, in accordance with the laws governing this form of proceeding. The Code of Practice requires notice to the debtor, which is given by serving on him a copy of the order of seizure and sale. If he be absent- and not represented, the court must appoint an attorney to represent him, to whom notice must be given, and contradictorily with whom the seizure and sale shall be prosecuted. Articles 735, 736,737. If the debtor-be dead, notice must be given to his legal representative, executor, administrator, tutor of the heirs, whoever actually administers the succession, or to the heirs, where they are of age, have accepted, and are in possession. Dupuy vs. Bemiss, 2 An. 509; Nicholls vs. Grice, 6 An. 446; McCalop vs. Fluker, 12 An. 551.

No law authorizes service of notice on the “actual possessor” of" the property. The notice is in lieu of the citation which would be required in an ordinary action ; and it must be served on a person on-whom citation might have been served in an action against the mortgagor in personam.

The plaintiff and his wards have no interest to demand the nullity of the judgment of separation between Mrs. Jordan and her husband “ and they have no right to demand and recover either the shares of the-property inherited by them, or any aliquot part of the rents which may be chargeable against those who have occupied the land. It is indispensable that there should be an administration of the successions of Mrs. Fannie Virginia Gillaspie and of her father; that the claims of the creditors of both be adjusted ; and that the demands of the one of these successions against the other, and of these successions against others, be settled in due course of, administration.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended so as to read thus: “ That the sale b.y the sheriff to the Citizens’ Bank on the third day of February, 1872, in the suit by executory process, No. 193 of the docket of the district court in and for the parish of Richland, entitled the Citizens’ Bank of Louisiana vs. H. Jordan, Wm. T. Jordan, and Mrs. F. V. Gillaspie and Husband, •and the sheriff’s deed to the bank of date February 7,1872, in confirmation of the said sale, be and the same are hereby declared to be null, void, and of no effect; that the sale and conveyance made by the Citizens’ Bank of Louisiana to Mrs. Elizabeth F. Harrison, wife of William T. Jordan, passed before Felix Grima, notary public, of the city of New Orleans, on the fourth day of May, in the year 1875, be and the same is hereby declared to be null, void, and of no effect: that the property in the said sheriff’s deed and in the said conveyance of May 4, 1875, mentioned and described be and the same is hereby declared to be the property of William T. Jordan, to the extent of one undivided third; of the ■succession of Mrs. Fannie Y. Gillaspie, to the extent of one undivided third; and to the succession of Harrison Jordan to the extent of one undivided third ; that the mortgage of date June 28, 1859, granted by .Harrison Jordan, Wm. T. Jordan, and Mrs. Fannie Y. Gillaspie, then wife of William M. Gillaspie, to the Citizens’ Bank of Louisiana, by act .passed before Adolphe Bmdousquie, notary, of the city of New Orleans, be re-instated, and declared to have all the force and effect which it had at the date of the filing of the petition of the Citizens’ Bank in the suit No. 193 of the docket of the district court in and for the parish.of Rich-land, that is, on the 20th day of December, 1871; that the rights of the succession of Mrs. Fannie Y. Gillaspie and of the succession of Harrison Jordan to sue for and to recover the rents and revenues of the Trio plantation of and from the Citizens’ Bank and William T. Jordan and Mrs. Elizabeth F. Harrison, wife of William T. Jordan, for and during .the time that they, or any of them, have claimed to o.wn or have used •and occupied the .same, be and the same are hereby reserved ; that as thus amended the said judgment be affirmed; that the said judgment appealed from be and the same is hereby in all other respects annulled, avoided, and reversed ; and that plaintiff, appellee, pay the costs •of this appeal, and that defendants, appellants, pay the costs in the •district court.


author: DeBlanc, J.

text:
    No. 826.
    The State vs. James Swayze.
    When, on the application of the counsel of an accused on trial for murder, the judge promises to put his charge to the jury in writing, and up to the close of the trial has failed to do so, the mere fact that the ^counsel for the accused renounced his right to a written charge, for fear that the additional delay necessary to enable the judge to writoout his charge might prejudice the jury against the accused, will not impair the right of the accused to a new trial on the ground that the judge failed to give the written charge.
    This court will grant new trials in criminal cases, but only on pure questions of law.
    The charge of the judge in a criminal case that “where the killing is proved, malice is presumed by the law from the fact of killing,” is erroneous. It is from the surrounding circumstances, and not from the act of killing that malice is to be inferred, and to be inferred by the jury, and not, as an implication of law, to bo applied by the court.
    The State has no right, on cross-examination of the defendant’s witness, to question the latter as to any fact not connected with the mattors stated by him in his direct examination.
    The judge presiding at a criminal trial has no authority to state in the hearing of the jury, that a certain explanation given by a witness for the State “was a most important and material explanation.”
    APPEAL from the Twelfth Judioial District Court, parish of Catahoula. Smith, J.

      W. N. Potts, District Attorney, for the State.

      Chas: J. Boatner for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

The verdict against defendant is “guilty of murder, without capital punishment.” In accordance with that verdict, he was sentenced to imprisonment in the Penitentiary for the term of his natural life, and has appealed to this court.

To obtain the reversal of the judgment pronounced against him, he relies on four grounds :

1. That his motion for.a new trial was improperly denied.

2 and 3. That the judge erred in admitting against him evidence which he considers as illegal, in refusing to charge — as he was requested to do — matters of law, and in charging as law applicable to this ease an erroneous construction of the law itself.

