text:
    No. 7974.
    State of Louisiana vs. Louis Breckenridge.
    In n prosecution for assault with intent to commit robbery, the accused is not entitled to sucksa charge to the jury as, that “the evidence must show that the prisoner laid hands-on the party against whom the offence was charged to have been committed, or demanded' his money.”
    Tbe offence may be proved in other ways.
    The jury in criminal cases being the sole judges of the evidence, the accused is not entitled' to the unqualified charge, that “ five witnesses of good character, who are unimpeached, are entitled to greater credit than one witness who swears differently.”
    This Court will not review the action of the judge a quo, in criminal cases, on Motions for anew trial involving questions of fact or matters resting largely within his discretion,. unless the record discloses, and the Court is properly informed, that the ruling complained of, was arbitrary and dearly illegal.
    APPEAL from the Eighth Judicial District Court, parish of East Carroll. Belony, J.

      J. W. Montgomery for the Defendant, Appellant.

      John B. Stone, District Attorney, and j. O. Egan, Attorney General; for the State, Appellee:
    First — In charging the jury the judge is not confined to the specific charge asked for by defendant’s counsel.
    Second — Tbe action of tbe oourt a qua, on a motion for a new trial, cannot be reviewed om appeal, unless an unmixed question of law be presented. 11 An. 478.
    Third — In moving for a new trial on tbe ground of newly-discovered evidence, and tbe name • of the witness be not disclosed in tbe affidavit, the motion will be overruled. 8 !R. 543.
    Fourth — To obtain a new trial it is not sufficient to allege that one of the witnesses made contradictory statements out of court; it must be shown that the conviction was had on hiaevidenoe, and that his testimony was not true. 30 An. 305,
    Fifth — "When newly-discovered evidence is made the ground in the motion for a new trial it, is a question of diligence and not an unmixed question of law ; therefore, the action ol the lower court is not reviewahle by the appellate court. 21 An. 473 ; 22 An. 468.
   The opinion of the Court was delivered by

Todd, J.

In this case, the defendant was tried and convicted of an-assault with intent to commit robbery, and was sentenced to twelvemonths’ imprisonment at hard labor in the penitentiary, from which sentence he has appealed.

He relies for a reversal of the judgment on the following assignment of errors, to wit:

1st. That the record does not show the arraignment of the defendant, or'that he filed a plea to the information, nor that the District Attorney presented the information to the court, asking for leave to file-the same.

2d. That the court was asked to charge the jury as set out in the bill of exceptions, which was refused; that the charges were not given in the language or in substance as requested, but were wholly emasculated by comments and qualifications of the judgment.

3d. That the charges of the judge were neither succinct nor lucid, but were confused, calculated to, and did confuse and mislead the jury.

4th. That the court erred in refusing the motion for a new trial.

5th. The court was asked to charge the jury that the testimony of five witnesses of good standing was entitled to greater weight than one witness who testified differently on the facts; which charge was practically refused, and given in such a manner as to mislead the minds of the jury.

Regretting that we have not been favored with any argument, oral or written, by the defendant’s counsel in support of this assignment, we shall proceed to the discussion of the alleged errors in the order presented:

First. The record, which was corrected on the application of the Attorney General, shows that the accused was arraigned and pleaded not guilty, and asked for trial by jury, which shows a literal compliance with the legal requirements.

The information contains the usual averments “ that the District Attorney comes in person into court, and with leave of the court first had and obtained, gives the court to understand and be informed,” etc. This information was filed on the 12th May, 1880, and on the same day the minutes of the court recite : “His honor, the judge, caused to be filed in open court an information of the State of Louisiana vs. Louis Breckenridge, charging him with an assault with intent to rob, and ordered the clerk to issue a warrant for his arrest,” etc.

This also shows a strict compliance with the law; leave to file the information was properly asked and properly granted.

Second. The bill of exceptions in the record shows the following facts on this point:

Among the charges asked by the defendants were the following:

“ 2. That if there is no proof that the prisoner laid hands on Moses Butler or demanded his money, there could be no robbery or attempt to rob.”
“3. That five witnesses of good character, who are unimpeached, are entitled to greater credit than one witness who swears differently.”

