text:
    No. 1115.
    John M. Defee vs. C. D. Covington.
    An action for damages for a passive violation of a contract must be preceded by a putting in default of the debtor; and sucb putting in mom must be alleged in order to justify the introduction of testimony on the question of damages.
    An allegation that the debtor was put in default by means of a formal demand on him for the damages claimed, does not conform with the modes provided by the Civil Code— and is not legally sufficient to admit testimony of damages.
    APPEAL from the Third District Court, Parish of Union. Graham, J.

      John Young, Allen Bandcsdale, B. Biehardson and T. 0. Benton for Plaintiff and Appellant.

      W. B. Butland, G. H. Bilis and G. A. Killgore for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Defendant being sued on a contract of lease for the sum of six hundred and fifty dollars, reconvened by a demand sounding mainly in damages and amounting to twenty-seven hundred dollars.

The case was tried by a jury, who found in favor of plaintiff on his principal demand, in the sum of three hundred and fifty dollars, and against him on the reconventional demand in the sum of six hundred and forty-nine dollars and ninety-live cents, and interests on the sum of $449 86$ at eight per cent per annum from date until paid.

Plaintiff appealed from the whole judgment, returning his appeal from the judgment on the principal demand to the circuit court and that from the reconventional demand to this Court. We are, therefore, not concerned with the appeal from the judgment on the main action.

In this Court, plaintiff’s counsel vehemently complain of what they term the anomalous condition of tlio case, presenting the feature of a judgment divided on appeal, with one branch pending in one court and a second branch in a different court. But we are at a loss to appreciate the bearing of their argument, in the face of the record which shows that both appeals were taken by themselves and made returnable on their own suggestion.

We can render no order affecting the appeal which has gone up to the circuit court; and counsel surely do not mean to suggest that the other appealis improperly before us.

The position naturally results from the respective jurisdictions as defined by the Constitution; and it has already been practically demonstrated. Colomb & Gondolfo vs. McQuaid, 36 Ann. 370; Lamorere vs. Avery, 32 Ann. 1008.

The salient facts bearing on tlie reconventional demand are as follows:

Plaintiff, who had a mail contract with the Post Office Department, as carrier between Camden, Ark., and Monroe, La., made a contract with defendant to carry the mail between Farmerville and Monroe, at the rate of $350 per quarter of the year. During the first quarter of the year, 1881, his contract was cancelled by the department for failure to comply with Ms duty.

This circumstance interrupted his employment of the defendant who thereupon took tho same service for the succeeding contractors on that route, at a condensation of $450 per quarter.

In the mean time, plaintiff obtained a sub contract from liis successors and by agreement with the latter, lie undertook to carry out their employment and assumed the payment of defendant’s salary—as a result of that agreement, the new contractors refused to settle with the defendant for the quarter ending July 31, 1881. For this refusal super-induced by plaintiff’s representative, the defendant claims damages, and it is on the sum due therefor that the jury allowed him eight per cent per annum interest. Defendant thereupon refused to carry the mail any longer, and the heaviest element of the damages which he claims grows out of the alleged violation of the contract by plaintiff.

On that score the jury allowed him $367 00. The balance of their verdict was for an unpaid portion of the quarter ending on March 31, 1881.

On trial plaintiff objected to the introduction of any testimony on the subject of damages for the alleged violation of his contract, on the ground that defendant liad failed to allege that plaintiff had been legally put in default, and he presses consideration of the bill which he reserved to the district judge’s ruling on the point.

Defendant’s contention is, first, that under the circumstances a putting in mora was unnecessary. From the very nature of his allegation of the violation of the contract it appears that he presents the case of a passive violation, and hence putting in default was indispensable to his recovery of damages. C. C. Arts. 1931 and 1933; Beck vs. Fleitas, recently decided, not yet reported.

But he argued, in the second place, that, he had made the plea in an amended answer which is of record. His allegation in the answer is that he had put plaintiff in mora by means of a demand made on him of all claims detailed in his original answer and demand in reconvention.

Such a mode of putting in default does not conform with either of the rules laid down in the Code, Article 1911. Hence the district j udge erred in admitting testimony in support of the damages claimed by defendant in roconvention on account of the alleged violation of his contract by plaintiff. In the absence of such testimony the jury could not have allowed any damages on that score, and to that extent the judgment appealed from is erroneous. But that error may be corrected by an amendment of the judgment without the necessity of remanding the cause.

The judgment appealed from is therefore amended by striking therefrom the sum of three hundred and seventy-six dollars allowed to defendant on his reconventional demand for damages on account of the alleged violation of his contract by plaintiff; and it is now ordered that as thus amended said judgment be affirmed, cost of appeal to be paid by defendant, appellee.

Fenner, J. takes no part, as he was absent when the case was argued.


source: Caselaw Access Project

author: Manning, J.

license: Public Domain

text:
    No. 1137.
    The State of Louisiana vs. Jerry King.
    Burglary and larceny may be joined in tlie same count in an indictment. They are an exception to the general rule that two distinct offences cannot be joined ini the same count.
    Ignorance of the name of an accused party from whom a confession of guilt was received is of no moment when the party himself is identified as the person who made the confess'd!.
    A PPEAL from the Sixth District Court, Parish of Morehouse. jLJL Brigham, J.

      8. T. Bail’d, District Attorney, for the State, Appellee.

      0. Newton for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

Prom a conviction of burglary and sentence thereon the defendant has appealed.

A motion to quash the indictment for duplicity was made and refused before plea entered, and after conviction the same ground was made the subject of a motion in arrest of judgment.

The duplicity consists in charging the crimes of burglary and larceny in one count.

The general rule is that two distinct offences cannot be charged in one count, but the offences of burglary and larceny constitute the most conspicuous exception to it. See State v. Depass, 31 Ann. 487 where the reason of the rule is explained and the fact that there is such a rule is established by authorities. This was re-affirmed in State v. Johnson, 34 Ann. 48, and may be considered as no longer questionable.

There is a bill of exception to the admission of a confession. There were two defendants. The witness who was to testify of the confession said lie did not know which one of the defendants made the confession, by which he meant he did not know the name of the confessor whether it was Jerry or Sam, but on the two being shewn to him in the court-room, he at once pointed out the defendant as the one who had confessed.

This statement is an answer to the objection of uncertainty urged by the defendant.

Judgment affirmed.


author: Fennep, J.

text:
    No. 1130.
    A. C. Simonton vs. L. D. McLain et al.
    A partnership may become a member of a new partnership; and while tke..interest of the former in the latter may be a firm asset of the first partnership, this will not prevent one of its members from suing for a-liquidación and settlement of the general partnership, on appropriate allegations and by making his fellow-members of both firms parties.
    In such a settlement, where the affairs of the general partnership are concluded, its debts paid and the net profits for division ascertained and reduced to cash, and where it appears that the partner holding said- funds has settled with other members of the member firm for their interests, defendants have no right to oppose to plaintiff the necessity of liquidating the subordinate firm, but he will be decreed directly entitled to recover his share.
    PPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      G. Tj. Gaslcins and Thos. A. Garrett for Plaintiff and Appellant:
    Ro weight must be attached to testimony instrinsically improbable, and suggestive of collusion and conspiracy. L. D. 246, referring to 29 Ann. 764.
    'Where there is a contention between the parties as to what the contract really is, it will be construed by the manner m which it has been executed by both the parties or by one of them with the express or implied assent of the other. L. I). 475; 9 R. 308; C. C. 1956 ; 4 Ann. 441; 17 Ann. 190.
    The acts and declarations of tbe defendants show that plaintiff was recognized and treated by them as a partner until the partnership was in a condition to partition the profits. By their acts and declarations they caused plaintiff to believe that he had been included in the partnership, and to contribute his means to the use of the firm and to assist in forwarding the work and carrying out the objects of the partnership, which ho would not have done but for the letter of McLeod and the acts and declarations of McLeod and McLain
    Whoever, by word or act, purposely persuades another that a certain state of things exists, which induces him to act so as to alter his previous position, is estopped from denying the existence of that state of things. 5 R. 523; 30 Ann. 50. So too, one who by his silence, when it was his duty to speak, decoys another into particular conduct, can enforce no advantage thereby acquired. Meux vs. Martin, 5 Ann. 108.

      Boatner & Boatner for Defendants and Appellees.
   The opinion of the Court was delivered by

Fennep, J.

The plaintiff alleges substantially that in October, 1882, he formed a partnership with W. H. Kidd and H. W. McLeod, each partner having an equal interest, for the purposes of railway grading and of building levees on Ouachita river; the firm style of the partnership was Simonton, Kidd & McLeod; that, shortly afterwards, the said firm formed a partnership with L. D. McLain, for the purpose of constructing certain levees on Ouachita river, for the building of which McLain had a contract with the State; that the terms of the latter partnership were that McLain should furnish the money necessary for the work, that Simonton, Kidd & McLeod should furnish the tools and execute the work, and that the net profits were to be divided equally, one-half to McLain and the other half to Simonton, Kidd & McLeod; that the work under said contract had been completed, that McLain had settled with the State and had received the price; that the net profits amounted to $5700, which had been received by and remained in the hands of McLain except so much as the latter'might have paid over to Kidd or McLeod; that McLeod denies that petitioner has any interest in the partnership with McLain.; that McLain has paid to Kidd $950 as his share in the profits, but refuses to settle with petitioner or to pay him anything; that McLeod desires to obtain the remainder due for his own benefit and to pay his private indebtedness without paying petitioner anything; that the affairs of the partnership with McLain are concluded and in a condition for partition and settlement; that he has reason to believe and does believe that the members of said partnership will dispose of the assets and property of said partnership, so as to deprive Mm of his share therein, during the pendency of this suit and that a writ of injunction is necessary to protect his rights.