4. That he improperly interfered in the trial, by expressing his opinion of the value and weight of the testimony of a witness, while it was being delivered to the jury.

I.

Before the trial and out of court, the prisoner’s counsel informed the judge that he desired him to deliver in writing his charge to the jury. Do you in fact, asked the judge? I do, answered the counsel. The reply was, either I will prepare it or prepare myself to make it. “When the argument was closed, the counsel inquired of the judge whether he had prepared the charge, as he had been invited to do. He-stated that he had not, but that if the counsel insisted, he would adjourn court and do so. The jury had then been confined for two days- and two nights. Apprehending — as he swore he did — that, by requiring-them to be confined another night and perhaps another day, he would incense them against his client, the counsel did not insist on the desired and promised charge.

The counsel testified that the reason why he was particularly anxious for a written charge was that — -on a previous occasion — the judge had expressed an opinion highly unfavorable to the accused. What it was, we are not informed. The trial of this case seems to have been, strictly, but fairly conducted: the record does not contain the least trace-of any prejudice against the prisoner.

The important question here presented is: under the circumstances-which we have related, ought the judge to have given a written charge, without requiring the counsel to insist upon it ? It is true that the request so to charge had been irregularly made, but — howsoever irregular it was — that request had been acceded to, and the judge had1 promised to deliver the charge in the desired form, arid — we believe— should not, at a critical moment, have thrown, on the prisoner’s counsel, the responsibility of incurring the jury’s displeasure.

There is an unimportant difference between the statements on which the application for a new trial is based, and those certified to in the bill of exception: but, whether taken separately or collectively, they impress upon the mind the conviction that the counsel relied on the-judge’s promise, that he expected a written charge, and that — by the-judge’s unintentional failure to prepare it in advance — he was placed under a moral and difficult restraint, which is more easily understood than described, and from the fetters of which he could extricate himself but by renouncing an indisputable privilege, the exercise of which he considered of vital importance to his client. It does not appear that his renunciation was a free and untrammeled one; at least-, there is a, serious, a reasonable doubt that it was, and the benefit of that doubt, should not have been refused to one whose life was at stake, and whose-entire liberty has been declared forfeited by the verdict rendered against him.

We admit — as contended by the district attorney — that, when the-motion for a new trial is based on exclusively the appreciation of facts, the discretion of the district judge is unlimited, absolute, and his decision thereon final and irrevocable — but when, in an application for a new trial or otherwise, and from established facts, there flows a question of law, our jurisdiction extends to that question, and we have — then—the-constitutional power to review the decision of the lower court. 11 A, -478. In this instance, though he was not peremptorily denied, the ■prisoner was inadvertently deprived of a legal right.

II.

The judge charged the jury “that, where the killing is proved, malice is presumed by the law from the fact of killing, and that it was ■incumbent on the accused to prove any matter of excuse or extenuation,” etc. This unqualified charge was too broad: the law throws •around the prisoner, as a protective mantle, a presumption of inno■cence, whatever may be the crime for which he stands indicted. That rule has been adopted by, and — now—is in force in nearly every civilized State of the world. What would be its value and what would become of it, if the naked proof that the prisoner has killed, were to import — as a legal inference, that he has killed with malice and premeditation and that he is guilty of murder. Those adverse presumptions cannot co-exist: homicide is not always criminal: it may be justifiable and excusable: one may, without being guilty of any offence, kill •in.self-defence, to protect his property, to prevent a felony, in case of shipwreck and accidents, or in the lawful execution of the lawful mandate of a competent court. Were the criminality of the act attached • and linked to the unqualified proof of the act itself, the killing once •established, though it may be either justifiable or excusable, the State would be dispensed from proving the guilt of the accused, and he— under that perverted doctrine — would have to prove his innocence.

Before delivering this part of his charge, the judge had distinctly ■ instructed the jury that “ it was incumbent on the prosecution to prove, beyond a reasonable doubt, the commission of the alleged crime, etc.” -Considered separately from the other, this instruction was unobjectionable, but — coupled with the other — the jury could well draw, from both, the erroneous conclusion that, as soon as the killing had been established, the prosecution had proven, beyond a reasonable doubt, that it was done with malice and that defendant was guilty of murder.

The killing of itself may, but does not invariably constitute a crime. The circumstances which surround the act either attest or negative a ■ criminal intent: if none exist, the court — as said by Mr. Greenleaf — is justified in charging that, from the act of killing, unaccompanied by ■ circumstances of extenuation, malice is presumed, (he should have said “ may be inferred”) and that the burden of disproving it is then thrown upon the accused. This rule is as correct as rational and its application would prevent an otherwise unavoidable conflict between the presumptions established by law in favor of the State, and of the prisoner. The intention may be inferred from the act; but this, in principle, is an inference of fact to be drawn by the jury, and not an implication of law ■ to be applied by the court. Greenleaf.

In a note appended to the report of the case of Stokes vs. the People, Horrigan and Thompson remark that “it is evident that the profession are becoming more and more dissatisfied with the doctrine that malice is to be presumed from the proof of killing, without more, and also with the doctrine that, the fact of killing being established, the burden shifts on the defendant, of showing circumstances of excuse or justification. In addition to Stokes’ case in New York, and Tweedy’s in Iowa, we may note that the doctrine seems to be greatly shaken, if not overthrown, in Michigan, by the very able Supreme Court of that State, in Maher vs. The People, 10 Mich., 212.

