author: Bermudez, C. J. Poché, J.

text:
    No. 8227.
    T. W. Turley vs. M. Dreyfus, Dative Executor.
    A money judgment, rendered by a court of original jurisdiction in a sister State, against one who was at the time the Executor of the debtor in that and in this State, said judgment being subsequently affirmed by the Supreme Court of that State contradictorily with an Administrator de bonis non, appointed to represent the estate, — oan be made the cause of an action in this State.
    Such judgment, in the suit brought upon it in this State, is not conclusive of what it decrees and, on the contrary, it is open to all the defenses which can be legally opposed to judgments, but it is a sufficient legal cause to institute an action upon.
    APPEAL from the Eighth Judicial District Court, parish of East Carroll. Montgomery, judge acl hoc.

      W. G. Wyly for Plaintiff and Appellant:
    First — An executor stands on a different footing from an administrator, and a judgment agains an executor in one State is grima fade evidence of a debt in a suit against another executor of the same testator in a different State. Hill vs. Tucker, 13 Howard, 458; 10 L. 14; 7 R. 206. See, also, Fisher’s Digest, page 5038.
    Second — If no appeal had been taken by Frank Willson, executor, from the judgment of the Chancery Court of Tennessee against him in 3874, that judgment could have been made executory here. 13 Howard, 458; 10 L. 14; 7 R. 206. .
    Third — The fact that Frank Willson, executor in both States, died pending the appeal, and the Supreme Court of Tennessee proceeded to trial and affirmed the judgment contradictorily with the administrator de bonis non, against whom it had been revived, does not alter the rights of the parties, nor does it in any manner modify the scope and effectiveness of the decree. 46 Mo. 137; 32 Md, 274 • 213ST. J. 520; 65 Pa. 105.
    Fourth — “A judgment from one State cannot be treated in another as an absolute nullity for want of jurisdiction, unless original and radical. When jurisdiction has once rightfully attached any subsequent errors in the court of original or appellate jurisdiction, cannot be elsewhere collaterally examined, nor can they impair the validity of proceedings which, until reversed, are binding in every other court.” 11 An. 507; 84 Pa. 533; 82 111. 606; 9 Wall. 108; 72 FT. X. 217; 14 Ark. 360 ; 1 Ohio, 259.
    Fifth — As Frank Willson, executor, took the appeal and died pending the appeal, the Supreme Court of Tennessee was undoubtedly seized of jurisdiction; and if they fail to cause the heirs to be made parties, as well as the administrator de bonis non, it was merely an error that this court cannot correct. See 22 H. 473; 10 Pet. 474; 1 Peters, 340; 15 Johns. 141; 11 An. 507; 33 Peters, 312; 3 Wheaton, 234; 9 Peters, 86; 2 Peters, 503.
    Sixth — Upon the principle that all officials axe presumed to have done their duty, this court is bound to presume that the Supreme Court of Tennessee did theirs, and by the laws of Tennessee, quoad the appeal the administrator de bonis non represented all the parties and all the interests affected by the decree of the Chancery Court.
    •Seventh — As no appeal should be revived unless’ all parties affected by the decree below are made parties to the appeal, we are bound to presume that the Supreme Court of Tennessee had all parties required by the law of Tennessee to be represented made parties to the appeal; that quoad the trial in the Supreme Court the administrator de bonis non represented heirs as well as creditors. 22 An. 222; 72 IS. X. 217; 22 Ark. 389, 453.
    Eighth — As the judgment of the Chancery Court if unappealed from, could- have been made executory in Louisiana, the judgment of the Supreme Court of Tennessee affirming it oan also he made executory here, because this court is hound to presume that the Supreme Court which was seized of jurisdiction when Frank Willson filed the transcript of appeal. exercised that jurisdiction over the whole oase and their decree affirming the judgment-gave the appellee all the relief he was entitled to by the decree of the court below, among which he was entitled to the right to have the decree in his favor made executory here. 7 R. 206; 23 An. 80$ 3 "Wheaton, 234; 9 Pet. 86; 2 Pet. 502; Brightly’s Digest 497, section 144.
    K’inth — The fact that the Supreme Court revived the case contradictorily with the administrator de bonis non, and affirmed the judgment, involves an implied assertion of jurisdiction by the Supreme Court which this court cannot contradict or in any manner gainsay. 22 Ark. 453; 5 Allen iMass.) 591; 34 111. 168; 16 Miss. 421; 22 Ark. 389; 12 An. 798; 10 Mo. 329; 1 Ohio, 259.
    Tenth — In reviving the appeal the Supreme Court of Tennessee reviewed the whole case, and when they affirmed it they gave all the relief to the appellee that the Chancery Court had given, and their decree cannot be questioned. 14 An. 360; 44 111. 32; 13 Pet. 312; 9 Mass. 462; 17 Mass. 515.
    Eleventh — “A final judgment of a competent court of a sister State, after citation, is conclusive of the matters therein determined between the same parties in Louisiana, in the absence of proof impeaching it.” 12 An. 736; 6 Vermont, 580; 41 Vermont, 396; 17 Mass. 515, 646; 44 111. 32; 13 Peters, 312; 46 Mo. 137; 32 Md. 274 ; 21 H. J. 520; 65 Pa. 105. See, also, Eislier’s Digest, vol. 3, page 5035.

      F. F. Montgomery for Defendant and Appellee:
    A judgment against an administrator in another State is not such evidence as will authorize a judgment against another administrator or executor of the succession here. In contemplation of law, there is no privity between the foreign administrator and the executor here. 3 An. 353; Story’s Conflict of Laws, 522, 525.
    The judgment against the first administrator is res inter alios acta as regards the administrator here and the property confided to his care. 6 Howard, 47.

      Spencer & White on same side, on application for rehearing.
   The opinion of the Oourfc was delivered by

Bermudez, C. J.

This is an action to enforce a judgment of a sister State against a succession representative in Louisiana. The case comes up on appeal from a judgment sustaining an exception of no cause of action and dismissing the suit.

The plaintiff alleges that he is the transferree of a judgment for $11,935 66, obtained by James H. Wilson, Jr., against Frank Wilson, executor of James H. Wilson, Sr., his father, from the Chancery Court of Williamson County, Tennessee; that said executor was also the executor of the will of the deceased in this State; that judgment was-appealed from by said executor to the Supreme Court of Tennessee, by which it was affirmed, contradictorily with an administrator de bonis non,'appointed to replace the executor, who had died since the appeal. He further avers that Maurice Dreyfus was appointed dative executor,, to succeed James H, Wilson, Jr., in the liquidation of the succession in Louisiana. He prays for citation and recognition of his claim.

From the judgment sustaining an exception of no cause of action, the plaintiff appeals.

The question presented is novel, interesting and important. It is simply:

Whether a money judgment, rendered by a court of original jurisdiction, in a sister State, against one who was at the time the executor of the debtor in that and in this State, and subsequently affirmed by the-Supreme Oourt of that State, contradictorily with an administrator de bonis non, appointed to represent the estate, — the defendant executor-having died pending the appeal, — can be made the cause of an action in-this State.

For a number of years after the adoption of the Code of Practice, a-' creditor who had obtained a judgment in another State of the Union, or in a foreign country, could proceed here by executory procees on such-judgment; but, in 1846, the law on the subject, as found in articles 746,. 747 and, in part in 748, was repealed.

From the fact that the laws thus recalled have not since been reenacted, it can only be inferred that the law-giver has persisted in the, determination that such judgments shall-not be executed summarily in this State, but it does not follow that such judgments cannot be made the basis of an action via ordinaria, in personam against the debtor, or in rem against his property, when found in this State. Actions of that description are daily brought and entertained, when it appears that the court which rendered the judgment, was competent and observed the forms essentially required by law; in other words, that it is valid by the law of the place where it is rendered, and has not been satisfied or extinguished. 18 An. 682; 23 An. 80; 24 An. 222; 2 N. S. 599; 10 L. 18, 220, 381; 1 R. 575; 5 R. 418; 11 R. 326; 4 An. 574; 5 An. 43; 12 An. 736.

The proceeding in this case is not executory, but ordinary. It is not directed against the debtor himself, but against one appointed to execute Ms will.

Had the judgment declared upon been rendered against an administrator appointed by the proper court in Tennessee to administer and liquidate the succession of James H. Wilson, Sr., in that State, and this-suit were brought to enforce such judgment against a different administrator, in this State, the latter might have pleaded res inter alios acta, as-there would exist no privity between them, for the reason that they would derive their commissions from different political sovereignties. 3 An. 353; 6 How. 44, 47; 4 How. 467; 18 How. 16; 7 Ind. 211; 8 Allen, 259; 13 Allen, 48; 11 Blatch. 391; 15 Pet. 7; 2 Cranch, 92; 9 Wheat. 565; 1 Cliff. 125; Story on Conflict of Laws, 522, 525; Rorer on Inter-State Laws, p. 257.

But it has been held that the case might be different if the same-person were administrator in both States. Story Confl. L. 522; 2 Rawle, 2, 431. A difference was likewise signalized between executors of the-same testator, some of whom resided in one State and others in another, and all appointed by the same will, each qualifying in the State of his residence and where one is administrator with the will annexed. 3 Kelly, 426; 13 How. 458; Rorer on Inter-State Law, p. 257-9.

In such a case, although the judgment was not admitted to be conclusive, it was recognized as a proper basis tor an action and was permitted to go in evidence, because there is a privity of right and official identity, between executors, inasmuch as their powers emanate from the testator and the judgment against one, in one State, may be rightfully brought into administration in the other State, by proper proceeding against the executor locally existing there. 13 How. 458, 469; Rorer, p. 258.

The case is certainly stronger Where the executor, contradictorily with whom the judgment was obtained in one State, was also executor in the State in which the judgment is sought to be enforced.