He prays, therefore, for the citation of Kidd, MfiLeod and McLain ; for a writ of injunction; for a judgment settling the partnership, ascertaining the net profits and partitioning the same in the proportion of one-half to McLain and one-sixth to each of the others, and for recovery of his share.

McLeod appeared and filed an exception to the petition on the ground that, under the allegations of the petition, plaintiff could only obtain a settlement of his alleged interest in the business detailed in his petition, in an action for settlement of the partnership of Simonton, Kidd & McLeod. The ground of exception is not very clearly stated, but the gravamen is that the partnership being between McLain and the firm of Simonton, Kidd & McLeod, the interest therein of said last-named firm was a partnership asset, and that plaintiff as a member thereof, could not sue for an interest in such a particular asset, but was remitted to an action of settlement.

This exception was overruled, and we think properly. Granting it all the force to which in was entitled, it could only go to the limiting of the relief sought by plaintiff and not to defeat his action.

Conceding that plaintiff’s only interest in the partnership of McLain & Co. was as a member of the firm of Simonton, Kidd & McLeod, yet lih co-partners in the latter firm could not deprive him of his right to have a settlement of the firm of McLain & Co. and the amonut due to his firm of Simonton, Kidd & McLeod ascertained, and if the co-partners declined to join him in such an action, lie could assert his right by making them co-defendants with McLain. Moreover, under the allegations of his petition that McLain and his partner McLeod denied his interest, and that they were settling among themselves and were making away with the assets of the firm, he was certainly entitled to the relief hy injunction. The only right which the exception tended to defeat was his right to recover his aliquot portion of the amount found to bo due to Simonton, Kidd & McLeod before a settlement of the latter firm.

On the merits the question is a difficult one.

Disregarding a reeonventional demand which was voluntarily dismissed, McLeod’s pleading (as stated by Iris own counsel) is a reiteration of the above exception, with a general denial and a special denial that plaintiff complied with the conditions on which his interest in the venture depended. So far as this special denial is concerned, it may be dismissed from consideration as not supported by evidence. McLain specially denies that he had any partnership with Simonton or Kidd or with the firm of Simonton, Kidd & McLeod, or with anybody but McLeod alone, who was his only partner, and he avers that he had settled in full with McLeod for his share in the profits before the institution of this suit.

After a very careful study of the conflicting testimony in this case we are very clear on the following points : that, as between McLeod, Simonton & Kidd, they were equally interested in one-half the profits of the business of McLain & Co.; that they jointly did the work and furnished the tools and were justly entitled to share in the one-half of said profits, either as individuals or as members of the firm of Simon-ton, Kidd & McLeod.

On the other hand, we think the weight of evidence is that, so far as McLain is concerned, his agreement to the partnership of McLain & Co. was originally made with McLeod alone, and without any consent on his part to accept Simonton and Kidd or their firm as his partners. Nevertheless, it is clearly shown that he was fully aware of the arrangement subsisting between McLeod, Simonton and Kidd; knew that they were doing the work on joint account with equal interests; was advised that they expected to receive from him their share of the profits when realized; received from them several demands to that effect •, promised to notify them when the funds were collected; did pay over to Kidd his share of the profits; but failed to notify plaintiff or his agents as he had promised to do; and, although on the very day this suit was filed, in response to a demand from plilintiff for a settlement, he told him he was ready to pay him whenever McLeod should say so,—yet he now claims in his answer that, prior to that time, he had already settled in full with McLeod.

The information as to the interests of Simonton and Kidd was communicated to him by McLeod himself, who had even given him directions that, in case of his death, he should pay to each of them one-third of the share coming to him.

Now, under all the circumstances disclosed by this record, of which the above is but a partial recapitulation, we consider that McLain had assumed relations to these parties, which precluded his right to make a settlement with McLeod, without, at least, due notice to the others, and opportunity to assert their rights. He had so acted as to create in Simonton the just expectation that he would receive such notice and be afforded such opportunity and he had no right to disappoint it. Neither had he the right, under the circumstances, to give credits to McLeod and to compensate them against these profits to an extent prejudicing the rights of Simonton.

But, we are moreover satisfied that there had been no actual settlement with McLeod prior to the date of this suit. Nothing had passed between them. The pretended settlement was purely fictitious, consisting in a mere understanding that a certain warrant for a larger amount was to be considered as held for account of McLeod to the extent of his interest—the warrant, however, remaining in McLain’s possession.

Any further proceedings of settlement were taken after the filing of this suit, and, in view of the injunction, must clearly be disregarded.

We, therefore, conclude that, in the eye of the law, McLain has, or should have, the funds still in his possession.

Is there any obstacle to a settlement of the interests of these parties in this proceeding? We think not. The parties are all before us. Leaving out the question as to who were the partners of McLain, we are satisfied that Simonton, Kidd & McLeod, whether as individuals or as members of the firm of that name, were partners in the one-half interest of the profits of McLain & Co.

McLain has no interest in provoking a liquidation of the firm of Simonton, Kidd & McLeod. And so far as Kidd and McLeod are concerned, how can they oppose to Simonton the necessity for such liquidation, when one of them has actually received his share of this particular asset, and the other has claimed and pretends to have received his share. The objection comes with less grace from McLeod, since the only evidence in the record on the subject is to the effect that tile firm lost money, and that owing to McLeod’s insolvency, Simonton and Kidd had been compelled co pay its debts.

The amount of the net profits of the firm of McLain & Co. is admitted to have been fifty-seven hundred dollars, and it is not pretended that it owes any debts. There is, therefore, no difficulty about the settlement, and the judgment of non suit rendered by the district judge must be set aside.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and is annulled, avoided, reversed, and it is now further adjudged and decreed that there he judgment iu favor of plaintiff and against the defendants, fixing the net profits of the firm of McLain «fe Co. at the sum of fifty-seven hundred dollars; decreeing that the said sum belongs to the parties herein in the proportion of one-half to L. D. McLain and of one-sixth each to plaintiffs A. C. Simonton, W. L. Kidd and H. D. McLeod; and that the tools contributed to the business by the three last named parties belong to them equally, and that L. D. McLain, in possession of the said fund to he divided, be condemned to pay over to plaintiff, Simonton, his share of the same, to-wit: nine hundred and fifty dollars with legal interest from date of judgment, reserving McLain’s rights against H. D. McLeod, costs of this appeal to he paid by the appellees, and those of the lower court by the parties in the proportion of their respective interests.


author: Bermudez, C. J.

text:
    No. 1134.
    Heirs of W. E. Fly vs. Eli Noble et al.
    An attorney-at-law, wlio represents an heir in the settlement of a succession, may legally be appointed ad hoe to represent another heir who is absent from the State.
    An acknowledgment of service of judicial proceedings is not a waiver, but an admission of actual service. An opposition by such attorney, to tbe executor’s account, objectingto items thereon, is in the nature of an answer and cures what irregularity may have existed, if any.
    The appointment of such attorney by a district judge who once was the counsel of the executor, if irregular, is not void That fact did not make him incompetent. He would become so when actually recused or recusing himself for cause.
    The seizure of the interest of an heir in the property composing the succession in which he inherits, is le^al, and the adjudication thereof conveys title.

      APPEAL from the Fifth District Court, Parish of Ouachita. Morgan, J. ad hoc.

      Potts & Hudson for Plaintiffs and Appellees :
    1.In ©very succession in which some of the heirs are absont, an attorney for absent heirs should bo appointed. E. C. C., 1210,1661.
    2.Especially is this the case where the will and application to probate it shows that on© of the test heirs is an absentee. E C. C. 1661,
    3.His duties are to “assist for them at the inventory,” “to inform, with all possible diligence, those whom he represents, of the opening of the succession, and to correspond with them;” “ to take care of their interests and to oppose everything which may prejudice the same.” E. C. C., 1661, 1662, 1210, 1211.1212.
    4.Where, in a perfectly solvent succession, the executor files his final account and asks judgment, in his favor, against the heirs, they are entitled to citation. In such case the publication of notice in the newspaper binds neither the heir present nor absent. 10 Ann, 674; 11 Eob. 120; 2 L. 147. 33 Ann. 972.
    5.The curator ad hoc cannot waive notice or citation, and cannot legally appear in court to represent the absentee till regularly cited 6 E. 142; ] 2 E. 540; 28 Ann. 258; 14 Ann. 3
    6.A judgment against a person not legally cited is absolutely null and void. C. P. 612; 33 Ann. 615; 34 Ann. 1063; Freeman on Judgments, §§ 117, 118, 133, 144 146.
    7.A husband can have no valid claim against the succession of his deceased wife for services rendered her during marriage. 33 Ann. 1317, 1331; Succession of Ames.
    6. An appointment of a curator ad hoc by an incompetent judge is null and confers no authority to act. 14 Ann. 3.
    9.A joint owner of the judgment can neither be appointed nor act as a cwrator ad hoc, for the absent defendant, against whom the judgment is to be enfovcod. 31 Ann. 394,
    10.If the succession be closed by the homologation of the final account of the executor, then the absent heir cannot be proceeded against by appointment of a curator ad hoc. 4 Ann. 187; 35 Ann. 1185; 99 M. S. 362; 98 S. 476 ; 95 M. S. 714; 36 Ann , Bcacey vs. Caldorwood.
    11.The undivided interestof an heir in a particular piece of property belonging to the succession of his ancestor cannot be seized under execution. The slioriff must seize the interest in the whole succession or nothing. 31 Ann. 742,
    12.Hotice of seizure must be given to the debtor or his legally appointed agent or attorney, and its neglect annuls the sale. O, P. 654; 8 E. 152; 11 E. 47; 6 Ann. 531; 5 Ann. 737 ; 11 Ann. 252.