See II. & T. cases on self-defence, p. 938, 939, and authorities therein cited.

In Waterman’s U. S. Criminal Digest, we find that “it is erroneous to charge the ’jury, on a trial for murder, that 'the homicide being proved, the law implies that the killing was wilful, deliberate and premeditated.” p. 276, No. 243.

In Iowa, “ it is error ” to charge the j ury, on a trial for murder, that if they find that the defendant inflicted the blow upon the deceased that caused his death, the burden of proof is upon defendant to show that he did it in self-defence.

Waterman U. S. Crim. Digest, p. 301, No. 492.

In York’s case, reported in 19 Metcalf, 93, discussing the rule which we have quoted from Greenleaf, Mr. Justice Wilde said : that it was founded in a state of society no longer existing; that it was inconsistent with settled principles of criminal law, and that it was not supported by the weight of authority. He was of opinion that the following conclusions were maintained in sound principles of law and manifest justice:

1. That, where the facts and circumstances accompanying a homicide are given in evidence, the question whether the crime is murder or manslaughter, is to be decided upon the evidence and not upon any presumption from the facts of killing.

2. That, if there be any such presumption, it is a presumption of fact, and if the evidence leads to a reasonable doubt whether the presumption be well founded, that doubt will avail in favor of the prisoner.

3. That the burden of proof in every criminal case is in the government to prove all the material allegations in the indictment, and if on the whole evidence, the jury have a reasonable doubt whether the defendant is guilty of the crime charged, they are bound to acquit him. Note to sec. 34,1st Greenleaf. This doctrine has been affirmed by Chief Justiee Shaw of Massachusetts and by the Supreme Court of Vermont, and is undoubtedly sustained by the soundest principles of law and of common sense.

It is manifest that the too rigid rule invoked by the counsel representing the State, that mere proof of the killing imports the deliberate intent to commit murder, would completely overthrow that paramount of all presumptions in criminal prosecutions, which is that — until the contrary be proved, the prisoner is presumed to be innocent, and also the almost universal doctrine that “to authorize the jury to return a verdict of guilty in a case of murder, the circumstances must not only be consistent with his guilt, but must exclude every other reasonable hypothesis.”

III.

On the trial, the district attorney asked a witness sworn for th¿ defence, the particulars of an alleged difficulty between him and the deceased. To the question propounded to that witness, defendant’s counsel objected on the ground that no answer elicited by that question could possibly be considered as in rebuttal of any evidence offered by the defence. The court overruled the objection, on the ground that the answer might prove the motive oE defendant’s act and whether he was actuated by malice. The court erred: The fact of the difficulty referred to was proven by the State; none of its particulars had been recited by any of defendant’s witnesses, and the counsel’s objection should have been sustained: “'the rule, -says Greenleaf, is now considered by the Supreme Court of the United States, to be well established, that a party has no right to cross-examine any witness, except as to facts and circumstances connected with the matters stated in his direct examination,” &c.

Greenleaf, vol. 1. p. 521 and 522, No. 445.

This rule applies to only the State, and as regards the cross-examination, by the State attorney, of defendant’s witnesses, and does not apply to the prisoner and as regards his examination of the witnesses sworn for the State. The reason of the rule is that, in its direct examination of its witnesses, the State must prove every fact on which it relies to ask and obtain a conviction, and that, as the prisoner’s right to introduce evidence in support of his defence, commences but when the direct examination on the part of the State is closed, he must be allowed to cross-examine the witnesses of the State as to any fact tending to establish his defence, whether the fact be connected with or disconnected from those testified to in the examination-in-chief.

In “the Philadelphia R. R. Co. vs. Stempson, Judge Story referred to that rule as a settled and broad principle, sometimes lost sight of, under loose practice at trials;” and, in State vs. Dennis, Mr. Justice Usley, commenting on two adverse decisions of this court, said : “The discretion, which in the cases referred to, is claimed for courts, to relax, to change or to utterly disregard rules of criminal evidence which the 'legislature has decreed it obligatory on them to observe, would be ■ effectually to make the law a dead letter. Oases might certainly occur wherein a relaxation of the rule might serve to advance the course of .justice; but, this is no reason why the general rules of' evidence should not be observed, and until the law of evidence in criminal proceedings, :now extant, is partially or wholly changed, our courts are not justified ■ in exercising their discretion in regarding or disregarding rules of evidence, which our Legislature has adopted as a system. It was well said 'by Lord Kenyon that “rules of evidence are of vast importance to all ■orders and degrees of man, and that our lives, our liberty and our ■ property are concerned in support of them.”

In that case, the court held and we hold that, in a criminal prosecution, a witness — after his cross-examination, can be re-examined only ■in rebuttal or on matters elicited by his cross-examination. 19 A. 119.

IY.

The counsel for the prisoner complains that, in the presence and ' hearing of the jury, the judge remarked, referring to an explanation .- given by a witness for the State, “ that it was a most important and material explanation.” Though the judge did not state why, in whose ■ favor or against whom it was important or material, the remark was ■ unauthorized. In any case, and more particularly in a prosecution, the ; jurors justly look to the judge as their guide, and the expression of his ■ opinion — as to the legal value of a fact testified to — might lead them to ■ consider as useless a discussion of the fact thus declared important and material, and induce them to accept and adopt — as a finality — the . judge’s opinion as to its value.