The judge states in the bill “ that these charges were given in full as requested, the court further charging, as shown on the margin.”

By reference to this “margin,” it appears that the judge after giving the second charge as above, added “that the intent might be shown by-acts of the accused.”

And after giving the third charge, the judge “ charged further that the jury were the judges of evidence, and from the manner of giving evidence by the witnesses, could place such weight upon the evidence as they saw proper.”

These addenda to the charges asked were, in our opinion, proper. We think, however, that, even with the qualifications or modifications made by the judge a.quo, the first charge complained of (the second in number) if incorrect, was so for the reason, in part, that in some respects it was too favorable to the accused.

The offense charged in the information is an assault with intent to commit robbery. The accused was not charged with an assault and battery. Therefore, that part of the charge that relates to a battery, or that the prisoner laid hands on the party against whom the offense was charged to have been committed, was wholly inapplicable, as an' assault with intent to rob, and not a battery, had been charged. Then, again, it was not correct to assume or conclude, and so instruct the jury, as the charge might imply, that “ a laying on of hands” and a demand for his money was the only evidence that could establish the offense charged.

It might have been proved, for instance, that the accused had waylaid the party for the purpose of robbing him; that he had declared such intention or purpose to a confederate or other person; that the prosecutor was thus apprised of such purpose, and that the accused did commit an assault, though not a battery, in execution of his purpose. Such evidence, or evidence of a like character, might have been before the jury; yet under the restricted nature of- the charge, confining the evidence to proof of a battery, and a demand for money, the jury could not consider it. The addendum of the judge was a partial correction of the error in the charge as asked, but not a complete one.

As to the second charge asked.

The jury in criminal cases are the judges, and the sole judges, of the evidence. Being such judges, it lies entirely within their judgment and discretion w.hat witnesses they will believe, and what witnesses they will disbelieve, and what portion of the evidence they will accept as true, and what part they will reject. So, when a general rule was announced to them, that five witnesses should be believed rather than one who contradicted them, it was eminently proper to remind them at the same time, as was done by the judge, that they were the sole judges of the evidence. If they did receive and believe the statement of one witness in preference to that of five, it was in their power and discretion to do so; and It may be that they exercised a sound discretion in doing so. They saw and heard the witnesses, and perhaps knew them all; and they had an opportunity to judge from the character of their statements and their manner of testifying, which of them told the truth, and which of them did not. A jury cannot be controlled in the legitimate exercise of their discretion in such matters by any such restrictive charge as was sought in this instance.

Third. Wo have no opportunity of judging whether or not the judge’s charge was confused and obscure, and calculated to mislead the .jury, inasmuch as the charge given was not reduced to writing, nor otherwise submitted to our view.

Fourth. As to the alleged error in overruling the m'otion for a new trial.

We have examined this motion, and find that it is not based solely upon unmixed questions of law, but contains only the ground, substantially, that the verdict was contrary to the law and the evidence, and the charge of the judge, and the further ground of the discovery of new evidence after 'the trial. These were grounds that addressed themselves peculiarly to the discretion of the judge, which we have no means of knowing, nor reasons for supposing from anything in the record, was not soundly exercised in this instance.

This Court will not review the action of an inferior judge on motions for new trial involving questions of fact, or matters resting largely within his disci’etion, unless the record discloses, and the court is properly informed that the ruling complained of was arbitrary and clearly illegal. 11 An. 478; 8 B. 543.

Fifth. It was objected, as shown by the bill of exceptions, to the judge a quo stating or giving in writing his reasons for overruling the motion for a new trial, and permitting such writing to be filed in the record. Inasmuch as this point, though made in the lower court, is not included in the assignment of errors filed in.this Court, it might be inferred that it was waived. However, this may be, and although such action may be unusual and new to the practice in the courts of the first instance, as urged in the bill, we cannot see that it violates any law or rule regulating criminal trials, or was calculated to work any injury to ■the accused. The jury had already been discharged when the paper or writing was filed, and it could not be a matter for the consideration of ■another jury in the. event of another trial; and, therefore, we do not perceive that it affords any ground of complaint, or is of the least force •or significance.