      Boatner & Boatner for Defendants and Appellants :
    Fraud is never presumed, and the burden is on the party so alleging. Hen. 1 Vol. 487.
    The duties of a curator ad hoc for absent heir does not terminate with discharge of the executor. 2 Ann. 1010; 1 La. 47; 13 Ann 263; 6 La. 656.
    The judge whose connection with a litigation has been long terminated by the homologation of the final account in which the executor has been discharged, may appoint an attorney for the absent heir to receive notice of seizure. 10 Ann, 612.
    The curator for an absent heir may acknowledge service of the petition and final account of the executor after accepting the appointment, and such an acknowledgment will not be a waiver of the rights of the absent heir. 2 Ann. 619.
    In a suit to annul a judgment and a sale thereunder, no other grounds of nullity will be noticed than that set forth in the petition.
    When an executor files his final account and asks for the appointment of an attorney for an absent heir, no citation’to the heir is necessary, and he will be bound by the acknowledgment of sorvice of the petition and account made by tlie curator so appointed, and the appearance of tlie curator in the proceedings.
    Plaintiffs who sue aa heirs of tlie deceased absentee, who is heir under the Will, must prove that the person whoso rights they inherit was alive at the time of the tutatrix’s death.
    Such fact must not be left to conjecture, but must be fixed by certain evidence, and tho burden of proof is on tho plaintiff.
    The attorney for absent heirs cannot have them recognized ;vSuch recognition must he sought contradictorily with him. 1211. 413.
    The plaintiffs claiming a legacy by inheritance from \Y. F. or W. F. Fly, must prove that Fly was alive at the date of the death of the tutatrix, and has died since. If nob alive at the death of the tutatrix, the legacy lapsed.
   The opinion of tho Court was delivered by

Bermudez, C. J.

This is an action by heirs to annul a judgment rendered against their ele cvjus, W. E. Ely, during his absence «from the State, and also to avoid the sale of his property made under it. Prayer is further made for rents and revenues and for a partition of the estate of the deceased, Mrs. Noble.

The suit is brought against the judgment creditor, Eli Noble, and the transferree thereof, Mrs. Watt, who subsequently became adjudicatee of the property.

They deny tlie pretensions of plaintiffs, aver the validity of the judgment, of tho transfer and of the sale.

The district judge recused himself and appointed an attorney to act as judge ad hoc, who rendered in favor of the plaintiffs a judgment from which the defendants appeal.

The judgment attacked was rendered on an opposed account presented in the succession of Mrs. Noble, the grandmother of the de cvjus, who was her forced heir for one-fourth of her estate, the remaining three-fourths accruing, under tho law and the will of tho testatrix, to her daughter, Mrs. Watt.

On that account the executor, who was the surviving husband of the testatrix, had placed himself as a creditor for $2400 for services rendered his wife in the administration of her property and for further sums.

In view of the absence cf the grandson Fly from the State, a curator ad hoc was appointed to represent him in the matter.

The daughter, Mrs. Watt, aud the curator ad hoc opposed the account aud specially the •items in favor of the executor.

After trial, judgment was rendered in January, 1879, in several respects, and specially recognizing-the opposed claims of the executor to the extent of 133007 4fi, with interest, one-fourth whereof, $751 82, and interest to he paid by the absentee, Fly; the remaining three-fourths by the other heir, Mrs. Watt. An appeal from this judgment by Mrs. Watt having been abandoned and none having been taken on behalf of Ply, the judgment becoming executory, steps were taken for its enforcement against him.

The curator ad hoo originally appointed was again charged by the court with representing further the absentee.

The interest of the latter in the real property composing the succession of his grandmother, was then seized, advertised, appraised and adjudicated on July 17, 1880 to his co-heir, Mrs. Watt, to whom the executor had donated the judgment in his favor.

Numerous grounds are set forth to seek the nullity of the judgment, of the proceedings attending and following it, particularly the sale of the property.

They appear to be :

1. That the attorney appointed to represent the absent heir could not be entrusted with that duty, as he was the counsel of the other heir and has waived service of necessary proceedings.

2. That the claim of the executor and the allowance of it is illegal as prohibited.

3. That the judgment was framed so as to favor the preferred heir, to the prejudice of the absentee.

4. That the appeal taken by Mrs. Watt and the curator ad hoo was fraudulently abandoned.

5. That the curator ad hoo had interests in conflict with those of the absent heir for the collection of the fee of $100 allowed him as cost in the proceedings for his services.

6. That the appointment of the curator ad hoo was made by the district judge on suggestion, and that the district judge, who once was the counsel of the executor, should have recused himself and not acted in the matter.

7. That the proceedings were carried on with great haste and the property appraised far below its value.

8. That the property was bid in for less than the writ is credited with, and that the entire interest of Ply in his grandmother’s succession should have been seized.

We do not propose to deal with those grounds of complaint seriatim, but will consider them under four heads and substantially in the order in which they were presented in argument.

I.

The fact that the attorney appointed to represent the absentee was the counsel of the other heir, was no legal impediment. There existed no difference or clash of interest between the respective interest of the j>arties, save as to the proportion of inheritance, which was indisputable and undisputed. This is evidenced by the telling circumstance that the account presented by the executor and on which he had placed himself as a creditor was opposed alike in the name of the two heirs. The interest of the one was that of the other, both being concerned in resisting what they thought were unfounded claims against the estate, so as to increase the residue to be shared by them according to their respective proportion to it.

The curator ad hoc does not appear to have waived service of necessary proceedings. He acknowledged service of the petition and citation for the homologation of the account. The acknowledgment implies an admission of actual service. The opposition subsequently filed by him is in the nature of an answer and cures what irregularity, if any, existed. 2 Ann. 916.

II.

The validity of the claim set forth in the account in favor of the executor and allowed by the judgment, cannot be inquired into. The conclusion of the court on it, constitutes res judieata.

If there was error in the allowance and in the recognition of che rights set up by Mrs. Watt, the appeal taken should have been prosecuted. It was abandoned. Parties are not bound to appeal, or where they have done so, to prosecute their appeals. They have the right to waive the same and even to discontinue in the appellate court, with the consent of the appellee.

The curator ad hoc may have had good reasons not to appeal and even not to prosecute the appeal. He may have considered the claim as justly allowed and was under no personal obligation to make money advances to pursue matters further, after judgment.

The fact that a fee was allowed him for his services, is no disqualification to his representing the absentee. The law allows retribution in such cases. If such allowance could disqualify,, no absentee could then be represented by a curator ad hoc. 8 La. 47; 17 La. 425.

III.

It is immaterial that the name of the attorney to be appointed curator ud- hoc was or not suggested. The court made the appointment and this suffices.

If it be true, as charged, that the district judge should not have made the appointment of a curator ad hoc and should have recused himself as having been the executor’s counsel in the settlement of the estate of Mrs. Noble, the fact that he did not thus recuse himself, in the'absence of any founded opposition to his action, did not render him incompetent.

A judge truly becomes disqualified only when lie has been actually recused, or when he has recused himself, for cause. 2 Ann. 628; 10 Ann. 612; 34 Ann. 629.

IV.

The proceedings v ere regularly and fairly conducted by gentlemen occupying a high standing at the bar, for respectability and ability, and whose character is far above suspicion. The charges made against them are, not only not established, but disproved, and are frivolous on their face.

V.

That the writ was credited with .more than the property was bid in for, can surely be no cause of complaint. The error, if any was committed, is rather beneficial than detrimental. But there was no such error. The property was adjudicated for $917 and not $717.

The property was regularly appraised and nothing shows, if the apirraisement was for less than its real value, that it was thus appraised with any fraudulent'intent and to injure the absentee.

The interest of the absent debtor in the succession of his grand mother was of one fourth, his legitime by representation of his deceased mother. Those who now claim to be his heirs cannot be listened to complain that more was not seized than could have been. They cannot require impossibilities. The seizure and adjudication of that share passed title to it to the judgment creditor, Mrs. Watt, who must be quieted therein.

We are satisfied, as alleged by the plaintiffs, and the defendants have no interest to dispute the fact, that W. E. Fly, the absent heir, died early in February, 1882, long after his grandmother had departed this life, which she did in 1877.

The contention of the defense to ascribe the death of Fly to a date anterior to that of Mrs. Noble, rests on the principle nemo hares viventis, and vims designed to cut off the plaintiffs from the pretensions as heirs.

The first appointment of the curator ad hoe was made in 1878. It was revived or confirmed in 1880, and it continued to the consummation of the proceedings, which culminated in the sale in July 1880. 1 La. 47; 2 Ann. 1010; 13 Ann. 263.

The second appointment of the same curator was a, superfluity. The proceedings were therefore against a living defendant properly represented, and they conclude him and his heirs.

The judgment complained of is erroneous.

It is therefore ordered and decreed that the judgment appealed from he. reversed;, and it is now oidered and decreed that there he judgment rejecting the demand of plaintiffs, and in favor of defendants, maintaining the judgment, proceedings and sale attacked,—the plaintiffs and appellees to pay costs in both courts.

On Application for Rehearing.