Y.

On application of the district attorney, an entry made on the min- • utes of the court on the 13th of May was corrected on the 22d, for the ■ purpose of showing that the accused was present when he was arraigned ■and when the jury rendered their verdict. In this, there was neither impropriety nor error. The correction was extended to show facts which did not appear in the entry, though they really happened as -recited in the allowed amendment.

It is due to the judge of the lower court to state that his rulings . are not entirely without support, but they are in conflict with the weight of actual authority.

It is, therefore, ordered, adjudged and decreed that the judgment and sentence appealed from are avoided and reversed, the verdict of the jury annulled and set aside, and this case remanded to the lower court to be proceeded with according to the views herein expressed and -according to law.


author: Manning, C. J.

text:
    No. 738.

      The State vs. Moses Harrison.
    In order to convict a person, indicted under section 795'of the Revised Statutes oí 1870, for biting off an ear. it must be shown that a sufficient portion of the ear was maliciously severed from the body of the injured person by the accused, to attract observation, and impair comeliness.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Maries, J.

      T. B. Earhart, District Attorney, for the State.

      Pugh & Powell for defendant.

       The opinion in this, and in the following ease were delivered, at the Monroe 'term of 1877.

   The opinion of the court was delivered by

Manning, C. J.

The defendant is indicted for a violation of the statute ■which reads — “ if any person with malice aforethought, shall cut or bite off an ear * * * * of any person with intention in so doing to maim, disable, or disfigure him, he shall on conviction,” etc. Revised Stats, 1870, sec. 795.

No portion of the ear was severed from the head of the person assaulted. The lobe was split by the bite, and the split was sewed up by a surgeon. McGowan, the person injured, neglected his wound, and inflammation and ulceration ensued, whereby there was a loss of the tissue of the ear.

The defendant’s counsel asked the court to charge the jury,

1. That to constitute the crime charged, it is essential that the ear, ■or some portion thereof, should be actually severed from the head,

2. That to constitute a disfiguring under the statute, it is necessary that the nature of the wound be such as to attract observation and to render the person less comely.

The court refused to charge as requested, but instructed the jury as follows:

1. That the essence of the crime was malice, and the intent to maim, disable, or disfigure.

2. That if the jury believe there was not an actual severance of any portion of the ear from the head, but that the biting was such as to inflict a wound, the nature of and effect of which was to disfigure, or attract observation, and to render the person less comely, then under the statute the offence was complete.

The first part of the charge was correct, the second was error. 'The offence charged is the cutting or biting off an ear with intent to ■maim, disfigure, or disable, and not the infliction upon the ear of a wound, the nature or effect of which was to disfigure. It is not a sound construction to say, that it was only necessary there should have been a biting with intent to disfigure, since the statute requires a biting off, which must be of the whole or a part of the ear. The offence as defined by the statute, is not the disfiguring of any person by reason of biting-his ear, but the biting off his ear with intent to disfigure.

Tire prisoner was entitled to the charge requested by his counsel. It has been held elsewhere under a similar statute that it was not necessary that the whole of the ear should be taken off, it being sufficient if a part was severed, provided such part was not merely the outside skin, and was so large as to make it perceptible to any one that a part of the ear was gone. State vs. Girkin, 1 Ired 259.

Bishop says, to constitute a biting off the ear, the whole ear need not be taken away. If enough is removed to impair the personal appearance, and render the person less comely, no more is required, but there must be as much as this done. Grim. Law g 1007. Wharton is of same opinion. Rec. Indict, and Pleas, 1 vol. 196.

It is therefore ordered, and decreed that the verdict of .the jury be set aside, and the judgment and sentence of the lower court be avoided and vacated, and the prisoner be discharged from custody under the information.


author: Manning, O. J.

text:
    No. 730.
    Wm. Marbury et al. vs. Jas. F. Pace.
    In a suit to revive a judgment the sole issues to bo tried are whether it had ever been rendered, and whether it had become extinct.
    Neither a suspensive nor devolutive appeal will prevent prescription from running against the judgment appealed from.
    A suit to revive a judgment is properly brought in the name of the original plaintiffs, even though the judgment may have become the property of third persons.
    APPEAL from the Fourteenth Judicial District Oourt, parish of Ouachita. Bay, J.

      B. W. & B. Richardson for plaintiff and appellee.

      Garrett & Garrett and F. P. Stubbs for defendant.
   The opinion of the court was delivered by

Manning, O. J.

This is an action to revive a judgment.

Until the statute of 1853, judgments were imprescriptible. The special and sole object of that act was to subject them to that mode of extinction. Of course some mode had to be provided of avoiding that prescription then for the first time imposed. The mode was the issuance of a citation according to law to the defendant, or his representative. The issuance of a citation according to law means that it is based upon, or accompanied by a petition praying for a revival of the judgment.

The defendant is cited to shew cause why the judgment should not be revived, and therefore, he argues, he should be at liberty to shew that it ought not to have been rendered, or to shew such defects in it as will annul it. The title of the act indicates its object. That object is to make judgments prescriptible, not to provide a new and additional mode of annulling them. The mode and causes of annulling them had been already provided. Code of Practice, articles 604 et seq.