•We do not consider that it makes any difference that the judgment on appeal was rendered contradictorily with one appointed to replace the executor who died after the appeal had been taken.

From the fact that the highest'court, sitting merely in review of the judgment appealed from, proceeded contradictorily with him, wo' must assume that it recognized him as having capacity to stand in judgment as the legal representative of the estate for that appeal. 6 An. 292 ; 7 An. 576; 11 An. 118, 507; 10 L. 14; 1 R. 575; 7 R. 206, 575; 13 An. 394; 14 An. 205; 23 An. 80; 24 An. 222, 606; 10 Pet. 474; 1 Pet. 340; 15 Johns, 141.

We do not wish to be understood as holding that the judgment declared upon is conclusive of what it decrees. The judgment is a valid' cause of action, and is open to all the defenses which can be legally opposed to judgments. If recognized as valid and in existence, it can have no greater force than would be claimed for a similar one, rendered by a competent court of this State. C. P. 123, 987; H. D. pp. 749, 753; L. D. p. 347. We are not now trying the merits of the suit, but merely testing the strength of an exception of no cause of action, sustained by the lower court, we think, erroneously. 14 An. 205.

It is, therefore, adjudged and decreed that the judgment appealed from be reversed; that the exception sustained be overruled; that the defendant be ordered to answer to the merits, and that the cause be remanded to the lower court for further proceedings according to law; defendant and appellee to pay costs in both courts, from the filing of the exception of no cause of action.

On Application for a Rehearing.

Poché, J.

Appellee complains that the reasons given in our opinion do not justify our decree, and points to the expression of opinion that the “judgment should be received as prima facie evidence,” as unjustifiable oil an issue of no cause of action. Our intention was and is to recognize the judgment of the Tennessee Court, as a sufficient and valid cause of action, and have amended the opinion so as to exclude the possibility of any other conclusion.

Beh earing refused.


source: Caselaw Access Project

author: Levy, J. Todd, J.

license: Public Domain

text:
    No. 8009.
    The State of Louisiana vs. Charles Johnson et als.

      A juror is not incompetent when he swears on bis vow dire, that he has formed an opinion on the guilt or innocence of the accused, hut that his opinion could he overcome hy the evidence, and he thought he could do justice in the case, between the State and the accused. ,
    Error in the charge of the judge to the jury, in stating an abstract principle not arising out of the evidence and nowise relating to the cause, does not entitle the accused to a new trial.
    A question, which does not appear hy the record to have been raised in the proceedings in the Court below, and which is presented for the first time by the argument of Defendant’s Counsel before this Court, shall not he noticed and passed upon.
    APPEAL from the Superior Criminal Court for the parish of Orleans. Whitaker, J.
    J. G. Egan, Attorney General, for the State, Appellee:
    First — G-rounds set out in a motion for a new trial are not reviewable hy this Court when they involve a consideration of the testimony introduced before the jury.
    Second — The ground that the court a qua erred in its charge to the jury cannot he considered by tbe appellate court; unless it came tip in a bill of exceptions, or assignment of errors, it is net properly before the court in a motion for a new trial.
    'Third — Questions of law can only he presented to this Court through hills of exceptions or assignments of errors.
    Fourth — The Supreme Court is without authority to review the judgment of the lower court in criminal cases, except upon a clear showing that there has been error committed in the proceedings of the lower court to the prejudice of the prisoner. 11 An., 479.
    Fifth — It is the peculiar province of the lower court to determine whether a juror examined on his voir dire he open to conviction or not; and unless an error of law he clearly and specifically designated by hill, the appellate court will not interfere. 14 An., 463.
    Sixth — The proof of the guilt of the principal is admissible in evidence-offered on behalf of the State, to show the guilt of the principal as a necessary element of the guilt of the accessory, and the accused cannot object to the reception of the record containing such evidence because of the alleged invalidity of the indictment therein contained.
    Seventh — It is the prevailing rule that a mere abstract or theoretical error in the rulings or instructions of the presiding judge, or the relusal of them, furnishes no ground for a new trial, and this whether the error existed in a mere omission or in positive misdirection. Error in stating an abstract principle not arising out of the evidence and nowise relating to the cause shall not he taken advantage of hy either party. Hilliard on New Trials, p. 260
    Eignth — A correct statement of the law, although it be in a hypothetical case, and not warranted by the testimony before the jury, is not a sufficient ground for a new trial.

      L. Marrero for Defendant and Appellant, on application for rehearing:
    First — The right to be heard by counsel learned in the law is a precious one; it is guaranteed by the constitution to all parties, even in civil cases. Where counsel fails to appear at the trial, without connivance of the accused, he is entitled to delay to procure other assistance. State vs. Jurche, 17 An. 71; Const. 1879, Art. ; Graham & Waterman on IT. T., Yol. II, p. 682.
    Second — Though a person who has formed or expressed an opinion as to the guilt or innocence of the prisoner, from mere rumor, is not absolutely disqualified as a juror, yet if he has formed or expressed the opinion from what he heard some one say, a witness had told him, he is disqualified, though he had not himself heard the witness, and though he stated that bis opinion was not such as would influence his verdict, but that he would be governed by the evidence. Wharton Cr. L. 3004; Melius vs: States, 13 Sm. «Sc Marsh, 500.
    Third — A juror who answered to prisoner’s counsel that he had formed an opinion as to the guilt or innocence of the accused, and to the Court that his opinion was based on rumor and his mind was as free to act upon the testimony as if he had heard nothing of the case, held incompetent. Wharton Am. Cr. L. 3001 ; Cotton vs. States, 31 Miss., 504; 11 An. 607 (La.); Brakefield vs. State, 1 Sneed T., 215 (Tennessee); People vs. Bathbun, 21 Wendell, 509 ; Arch. Cr. PL 164-3.
    Fourth — The validity or invalidity of the indictment against the principal, is material to the accesssory, and the Court erred in not allowing him the privilege of discussing the-same.
    Fifth — It is error in a court to charge on abstract principles of law, not applicable to the case
    * as it is; also to refuse to charge an abstract principle of law, on the ground that the same is not law, when the principle is law. State vs. Chandler, 5 An. 489; State vs. St. Gemes, 31 An.
    Sixth — It is not essentially necessary that questions should be brought before this Honorable Court on bills of exceptions or assignments of errors only, in order to authorize its interference. The Court can take cognizance of all errors patent on the record. State vs. Krepple, 20 An. 402; State vs. Morel, 20 An. 402.
   The opinion of the Court was delivered by

Levy, J.

The accused was prosecuted under an information against himself and four others, charging them with “ being accessories, before the fact, of setting fire to and burning cotton.” On motion of counsel for the State a severance was ordered and Charles Johnson was put upon trial, convicted and sentenced to imprisonment at hard labor in the State Penitentiary for the term of twenty years. Erom this sentence- and judgment the accused, Charles Johnson, has taken this appeal.

Counsel for the accused have filed no brief in the case, and we,, therefore, are without the aid of any arguments or citation of authorities by the defence in support of the grounds urged in the several bills of exceptions, motion, for new trial and in arrest of judgment.

The first bill of exceptions was taken to the ruling of the court as-to the competency of the juror, Putnam. This juror having been sworn on his voir dire, was asked by prisoner’s counsel, if he had formed an opinion as to the guilt or innocence of the defendant, and he answered that he had; th%t it was such an opinion as would require testimony to overcome; that, at least the testimony of one honest witness having knowledge of all the facts connected with the charge, would be necessary to put the juror’s mind in an even balanced state. The court propounded the following question to the juror: “Is your mind in that condition that you can go into the jury-box and serve as a juror in' this case, giving-exact justice between the State and the accused, and try this case, from the evidence as given to j?ou by the witnesses and'from the law as given to you by the court, without regard to any impression or opinion you-have formed with regard to his guilt or innocence ? ” and he answered “ Yes, sir! ” The prisoner challenged the juror for cause, and the court-held, that he was a competent juror and that his answers showed that “ he was impartial although his statements were somewhat confused.”' The juror was then challenged peremptorily by the accused. We think the juror was competent. He had evidently formed no such fixed opinion as would disqualify him. The question propounded by the court was a-clear and explicit one, which probed, to the core, the conscience of the juror, plain and intelligible and easy of comprehension by a mind of even ordinary intelligence and although, as remarked by the judge a quo, his answers to counsel had been “ somewhat confused,” that given to the court was clothed with no ambiguity, but was direct and fully responsive and established his competency.

The second bill is entitled to no weight. -The information against, the alleged principal and the endorsements thereon were admissible. The guilt of the principal, evidenced by his plea of guilty, regardless of' the validity or invalidity, or defect of the indictment or information, could properly be shown by the judicial records offered in evidence. They simply showed that the principal had been informed against and had pleaded guilty. They were proof of rem ipsam and were properly-admitted. .

The third bill is taken to a certain portion of the charge of the court below. On the request of the District Attorney, on behalf of the State, the Court charged as follows: “Written statements of the witnesses, whether in the nature of confessions or otherwise, cannot be used on the side of the party offering the witness, to corroborate or. contradict his-own witness, nor can they be used if made by accomplices after the completion of the offense, except as against the person making them.” The defense objected to this charge on the ground that “ the court cannot, charge on a hypothetical case.” The judge a quo in his reasons in the bill of exceptions held : “ The court thinks that while it is true the court-cannot be compelled to charge on a hypothetical case, yet, if the testimony be not in the case to warrant such a charge, there is no harm done to the accused by the charge” and “ there is no error to the prejudice of the accused.”

“It is the prevailing rule that a mere abstract or "theoretical error in the rulings or instructions of the presiding judge or the refusal of them furnishes no ground of new trial, and 'this whether the error ■consisted in mere omission or in positive misdirection.” “ Error in stating an abstract principle not arising out of the evidence and nowise relating to the cause, shall not be taken advantage of by either party.” Hilliard on New Trials, p. 260.