The decree in this ease was not designed to reverse the judgment of the lower court so as to reject the pretensions of the plaintiffs as heirs of W. E. Ply, and as entitled as such to his share in the movable property belonging to the succession of his grandmother, and touching which there was no dispute in this controversy. The judgment of the lower court in those respects remains undisturbed.

Our previous judgment can be amended without granting a rehearing.

It is therefore ordered that our previous decree be amended so as to read as follows:

It is therefore ordered and decreed that the judgment appealed from, as far as it annuls the judgment on the account in favor of Eli Noble and transferred to Mrs. Watt and the proceedings thereunder and the sale of the real estate Adjudicated to Mrs. Watt, and entitles plaintiffs to recover the share of W. E. Ply therein and rents and revenues thereof, be reversed.

It is now ordered and decreed that there be judgment rejecting plaintiff’s demand for tiie nullity of said judgment, of the proceedings and of the sale thereunder to Mrs. Watt, aud for rents and revenues, and that in other respects said judgment appealed from be affirmed at plaintiff’s costs in both courts.

Rehearing refused.


text:
    No. 1119.
    The State of Louisiana vs. Amos Robinson.
    The State can appeal in criminal cases from a judgment sustaining a motion in arrest of judgment when the case is otherwise appealable.
    Objections to an amendment of an indictment must be made when it is oftered or when tho Court has allowed it, and they must bo incorporated in a bill of exceptions. They Cannot bo urged in a motion in arrest of judgment.
    Objections' to’ a juror must be made when he is presented. They como too late after conviction.

      A letter written after the homicide by a brother of the deceased to one ot the witnesses for the defendant is irrelevant to the sole inquiry before the jury and was properly excluded.
    PPEAL from the Fifth District Court, Parish ,of Ouachita.. .¿JL Richardson, J.

      F. G-. Hudson, District Attorney, for the State, Appellee:
    One cannot speculate upon the chances of a verdict in his favor, and after conviction object to tho jury.
    After verdict it is too late to urge disqualification of a juror who sat upon the trial. 8 Rob. 590 ; C A. 310; 4 A, 182; 13 A. 270 ; 7 A. 284 ; 21 A. 54G ; 25 A. 370, 537, 573; 30 A. 91; 26 A. 383; 32 A. 1162 ; 4 Dali. 354 . 33 A. 896 ; 35 A. 24.
    Tho ruling of a trial judge denying a motion for a new trial based upon the ground that the verdict of the jury is contrary to tho law and evidence, will not he disturbed unless glaringly erroneous.
    This court has no juiisdiction of questions of fact in criminal cases. 33 A. 310, 679, 782; 33 35 A. 96.
    Irrelevant testimony should be excluded.
    Acts and declarations of one not a party to nor witness in a criminal case, when they do not constitute parts of the res gestee, are irrelevant and inadmissible.
    The right to amend must be determined when the amendment is offered.
    In an indictment charging murder, an amendment intended to negative prescription of a verdict for manslaughter is not one of substance.
    An amendment intended to negative prescription is permissible,
    After consenting to such an amendment, one cannot take advantage after verdict and urge that it should not have been filed. 35 A. 54.
    “Every objection to any indictment apparent on the face thoreof shall bo taken by demurrer or motion to quash such indictment before the jury shall'be sworn, and not afterwards.’ Rev. Stat. § 1063 ; Rev. Stat. 187o, § 1064; 32 A 335 ; 37 A. State vs. Toney Taylor; 35 A. 96. "
    The word indictment shall ho understood to include information and presentment as well as indictment, and also any plea, replication or other pleading. Rov. Stat. § *.066.
    Where an indicbmont for a prescriptible oftonco is filed mofo than a year after its alleged commission, and prescription is therein negatived by tho usual averments, the onus is not on tho State to provo the negative. Whar. 'Criminal Law, §614; 1st Greenleaf, § 79 ; State vs. Barrow, 31 A. 691; State vs. Barton, 32 A. 278; State vs. Barfield et al., 36 A. 89. That which is not necessary to he proved cannot bo said to bo of substance.
    The State has the constitutional right to appeal in criminal cases where tlie indictment has been quashed before trial or hold bad upon demurrer, and where it purports to charge an offence perishable with death or imprisonment at hard labor. State vs. Miles Taylor, 34 A. 978; State vs. Ellis, 12 A. 399 ; State vs/JRoss, 14 A. 364; State vs. Henry, 10 A. 207 ; State vs. Chcovers, 7 A. 40 ; State vs. Humphreys, 35 A. 967.

      Boatner & Boatner for Dei cud ant and Appellant:
   The opinion of tlie Court was delivered by

Manning, J.

An indictment for murder was found against the defendant in April 1885 laying the commission of the crime in Feh - ruary 1883. After arraignment and plea the district attorney amended tlie indictment with leave of the court by inserting the allegation that the defendant liad been a fugitivo from justice since the commission of tlic offence. There was a verdict for manslaughter and a motion in arrest of judgment because the indictment had not been found within, a year from the commission of the crime and did not contain any allegation that deprives the defendant of the plea of prescription. The judge sustained this motion and discharged the prisoner. The State appealed.

The defendant moves to dismiss on the ground that the State cannot appeal from a judgment sustaining a motion in arrest.

The light of the State to appeal in criminal cases when the indictment has been quashed or held bad on demurrer is settled beyond dispute. Of course the case must bo otherwise appealable, i, e. the crime charged must be punishable with death or imprisonment at hard labour. State v. Ellis, 12 Ann. 390 ; State v. Ross, 14 Ann. 364; State v. Taylor, 34 Ann. 978.

The language of the court in those cases appears to restrict tlic right to prosecution wherein the indictment was quashed, but that was only from abundant caution. There was no need to state the doctrine beyond the requirement of the cases then in hand and indeed such statement would have been obiter. But the same reasons that entitle the State to appeal when the indictment has been quashed and the prosecution has thus been prevented, apply when the prosecution has been successful but its fruit has been snatched by an arrest of judgment. There can be no question arising of putting twice in jeopardy, for if we overrule the motion in arrest we simply remand the case for sentence.

The criterion of the State’s right of appeal is whether the ruling of the judge is upon a matter with which the jury have nothing to do. Where there has been an acquittal by the jury the State cannot appeal although there has been a misdirection by the judge, but where the jury have nothing to do with the matter in hand but it is a question for the judge alone, as in a motion to quash before trial or a motion in arrest after conviction, the State may appeal from an adverse judgment. The function of a jury in etiminal cases, to which a sort of sacredness has been attached by tradition, is not interfered with by the rulings of the judge upon matters wholly disconnected with the guilt or innocence of the accused and relating solely to legal questions arising upon the structure of indictments or upon the form of pleadings, and thore can he and is no reason why the State should not appeal when the judgment is alone upon those and kindred matters.

The appeal cannot therefore be dismissed.

The lower judge of course ignored the amendment of the indictment in sustaining the motion in arrest, for if the amendment was properly made the plea of prescription was voidable by the fact of the defendant fleeing from justice and it was for him to prove the facts necessary to make his plea effective. State v. Barrow, 31 Ann. 691. The legality of the conviction thus turns upon the legality of the amendment to the indictment.

The record states that the amendment was made with leave of the court, and the testimony of the circumstances under which it was made, which comes up with the bill, shews that the amendment was submitted to the prisoner’s counsel before it was offered to the court and if assent was not given, certainly no objection was made. That was the time when objection should have been made and we do not mean merely verbal objection but a bill should have been taken to the court’s permission to make the amendment.

An objection to the1 amendment of an indictment like an objection to the indictment apparent on its face must be made before the trial is had, and cannot be made after conviction. It is assimilated to the objection to an incompetent juror. Unless it is made at the time the juror is offered, objection cannot be made thereafter. An accused who fails to object to an amendment of the indictment when it is presented or when it has been allowed, and who neglects to take his bill to such allowance is fairly presumed to waive any objection thereto. He can waive it just as he can waive arraignment and he can no more take advantage of a want of arraignment when he has specially waived it than he can avail himself of objections to an amendment of the indictment when he has failed to make them at the proper time. We do not mean by this to intimate that there are valid objections to the amendment. We pretermit the discussion of the question whether the amendment is one of substance or of form, and whether it could have been prevented by timely objection.

Two bills of exception were taken—one to the sitting of a juror on the trial who was disqualified. The objection to him was not made when he was offered nor until after conviction and in the motion for a new trial and comes too late. The other bill was to the refusal of the judge to admit in evidence a letter from a brother of the deceased to one of the defendant’s witnesses written after the homicide. It was wholly irrelevant to the only question the jury had to decide viz. the guilt or innocence of the defendant and was properly refused.

It is therefore ordered aud decreed that the judgment of the lower court sustaining the motion in arrest of judgment in this cause is reversed, and the case is remanded with direction to the trial judge to pass sentence upon the defendant for the offence of which he has been convicted.

Fenner J. was not present at the argument and takes no part.


text:
    No. 1137.
    E. J. Smith vs. W. W. Johnson.
    In the country, an appellant on application will be allowed time to complete the clerk’s certificate. where the motion to dismiss is taken on tho day on which the case is called for trial and three judicial daj s from the return day have not elapsed, and this though the cause may be submitted, tbe appellant not being strictly at fault.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Goode, J.

      D. Gaffery for Plaintiff and Appellee.

      Foster & Suthon and A. L. Tucker for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The appellee moves to dismiss the appeal on two grounds :

First. That the citation of appeal and the return upon it are defective ; second, that the clerk’s certificate shows the incompleteness of the transcript.