Prior to 1853 there was no need to revive a judgment. It did not die óf senility or inanition. The statute of that year fixed a limit to its life, and furnished the holder of it the means to prolong that life.

The sole issues therefore that can be tried in a suit to revive a judgment are whether it had ever been rendered, and whether it had become extinct. The proof of the former is a certified copy of the judgment itself, and of the latter an actual payment, or the payment which the law presumes to have been made from lapse of time, or some other mode of extinguishing it. This was held to be the proper construction of the law of 1853 in two cases last winter. McStea vs. Rotchford, Brown & Co.; Burnside vs same, not yet reported.

After judgment by default had been entered, the defendant moved to set it aside on the ground that he had taken an appeal from the original judgment, the revival of which is now sought. So far from the pendency of an appeal from the original judgment being a good reason why proceedings should not be taken to revive it, the want of such proceedings will enable the judgment debtor to plead its extinguishment by prescription, for it is now settled doctrine that whether the appeal from the original judgment be devolutive or suspensive, its pendency does not dispense the plaintiff who obtained it from instituting his action for its revival and citing the defendant to answer thereto. Arronsmith vs. Durell, 21 Annual 295; Walker vs. Hays, 26 Annual 176.

Objection is also made to the use of the names of the plaintiffs in the petition for revival, it being alleged by the defendant that one of them has no longer any interest in it. There is no exception or plea of misjoinder, and if there were, it would not be good.

The names of the original plaintiffs are properly used, and the revival enures to the benefit of the present holder.

The plaintiff is entitled to a judgment of revival. This judgment in no respect validates the original judgment, or corrects any defect in it, if such exists.

It does not impart to the original judgment any additional force or effect, but simply keeps it alive, preserves its validity, and prevents its extinction by the lapse of time.

The suit to revive is merely the mode provided to prevent the acquisition of prescription of a judgment, as the ré-inscription of a mortgage is the mode provided to prevent its peremption.

It is therefore ordered, adjudged and decreed that the judgment of the lower court is affirmed with costs.


author: Marr, J.

text:
    No. 6920.
    Edward J. Gay & Co. vs. Francis W. Pike.
    Where two creditors holding the promissory notes of their debtor secured by one mortgago on the latter’s plantation, sue on their notes and obtain personal judgments, and each seizes under &fi. fa. the crop grown on the plantation, and the proceeds of the crop are held (under an agreement between the seizing creditors which makes no mention of any privilege or pledge on the crop claimed by either creditor) to await the adjudication of their claims under their seizures, the creditor making the first seizure will acquire a preference.
    Contracts made with factors to give them a privilege or pledge on crops, must stipulate the sum to be secured by such privilege or pledge, and no further sum than that thus stipulated and fixed can be covered by such contracts to the prejudice of other creditors.
    PPEAL from the Fifteenth Judicial District Court, parish of As- . sumption. Beattie, J.

      Bdbert M. Sims for plaintiff and appellant.

      Laurence A. Suthon for opponent and appellee.
   The opinion of the court was delivered by

Marr, J.

Mrs. M. M. Blanchard, wife of Lucius Suthon, sold half of a plantation in Assumption parish to Francis W. Pike, and for the deferred payments he executed three promissory notes, each for $3750, payable to her order, and secured by vendor’s mortgage. She retained one of the notes, and indorsed two of them to Edward J. Gay & Oo.

On the sixth of May, 1875, all these notes having matured, Mrs. Suthon brought suit on the one held by her; and, on the same day, on the answer and confession of Pike, judgment was rendered in her favor, with recognition of her mortgage rights; and on the twenty-seventh of May, Edward J. Gay & Oo. brought suit on the two notes held by them, and on the same day they obtained judgment on the answer and confession of Pike, with recognition of their mortgage rights on the same property.

On the second of January, 1877, a writ of fieri facias issued on the judgment in favor of Mrs. Suthon, under which the sheriff seized, on the tenth of January, seventy-five hogsheads sugar, in the sugar-house of Pike; and on the twelfth of January, Edward J. Gay & Oo. caused execution to issue on their judgment, under which the sheriff seized one hundred and one hogsheads sugar, including the seventy-five already seized under Mrs. Suthon’s writ, and eighty-one barrels molasses, not seized under her writ.

By agreement of counsel representing both the seizing creditors, the seventy-five hogsheads seized by both were shipped by the sheriff to Edward J. Gay & Co., at New Orleans, “ to be by them sold in the market, the proceeds of which shall be held by the said Gay & Oo. to abide the decision of the court upon the claims of said Mrs. Suthon and said Gay & Oo. for priority and preference to the said proceeds;” and on the twelfth March, the sheriff returned both writs, stating the seizure under each, the agreement, which he made part of his return, and that the proceeds of the seventy-five hogsheads, 'in the hands of Gay & Co., amounted to $6615 35.

On the eleventh May Mrs. Suthon filed a third opposition in the suit of Gay & Co. vs. Pike, in which she gave the history of the seizures, and the agreement, and claimed to .be paid the amount of her judgment, in full, out of the proceeds of the seventy-five hogsheads, as first seizing creditor. Gay & Co. and the sheriff, parties to this petition of third opposition, excepted that the sheriff was without interest, and had no funds subject to his control. Gay & Oo. also plead that the sugar in question, with the consent of opponent, was released from seizure by the sheriff and shipped to them, and by them sold, and proceeds retained subject to their lien, privilege, right of pledge and pawn, to pay and re-imburse them for advances made to Pike, in 1876, for the cultivation of the plantation, and the making and saving of the crop, under their agreement with Pike, of fifth February, 1876, recorded on the same day in the parish in which the plantation is situated, and. that these advances amounted to $12,744 70, on account of which Pike had paid them $4828 58, leaving balance due them $7916 12.