The motions for new trial and in arrest of judgment (to the denial of which the accused took bills of exception), were in our opinion properly overruled. The allegations in the information were sufficient to vest the court with jurisdiction and fulfilled the requirements of the statute for the violation of which the’ prosecution was had. Nothing in the record shows any error or irregularity in the additional charge to the jury, which is complained of in the motion in arrest. The sentence ■and judgment should not be disturbed.

It is, therefore, ordered that the judgment appealed from be affirmed with costs.

On Application bob Reheabing.

The opinion of the Court was delivered by

Todd, J.

Impressed by the earnest and able brief presented by the defendant’s counsel for a rehearing, we have with the light and aid afforded by it, diligently and thoroughly re-examined and reviewed the proceedings in this case, and arrived at the conclusion that our previous decree must remain undisturbed.

The only question that deserves further notice from us is that in regard to the ruling of the judge a quo admitting in evidence the information against Thomas Melia, principal in the crime of which the accused in this case is charged to have been an accessory. We have no ■doubt that this information and the plea of guilty entered by Melia were properly admitted, and the objections offered by the counsel for the accused were properly overruled. The counsel, however, presents in connection with this ruling a question which, if it was really connected with this ruling or grew out of it, would present a matter for grave consideration. The court below decided that the information against the principal, and his plea of guilty thereto, were properly admitted in evidence against the accessory. From this it is argued in the brief of counsel, that if permitted to show that the principal in the offense had been indicted and convicted, that is not sufficient to warrant the conviction of the accessory; that it must also be shown that such principal had been sentenced. This question is presented for the first time by the argument before this Court, and is not raised by the proceedings in the court of the first instance. Non constat from the record that proof was not made on the trial that the principal had been sen-fenced. The objections that were made to the admissibility of the information against him and of his plea thereto, do not touch this question. Nor does it appear at any stage of the proceedings that the judge a quo ruled on this point, or was asked or had occasion to do so. The judge was not requested to charge the jury that the conviction and sentence of the principal were conditions precedent to the conviction of the accessory. Nor was any bill retained to the testimony of the principal, who was called as a witness for the State. Nor are we bound to conclude from the fact of his being a witness that he had not been sentenced, although an objection on this ground might have excluded him. We cannot supply what the record fails to show, and rule on points mentioned in the argument of counsel, which are not raised by the proceedings in the lower court.

In our original decree we passed on all the issues properly presented for our decision, and if we failed to consider any questions argued by counsel in their briefs, either original or on rehearing, it was because they were not raised in the lower court and, therefore, not properly before us on appeal.

The rehearing is refused.


author: Poché, J.

text:
    No. 7064.
    M. Dowling, Curator, vs. H. Gally.
    Defendant was a member of a planting partnership, to which he made advances for the raising of a crop on a plantation belonging to the co-partners. The other partner died during the partnership: Plaintiff was appointed Curator of his estate and was authorized by the Probate Court to continue the cultivation of the plantation. To this Curator Defendant rendered an account of his advances and sale of the crop, and paid over one-hall of the nett profits. The Curator accepted the account and received the money; but subsequently claimed one-half of the gross proceeds of the crop, in order to distribute the same under order of the Probate Court, and pay defendant ratably as a creditor of the estate. Reid that the Curator was concluded by his acceptance of Defendant’s account and receipt of the money, and that the settlement between them was final.
    APPEAL from the Fifth District Court for the parish of Orleans. Rogers, J.

      T. A. Flanagan for Plaintiff and Appellant.

      Chs. F. Schmidt for Defendant and Appellee:
    First — The joint ownership of real estate does not create a partnership as to the same. A special contract in. writing is necessary for that purpose. C. O. 2836 $ 4 An. 217.
    Second — But a planting or agricultural partnership between such joint owners as to the cultivation of the land, may be established by parol. 25 An. 593; 4 An. 217.
    Third — The partnership, whether particular or commercial, is a juridical person, distinct from the members who compose it. 3 An. 322 j 14 An. 108.

      Fourth. — Tho partnership property is liable to the creditors of the partnership in preference to those of the individual partner. C. C. 282?. And it is incumbent upon him who alleges the loss of this privilege by a partnership creditor, to establish clearly how the right has been lost. 12 An. 698. '
    Fifth — The curator of a succession of a deceased partner cannot claim the right of taking the whole or a portion of the property or assets of- the partnership, to be administered upon exclusively by him. He can only subject to his exclusive administration the share of his intestate in the residuum left after the payment of the debts of the partnership.
    "Sixth — "When, after the sale of the partnership property, the surviving partner and only creditor of the partnership, renders to said curator a full account of tho sale of tho partnership property and of the debts due, showing the net balance or residuum coming to the partners, and after deliberate examination thereof, he takes and receipts for the balance thus shown to be due tbe estate he represents, he is concluded theroby, unless he both alleges and proves fraud or error of fact in such settlement. 29 An. 352; 12 An. 360; 12 An. 22; 9 B. 121.
    Seventh — Registry of privileges is unnecessary to affect the parties to contracts or their representatives. It is required only as against third persons. 15 An. 51; 2 An. 174.
    Eighth — The faocor and commission merchant of an agricultural partnership, has, as its mandatory, the right to retain out of the property of the principal in his hands, a sufficient amount to satisfy his expenses and costs. C. 0 . 3023; 16 An. 398; 10 An. 48; 3 An. 98. This is a higher right than a mere.privilege, it is a right of pledge. 16 An. 398.
   The opinion of the Court was delivered by

Poché, J.

E. M. Villiers, at the time of his death, in August, 1867, owned in common with H. Gaily, the defendant herein, a sugar plantation in the parish of Lafourche, and was an ordinary partner with defendant ■for the cultivation of the plantation, the labor of which was under the control and management of Villiers, and the financial administration of which was entrusted to Gaily, the co-owner, who was a commission merchant in this city, and, as such, made all the advances of money and supplies necessary to the proper cultivation of the plantation.

Dowling, the plaintiff, who had been appointed curator of the vacant succession of Villiers, was authorized and empowered by a decree of the Probate Court of Lafourche, to continue for the year 1876 the cultivation of said plantation without change or interruption.

The entire crop of sugar and molasses.for that year was shipped and consigned to defendant Gaily, who sold the same as the factor and commission merchant of the partnership.

The gross proceeds realized from the crop was $22,190 59, and the costs for making the same, including commissions, expenses of sales and interests on advances made by defendant, amounted to $15,700 95, leaving a clear profit of $6489 64, one-half of which was paid over by Gaily to plaintiff curator.

The object of the present suit is to compel Gaily to pay over to the curator the one-half of the gross proceeds of the crop, with a view to distribute the same pro rata among the creditors of the succession, which is insolvent. Jules A. Blanc, a creditor of the succession, intervened in the suit and .joined plaintiff in his prayer. The case was tried by .a special jury of merchants, whose verdict was against plaintiff and intervenor, and they have appealed. A proper solution of the questions involved in this controversy requires a clear definition and a correct understanding of the relative positions of the parties to each other.

It cannot be contested, and is, in fact, conceded, that the partnership of Gaily & Villiers was a juridical being, as distinct from Villiers and Gaily as the one was from the other. Hence, Gaily, as commission merchant, became the privileged creditor of the partnership for all necessary advances, which he made for the use and cultivation of the plantation, and, therefore, as agent of said firm, he was fully authorized and justified in law, to retain any funds of the firm in his hands, in payment of his claim against the firm.

This point is conceded by plaintiff, wño admits that all items of defendant’s account up to the death of Villiers, were properly compensated by defendant by so much of the proceeds of the crop as was necessary thereto. But he urges that the advances made subsequently, under the order of the Probate Court, were charges against the succession, which could not be collected by defendant in the manner proposed, but could be settled only in due ipourse of administration.

Defendant’s answer to this proposition, is a settlement made with plaintiff as curator, as evidenced by the following receipt:

“ Received, New Orleans, January 25th, 1877, from H. Gaily, Esq., the sum of three thousand two hundred and- nine 70-100 dollars for amount of account rendered for crop made on Melodio plantation, Bayou Lafourche, for the year 1876.
$3209 70. M. Dowling,
Curator Estate E. M. Villiers.”

It is shown by the evidence that this receipt was predicated upon ■a full account furnished to the curator by Gaily, who therein accounted for the proceeds of the crop, and accompanied with a full and detailed statement of his advances during the year, showing the profits of the enterprise to be double the amount which he paid over to the curator, as the share of the succession.

The evidence shows also that Gaily was the only creditor of the planting partnership, or of the succession, on account, of the planting ■operations carried on for its account under the authority of the Probate Court. It, therefore, follows that, as the only creditor in the premises, and the debt having been contracted under the authority of the court, the privilege-of Gaily on the crop of 1876 was not required to be registered as between the parties, and that to compel him to turn over the half of the proceeds of that crop to the curator, who would have been ■compelled in law to immediately qpply the same to the liquidation of Gally’s privileged account, would have been an idle and useless ceremony, to obviate which the law authorizes the system of compensation.

Under the authority of the case of 29 An. 350, Haile vs. McGhee, Snowden & Violet, the curator, plaintiff herein, was concluded by the receipt which he gave, after a full examination of Gally’s account, and without objecting to any thing therein charged. In a supplemental petition which he was allowed to present, he charges errors in the account, and although he specified no particular error, he was allowed to introduce proof in support of the alleged errors. A careful scrutiny of the evidence on this point satisfies.us of the correctness of Gally’s account, and that it was protected by the privilege recognized by law.