The appeal was made returnable here on the first Monday of July instant. The ease was called to be argued on the following day. The motion to dismiss, filed that day, was then called to the attention of the Court, and the case was argued and submitted. On the same day, after submission, the appellant having taken cognizance of the grounds of the motion, made affidavit of discovery of the irregularities in the citation and return and of deficiency in the clerk’s certificate only since the filing of the motion to dismiss, and prayed for time to have proper corrections made.

The appellee had a right to make the motion to dismiss when he did : but the appellant had an equal right to apply for time to make the corrections necessary to maintain his appeal.

The fact that the motion to dismiss and that for time were both made within the delay within which the transcript was to be filed, gives the appellant a just claim for relief which he might not have enjoyed had the case originated in the city—where motions to dismiss are required to be posted for at least one week to afford the appellant an opportunity to seek relief in proper eases.

In the country, motions to dismiss aro filed and the case is taken up and both argued and tried together, sometimes without any notice of the motion to dismiss to appellants, who, as a rule, by arguing the case should not be considered as waiving material lights which they would not be entitled to had they been notified of the motion to dismiss and of the grounds upon which it rests.

The mover does not allege that the transcript does not contain all the evidence adduced, though he charges that the certificate is silent on the subject.

In the absence of an explicit certificate to that effect establishing the fullness of the transcript, we cannot proceed to an investigation of the merits of the cause.

Under the exceptional circumstances of this case in its present phase wro think that, in furtherance of the.ends of justice, the appellant should be allowed time to perfect the clerk’s certificate, if, indeed, the transcript does contain all the evidence adduced.

This is not the first instance in which analogous relief was allowed after submission of a cause. 15 Ann. 717; XI Ann. 604.

It is therefore ordered that the appellant be allowed until the next term of the court at this place to make the corrections specified ; and, in the meantime, the motion to dismiss remains in suspense.


text:
    No. 1235.
    George W. Sentell & Co. vs. Dora Stark and Husband.
    A married woman can compromiso a ponding suit against licv and legally bind lierself and lier property to tho stipulations of tlio compromiso.
    When suits for largo sums liave been instituted against a married woman and she has made answer thereto and failed to plead that the debt was her husband’s, or marital coeicion or other Hire defenco, and has compromised those suits and thoroby obtained a remission of a largo part of the sum claimed, she cannot afterwards in a suit upon the compromise-notes setup successfully the above defences and avoid the payment of her obligations thus deliberately given.
    A PPEAL from tlie Twelfth District Court, Parish of Avoyelles. Overton, J.

      Thorpe c6 Peterman and Wm. Hall for Plaintiffs and Appellants:
    1. A married woman having paraphernal property and separate in estate and administration by recorded ante-nuptial contract, the husband being without property and indebted to the wife by sworn recorded declaration, who contracts iu writing in her own name with the authorization of her husband for tho cultivation of her property, and in the contract constitutes hor husband lier agent for the management and control of the same, is bound by tho contract, and cannot be heard to plead in avoidance that her secret purpose was to enable hor husband to operate tho property for his own benefit, and, therefore, the debt was his, where she has never communicated such purpose to the parties who wore induced to contract on hor separate credit. 26 Ann. 324 ; 32 .Ann. 1103; 33 Ann. 624; Ibid, 1008; Cliaflb & Sons vs. Watts (not yet reported).
    2. Suits being brought against hor for large balances claimed to be owing under such contract and for advances to her soparafco property, after tho expiration thereof, she being personally served with citations, petitions and other process, herself actively participating in the litigation, and throughout tlio two years of its pondency represented by counsel, and such suits being by her, authorized by her husband and assisted and advised by her counsel, compromised upon a basis greatly reducing the amount of the claim against her and extending time of payment, she is bound by said compromise. 26 Ann. 289; 34 Ann. 1171; 4 M. 456; 6 II. 275.
    3. Judgment being entered by tho court in accordance with tho terms of tho compromise, and being in pursuance to the same settled and canceled by notes and mortgage executed by the wife, authorized by her husband, and such notes being before maturity acquired by innocent third parries for valuó, in a suit brought nine years thereafter by such third holders, she cannot plead that the no íes represent an indebtedness of her husband, especially if in the suits compromised by the notes this defence was not disclosed, but other defeuces, utterly inconsistent therewith, were actively urged. 7 Ann. 34; 28 Ann, 294.
    4. Married women are bound, like other persons, b^ judicial admissions, in tho absence of satisfactory proof of fraud or want of authority in those who assumed to represent them as counsel. 26 Ann. 401; 27 Ann. 73; 31 Aun. 100 ; 32 Ann. 962.
    5. Mere advice and request by husband do not constitute the marital influence -which impairs a married woman’s obligation. 15 Ann. 615.
    6. Where long accounts are compromised, tho-court will presume that all objectionable items have been eliminated, and this presumption will prevail in tho absence of direct proof to the contrary.

      7. An amended answer, setting up wholly new grounds of defence, cannot be filed during the trial of a cause after plaintiff has closed his evidence in chief, especially when the matters set up in the amendment are not shown to have been unknown to the party at the time of filing the original answer. 1 B. 362; 10 Ann. 178; 20 Ann. 53; 22 Ann. 350 ; Ibid, 461; 24 Ann. 165; 28 Ann. 109.
    8. Auditors of accounts can be appointed and the result of their examination received in evidence only in the manner proscribed by the Code of Practice, Arts. 446 etseq.

      Bobt. P. Hunter and Gullom (& Coco for Defendants and Appellees:
    1. lilf he wife, whether separated in property by contractor by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.” B. C. C. Art. 2398; 6 L. 346-9; GB. 270 ; 4 A. 65 ; 8 B. 457; 2 A. 271; 1 A. 428: 5 A- 173; 12 A. 663-725; 13 A. 2; 14 IS 15-700; 15 A. 352; 16 A. 309, 310-449 ; 24 A. 95 -142 : 26 A. 279 ; 30 A. 1106 ; 32 A. 1033 ; 36 A. 824.
    The plaintiff must prove everything necessary to fix the liability of a married woman, whetbor she be separate in property or not separate; and this must be done by other proof than her confessions or acknowledgments. 1 B. 217-220 ; 6 B. 276 ; 1 A. 301; 4 A. 63; 7 A. 93-293; 15 A. 352 ; 34 A. 528 ; 13 A. 546; 5 A. 173 , 19 A. 206 ; 24 A. 96.
    2. 15 A. 54 ; 22 A. 457 ; 26 A. 402, 714 ; 29 A. 337 ; 30 A 492; 28 A. 232, 494 ; 27 A. 123 • 31 A. 734. 832; 30 A. 744, 812, 940,1157; 32 A. 203, 1103.
    Plaintiff is only relieved of such burden when the wife is a public merchant, in matters relating to her trade; or when the married woman is in advance authorized by the judge to borrow or contract. She may even then go behind contracts so authorized when she charges collusion and fraud. 15 A. 54; 21 A. 398; -22 A. 457 ; 24 A. 89 ; 26 A. 401-418; 31 A. 832-834; 35 A. 1186,
    3. Married women are of limited capacity so contract, and are forbidden to contract except in certain cases. They are classed with minors. B. C, 0.1782-1790 ; 6 L. 347 ; 1 B. 218; 6 B, 276 ; 1 A. 301 ; 4 A. 65; 7 A. 293.
    Whoever deals with a mariied woman is put on his guard and contracts at his own risk and it is incumbent upon him to ascertain that her proper estate can be charged with the debt. 7 B. S. 64; 5 B. S. 56 ; 4 B. 508; 3 £. 74 ; 1 A. 428; 2 A. 579 ; 3 A. 188, 3 M. 577; 2 B. S. 39 ; 5 A. 173, 495, 586 ; 7 A. 144, 293; 24 A. 142; 32 A. 1033; 34 A. 822 ; 36 A. 824.
    “It is settled, to epitomize our jurisprudence, that such transactions cannot be sustained ; that the wife and her legal representatives cannot be bound thereby; that she may attack and annul them, or may defend against them; that she is nob estopped by ber own acts in aid of the transactien, wbicb are presumed to be done under marital influence ; that whatever the form of the contract its true character may be inquired into • and laid bare; and that in her assault upon even authentic acts she is not confined to counter letters and interrogatories on facts and articles, hut may resort to parol evidence to establish their true nature and purpose.” 33 A. 1008 ; 33 A. 659,1008; 34 A 632, 822, 1063; 31 A. 734; 30 A. 193, 940; 29 A. 597; 28 A. 758 ; 29 A. 124; 16 A. 11; 15 A. 621. 628 ; 14 A. 169, 14 ; 12 A. 852; 7 A. 145 ; 6 A. 122; 5 A, 496, 572 ; 2 A. 756 ; 1 A. 429 ; 12 B. 84 ; 4 B. 508 ; 7 A. 294. 169 ; 16 A. 209 ; 23 A. 323 ; 28 A. 839.
    4. A married woman cannot by any act of hers during the marriage ratify a contract which is originally null. 5 A. 495, 586 ; 15 A. 569, 628; 28 A. 758; 33 A. 1008 ; 34 A. 822, 1063 ; 36 A. 824; 33 A. 659.
    A married woman cannot be held for constructive fraud, but it must be actual fraud or deceit; otherwise it would be nothing more than estoppel, which does ncc apply. Bis-land vs. Provosty, 14 A. 173 ; McIntosh vs. Smith, 2 A. 556.
    She is not estopped by payments made to or by her. 28 A. 758; 12 A. 663 ; 13 1. 2 ; 7 B. S, 418,