The judgment and sentence appealed from are affirmed with •costs.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8203.
    Christopher Scherrer vs. Andrew Caneza, Sheriff, et al. Third Opposition of Henry S. Browne.
    The Fifth District Court for the Parish of Orleans, created under the Constitution of 1868;. had jurisdiction to revive a judgment rendered in the year 1867 by the Fifth District Court for the Parish of Orleans, created under the Constitution of 1864.
    A suit is still pending in a court as long as the judgment is not satisfied or prescribed.
    The proceeding to revive a judgment is not a new suit, but part of the original action. Whether the writ of fieri facias issues under the original judguient or that of revival, is immaterial ; in either case it is legal.
    The contract upon which the Third Opponent bases his claim, is a nondescript and has ncr legal effect; it is neither a sale, nor a pledge, nor a dation en paicment, and it cannot afíectr third persons.
    APPEAL from the Twenty-Third Judicial District Court, parish of Iberville. Cole, J.

      Barrow & Pope for Plaintiff and for the Third Opponent, Appellants,

      Chas. O. Lauve and T. Gilmore & Sons for Defendants and Appellees,
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an injunction suit, the object of which is-to have a certain judgment declared a nullity, and certain property-levied upon released from seizure.

The Fifth District Court of New Orleans, created in 1864, rendered) judgment on the 9th of May, 1867, in favor of Widow Lambert against, one Scherrer.

That court was abolished by the Constitution of 1868, and was. superseded by another court having a similar title.

On the 26th of April, 1877, before the expiration of the ten years following the rendition of that judgment, the plaintiff instituted before the last court proceedings to revive it. Judgment was accordingly-rendered.

In 1879, the plaintiff issued a fieri facias addressed to the sheriff of Iberia parish, defendant’s domicil, which was levied upon property found in his possession, and claimed to belong to him.

The defendant thereupon charging prescription against the judgment of 1867, and nullity against the proceedings in revival, obtained an injunction to arrest the sheriff in the execution of the writ.

One Browne, as third opponent, intervened, joining the defendant, and claiming title to the property seized, first as owner, and next, eventually, as pledgee.

There was judgment rejecting both demands and dissolving the injunction. From the judgment thus rendered the plaintiff in injunction, and the third opponent have appealed.

1st. They claim that the reviving judgment of 1877 was rendered by a court without jurisdiction rations materice; that the writ illegally-issued- under it; that even if the court were competent, the writ could only issue under the original judgment of 1867; but that this could not-be done, because the latter judgment not having been legally revived, was extinguished by prescription before the writ issued.

While we doubt very much whether the defendant could ask us in this proceeding to pass upon the question of juris diction thus presented,, we incline to believe that the third opponent can do so, as he charges-that the seizure is illegal,-both because it is founded on no valid judgment, and because it was effected on property to which he lays claim of' ownership or possession.

We consider that the Fifth District Court created by the Constitution of 1868, superseding, as it did, the Fifth District Court created in-1864, had jurisdiction to entertain the proceedings to revive the judgment of 1867, for the reason that it derived that authority from Acts-Nos. 7 and 46 of 1868, the object of which was to transfer all causes “ then pending ” before the courts of the parish of Orleans, under the Constitution of 1864, to the courts created by the Constitution of 1868..

Those acts were passed in furtherance of article 151 of the Constitution of 1868, which directed the General Assembly to provide for the removal of causes then pending in the courts of the State to courts created by or under that Constitution.

The first section of Act 7 directs that the records, dockets, books and papers, in any of the former District Courts, shall be removed to-the new courts; those in the previous Fifth District Court of the parish of Orleans, to ‘ the Fifth District Court of the parish of Orleans • created by the Constitution of 1868; and the second section of the same act further provides that the courts to which any suits now pending• may be transferred, under this act, shall entertain and exercise jurisdiction over the same, and the cases so transferred shall be proceeded’ with in the new courts in all respects as if no change had been made.

Act No. 46 repeats and confirms Act No. 7, containing further provisions-relative to succession proceedings, which were no doubt its object..

The contention is, that the case in which the judgment of 1867 was-rendered, was not a “pending” suit, and that although the record' thereof was “removed,” still the jurisdiction which the court which rendered the judgment could have exercised to revive it, had not the-removal taken place, was not transferred to or vested in the court by-which it was superseded.