They also plead that the seizure by opponent, of the seventy-five hogsheads, was in violation of their rights, she well knowing that they had made all the advances to Pike, during the year 1876, to make and take off his crop, and that they were entitled to a privilege on the same to secure payment: and they prayed that the demand of opponent be dismissed, and that the superiority of their lien and privilege be recognized, and they be decreed entitled to retain the proceeds in their hands to pay and satisfy their claim.

It was admitted on the trial that the sheriff was without interest,, and that the proceeds of the sugar had never been in his hands: and the suit was dismissed as to him. The district court maintained the opposition and claim of Mrs. Suthon, and decreed that her judgment be paid and satisfied out of the proceeds of the seventy-five hogsheads in the hands of Gay & Oo.

There is no controversy about the account of Gay & Co., which is proven by several witnesses. The advances were made under a notarial contract, of date fifth February, 1876, by which Gay & Oo. agreed to furnish Pike during the year supplies and money, not to exceed $4200, exclusive of interest, commissions, charges, and expenses, and Pike granted them a lien, privilege, pledge and pawn, on the growing crop, and obligated himself to ship it to Gay & Oo. for their security, as provided by the act of 1874, p. 114.

When the seizure was made by Mrs. Suthon, if Gay & Oo. had any superior right or claim to the property, they should have asserted it, contradictorily with her, by third opposition. Instead of doing this, they seized under their judgment; and the sugar in controversy went into their possession only under the agreement, subject to the rights of the seizing creditors respectively.

The notes and mortgage on which the judgments in favor of Mrs. Suthon and Gay & Oo. respectively were rendered gave them no right of preference or privilege on the gathered crop; but the personal judgment, in favor of each of them, entitled them to seize any property of their debtor subject to execution. As the seizure by Mrs. Suthon was first in date, it gave her a right of preference, unless some fact or circumstance gave Gay & Oo. a superior right. The terms of the agreement would seem to limit the question of preference to the effect of the respective seizures.

If it be conceded that Gay & Co., notwithstanding the agreement under which they obtained possession of the sugar seized, would have had the right, in virtue of their contract, to apply the proceeds to the payment of their advances, the amount secured by the contract was expressly limited to $4200, exclusive of commissions, interest, etc.; and up to the eighteenth of December, 1876, they had received and sold ■sugar and molasses, and carried the proceeds, amounting to $4828 58, to the credit of Pike, as shown by their account current, made up to sixth March, 1877. In addition to this, they had the proceeds of the ¡seventy-five hogsheads, $6615 35, and of twenty-six hogsheads sugar and eighty-one barrels molasses not seized by Mrs. Suthon, but seized under their judgment, on the twelfth January, 1877, no part of which figures in that account. The counsel of Gay & Oo. argue that they had ■a pledge and pawn of the entire crop; and were entitled to retain the •entire proceeds on account of their entire debts. This might have been true if there had been no special contract fixing the amount to be advanced and secured by pledge of the crop; and if Pike, their debtor, had shipped the entire crop to them, and they had received the shipment, or bill of lading or letter of advice before any seizure was made. But Pike did not ship the seventy-five hogsheads to them, and he could not have done so, because the sheriff had seized and taken them out of his possession; and he no longer had the right or the power to ship or ■otherwise to control them. The sheriff shipped the sugar in question for a specific purpose; and it would not have been shipped to Gay & Oo. except under the agreement, and for the purpose specified. Mrs. Suthon 'had seized it, and Gay & Oo. had seized it; and it was shipped to Gay & Oo. by the sheriff, because the parties seizing so agreed. The sugar did not go into the possession of Gay & Oo. as consignees or agents of Pike, their debtor, but as consignees of the sheriff, who was not their debtor; and they received it impressed with whatever right Mrs. Suthon had acquired by the seizure under her judgment, on the tenth January, 1877.

If Gay & Co. could be heard, under their agreement with Mrs. Suthon, to assert any right to the sugar in question other than that growing out of their seizure, it is certainly not that of the consignee, for ■the reasons already stated, and for the additional reason that that privilege is expressly subordinated to that of a creditor resident of the ■State, acquired before the consignor has received the goods, or a bill of lading, or a letter of advice, or invoice showing that they have been •dispatched to him. B. O. O. art. 3247. It is not the privilege established by article 3217, in favor of the creditor for necessary supplies, •and for money used for the purchase of supplies and for the payment of necessary expenses for any farm or plantation, because the constitution, article 123, declares that no privilege shall affect third parties mnless recorded in the parish where the property is situated: and it is snot that which the contract of fifth February, 1876, was intended to secure, because the amount secured by that contract was limited; and the proceeds of the crop received and sold up to the eighteenth December, 1876, nearly a month before Mrs. Suthon’s seizure, carried to the credit of Pike’s account, amounted to $4828 58, or more than' $600 in excess of the limit, excluding interest, commissions, etc.