      .STor by her acknowledgments in even notarial acts, o A. 173; 14 A. 15, 700 ; 22 A. 457; 23 Ann. 196; 24 Ann. 89 ; 7ÍT. S. 341; 8 H S. 692 ; 4 K. 508; 10 L. 147 ; 1 A. 428 ; 5 A. 586.
    She may dispute her liability on lier notes in the hands of an innocent endorsee for value before maturity. 34 A.822; 29 A.123; 5 3?. S. 56 ; 5A.465; 12 A.853; 5A.495; 15 A. 352.
    She is not bound by a confession of judgment. 15 A, 628; 29 A. 597 ; 3 hT. S. 498: 2 A. 3, 806 ; 12 A. 350; 14 A. 165.
    In the absence of proof of the wife’s separate administration of her paraphernal estate it will be presumed to have been under the management of the husband. 14 Ann. 281; 31 A. 734.
    Where contrary allegations and admissions are made by plaintiff and defendant, the do* fondant is entitled to the benefit of plaintiff’s admissions, particularly when they are sustained by proof. 12 A. 583 ; 15 A. 268.
    The husband may be the agent of the wife, hut is to be held strictly to the terms of the agency and cannot exceed his authority. Whoever deals with the agent is hound to know that he is acting within the scope of his authority. 4 N. S. 502 ; 6 La. 47; 5 Eob. 134; 2 E. 274 ;£6 E. 234; 12 E. 540, 221; 8 E. 236; 4 A. 236, 396; 15 A. 647 ; E. C. C. 2996-7; Lemalombé, Yol. 4, p._239, § 210.
    A party seeking to recover must make his claim certain; it is not sufficient to render it ' probable. 14 La. 454; 19 L. 198; 8 ¿I. 14 ; 10 M. 419; 2 Eob. 27 . 12 E. 471; 6 Ann. 28; 8 A. 25; 10 A. 310 ; 12 A. 12 ; 13 A. 105 ; 15 A. 268, 457.
    Failure to produce evidence, which it was essential for plaintiff to have, and which, if it existed, it was in his power to produce, it is to be construed against him. 36 A. 841.
    “It is a matter of no consequence how the plaintiffs kept their accounts. * * * Her liability is in no manner affected by the circumstance that, while dealing with her husband, they chose to make the semblance of dealing with her.” 36 Ann. 824; 31 A. 734 ; 29 A. 75.
   The opinion of tlie Court was delivered by

Manning, J.

The suit is upon mortgage notes of a married woman for $8,000 and tlie defence is that they were executed for her husband’s debt and under bis marital influence and she is not bound thereby.

Dora Lambetli married T. O. Stark in 1868. She owned two plantations jointly with her sister. He owned’nothing. They made a marriage contract that there should not be a community of acquets and gains, that each shall remain separate in estate, and the wife retained the administration of#her property brought in marriage and all that she should thereafter acquire.

The two plantations were cultivated iu 1871 under a partnership entered into by Johnson & Goodrich of New Orleans and T. O. Stark as agent of Ms wife and her sister, wherein the two owners “put the use of their lands rent-free against the capital ” of the merchants, and “Stark as agent had the control and administration of the plantations without charge for services.” Johnson & Goodrich refused to continuo this arrangement in 1872 and for that year they furnished supplies and made advances to the two plantations. The plantations were largely in debt by tlie end of that year and two suits were instituted in January 1873 by Johnson & Goodrich against the defendant and her sister upon the partnership account of 1871 and the supply account of 1872— the one suit being for a balance of $31,734.09 and the other for $17,709.90.

At the October term 1873 the defendant and her sister filed their answers. To the suit on the partnership account they pleaded that they had entered into the partnership for the purpose and in the manner alleged, and in order that the provisions of their contract of partnership may be understood by the court they annex a copy. They also annex a statement of the operations of the partnership by which they admit of the amount advanced by the plaintiffs, $8909.63 was for stock aud implements and $4623.73 was for permanent improvements of the plantations, and after reciting their defence in detail claim a balance in their favour of $1690.34. Then follows this clause:—■

“Your respondents aver that T. O. Stark was their agent only for the purpose of managing their plantations in the year 1871 and that he had no authority to contract for them or bind them in any manner not contemplated by the written contract.”

The answer to the suit for supplies avers that the contract of. partnership gave the merchants the right to continue it and that they did elect to continue it through 1872, and therefore they have no right to sue for specific items of indebtedness but must bo relegated to then-action 'on the partnership and for its settlement.

The suits after two years and more delay wci;e fixed for trial in May 1875. Mrs. Stark and her husband went to the parish-seat “expecting the case to bo tried” as she says in her testimony. She staid there two days and then a compromise was made of the whole litigation, by which she aud her sister were to confess judgment for $20,000 in the partnership suit and for $10,000 in the supply suit, but these judgments were to bo cancelled if Mrs. Stark and her sister shall each execute her notes for $8,000 and secure them by mortgage within thirty days from that date, and in default of their doing so the judgments were to stand. The judgments were entered in court. Within thirty days Mrs. Stark executed three notes for $8,000 and gave the mortgage stipulated and so did her sister, and the judgments were cancelled.

This suit is upon the notes thus given and to enforce the mortgage. The sister’s property has already been sold to satisfy her debt. Senteli & Co. bought these notes immediately after viz in June 1875. Johnson & Goodrich had failed and owed Senteli & Co. a larger sum than these notes. They took them in payment.

The defence that the debt is the husband’s fails utterly. Mrs. Stark was separate in property and her property was of that kind that is worthless unless cultivated. Her husband had nothiug but business-qualifications and she utilized him to manage her property and to relieve her of the annoyance of attending to its details. She made him her agent and in the exercise of powers under that agency he made the contract of partnership for the cultivation of her property in 1871, and when sued upon it she avowed the agency judicially and insisted that she was not responsible for any debt incurred outside of it.

There is no averment nor pretence of marital influence made in the defence to those suits. The sums for which judgment was demanded amounted to near fifty thousand dollars. We may assume they would have absorbed the property, blear a year passed after the institution of the suits before answers were filed. She had experienced and efficient lawyers and it is incredible that she should have omitted to tell them that her husband had coerced her, if it were a fact, and equally incredible that they should have omitted to plead it if she had told them. As time wore on the litigation and the impending ruin it threatened must have been the subject of anxious thought and when the time for trial arrived Mrs. Stark was present to support the averments of her answer by her own testimony.

A trial was averted by the compromise and the sum agreed to be paid by it was about ono-third of that demanded in the suits. Mrs. Stark had denied indebtedness for any sums beyond the scope of her agent’s powers, admitting that she was liable for whatever debt he had contracted within them. In the accounts of Johnson & Goodrich introduced by the defendant are items that on their faee.show or imply that they are for Mr. Stark personally—money paid on Ms sight drafts and the like. Excluding all of these and more beside there is left a sum far exceeding the amount of the notes. The two sums appearing on her own statement annexed to her answer in the partnership suit as exi>enditures during 1871 alone for permanent improvements and stock and implements amount to near the sum total of the compromise notes, to say nothing of what was similarly expended in 1872.

We have not entered into the consideration of the long list of authorities laid before us with laborious care by the defendant’s counsel touching the right of the defendant as a married woman to plead marital coercion, non-liability for husband’s debt, etc. because there is no need of it. Her right in defending suits is fully maintained and the extent of it has been defined in those authorities, but she lias not been hampered in this case. She has been given full rein and has pleaded whatever she wanted to plead and has said as a witness whatever she wanted to say.

And what is the result of it all ? She is the only witness in support of these defences and she makes no attempt to explain how or the manner in which the marital coercion was applied. ' No circumstances are given, no words that were said, no acts that were done—nothing but the repeated iteration of the assertion—“my husband influenced me,” and again that he and her sister influenced her.

During the pendency of the original suits for the large sums already-stated she had ample time to have formulated and presented the defences she now makes, and when the compromise of them was made she was assisted by counsel. One of them is a witness to the Act she signed. That a married woman can compromise a pending suit against her and legally bind herself has beeD decided in Barron v. Sollibellos, 26 Ann. 259, where the facts were very similar to those in the case at bar, and sne cannot be heard to set up the defence that the debt was her husband’s in a suit upon the compromise after she has failed to make it in the previous suit, or withdrawn it in consideration of the advantages she secured by the compromise. If a married woman under such circumstances can go behind her own judicial admissions and repudiate them she will have an immunity that the law has not conferred upon her. Thornhill v. Bank, 34 Ann. 1171; Chaffe v. Watts, not yet reported.