This is a mere play upon words, an attempt to make a distinction! without a difference.

The object of the framers of the Constitution of 1868, when they ■enacted article 151, was to have .the Legislature to provide for the bridging over of all proceedings had. before the late to the new courts, fully and completely, so as to preserve, in their integrity, all acquired rights, and to avoid all hiatus in the administration of justice, by continuing in the recent the anterior judicial organization. The Legislature so truly realized that purpose, that they passed the required law, taking .good care to say that the cases would be proceeded with in all respects, as if no change had, been made. Had not such been the object in view, the consequence would have'been that the plaintiff, a judgment creditor, would have had no forum to which to apply for an enforcement or for •a renewal of his judgment, and that in thecourse of time, her judgment would have perempted, notwithstanding any effort on her part to keep it alive. Although the rule be that the judgment to revive must be rendered by the court which rendered the judgment sought to be revived, still it lies in the discretion of the Legislature to modify it, as public convenience may require; but unless the Legislature uses negative language, the jurisdiction to revive continues necessarily either in the original court as long as it exists, or passes to the court •superseding it.

We have taken the pain, in view of the intrinsic importance of the question, to retrace our steps, and to inquire into previous legislative ■action on similar subjects, and we have ascertained to our satisfaction that, in Act 43 of 1845, which was passed in furtherance of article 148 of the Constitution of that year, and which is identical with article 151 of the Constitution of 1868, and that in Act 229 of 1853, which was passed for a like purpose, after the adoption of the Constitution of 1852, the ■word "remove” was employed as a channel of transmission, and that the •word “ transfer ” was not at all used.

The word “remove ” has a technical meaning, fixed by legislation, jurisprudence and practice, State and Federal. It is synonymous with ■“ transfer,” 'possibly more comprehensive. When it is used, under a ■ constitutional requirement, that “causes pending be removed,” from one judicial organization to another, and ho clear negative terms are employed to the contrary, it must be considered as meaning that the cases, decided or not, and necessarily the records embodying them, shall be transmitted from one court to another, and that the jurisdiction which the former court possessed over them, shall vest in the new court, which shall have the same right and power to proceed with all matters therein involved, actually or prospectively, as effectually as could have been exercised by the court whence it comes, had not the removal ■occurred.

The words, “ removal of causes now pending,” found in article 151, .and the like, in the second section of Act 7, apply to all cases, deter mined or not, in which the demand had not been satisfied, in which something remained to be done, either to obtain, to execute, to annui,. to enjoin, to regulate or to revive a judgment.

The object of a suit is not merely to procure a barren judicial recognition of a legal right, but it is to preserve.and to enforce that right, whether it has reference to the payment of money, to the ownership or possession of property, or to the enjoyment of some privilege or advantage. It is not possible to conceive of a case decided on its merits, in which numberless questions may not arise and be determined by judgments either interlocutory, final or definitive.

To say that a suit is ended, that a cause is not pending, when the claim is still alive and unsatisfied, when its purpose has not been accomplished, to consider when a record is removed from one court to another, that the law intends only to provide for a physical, manual delivery of a bundle of papers from a custodian to another, means to abstain, to refuse conferring jurisdiction for further action, touching matters susceptible of arising therein, would be to do violence to language having a legal import, to write such away from the statute, and wantonly to sacrifice and destroy completely valuable rights, for the mere gratification of contemplating the unjust and hurtful operation of implausible, incorrect and deceptive verbal criticism.

At all times has this theory been acted upon. 28 An. 896; 23 An. 594; 30 An. 961. A review of the annals of our jurisprudence from 1845 to the present day, unless in a solitary instance, signally proves that the question of jurisdiction and power in the new court has never been even mooted. If the isolated expression of judicial opinion, on the subject, said to be found in 31 Ah. 345, mean differently, then we regret our inability to endorse the views there enunciated, and prefer to determine the question for ourselves, as though it were one entirely novel.

In our interpretation of the word “pending,” a reference to the jurisprudence of sister States touching it, fully sustains us.

Thus, in New York, we find that it was expressly decided that, although a judgment has been recovered in a suit, the action is still “pending ” as long as such judgment remains unsatisfied. Wegman vs. Childs, 41 N. Y. 159.