A factor agreeing with a planter for future advances, can not always know exactly what amount the planter will need. The law requires, whatever be the form of the contract, mortgage, or pledge, that it mention the amount of the debt to be secured, and that it be recorded in the manner provided by law. R. C. C. article 3158. Manifestly, the whole object of recording would be defeated if the act of mortgage or privilege were allowed to secure any amount not limited. Therefore, in such.cases, it is usual to fix the limit of the advances, not to exceed a certain amount. Up to the amount thus fixed the security would be good, if valid in other respects; but it cannot be extended so as to cover any sum whatever beyond the limit fixed in the contract.

Mortgages to secure future advances are usually so drawn as to cover any deficiency in the crop or goods with reference to which the advances are to be made. But a pledge, or lien, or privilege on the goods or crop is different. It is not intended to secure a balance: the object is to secure the sum advanced, to obtain possession of the goods or crop, and to apply the proceeds to the payment. If the proceeds do not suffice to pay the debt, of course they can not secure the balance; because the balance is what remains unpaid after the proceeds have been exhausted; and in no event can the pledge, or lien, or privilege be extended, to the prejudice of other creditors, beyond the amount stated in the contract.

If the rights of the parties are to be determined by the contract of fifth February, 1876, the debt secured by that contract had been paid and extinguished more than twenty days before the seizure by Mrs. Suthon. If they depend upon the seizures, Mrs. Suthon’s was two days in advance of that of Gay & Co. In any aspect of the case, the right of Mrs. Suthon to be paid, by privilege and preference out of the proceeds of the seventy-five hogsheads sugar in the hands of Edward J. Gay & Co., the special consignees and depositaries, seems clear beyond doubt or question; and we find no error in the judgment of the district court so decreeing.

The judgment appealed from is therefore affirmed with costs.

Rehearing refused.


author: Mare, J.

text:
    No. 5869.
    W. S. Benedict vs. J. A. Florat, Tutor, et al.
    The jurisdiction of the Second District Court for the parish of Orleans is exclusively probate, and it has no power to entertain a Question of title to real estate claimed by majors alone.
    A suit for the partition of property which belongs in par-t to minors, and in part to majors, does not fall within probate jurisdiction. It must be brought in a court of ordinary jurisdiction.
    REPEAL from the Second District Court, parish of Orleans. Tissotr

      Francis W. Baker for plaintiff and appellant.

      Satnl. P. Blanc for Mrs. Fitzpatrick, appellee.
   The opinion of the court was delivered by

Mare, J.

Patrick McGuigin died in 1865, leaving a large estate, and* seven children, minors, issue of his marriage with their deceased mother. The executors of his will liquidated the succession expeditiously, and in October, 1865, they filed their final account, and turned over a large amount in money and property to Jules A. Florat, the tutor of the minors.

Shortly after he took possession of the effects, as tutor, having a. large sum in cash on hand, Florat obtained leave of court to invest it in real estate; and in December, 1865, he purchased, in the names of the-minors, two lots of ground, with the buildings and improvements, on Tchoupitoulas, between Poydras and Natchez streets, for $30,209.

One of the heirs, George McGuigin, attained his majority in 1871-In 1873 he gave his note to Mrs. Fitzpatrick for $300, which he failed to pay at maturity. She obtained judgment against him, and, under execution the sheriff seized and sold his interest in the succession of his deceased father and mother, adjudicated to Mrs. Fitzpatrick, and by judgment of the Second District Court, in March, 1875, Mrs. Fitzpatrick was recognized as subrogee of George McGuigin, and put in possession as owner of his share in the succession.

In July, 1875, George McGuigin sold to W. S. Benedict his title and' interest, one undivided seventh, in the property on Tchoupitoulas street,, which he declared was not included in the sheriff’s sale to Mrs. Fitzpatrick; and on the thirteenth November, 1875, Henry C. McGuigin,, another of the heirs who attained his majority, sold to Benedict his interest, one undivided seventh, in the same property.

On the twenty-seventh November, 1875, Mrs. Fitzpatrick, claiming to be the owner of one seventh, the share of George McGuigin, in the-succession, brought suit, in the Second District Court for a partition; and she made Henry C. McGuigin, and the minors McGuigin, represented by their tutor, parties.

On the same day Henry O. McGuigin brought suit, in the same court for a partition; and he made George McGuigin, the minors, and Mrs. Fitzpatrick and her husband parties.

On the third December, 1875, W. S. Benedict, claiming to be the owner of two-sevenths of the Tchoupitoulas-street property, brought suit in the same court for partition; and he made the minors and Mrs. Fitzpatrick and her husband parties.

On motion of Florat, tutor, these three suits were consolidated, and judgment was rendered recognizing the parties as joint owners of the property: decreeing a sale for partition; and “ reserving the antagonistic rights of all parties to be discussed in the partition of the mass.”

Benedict moved for a new trial, mainly on the ground that the court should have passed on the conflicting titles, and no valid sale could be made until they were passed upon. The court ordered a new trial in the suit of Benedict only, that is, with respect to the Tchoupitoulasstreet property alone; and in the suit of Benedict a judgment was rendered on the new trial, decreeing that this property be sold; and that the proceeds be held subject to the further order of the court.