We think the defendant has no escape from the payment of the obligations and that the judgment below in her favour is error. Therefore

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that the plaintiffs Geo. W. Sentell & Co. have and recover of the defendant Dora Stark eight thousand dollars with eight per cent, per annum interest thereon from the fifth day of May 1875, and five per centum upon this sum additional as attorney’s fees, and the costs of both courts, subject to a credit of three hundred and fifty-four 67-100 dollars on July 12, 1876. It is further adjudged and decreed that the mortgage claimed in the petition in this suit is recognized as resting upon the land and other property described therein to secure the payment of this judgment and the same is ordered to be enforced.


author: Fenner, J.

text:
    No. 1233.
    The State of Louisiana vs. Benjamin Allen and Wiley Carter.
    Seccticn 1010 Revised Statutes regulates the method of conducting preliminary examinations in criminal casos; and, so far as the testimony of witnesses is concerned, it is only-required that it should bo reduced to writing hy the magistrate or under his orders, and it is not made necessary that it should be signed by the witnesses or certified by the judge. When, on trial, the witness is unobtainable after due diligence, his former testimony so taken, when its genuineness and official character are properly established by proof, may be used in evidence.
    Where, when a case is on trial, a subpoena issued to a witness formerly residing in an adjoining parish has not yet been returned, evidence may be received showing that ho has left and is absent from the parish, and that it is impossible that the subpoena should reach him. Such evidence lays a sufficient foundation (or the introduciion of the testimony of such witness taken on the preliminary trial, where it appears that his absence and whereabouts were unknown to the District Attorney, so as to enable him to have secured his attendance.
    Objection to the statement by a witness of conversation overheard between the accused and another person, on the ground that the witness was playing the eavesdropper, may go to the effect, but not to the admissibility of the evidence.
    Where witnesses are hoard on matters affecting solely the questions touching the admissibility of evidence, and to be.determined by the jndge alone, there is no error in hearing them out of the presence of the jury.
    One indicted as principal in a murder cannot be convicted thereunder as accessory after the fact.
    PPEAL from the Twelfth District Court, Parish of Grant. Black-man, J.

      M. J. Cunningham, Attorney General, and John C. Wiekliffe, District Attorney for the State, Appellee.

      Edwin Q. Hunter for Defendants and Appellants.
   . The opinion of the Court was delivered hy

Fenner, J.

The two defendants were jointly indicted for the murder of William Brown.

The jury returned a verdict finding Allen guilty, without capital punishment, and Carter guilty as accessory after the fact.

Numerous errors are assigned on bills of exception :

1. The State offered the testimony of George Neal, taken in writing on the preliminary trial, for the purpose of proving that “on the night that the deceased Brown came to his death he was not drunk, but sober;” to the reception of which several objections were urged:

First. That there was nothing in the evidence to show that the witness was a competent judge as to whether one was drunk or sober, and that the evidence was but the opinion of the witness. This is frivolous on its face.

Second. That the evidence, though .reduced to writing, had not been signed by the witness or certified by the committing magistrate.

The mode of conducting preliminary examinations is regulated in this State by section 1010 of the Revised Statutes, which makes it the duty of the judge to examine on oath such witnesses as may appear against him and to reduce their deposition to writing. It shall also bo his duty to receive the voluntary declaration of the person accused, and the answers which, without promise or threat, he shall make to the questions which the examining judge or magistrate shall put to him, and to cause them to be reduced to writing and signed by the prisoner in his presence and that of two witnesses, and to certify tho declaration with his signature, which declaration thus certified and signed shall be evidence before the grand and petit jury.”

It thus conclusively appears that the requirements" of signature by tiie declarant and of certificate by the judge apply exclusively to the declaration of the accused ; and that as to the testimony of witnesses, the law requires no more than that they should be examined on oath and that their statements should be reduced to writing. It is useless to refer to English statutes requiring witnesses to sign and magistrates to certify, when these requisites have been dispensed with by our own legislation.

The judge a quo, who appears to have been himself tho judge who acted at the preliminary trial, permitted-evidence to be introduced establishing the genuineness of and character of the written deposition, which evidence is referred to in his reasons and attached to the bill. It is complete and satisfactory and fully established that the writing offered was the true deposition of Neal taken under oatli at the preliminary trial and reduced to writing in full acco.rdaace with the law.

Third. That the proper foundation had not been laid for the introduction of such evidence by establishing inability, after the exercise of -due diligence, to obtain tho witness himself. It appears that the witness had been a resident of Rapides parish. Tho case had, on May 6, been set for trial on the 11th of that nionth. On the 9th subpoena was issued for the witness, addressed to the sheriff of Rapides, which had not been returned. On the 12th the State mov.ed for a continuance on that ground, which was refused, to which refusal the State reserved a bill. The reason assigned by the judge was that he “ had positive personal knowledge that George Neal was not in the parish of Rapides and that the Sheriff could not find him ,• that delay would be ot no service; * * tlmt tlic State conld establish by abundant evidence that Neal was unobtainable, which would establish the legal basis for the admission of Neal’s evidence on the preliminary trial.”

To this ruling of the court defendants did not except.

Accordingly, when defendants objected to the reception of Neal’s testimony on the ground that the subpoena issued to Eapides bad not been returned, the State proved by witnesses that Neal was not in the parish of Eapides, that he had left there long previously and had been absent for a considerable period. Hie evidence is conclusive on the point, and the absence of the return on the subpoena became matter of no possible consequence. It is shown that the district attorney had no knowledge of the departure of Neal until after the issuance of the subpoena, and had the latter been issued in time to be returned the case would have been in no better position. There would simply have been a return of the sheriff showing that he had beeñ unable to find Neal in the parish of Eapides, instead of proof by witnesses that Neal was not in Eapides, and, of course, could not be found there.

We think, under these circumstances, the basis laid for the reception of the evidence is sufficient.

2. The next exception is taken to the judge’s action in limiting the cross-examination of a witness by preventing the continuance of such questions as these: Would you, in order to save your own life, swear to a falsehood? If you thought your mother would be hung if you told tlie truth would you tell it? Would you swear falsely for this court-room filled with twenty-dollar gold pieces? Tiro judge gives excellent reasons for his limitation of this line of questioning and did not exceed the discretion vested in him to regulate in such matters the good order and dispatch of business in his court. Greeuleaf on Ev. 3449; State vs. Benjamin, 7 Ann. 49.

3. Exception was taken to the testimony of a deputy sheriff as to a conversation which he had between Allen and a fellow-prisoner while listening at the door of their cell.

The objections are, that it was not voluntary because accused did not know Lacroix was listening, which is manifestly frivolous; that the conversation was not with tlie witness, which is without force; that tli© witness did not give the entire conversation, which is contradicted by the statement of the judge; and, finally, that such eavesdropping in an officer should not be tolerated. Tlie last objection might well impair the weight of the testimony, but we know of no principle of law on which it could be excluded.

4. The bill numbered four objecting to the form of certain questions has no merit.

5. Bill numbered seven objects to a ruling of the judge excluding evidence of a conversation between counsel for the defendant and his clients. The ruling was correct.

6. Bill numbered eight attacks the ruling of the judge in hearing the testimony of a witness while the jury was out of court. The witness referred to was one of those examined exclusively on the question of George Neal’s absence from Rapides parish, affecting simply the question of the admissibility of the evidence taken at the preliminary examination. The testimony was addressed to the judge alone, and to be acted upon only' by him in determining the question of admissisibility of the evidence.

7. The bill No. 9 to the action of the court in refusing to delay the progress of the examination of a witness in order to allow counsel to make notes of his statements, has no merit under the explanations given by the judge.

8. The same remark apjdies to bill numbered ten and also to bill No. 11, neither of which requires more particular statement.

9. Bill No. 12 and bill No. 13 cover the same objections to the reception of the testimony of George Neal taken on the preliminary trial, which have already been discussed.

The foregoing disposes of all the exceptions taken to the evidence.

We have now to consider the objection urged to the charge of the judge to the jury, as follows: “You can find one of the accused

guilty as charged in tire indictment, and the other guilty as accessory after the fact;” and the same error was urged as ground of a motion for new trial, exception to the overruling of .which was duly reserved.

This objection, of course, only affects Wiley Carter, who, as we have seen, was found guilty as accessory after the fact; but it is fatal to the verdict and sentence as against him. He was indicted as a principal for murder, and the authorities seem unanimous that “an accessory-after the fact cannot be convicted on an indictment charging him as principal.” 1 Wharton Cr. L., sec. 245, citing a multitude of authorities; Desty’s Am. Cr. L., p. 119, sec. 45.

It is therefore ordered, adjudged and decreed that the verdict and sentence appealed from, in so far as they affect defendant Wiley Carter, be and are hereby annulled, avoided and reversed, and that, in all other respects, they be now affirmed.


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    No. 1243.
    Ozite Theriot, wife of Felix Potier, vs. Baron Bayard.
    A court having probate jurisdiction is competent to homologate an account voluntarily rendered, by a tutor to his ward, suing tor such, although such tutor be domiciled beyond ibs territorial boundaries.
    That court may also find and render a money judgment in favor of the ward against such tutor, a»nd is competent to revive such judgment, although the tutor continues so to he domiciled.
    If the tutor had aright to «except to the petition, of the ward claiming an account on the ground of his having his domicile^out of the jurisdiction of the court, he should have done so before judgment. Having then failed to urge it, he cannot raise it as a defense to the proceeding to revive.
    A PPE AL from the Twenty-first District Court, Parish of St. Martin. il Gates, J.

      Felix VoorMes for Plaintiff and Appellee :
    1. The proper form in which to bring an action for tho revival of a judgment is that in which the judgment was rendered, 23 Ann. 594; 28 Aun. 8G9.
    2. In a suit of revival of judgment, the defendant cannot raise any defense short of the absolute nullity of the original judgment. 34 Ann. 340.
    3. Parish courts, as courts of probate, had unlimited jurisdiction in all probate matters. C. P. 127,123, 922, 923, 924, et ala.
    4. The action to compel tutor to account is essentially a probate proceeding, and the court which has appointed him has alone the power to supervise his acts as tutor and to compel him to account. C.P.997,998; C. C. 337. A party against whom a judgment has been rende* ed in the court of his oiun, selection, on citation issued at his request, on the evidence tendered by him, cannot plead its nullity on the ground that it has no jurisdiction rationcepersonce as to him if in other respects that oourt has competency to try the subject matter. 31 Ann. 89; C-P. 03.