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


author: Fenner, J.

text:
    No. 8256.
    The State of Louisiana vs. Jerry Washington.
    The accused cannot complain that the list of jurors served on him, contained the names of the whole panel drawn for the term of court, including the grand jurors, &c., if said list designated those who were to serve during the week in which his case was to he tried.
    The accused, having gone to trial without objection, cannot, after verdict, contest the legality of the drawing of the grand jury by which he was indicted.
    APPEAL from the Twentieth Judicial District Court, parish of Assumption. Knobloclc, J.

      J. G. Egan, Attorney General,' for the State, Appellee:
    j’irst — This Court cannot review a judgment refusing a new trial which was asked on the ground of newly discovered evidence. 21 An. 473 ; 22 An. 468.
    Second — Objection to the formation of the jury comes too late after going to trial. 8 R. 514 ; Sec. 5, Act No. 32 of 1840, p. 28.

      Walter Guión for Defendant and Appellant:
    Rirst — That the list of jurors contemplated bylaw tobe served on the accused should embrace the names of those only who could sit upon the trial, and not those of jurors drawn for a week different from that fixed for the trial, and thafcit should, also, not contain the names-of jurors who have been excused, are dead, or have not been found. 3 An. 50 ; 7 An. 284.
    Second — That the jury commissioners who drew the jury were totally without right or authority to act, and that the indictment found against the accused, having been brought in by a grand jury drawn and selected by said commissioners, was absolutely void and of no effect. N
    Third — That the indictment, being null and void by reason of the total want of authority of the jury commissioners who acted in drawing the grand jury which found it, the nullity can be pleaded after the verdiot, and even though the objection was not urged by the accused on the first day of the term of court. 21 An. 252; 31 An. 387, 398, 406 j State vs. ■Williams, 30 An.
   The opinion of the Oourt was delivered by

Fenner, J.

The errors assigned are the following:

1st. That the venire and list of jurors served on accused before trial was not such as the law requires, in this: that said list contained the names of the whole panel drawn for the term of court, including the grand jurors, the jurors who were to serve for the second week as well as those for the first week of the term, and also the jurors who had not been found.

The list served designated which jurors were on the Grand Jury, which ones had not been found, which ones were to serve for the first week, and which for the second week of the term.

It appears to us that this fully accomplished the object of the law, which is to furnish the accused with the names of the jurors who are actually to be presented to him for the trial of his cause, in order that he may inquire into their characters and prepare his challenges. There was no difficulty for him to understand that only the jurors who had been served, and who were not grand jurors, and who were assigned for duty during the week in which his case was to be tried, would be presented to him for its trial.

The authorities in 3 An. 50, and 7 An 28á, do not apply, because, in those cases, the lists served did not contain the discriminations between the jurors here noted.

2d. That the grand jury, who found the indictment against him, was drawn by persons acting as jury commissioners, without legal right or authority to act as such, having never been appointed or sworn as jury commissioners by the judge of the court before which the case was instituted and tried, and, that therefore, the indictment was null and void.

It appears that the jury commissioners who acted, had been appointed and qualified by the Judge of the District Court for the parish of Assumption under the Constitution of 1868, and held over and continued to perform their functions under the succeeding District Court for the same parish, organized under the present constitution.

There is no doubt that, had the objection been urged, seasonably and in proper form, before going to trial, it would have been fatal to the indictment. State vs. Thompson, 32 An. 879; State vs. Williams, 31 An. 1028.

But such objection urged only after plea and trial, and on a motion for a new trial, comes too late. It is well-settled law, that objections to the qualifications of jury commissioners and to irregularities in the summoning or drawing of grand and petit jurors, must be urged in the preliminary stages of the trial, and cannot be heard after plea, trial and ver-, diet; the principle being that a prisoner cannot plead to an indictment found by a grand jury and take the chances of a trial thereon, without objection, and after a verdict against him, urge objections to the jury which found the indictment or tried the case. State vs. Miles, 31 An. 825; State vs. Swift, 14 An. 827; 25 An. 537, 563; 16 An. 141; 28 An. 187; 31 An. 379.

The case does not fall within the principles of 31 An. 387,406, because the venire for the term at which the indictment was found and the trial was had, was never quashed on the motion of any person.

State vs. Parks, 21 An. 252, holding that the qualifications of grand jurors may be inquired into even after verdict, applies only to the personal qualifications of such grand jurors, as to which the prisoner, having no opportunity of examining them on their voir dire, may remain in ignorance until after trial.

The records of the court were open to the prisoner and his counsel .¡and afforded them full opportunity to know in what manner the jury commissioners were appointed and qualified.

3d. Another ground for the motion for new trial, not urged in the brief, was newly discovered evidence. It is very plain that the alleged after-discovered evidence is not such as ought to affect the result of another trial.

We find no error in the proceedings, and the judgment is, therefore, affirmed.


author: Levy, J.

text:
    No. 8173.
    W. B. Spencer vs. Goodman & Bradfield et als.
    A judgment creditor can legally sue for tlie recovery of bis debtor’s property in tbe bands of third persons, in order to malee it liable for Ms debt, and, for tbe purposes of Ms suit, be can legally assert all tbe rights of Ms debtor in and to tbe property.
    Such a suit is not tbe Revocatory action, but is in tbe nature of tbe Petitory action. 30 An. 733.
    Tbe prescription applicable to such a suit ia that which governs tbe Petitory action.
    Such an action being petitory in its nature, tbe tender and putting in default are not conditions precedent to the recovery of tbe property and of tbe fruits and revenues.
    Tbe debtor, in. such a suit, being made co-defendant with tbe actual possessors, and in Ms answer joining tbe Plaintiff and claiming tbe property as bis own, will be reviewed in tbe light of an intervenor in a petitory action.
    Tbe title by which tbe bolder of a mortgage note sought to acquire tbe mortgaged property, being annulled, confusion and extinguishment cease and tbe mortgage still exists.
    APPEAL from the Eighth Judicial District Court, parish of Madison. Delaney, J. '

      J. W. Montgomery for Plaintiff and for Carpenter, co-plaintiff, Appellees:
    Pirst — A creditor can assert all tbe rights of bis debtor either to recover property in bis behalf or to assert a right on property. 30 An. 727-733 j 2 An. 782 j Code bTapoleon, 1166; 4 Maroadé, p. 433, with bis comments on that article.

      Second — A revocatory action seeks to annul an act done "by liis debtor in fraud of bis rights. It does not refer to non-action of the debtor. Civil Code, Art. 1969; 30 An, 733-4.
    Third — The purchaser in bad faith is he who knows, or has reason to believe, his title to be “ vicious or defective.” He is bound to restore the revenues. Civil Code, 3452.
    Fourth — Estoppel in pais can be invoked only by one who is misled to his injury. 6 Otto, p. 659-666.
    Fifth — Au exception being referred to the merits puts the cause at issue, and upon trial plaintiff may prove up his case. 29 An. 398 ; 26 An. 620.
    Sixth — It is perfectly manifest that, whatever may be the fate of Spencer’s action on the prescription of one year, plead under Art. 1994 of the Code, Carpenter’s action to recover the property is not barred. He files a cross-bill, or plea of intervention, asserts title and obtains judgment after issue joined; and so far as he is concerned the action was petitory and governed by the prescription applicable to such actions.

      Stone & Slack for Defendants and Appellants:
    ¿First — An action brought by a creditor under the latter clause of Art. 1990, R. C. C., is necessarily a revocatory action, and being an exception to the ordinary rules, should not be extended by implication.
    Second — The revocatory action applies not only to contracts, but to any “ Act ” —real or unreal —whereby the creditor is prejudiced. R. C. C. 1989.
    'Thlrd-r-The revocatory action differs from an action of nullity or rescission in this, the former is brought by a person not a party to the act sought to be revoked, while the latter is brought by one of the parties to the act. 4L. 257. Third parties revoke. Parties to an . act rescind or annul.
    ¿Fourth — The action given by R. C. 0.1990 is a legal subrogation of the creditor to the passes- % sory actions of his debtor, and is consequently barred by one year. R. C. C. 1994, C. P. 49-53. The creditor is subrogated to no greater rights that his debtor could exercise.
    ¿Fifth — An action to annul a simulated sale is barred by ten years. 2 H. D. 1213, ¿No. 9; 32 An. 94, and oases; but these authorities are based upon the fact that the sale is not one in reality, coupled with the farther fact that the property so sold is still in the possession of the vendor or vendee. In this case neither the vendor or vendee is in possession.
    ’Sixth — In a revocatory action, fraud is au essential ingredient. R. O. C. 1978-1989. At all events, if even simulation is charged, it must he alleged that the act complained of was fraudulent or prejudicial. 31 An. 863; 30 An. 1136. Plaintiff charges neither. If he does, then his action is prescribed; if he does not, then he has no cause of action.
    Seventh — Insolvency is only a presumption of fraud — its allegation does not cure the omission to allege fraud. R. C. C. 1984.
    Eighth — To recover, the petition must allege that the property did not sell for its value — that plaintiff would be benefited by a xe-saie, 31 An. 840, 6 An. 61, 581, 8 An. 5U3, 30 An. 174, 3 An. 668, 5 An. 260, and that plaintiff’s debt existed before the acts sought to be revoked, 32 An. 94, 30 An. 1136 and cases.
    ¿Ninth — To sue a married woman, she must he brought from under the exceptions. She cannot he the champion for the community. R. C. O. 2402; 20 An. 531; 29 An. 76 and cases.
    Tenth — It is a condition precedent to the revoking of a sale, that plaintiff must return or offer to return the consideration or advantage received. 4 ¡L. 198; 19 ¿L. 281; 6 An. 581; 7 An. 113; 30 An. 174; 30 An. 1232; 13 An. 213; 8 An. 503; 24 An. 324. t
    Eleventh — The sale of the property of another is a relative, not an absolute, nullity; for the reason it,¿ean,be cured by’a confirmative act. R. C. G. 2272. None but those who can allege and show injury, can disturb such a sale.
    Twelfth — To avail oneself of a decision on a question of f&ct, it is necessary to oppose the plea of resjtcljudicata. 2 H. JD. 1168, ¿No. 1. This rule is applicable to the plaintiff. 28 An. 948.
    Thirteenth — All a plaintiff in a revocatory action can obtain is a judgment recognizing his rights, etc. He has no cause of action for the revenues of the property.