Finally, in the suit of Benedict, a judgment was rendered in favor •of Mrs. Fitzpatrick, against W. S. Benedict, decreeing the purchase made by her at sheriff’s sale in February, 1875, to have included all the right and interest of George McGuigin in and to the undivided seventh of the Tchoupitoulas-street property; that the subsequent sale made by George McGuigin to Benedict, on the twenty-fourth July, 1875, was null and void owing to the previous sale of the same thing by the sheriff to Mrs. Fitzpatrick; and further decreeing Mrs. Fitzpatrick to be entitled, to the proceeds of said share in the partition had herein.”

Benedict appealed from this judgment; and no other part of the case or controversy is before us for review. When the new trial was granted, the case of Benedict, in the suit brought by him, was separated from the other suits ; a new trial was granted in his suit alone; a separate decree for the sale of the property, in which alone he was interested, was made; and the judgment appealed from was rendered in that suit between him and Mrs. Fitzpatrick alone, and it finally passed upon their respective rights and claims in and to the proceeds of that property alone. Our decree must be equally limited.

When the executors filed their final account, and the tutor took possession for the minors, of the entire residuum of the property and effects of the succession, the minors became co-proprietors; and the succession of Batrick McGuigin was closed.

When Florat, the tutor of the minors, by authority of the probate •court, on the advice of the family meeting, invested their money, not the money of the succession, in the Tchoupitoulas-street property, and took the title in the names of the minors, not in the name of the succession, the minors became co-proprietors of that property, as they were co-proprietors of the money with which it was purchased, and paid for.

Benedict demanded a partition of that property; he had no right or capacity to demand any thing more, since his claim was limited to two undivided sevenths of that property as the vendee of two of the co-proprietors who had attained their majority, and were sid juris. The rights of the minors to five undivided sevenths of that property were not questioned, nor in any way controverted; and the only controversy was on the conflicting claims of Benedict, plaintiff in that suit, and Mrs. Fitzpatrick, one of the defendants.

The jurisdiction of the Second District Court is exclusively probate. Constitution, article 83; and it has no power to entertain a question of title to real estate claimed by majors alone.

The property never belonged to the succession of Patrick McGuigin. It belonged to Paul Cook when Patrick McGuigin died; and it was purchased of Cook, in the names of the minors, who were his children and heirs, with money in the hands of their tutor, as an investment for them. Two of the children, who were minors at the time of the purchase, had attained their majority, and had disposed of their respective shares and interests in this property; so that it was no longer the property of minors alone; and it was not the partition of succession property, nor the partition of the property of minors alone, that Benedict demanded or had the right to demand.

The partition-of property which belongs in part to minors and in part to majors does not fall within the probate jurisdiction. It is not a probate case; it is an ordinary civil suit, between the co-proprietors, the object of which is to allot to each one of them his share and portion; and it belongs to the ordinary civil jurisdiction of the district courts. See Sevier vs. Gordon, 29 An. 440; Soye vs. Price, 30 An. 93; Woolfolk vs. Woolfolk, 30 An. 140; Boutté vs. Executors, 30 An. 182; Succession of Bayly, 30 An. 1032.

Mrs. Fitzpatrick excepted to Benedict’s petition, that she was in possession under her title; and that the validity of her title could not be inquired into otherwise than by a petitory action. This exception was overruled, “ reserving to her the right to plead the same on the merits.” A default was taken against her; and she answered, “reserving the benefits of her exception already filed, renewing the same for the purposes of this answer, to the petition of W. S. Benedict so far as it relates to George McGuigin, pleads the general issue.”

This plea went to the jurisdiction of the court, ratione materice. The question involved was purely one of title between two majors, claiming under one and the same major; and this question the Second District Court had no power or authority to entertain or pass upon. The court should have dismissed the suit on this exception; and when the case came up for final trial, the only issues were those made by the petition of Benedict, the exception renewed in the answer of Mrs. Fitzpatrick, and the general issue pleaded by her. Instead of determining the question of title between Benedict and Mrs. Fitzpatrick, her plea and exception should have been maintained, and the suit dismissed.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed; that the suit of W. S. Benedict be dismissed for want of jurisdiction, and without prejudice to the right and title asserted by him, or to those set up and asserted by Mrs. Fitzpatrick, and that W. S. Benedict pay all the costs of this proceeding in this court and in the district court.


text:
    No. 7151.
    The State vs. William Harris.
    No appeal can be taken in a criminal ease after the expiration of the term of court during which the sentence in the case was rendered.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Daffél, J.

      F. B. Farhart, District Attorney, for the State.

      James D. Augustin for defendant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Spencer, J.

The defendant was convicted of rape, without capital punishment, and sentenced to hard labor for life.

The trial, conviction, and sentence was had at the April term, 1878, of the district court for parish of St. Charles. We take judicial cognizance of the fact that by act No. 41 of 1878 the April term of that court could not have extended beyond the thirteenth of April. A certified extract from the minutes shows also that the court adjourned sine die April 12,1878. The appeal was applied for on the twentieth of April, 1878, and granted by the parish judge, acting in absence of the district judge from the parish, on the same day.

The State moves to dismiss the appeal, on the ground that the law requires appeals in criminal cases to be taken “during the term at which the sentence shall have been rendered,” and “ that no appeal shall be granted in such cases after the time specified shall have elapsed.” Act No. -30, approved February 19, 1878. The law is peremptory, and the appeal having been taken after the time prescribed by law must be dismissed. There is no force in the defendant’s proposition that the word “ term” means a time covering the aggregate sessions of the court In all the parishes of the district.

The motion to dismiss is sustained.

Rehearing refused.