      Fobt. S. Ferry for Defendant and Appellant:
    The court having jurisdiction of tho place of residence or domicile of the minor alone has jurisdiction over the tutorship, or of any of its incidents, and the account of tutorship can be rendered alone to that court. This has become a rule of property. O. C.39; C • P. 944, 945, 924; 23 Ann. G93 ; 12 Ann GO; 14 L. 473; 2 It. 160, 420 ; 3 K. 303; 5 H. S. 624; 5 Ann - 565; 13 Ann. 265; 14 Ann. 565 ; 9 it. 499; 32 Ann. 1037.
    Tho jurisdiction is of the subject matter, and is exclusive. It oannot be waived by the ward nor by the tutor. hTor can it be assumed by any court whidli has it not under the law. C. P. 92; 29 Ann. 237; 21 Ann. 662.
    The resulting absolute nullity may be pleaded in answer to a suit to revive a judgment. 21 Ann. 662; 30 Ann. 364, 692; 32 Ann. 1006; 33 Ann. 341; 34 Ann. 340, 413.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit to revive a judgment.

The defense is an exception to the jurisdiction and, further, that the court which rendered the judgment was wholly incompetent and that the judgment is an absolute nullity,

From an adverse judgment the defendant appeals.

Tlie facts are that Charles Theriot, plaintiff’s father, having died in 1857, in the parish of St. Martin, the place of his domicile, his succession was there opened, administered upon and settled; and that the defendant, who then was domiciled in the parish of St. Mary, and has not since changed his domicile, was appointed tutor to the plaintiff and qualified as such.

On her attaining the age of majority she brought proceedings, in June, 1866, against her tutor for an account before the district court of St. Martin, which had succeeded the parish court, by whom the judgment had been rendered. In September following- he voluntarily complied with the demand and rendered an account, which was opposed by the plaintiff, and, after considerable litigation, homologated long after, April, 1876, the court amending the account in some respects and decreeing plaintiff entitled to recover $7505 from the accountant, with legal interest till paid. This judgment was never appealed from. The present suit, brought in March, 1885, before the district court of St. Martin, has for its object to revive it.

I.

The exception to the jurisdiction of the district court over the defendant, who is not domiciled within its territorial limits, appears to have been abandoned, for defendant’s coimsol frankly admits that if the court that rendered the judgment on the account has jurisdiction, the present action has been instituted in the proper forum. The determination of the question of such jurisdiction is therefore contingent upon the decision of that of the court which homologated the account, ■which will solve the preliminary defense in this case. We shall now proceed to consider it.

II.

It is settled that the object of a proceeding to revive a judgment is merely to keep the judgment in force by interrupting prescription, which otherwise would terminate its existence, matters and things remaining otherwise in statu quo, just as if the statute of prescription had never been enacted.

Although it has been held that in such suit no plea or evidence assailing its validity could be entertained, this Court has recognized in the defendant'the right to set up and establish the absolute nullity or extinction of the original judgment, as when the court was incompetent, or when, not being such, the judgment had been rendered by default and without citation, or when it has been extinguished in any of the ways provided by law. 30 Ann. 1330; 31 Ann. 326 ; 29 Ann. 69; 33 Ann. 342,340, 413, 1296-1301.

In the case of Folger vs. Slaughter, 33 Ann. 342, the Court, however, distinctly said : “Nullities which are not absolute, but relative, cannot be invoiced in such proceeding.” This means causes of nullity which were personal, which could have been pleaded and were not set up. See 31 Ann. 39; 33 Ann. 1301.

In the present instance it cannot be claimed, nor is it, that the court which rendered the judgment of homologation was incompetent ratione materia, for it clearly had probate jurisdiction. It could legally entertain a suit by a minor, become of ago, agaiust a tutor for the rendition of an account of his administration, and it could adjust the differences, if any, between them.

The contention is that the court was incompetent, because the tutor from whom the account was asked was domiciled beyond its jurisdiction ; that he could not have been cited and compelled to render the account, and that the judgment in favor of plaintiff is therefore a nullity.

If it be true that the defendant could have then excepted to the jurisdiction of the court calling for tho account, it was a defense personal to himself, which he could have set up or waived, at his pleasure. He elected not to avail himself of it, and has abandoned it. The relinquishment of that right has inured to the benefit of the minor of age, who cannot now be divested of the advantage derived from it. Had execution issued on that judgment against the defendant, he could not have enjoined it on the ground now urged, because be cannot be permitted to setup after judgment defenses which he could have raised before judgment.

Defendant contends specially that by virtue of Act 208 of 1868, which exceded from the parish of St. Mary that portion of it in which he was domiciled and added it to tho parish of Iberia, the district court was bylaw divested of all jurisdiction over the suit for an account instituted by plaintiff in 1866.

This was probably so. The defendant then could, when the contestation on the account was taken up for trial, have objected and demanded the transfer of the record to the district court of Iberia (33 Ann. 1301); but he did not do so on April 22, 1876, when the case was called up and decided.

The divestiture of jurisdiction, in a case like this, was for his benefit, and he could legitimately and legally waive it if he deemed advisable He freely acquiesced to the authority and competency of the court, and cannot now be listened to complain when the same court undertakes to revive the judgment homologating the account, and charge that it had no jurisdiction to render that judgment.

When the court passed upon the differences of the parties in relation to the account, the case stood before it in the same condition that it would have been in had the accountant actually been domiciled within its territorial boundaries.

The judgment is amenable to no charge'whatever of nullity on the ground of jurisdiction, either absolute or relative. The defense is therefore without merit.

The decision of this point carries with it that of the preliminary defense, to the jurisdiction iu the present action.

The appellee has prayed for damages for a frivolous appeal, but we do not consider that this is a case in which any should be allowed.

Judgment affirmed.


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    No. 1236.
    Clement Bros. vs. Their Creditors.
    Where proceedings for a eessio bonorum have been taken by insolvents which are opposed by some of thoii’ creditors on tho ground of fraud, and the insolvents have reconvened for damages because of the injury caused by the charge of fraud, and íhe jury find for the insolvents but reject their demand for damages and they alone appeal, the creditors cannot obtain an inquiry into those charges and a reversal of the judgment below on. iho piincipal demand by simply filing in this court a prayer for such reversal. They should have appealed.
    Whore charges of fraud aro made in good faith upon reasonable grounds and without malice andaré countenanced‘by surrounding circumstances and aro apparently justified by recont acts of the parties to whom fraud has been imputed,^fchero is no place for a claim for damages for any supposed inj ury resulting therefrom and tho rejection of such claim by a jury will bo approved.
    APPEAL from tbe Fourteenth District Court, Parish of Calcasieu. Bead, J.

      JPournet cO Gallangher for Plaintiffs and Appellants.

      Mitchell t& Capped for Opponents and Appellees.
   The opinion of tbe Court was delivered by

Manning, J.

The Clement brothers, a firm of Lake Charles, petitloned.'the, Court for leave to make a cession of their property, filed lists of their assets and liabilities, and prayed a meeting of their creditors which was ordered aud hold. Some of the creditors refused to attend and instead, opposed tlie application in toto on the ground of fraud, the specifications of which were set out in detail and for the trial of which they invoked a jury. The insolvent firm answered this opposition by a demand of ton thousand dollars as damages for injury sustained by reason of these unfounded charges of fraud. The jury found for the plaintiffs, the insolvents, but without damages and they appeal. •

The creditors opponents have not appealed although the verdict was against them, but they have filed in this court a prayer for the reversal of the judgment below, and that the whole proceedings in insolvency be set aside and for the affirmance of that part of the judgment that rejects the demand for damages. It does not appear to be an answer to the appeal nor is it so called. The relief sought is not obtainable in that way.

The opposing creditors should have appealed. Westermeier v. Street, 21 Ann. 714. They are not seeking an amendment of the judgment but its total reversal on the principal demand. They pray its affirmance upon the reconventional claim of the plaintiffs. As to the principal demand for +he annulment of the insolvent proceedings on the ground of fraud they were cast by the verdict and to all appearance were content therewith. An appeal by them was necessary to obtain its reversal.

The only issue before us is the question of damages claimed in re-convention by the plaintiffs. The jury disallowed any and correctly.

These insolvents had acted on the eve of their acknowledgment of insolvency in a manner well calculated to excite suspicion of the honesty of their intentions. One of them hastened to put on record what he calls a mortgage in favour of his wife a few months before their petition was filed, and bought in her name a portion of the ceded property at the Syndic’s sale. Mortgages had been made by the other insolvents to other parties who were relatives. Creditors saw or thought they saw in these and like acts preparations for a coming catastrophe, and when the catastrophe came, interpreted thorn as evidences of fraud that had been long secretly concocted. The execution of these mortgages does not of itself establish a fraudulent intent of the debtor, but when he seeks damages from his creditor because the latter acted on a belief inspired by those acts of his, he must be denied.

To say that men who seek the protection of our insolvent laws, surrounded by such suspicious circumstances, are entitled to damages against such of their creditors as charge them with fraud, would be to give immunity to dishonesty by frightening every one from impugning it. Where charges of fraud are made in good faith upon reasonable grounds and without malice and are countenanced by surrounding circumstances and are apparently justified by recent acts of the parties to whom fraud is imputed, there is no place for a claim for damages for any supposed injury resulting therefrom. Vinas v. Merch. Ins. Co., 33 Ann. 1266.

Judgment affirmed.