      Fourteenth — Where a defendant attacks his co-defendants, he is governed by the rules applicable to a plaintiff, and where he permits the main cause to be tried without an issue-joined on Ms demand, the judgment rendered in his favor is a nullity. 15 An. 207.
    Fifteenth — An exception cannot be treated as an answer, unless by consent of parties or set down as such by the Court.
    Sixteenth — A defendant by a distinct demand in his answer against his co-defendants,, between whom there is no privity of contract with him, cannot change the character of the principal demand or cumulate a different or contrary demand with it. 24 An. 614. 15 An. 3)0; C. P. 149-153. Mayer vs. Armant, 14 An. 178; new ed.
    Seventeenth — A default is a condition precedent to the recovery of revenues. B. C. C. 1912.
    Eighteenth — A.s between the parties the only evidence of simulation is a counter-letter. 29 An. 512; 1H, D. 534 (d), No. 1 and cases; 31 An. 797.
    Nineteenth — Where a sale is attacked by a third party and is decided simulated, that decision only decides the status of the property as to tMrd parties, but does not, ipso facto, annul the sale as between tbe parties, who can only set it aside by a counter-letter inter sese. If that counter-letter, when producod inter sese, establishes the reality of the sale, then inter sese it can never be annulled, except on allegatiou and proof of fraud; and none is alleged here.
    Twentieth — When a debtor, from his own story, fraudulently transfers his property to defeat the rights of creditors, he cannot set up his dishonesty to recover the property, and be heard “ not in undoing the wrong committed, hut in making it more successful.” 31 An. 577. He cannot take advantage of his own wrong. Wk. Max. p. 337; 1 H. D.' 1007 ; ,Ib. 1008.
    Twenty-first — A party is estopped from asserting title, where he was present when his property was sold, mado no objection thereto and voluntarily surrendered it to the purchaser. ' 1 H. D. 512; Nos. 4, 5, 6 and cases; 2 Story Equity, Sec. 1546; B. C. G. 1811-1817; 5 An. 368; 1 Gr. Evi., Sec. 22-23; 30 An. 50; Volenti non fit and In po/ri delicto. Wk. Max. 213.
    Twenty-second — It is not justice to reward one for his baseness. Nemo audzendusy etc. 31 An. 577;9ED. 1107-8.
    Twenty-third — Bevenues will not be allowed, where they are claimed as damages for “forcibly dispossessing,” when there is not one tittle of evidence to prove the allegation — as in this case. One must have “ a real or actual interest which he pursues ” before he can sue. C. P.
    Twenty-fourth — Evidence in one case is not proof of an allegation in another distinct case, and cannot be considered — as it was in this case.
    Twenty-fifth — A demand for revenues, based on the charge of “forcibly dispossessing,” is one for damages, and is barred by one year. B. O. O. 3536. 9 An. 490; 25 An. 414 ; 26 An. 511; 31 An. 527.
    Twenty-sixth — No prescription runs against the mortgage debt, while the mortgagee is in possession of the property mortgaged. 31 An. 839. If the sale is revoked the mortgage is in force. 30 An. 1309 ; 31 An. 839.

      H. P. Wells for Klein, Defendant and Warrantor, Appellant:
    First — The cause of action is the reason why one sues, and it is predicated, either upon the violation of a legal agreement or some provision of law to one’s injury, and in every case it must he set forth. O. P. 172.
    Second — A creditor can only interfere with the sale of his debtor’s property on the ground that the property of the debtor is the common pledge of his creditors, B. C. O. 3183; and only then, when the act of the debtor is intended to defraud Mm, and it carried into execution would have that effect,cand operates to his iniury. B. C. 0.1978. This rule of law applies not only to fraudulent transfers, but to all ac'ts of the debtor, whether those acts-are real or pretended transfers. B. O. C. 1969; 31 An. 862. It is only fraudulent simulations that can be attacked. 31 An. 862.
    Third — A creditor, by reason of being simply a creditor, and.for that reason alone, and without alleging the essentials of a revocatory action, lias no right to stand in' judgment; the utter absence; of these allegations, that give life to such an action, will be noticed.
    Eourfch — No one, but the owner of the thing, or one alleging injury, can complain of the sale of the property of another. Such a sale is not absolutely null; because it can be cured by a confirmative act.
    Eifth — “Every act done by a debtor with the intent of defrauding* his creditor * * * is illegal and ought as respects such creditor be avoided.” R. C. C. 1969. How? By an action of course; hence, the right to this action is barred by one year. R. C. 0.1994 ; 31 An. 839.
    Sixth — A simulation is the result of a deliberate act. There can be no such a thing as an accidental simulation.
    Seventh -A sheriff’s sale cannot be a simulation, unless the officer is a party to the sham, or . the sale is the result of a previously arranged programme in a paotitious suit where the plaintiff buys. The several sales in this case could not be simulations, because real. If they are fraudulent, then the prescription of one year applies. If not fraudulent, or prejudicial (and neither is alleged) then plaintiff has no legal right to sue, and consequently no cause of action.
    Eighth — Action to revoke a simulated transfer, the court holds, is barred by ten years; provided, however, the property is still in the hands of the parties to the sham; aliter, if it is in the hands and possession of a third party'
    Ninth — A plaintiff must, to avail himself of a decision on a question of fact, oppose the plea of res adjudícala. The plea is a peremptory exception and must be pleaded; it cannot be cured by objections to evidence. 28 An. 946. If parties go to trial upon issues and evidence, received without objection, they are entitled to the benefit thereof.
    Tenth — Courts "will not lend their aid to the annulling of titles, where the party seeking their interposition, cannot possibly take relief from the granting of the remedy invoked.” 31 An. 840 and oases.
    Eleventh — Parties to an act can only have it declared simulated on production of a counter* letter. 1 H. I). 534; L. D/254, No. 3.
    Twelfth — A party, who was present at the sale of his property and made no objection thereto — who moved off the property sold, makiugno effort to retain it, abandoned it and moved into another parish, and who remained silent and inactive until forced into court by citation, and’ then sets up title to this same property, thereby acquiesces in the sale and is estopped from taking advantage thereof. 1 H. D. 512.
    Thirteenth — Plaintiff in a revocatory action who has no rights in the property, cannot be entitled to rents or revenues.
   The opinion of the Court was delivered by

Levy, J.

The plaintiff, in his petition, alleges that he is the holder and owner of a judgment rendered in suit No. 957 of the District Court of Madison parish, entitled E. D. Farrar and W. B. Spencer vs. Charles Carpenter, executor, et als., for $2500,with five per cent per annum interest from June 8th, 1875, he having acquired, by assignment, said Farrar’s interest therein; that said judgment was duly recorded in the Recorder’s office of said parish and operated as a judicial mortgage on all the real estate of said Carpenter, in said parish ; that said Carpenter was at the time of said judgment and said registry, and still is, the owner of a certain plantation in said parish, known as the “ Willow Glen Plantation,” containing about 600 acres ; that said Carpenter has never been legally «divested of title and ownership of said plantation, but has been wrongfully dispossessed thereof, by a pretended sheriffs sale made under a writ of fieri 'facias, issued upon a certain judgment rendered against J. S. Richardson, for damages in a certain injunction suit in said court, of J. S. Richardson vs. E. M. Cramer, sheriff, et als., No. 939, in which suit said Richardson asserted his ownership of said plantation, and was-therein decreed by the District Court and Supreme Court of Louisiana, not to be the owner and was condemned to pay said damages; that, by the terms of said decree, said property was declared not to belong to said Richardson and, therefore, not liable for his debts; and that, the pretended sale of said plantation for his debt, under the very judgment which decreed it not to be his property, was and is an absolute-nullity on the face of the proceedings, and that the pretended purchaser thereof, viz: John A. Klein, of Mississippi, and all subsequent holders-are possessors in bad faith and liable to make restitution of the fruits of said property; that said Richardson, having no interest or right in or to said property, said purchaser did and could acquire none from or through him; that the fruits and revenues, since the date of said pretended sale are worth $2500 per annum ; that Charles Carpenter, plaintiffs debtor, is,'and was at the time of said illegal dispossession, hopelessly insolvent, and neglects and refuses to take proceedings to have said illegal possession annulled, ¿reatly to the injury of plaintiff, who is a creditor, having a mortgage, as aforesaid, upon said property ; that, as such creditor, he has the legal right to exercise the rights and actions of his-debtor, and to have said apparent, but void title, declared null, to the end that he may subject said property to his debt, as that of his debtor, Carpenter; that said property is now in the possession of James H. Goodman and Mrs. Mary E. Bradñeld, wife of John O. Bradñeld ; that B. R. Thomas is dead and his heirs are residents of Mississippi. He-prayed for appointment of curator ad hoc to represent John A. Klein and the heirs of Thomas, absentees, and for citation of them and of Carpenter,. Richardson, Goodman and Mrs. Bradfleld, and for judgment decreeing said plantation to be the property of said Charles Carpenter and, as such, liable to plaintiffs judgment and mortgage; that the adjudication to-said Klein under said writ otfi.fa. against Richardson, be decreed to be absolutely void ab initio, and that said Klein, and Goodman and Mrs. Bradñeld be condemned, jointly and in solido, to account for and return, the fruits and revenues of said plantation during their said illegal possession.

The defendants, Goodman and Mrs. Bradfleld and husband and Klein, filed a peremptory exception, praying for the dismissal of the suit on the following grounds: 1st. Because the petition of plaintiff disclosed-no cause of action; 2d. Because defendants have not been put in default,, and no tender has been made by plaintiff of the price bid and paid for the property, at sheriff’s sale, nor of the amount paid by Goodman and Bradfield to said Klein therefor, the said bid and price, including the amount due on the first mortgage in favor of Thomas, attorney’s fees and taxes, all of which enured to the benefit of plaintiff; and which tender and offer is a condition precedent to the institution of this suit, no fraud being alleged ; 3rd. Because the sale of E. D. Barrar to W. B. Spencer, plaintiff herein, was the transfer and purchase of a litigious right, and) said transfer an absolute nullity. This exception was referred to the merits. Mrs. 'Virginia Thomas, widow, natural tutrix of the minor heirs, of B. B. Thomas, answered, averring that her late husband was a mere nominal party to the transactions and he and his heirs without interest in the suit. Goodman and Mrs. Bradfield and husband in their answer, set forth that they are the lawful owners of said property, having purchased the same, by notarial act, from John A. Klein, on the 30th of August* 1876, for the price and sum of 118,000, of which $4500 was paid in cash* and they gave their three mortgage notes, in solido, each for $4500, payable respectively on the 15th December of the years 1877,1878 and 1879* for the balance. They denied that their said vendors or themselves have ever been possessors of said property in bad faith, or that they are in any way liable to account for the fruits and revenues.

They aver and except that there is no privity of contract between respondents and plaintiff, and that there is no law authorizing a creditor in an action of this kind to recover revenues ; that plaintiff in an action of this kind can only have awarded to him the right to sell the property to pay his debt; that the portion of the judgment in suit No. 957 of “ Barrar & Spencer vs. Carpenter, executor,” etc., which recognizes the same as á privilege claim, is an absolute nullity for want of probate jurisdiction in the District Court, even if there was such a succession as that sought to be made liable, which they deny. They plead the prescription of one, two and three years, against plaintiff’s demand, and finally they call Klein in warranty and pray for such judgment over against him as may be rendered against them.

Carpenter filed an answer, in which he admitted that plaintiff holds a judgment against him, which he has not paid, and “assuming the part of plaintiff against the other defendants, Goodman and Mrs. Bradfield and husband,” avers, “ that he is the owner of the plantation mentioned in the pleadings; that he has never been lawfully divested of his title thereto, but he has been violently dispossessed of the same; that, while he was in possession of said property, a writ of seizure issued against the same at the suit of ‘B. B. Thomas, use, etc.,’ which proceeding was arrested by an injunction of J. S. Biehardson, who set up a title to the property; that such injunction suit was decided adversely to said Biehardson, his title declared to be simulated and void, and was annulled and avoided, and a judgment rendered against him (Richardson) for about $1500 damages ; that said writ of seizure, having been returned by order of the owner of the order of seizure and sale and judgment, said plantation was released from seizure and he (Carpenter) remained in possession thereof; that on or about the 22d of June, 1876, a fieri facias issued on the judgment in said injunction suit against said Richardson to collect the said judgment for damages, and respondent’s said plantation, without any notice to him, was sold for the purpose of liquidating such demand, and John A. Klein, the owner of the notes and order of seizure and sale, in favor of ‘ 33. R. Thomas, use, etc.,’ became the purchaser; that, when the said fi. fa. was enforced by the sheriff, it was done without seizure or notice to him, and respondent protested against the surrender of his property to the pretended purchaser, but the sheriff disregarded his opposition and violently dispossessed him and delivered said property to said Klein.” He alleges that he is entitled to recover his said property- with the rents and revenues, which ho avers to be worth, annually, the sum of $3000 ; that said defendants are possessors in bad faith and responsible to him for such rents and revenues. He prays that his title be recognized as being good and valid, and that he recover from said defendants his said property, the Willow Glen Plantation,” together with $3000 annually until delivery to him.

The defendants, Goodman and Mrs. Bradñeld, peremptorily excepted to the answer of Carpenter, and moved to strike out all that portion of said answer wherein he assumes the attitude of plaintiff, for the reasons; 1st. Because it changes the character of the action and cumulates a different one ; 2d. Want of privity of contract; 3rd. Want of putting in default; 4th. Estoppel by reason of silence, inaction and acquiescence in the sheriff’s sale to Klein of said plantation and his solemn act of conveyance of same to Richardson on 25th March, 1875, etc., thereby debarring himself from asserting title to the same. This was also referred to the merits by consent.

Richardson, in his answer, adopts all the exceptions, answers and defenses of his co-defendants, Goodman and Mrs. Bradñeld. He avers that he was the bona fide owner of said property at the time of said sheriff’s sale, having acquired the same from said Carpenter, for a valuable consideration, and that the same ■was legally seized and sold at said sheriff’s sale as his property. He pleads estoppel and prescription for one and ñveyears against the demands of plaintiff and of Carpenter.

The defendant Klein (who had been called in warranty by Goodman and Mrs. Bradñeld), answered setting up estoppel, for the reasons stated, as against Carpenter and the plaintiff Spencer ; averred that plaintiff has no cause of action ; denied that he was a purchaser in bad faith; alleged that, at the date of the sheriff’s sale to him, he was the owner of the judgment in the suit of Richardson vs. Cramer et als., No. 929, under which said land was sold, and that he was the owner of the order of seizure and sale in the executory proceedings of “ B. B. Thomas for use, etc., or Charles Carpenter, ” No. 930 ; that said debt was secured by first mortgage on said land, and that the object of this respondent was to obtain bona fide payment of his debt; that the property purchased by him, at said sheriff’s sale, was the property of Richardson, and that neither Carpenter nor any of his creditors had any right therein ; “ that if it was •Carpenter’s property (which he denied), his bid -went to the extinguishment of the debt for which Carpenter was liable, and plaintiff cannot have said sale revoked or annulled until he has reimbursed or offered to reimburse said amount to respondent, which has not been done.” He pleads the prescription of one year to plaintiff’s action.

Eor answer to the call in warranty, he admits that he sold the property to Goodman and Mrs. Bradfield, but denies any responsibility to them, averring that they bought the property at their own risk and peril. He prays, “ in the alternative, that, should the sale to him and from him to his co-defendants be revoked and he be decreed to restore the price, the judgment against him be in proportion to the whole price paid as the quantity of land, the sale of which is revoked, is to the whole quantity sold, there being 150 acres of land in the sale from respondent, the title to which is not questioned in this suit.”

There was judgment of the Court a qua, decreeing the property described in the petition of plaintiff to be the property of Charles Carpenter, and that the sheriff’s sale made by E. M. Cramer, sheriff, to John A. Klein, on the 5th of August, 1876, is null, void and of no effect; that the sale made by John A. Klein to James H. Goodman and Mrs. Mary E. Bradfield, on the 30th of August, 1876, so far as it transfers the property purchased by said Klein on the 5th of August, 1876, from E.M. Cramer, sheriff, is null, void and of no effect; further, that plaintiff’s mortgage be recognized and made executory as against said property belonging to said Charles Carpenter and the same to be seized and sold to pay and satisfy plaintiff’s mortgage ; further, decreeing that there be judgment in favor of Charles Carpenter and against the defendants Goodman and Mrs. Bradfield, for the property known as the “ Willow Glen Plantation,” the same which was sold at sheriff’s sale on 5th of August, 1876, and that his title to the same be recognized and he be put in possession thereof by the sheriff; further, that Carpenter recover from the defendants Goodman and Mrs. Bradfield, as rents and revenues of said plantation from and including the year 1876 to the time of re-delivery to said Carpenter, at the rate of §2600 per annum, wiMr five per cent per annum interest thereon from the time of their respective maturities, allowing Goodman and Mrs. Bradfield to set-off and compensate said rents and revenues to the extent of $827 25 taxes proven to have-been paid by them on said property. It was further decreed that Goodman and Mrs. Bradfield have judgment over against Klein, their warrantor, decreeing them to be entitled to all the purchase price paid by them for that portion of the Willow Glen Plantation bought by John A. Klein, at sheriff’s sale, on 5th August, 1876, and reserving to them their right to sue for and liquidate the same, and that they be relieved from-the payment of any said price not due or unpaid, and that said Goodman and Bradfield do restore to said Klein the notes mentioned and transferred by said Klein to them in the deed of August 30th, 1876, upon payment to him by them of said purchase price.

The following appeals were granted to and taken by Klein: 1st. A devolutive appeal from the judgment in favor of the plaintiff, W. B. Spencer, subjecting the property in the possession of Goodman and Brad-field to the satisfaction of plaintiff’s judgment. 2d. A devolutive appeal' from the judgment in favor of Charles Carpenter, decreeing the property, described in the petition, to belong to Carpenter and ordering him to be-placed in possession thereof. And appeals were granted and taken by-Goodman and Mrs. Bradfield, as follows : 1st. A suspensive appeal from-the judgment in favor of plaintiff subjecting the property in the possession of these defendants to plaintiff’s debt and judgment; 2d. A suspensive appeal from the judgment decreeing the property in their possession-to belong to Charles Carpenter and ordering the delivery of same to him;. 3d. A suspensive appeal from the judgment decreeing said Carpenter to be entitled to the revenues of the property in possession of said defendants at the rate of $2600 per annum.

We shall discuss the questions raised by the several parties, on the determination of which depends the decision of this cause.

1st. Has the plaintiff Spencer, a judgment creditor of Carpenter, the-right to assert all the rights of his debtor to recover property or to assert a right thereon, in behalf of his debtor ? We think such right on the part, of the creditor does exist and can be asserted by him ; otherwise he would be at the mercy of a defaulting and obstinate debtor, who might,, .by a refusal or neglect to assert rights involving his ownership and title to property and its possession, prevent the enforcement of just claims resting upon his property, which the law regards to be a pledge for the-benefit of all his creditors. Mourlon, vol. 2, p. 614 et seq.; Journal du Palais, Tome II de 1853, p. 294; 30 An. 727 et seq., Logan vs. Herbert.

2d. What is the character of plaintiff’s action? The ruling of the Court in Logan vs. Herbert, 30 An. 733, seems to us to cover this case. There the Court said: “ We have stated the prayer of the petition. We do not think it is the hypothecary action. The petition does not ask for the seizure and sale of the property, but that the sale from Barkdull to Herbert be declared void; that the property, quoad the plaintiff’s rights, be decreed to belong to Mrs. Fluker, and that it be decreed to be subject to plaintiff’s judgment. Creditors are authorized by law to exercise the rights and actions of their debtors in cases like this (2 An. 782). They are not barred or estopped from so doing by the acts or pleadings of their debtors, only when and to the extent that in such acts or pleadings the debtor may be considered as representing them.” And, “ the hypothecary action proceeds upon the hypothesis that, there has been a real alienation of the property by the mortgage debtor.” “Nor must plaintiff’s action be confounded with the revocatory action, technically so called. That action has for its object the annulment of acts and contracts made by the debtor in fraud of the rights of creditors. Plaintiff in this case does not pretend any such state of facts. On the contrary, she asserts that her debtor-never did, in truth and fact, sell- or dispose of this property ; that she was the victim rather than the perpetrator of illegal and wrong doing.” * * “ We think the plaintiff has made out her case, and-that, as to her, defendant’s title is null and void; and that plaintiff has the right to proceed against said property as that of her judgment debtor for the satisfaction of her mortgage rights. Under the views we take,, the prescription of one and five years pleaded by Mrs. Barkdull against plaintiff is inapplicable,” The similarity in the pleadings of that and the instant case is striking, and the reasoning and views on the facts of that áre applicable to those of this. As between the plaintiff Spencer and Carpenter and Richardson, the judgment in suit No. 957 adjudicated the sale from Carpenter to Richardson to be a simulation and null, void and of no effect. As between Thomas and the owners of the mortgage notes- and Richardson, the judgment in the injunction suit, No. 939, established-likewise the simulation of said sale. The assignment by Dennis of the-mortgage notes, on which was issued the order of seizure and sale mentioned in suit No. 930, was dated on the 10th of December, 1875, the writ-of seizure and sale having been executed on the 23d of February, 1875. The judgment in injunction suit No. 939 was signed on the 23d of May,. 1875. The judgment in suit No. 957, of Spencer vs. Carpenter et als., was signed on 31st of May, 1877. The deed from sheriff to Klein under fi. fa. in No. 939, was dated 11th August, 1876, and the deed from Klein to Goodman and Bradfield on the 30th of August, 1876. The sheriff’s-sale to Klein set forth that the right, title and interest of J. S. Richardson in and to the land described, was seized and sold to Klein. The deed from Klein to Goodman and Bradfield conveyed the property, which had been acquired at this sheriff’s sale, with express stipulation that the-vendor made no guaranty of title thereto, but warranted only such title as he had acquired at said sale. Thus, it appears that, as to Carpenter, Richardson, Klein, Thomas and Dennis and Farrar (the latter two being the owners of the mortgage notes of Carpenter), they were made aware of the want of title to the lands involved in Richardson and of the real ownership of Carpenter therein. Klein, as the owner of the notes, the order of seizure and sale and the judgment in No. 939, and subrogated only to such rights as his vendees had caused to be executed the .fi.fa. issued on the judgment against Richardson, seized Carpenter’s land, knowing it to be Carpenter’s, and sold the same to satisfy a judgment against Richardson. Thus Klein became a possessor in bad faith. He bought it, however, and retained in his hands the amount of the mortgage debt, the first mortgage on the property. In his sale to Goodman and Bradfield, which included this property, and in which he transferred to them the mortgage notes of Carpenter, etc., he cautiously and expressly abstained from giving a general warranty thereof ; he conveyed to his vendees only such title as he had himself acquired by thesheriff’s sale in suit No. 939, and that was no title at all; and, jin accepting only the title under that sale, Goodman and Bradfield, as to this particular property, acquired no right or interest therein. It cannot then be said that Goodman and Bradfield acquired even an apparent title, for the act of sale to them plainly and clearly set forth, by reference to the sheriff’s sale under the execution in the suit of Richardson vs. Cramer, that there was only sold the right, title and interest of Richardson, in the land, and in the very suit in which the execution was issued and the adjudication made, Richardson was decreed not to be the owner of the property and really to have no right, title or interest therein. Goodman and Bradfield, therefore, were, to our minds, in technical or legal bad faith and liable to the true owner for the fruits and revenues during their possession of his lands. We do not consider that the plea of estoppel, as to Carpenter, can be maintained. The facts and adjudications a.s to non-ownership of Richardson, were within the knowledge of the parties, and the inaction and silence and presence of Carpenter at the sale did not mislead, and were not calculated to mislead any of the parties to their injury.

The answer of Carpenter, in which he assumed the attitude of plaintiff against the co-defendants, Goodman and Bradfield, styled a cross bill, must be regarded, as to his demand against them, as an intervention, wherein, in the nature of a petitory action, he claimed the ownership of the property, to be put in possession of the same and the fruits and revenues thereof. This intervention was put at issue as to them. The exceptions to his demand were referred to the merits and tried on the merits, and there was such an appearance and practical answer of defendants as rendered unnecessary citation and service of the intervention.

The action of the plaintiff, as well as the intervention of Carpenter, partakes of tlie nature of a petitory action, and, not only is the prescription pleaded inapplicable to them, but a putting in default and. tender are not conditions precedent to the recovery of fruits and revenues in this action. The simulated sale from Carpenter to Richardson has been adjudged null, void and of no effect. Although there was an attempt on the part of Carpenter to avail himself of this simulation by an unreal sale, we are at a loss bo perceive how the mere transfer of the property could have defeated the hypothecary' rights of the holders of the mortgage notes, and the sale per se could have inflicted no serious injury on them or occasioned any serious delay, especially as the mortgage itself contained the pact de non alienando. However reprehensible the conduct of Carpenter in connection with this act of simulation, it failed of success, and in the record of this case we find the counter-letter offered in evidence by the defendants, and other evidence in support of the simulation, which justifies him in his suit to annul and set aside the sale. We think the judgment of the lower court is in the main correct, but in some of its details, it should be amended. The evidence on the subject of the yearly value of the fruits and revenues is, in our opinion, directed to and based upon all the plantation, including the 150 acres which belonged to Klein, about which there is no dispute, and which forms about three-fourteenths of the whole plantation ; instead of recovering $2600 per annum, the amount should be reduced to $2050 per annum, with interest, subject to the offset and compensation of $827 25 taxes paid, with interest from date of payment thereof. The judgment in favor of Goodman and Bradfleld against Klein, should be more explicit. They should only be entitled under this judgment to the proportion of the price paid by them in cash, which the whole price paid bears to the quantity of land, the sale of which is re-. voked, in other words, to ffsf§- of $4500, with legal interest thereon from 30th August, 1876; and that they be relieved from the payment of that portion of the price unpaid, in the same proportion as above, and that the notes unpaid given for the purchase price be cancelled to the extent of the same proportion thereof, and with the reservation of all the rights to sue for and liquidate the price as contained in the judgment appealed from, and reserving to Goodman and Bradfleld the right to enforce any rights which they may have to set aside and annul the whole sale from Klein to them; and it is thus explained and amended.

The right to proceed on the mortgage notes is unaffected by this decree, and this right is of course reserved to the owners thereof. The title by which the holders of these notes s’ought to acquire the mortgaged property being annulled, confusion and extinguishment cease to apply, and the mortgage still exists.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended as to the judgment rendered on the call in warranty of J. A. Klein by Goodman and Mrs. Bradfield and husband, -so as to decree that said Goodman and Bradfield be entitled to recover from said Klein, as just above set forth, and thus amended, the judgments appealed from be affirmed with costs.

Behearing refused.


author: Bermudez, C. J.

text:
    No. 8290.
    The State of Louisiana ex rel. J. C. Egan, Attorney General, vs. Hiram R. Steele.
    An action, brought against a District Attorney to have Ms office declared vacant, on the ground that he has changed Ms residence and has none in the State, is a suit against him in his personal capacity, and not in his official character, in as much as he is alleged to have ceased to he district attorney. The suit must, therefore, ho brought in the parish in which he resides or .resided last, under the provisions of the Code of Practice, and cannot be brought indifferently in either of the parishes composing the district of the
    APPEAL from the Ninth. Judicial District Oourt, parish of Concordia. Hough, J.

      J. C. Egan, Attorney General, Belator and Appellant:
    .Eirst — The Art. of the C. P. in reference to suing one at Ms domicil can have no application to a proceeding against a District Attorney to remove Mm from office because he is a non-resident.
    • Second — The question of domicil is the sole question in the ease upon its merits, and, therefore, can only he tried upon answer, giving the State as well as the defendant an opportunity to produce evidence.

      Spencer & White and Kennard, Howe & Prentiss for Defendant and Appellee:
    Eirst — The petition avers that the defendant was domiciled in Tensas witMn the year — the suit being brought in Concordia.
    Second — The plea to jurisdiction was good on the face of the papers. Ho domicil in Concordia being alleged but one in Tensas, within the year, the court of the latter parish was the one having jurisdiction.
    Third — Averring that the defendant had been witMn the year domiciled in Tensas, and was now a citizen of Mississippi, did not authorize citation on the defendant in Concordia. Eirst, because under C. P. 167, “if the defendant change his domicil, he must he cited in the parish where he has resided within the last year.” * * * ' 6 H. S. 467; Williams vs. Henderson, 19 La. .561; Winter Iron Worts vs. Toy, 12 An. 200; 15 An. 533; 23 An, 516; Ibidem, 564. Second, because the domicil in Tensas witMn the year having been averred, the presumption that it continued exists. 11 La. 178 ; 2 La. 946 ; 7 An. 395; 9 An. 165.
    -Eourth — The bringing of the suit in Concordia is a decision of the case by the plaintiff in his own favor.

      tfTifbli — Aside from the face of the papers the proof establishes the correctness of the exception.
    Sixth — The plaintiff admits that the defendant has not been absent from or neglected his duties, and that he is in all respect an honest and efficient officer.
    ■ Seventh — The plea to the jurisdiction was properly, filed in limine, as a declinatory exception.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a proceeding before the District Oourt for •Concordia parish, to have the office of District Attorney of the Ninth Judicial District, composed of the parishes of Goncordia and Tensas, declared vacant.

The ground relied on is, that the defendant who, at the time of his election, resided in Tensas parish, has changed his residence from the • State to Natchez, Miss., and that the office has thereby been vacated.

The defendant excepted to the jurisdiction of the Oourt, on the ground that his domicil being in Tensas parish, the suit should have been brought before the District Oourt in that parish, which alone has jurisdiction over him, and to which alone he is amenable.

Evidence was adduced, under^he exception, which was sustained, and the suit was dismissed. From the judgment thus rendered the -State appeals.

The evidence shows that the defendant owned a house in Tensas . parish; that he sold it and invested the proceeds of it in the purchase of another house in Natchez, where he moved his wife and children.

We do not feel authorized to consider and determine whether the defendant has or not changed residence, in the sense of article 195 of the Oonstitution, for that would be virtually deciding the case on its merits, when the question of domicil, on the exception to the jurisdiction, is all that is now before us. R. O. O. 45.

The defendant may well have changed his residence as an officer, so as to have brought himself within the purview and penalties of the article; bub if he have, it would not follow that the change, as established by the evidence, has deprived him of his civil domicil, as an individual or citizen, in Tensas parish.

A residence is one thing and a domicil is another. A person may have as many residences as he may choose, but can have but one real domicil. 11 L. 175; 12 L. 190; 7 An. 395; 30 An. 498; Marcadé, vol. 1, pp. 236, 238, III. § 3; Laurent, Cours Elem. v. 1, p. 195, No. 96; Mourlon, No. 341; 22d Pick. R. 170-177.

Far from finding in the record evidence showing that the defendant has changed his domicil, as a citizen, to any other place, within or ■without the State, we discover facts which establish that he is a registered voter and votes in Tensas parish; that he is a road inspector or -overseer there; that he has paid his poll-tax there; that he has a law office there; that he has declared his intention to continue- having his domicil there; which declaration is spread on the proper public record; that he has a residence at St. Joseph’s, at his partner’s house there, at which he has engaged rooms permanently, which he occupies when he is in that parish; that professionally, he practices in the two parishes and in New Orleans, and officially discharges bis duties in those three places.

We do not wish, however, to be understood as saying'that, in order to have a domicil at a particular place, it is unnecessary there to have a residence, actual or constructive, with a representative living therein, at which and on whom, in case of absence therefrom, legal process can be served. Mourlon 1, 318, 321; Story Conf. of Laws, § 39 et seq.; 12 L. 190.

However that may be, it is established that the defendant had such a residence propria marte, in the parish of Tensas, at which service could have been legally made in his absence from that parish. Pothier, Cout. d’Orl. ch. 1, Art. 20; 5 Ves. 750; 5 Pick. 370; Cochin 3, p. 702; 3 R. 243; 9 R. 243; 11 L. 178; 12 L. 190; 4 An. 186; 19 An. 323.

Whether that sort of a residence is the actual residence contemplated and required by article 195 of the Constitution, from the officers named, as a condition sine qua non of election to and tenure of office, is a question on which we studiously refrain expressing any opinion, and which can only be passed upon, on the merits of a case properly instituted and presented. All suits, the object of which may be to subject the defendant personally to a deprivation of right, should be brought against him at the place of his domicil, while all proceedings which may be levelled against him officially, contemplating coercion of performance of official duty, may be instituted and prosecuted against him in the court before which, or in whose jurisdiction, the duty should be discharged. Thus he would be amenable, in a proper case, to proceedings for a mandamus before the District Court of the parish of Concordia.

The averment that he has, within the last twelve months preceding the institution of this suit, changed his domicil from Tensas parish to Natchez, could not, on its face, give jurisdiction to the District Court of Concordia parish, unless in the teeth of article 167 of the C. P., which distinctly provides: that in the case of a change of residence the defendant must be cited in the parish where he has resided within the last year, unless he has declared, in the manner prescribed by law, that he intended to have his domicil in the other parish; in which case he must be there cited.

A change of domicil from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there. That intention is established either by an express written declaration made.by the party before and registered by the parish Recorder, or, in default of such declaration, by proof of the intention, depending upon circumstances, showing acts which manifest sufficiently the intention of sucl\ party to make the parish moved to the place of his domicil. Where the declaration is not made, the party changing his domicil may be cited in the parish where he lives, though he has not resided one whole year there. In such a ease, it is optional with the party desiring to sue to bring suit in either parish. R. C. C. 41, 42, 43; C. P. 167, 168; 15 An. 533; 20 An. 246; 30 An. 498; 8 M. 709; 9 M. 491; 4 N. S. 51; 8 L. 213; 12 L. 190; 1 An. 78; 13 L. 297; 2 An. 946; 4 An. 553.

In those provisions of the Codes, the word “ cited ” means “ sued,” as no valid citation could issue and be served so as to bind the party sued, unless on a suit instituted before a court of competent jurisdiction, the suit being the foundation for the citation.

There is no intimation that such declaration was made or such circumstances exist, in the present instance, in Concordia parish. 6 N. S. 467; 19 L. 561; 12 An. 200; 15 An. 533; 23 An. 516, 564.

The presumption that the domicil of defendant, which, it is not disputed, was originally established in Tensas parish, has there continued, is sustained by the proof in the record. The old domicil continues until the new one is acquired. 3 R. 243; 11 L. 178; 2 L. 946; 2 An. 946; 4 An. 553; 7 An. 395; 9 An. 165; Marcadé, v. 1, p. 241; IV. 317.

The averment in the petition, the facts and the law, negative the legality of the bringing of a suit against a person in a parish in which he never had a domicil or residence, unless it be in the instances exceptionally enumerated by law, among which the present case is not to be found.

The theory upon which this proceeding is brought, seems to be, that the article of the Code of Practice, which requires one to be sued at the place of his domicil, C. P. 162, has no application to a proceeding against a District Attorney, to remove him from office, on the ground that he is a non-resident of the State.

This is a fallacy, which consists in assuming that a person can have but one residence, and. that it must be at the place of his domicil; that a change of that residence operates as a change of domicil; that the defendant, having changed his residence, has forfeited his right to a domicil in Tensas parish, and has become a stranger, or one having no domicil in the State, and who can be sued and cited wherever found. C. P. 162,165 (5). Such is not the .case.

Were the proposition a correct one, it could not be asserted, under the circumstances of this case, unless before the court having jurisdiction of the defendant’s last domicil. C. P. 167.

The defendant is not sued here in his official character, but in his individual or personal capacity. The petition says that his office has been vacated; thathe'is no more District Attorney; that he is a usurper, •an intruder. It does not ask that he be cited as District Attorney. He is sought, with or without reason, to be declared stripped personally of a valuable right of office. He is, therefore, entitled to have the suit brought, tried and determined by the District Court at the place of his domicil, which alone has jurisdiction of his person, and can render personal judgment against him; that is, the District Court of Tensas parish.

The judgment appealed from is correct, and it is, therefore, affirmed with costs.


author: Todd, J.

text:
    No. 7197.
    Moses Lobe vs. George W. Cary.
    In an action for slander, it is not necessary to prove any special damage suffered by the Plaintiff, when the language used against him by the Defendant, is in itself libellous.
    Appeal from the Fifth District Court for the parish of Orleans. Rogers, J.

      Joseph P. Hornor and W. S. Benedict for Plaintiff and Appellant:
    j'ixst — The weight of the evidence shown to be that defendant committed the slander complained of.
    Second — A proper interpretation of defendant’s own evidence also fully proves that fact.
    Third — Evidence of special injury arising from a slander is unnecessary to show that plaintiff has sustained damages. C. C. 1934; 16 Da. Rep. 389.
    JFourth — Every act causing damage creates responsibility; and when its extent is not defined, or the law is silent thereon, the Court, under C. ’C. 21, will decide according to natural law or usage. Miller vs. Holstein, 16 D. 389.

      Percy Roberts for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

This is an action for slander, in which the plaintiff claims ten thousand dollars against the defendant for having called him a thief. The answer was a general denial. There was a jury trial, and from a verdict and judgment in favor of the defendant, the plaintiff has appealed.

The evidence satisfies us that the allegations of the petition were proved, and that, the defendant did use the language charged with reference to the plaintiff. The defendant's testimony alone suffices to show this. This proof being made, the denunciation of plaintiff as a thief, raised a presumption of damage, and under the settled jurisprudence of this State, no special damage resulting from the language used need have been proved. C. C. 1934; 14 An. 198; 16 An. 389; 3 An. 69; 11 An. 206; 6 An. 779.

From this view of t.he facts and the law, we think the jury should have awarded damages for some amount. We, however, though believing the verdict erroneous, are not satisfied, under the circumstances of the case, to assess the damages ourselves, hut must remand the ■case.

It is, therefore, ordered, adjudged and decreed that the judgment ■appealed from be annulled, avoided and reversed, and that this case be remanded to the Civil District Court for the parish of Orleans, which has superseded the Fifth District Court, to be proceeded with according to law, appellee to pay costs of this appeal.