In Pennsylvania, it was held that the word “pending ” applies to a decided case, in which successive ft. fa’s, or venditionis have been issued, but not fully satisfied. Ulshafer vs. Stewart, 71 Pa. St. 170.

. Had the interpretation contended for been placed upon the previous legislation, all the cases on the dockets, in 1845 and 1852, would have stood as doleful mementos of the past, and remained as humiliating monuments to the impoteney or indolence of the framers of the con«titutions of those years and of the members of succeeding legislative bodies.

2d. Considering that the Fifth District Court created, by the Constitution of 1868 was vested with jurisdiction,, and could legally revive ■the judgment rendered by the previous court in 1867; and that it has-rendered a valid judgment to that end, the question next presented is, whether the .writ enjoined could have issued under the reviving judgment, as it did.

• In passing .upon this objection, we must take for granted that the admission in the record and the writ state nothing but what is perfectly true.

They show that the writ issued to satisfy a judgment rendered against Scherrer in said Fifth District Court for the parish of Orleans, on the 23d day of May, 1877, in favor of the plaintiff, widow Lambert.

The corpus of the judgment of that date is not before us, but we are authorized to infer, under the circumstances, that the judgment of 1877 not only revived in terms that of 1867, but repeated and incorporated it, as is sometimes done, by decreeing that “ accordingly the plaintiff recover from the defendant the .sum of $-, etc.” The clerk would not probably have ventured to identify the writ with that judgment as authority for it, unless the judgment had so provided.

Besides, were it not so, the objection is too technical to be sustained. The judgment reviving, and the judgment revived, must be considered and treated as one and the same, as blended together for an identical and common object. We regard a proceeding to revive a judgment not as a new suit, but simply as a proceeding in the same suit to continue and keep alive a judgment therein rendered, and to furnish proof that it has not been satisfied or extinguished. 31 An. 325. So that it is-immaterial whether the writ issued under the former or the ■latter judgment.

What is it to the defendant, who owes a debt liquidated by judgment, whether the writ issued and be executed against him, under -either, as long as no attempt is made to draw more money from him than the first judgment calls for ?

3d. The next question presented relates to the title of the opponent to the property levied upon.

He has failed to establish, to the satisfaction of the District Judge and to our own, that he has legally acquired, so as to bind third persons, either a right of ownership, even contingent, or one of pledge to that property.

The act upon which he relies, in the alternative, is not susceptible of accurate description. It is too voluminous for transcription. Were it exposed to light, it would be as impossible to any one to say what it ás, as it has been to counsel on either side, in this case, to give it any .significant name, capable of conveying knowledge of its essence and nature. It is easier to say what it is not.

It is not an act of sale, it is mot a dation en paiement, it is not a pact with the privilege of redemption, it is not a pledge, it is not a power of attorney.

It purports to be a transfer for no fixed price of all the rights of the defendant to a lease, to the contents of a valuable cooperage shop, to claims due, to effects to be acquired, to /transactions to be done, to all .his actual, eventual, prospective property and rights. Theoretically, it was intended to be a shield to the parties thereto in any contingency; practically, it is nothing, particularly as regards third persons.

Its clear object seems to have been to keep and maintain Scherrer in the undisturbed, indefinite possession and enjoyment of his effects, credits and business, under cover of the third opponent, whether he be .a bona ficle creditor or not.

As it does not refer to immovables, possession in the transferree or pledgee was indispensable to bind third persons. R. O. C. 2478, 3162. The requirement of possession is an inexorable rule of law in such cases which cannot be relaxed, and which was wisely provided as an •effectual preventive of fraud and deception.

It is true, that the thing pledged may be in the temporary possession of the pledgor, as a special bailie, under circumstances rendering it indispensable, but where, as in this ease, the things said to have been ■pledged have never been out of the pledgor’s possession and dominion, and have always remained subject to his disposal, by way of sale, collection, exchange, renewal, or other modes of alienation or incumbrance, •no pledge or privilege can be successfully asserted in this State as against third persons. Troplong Nant., Nos. 311, 312, 313; Dalloz Rep., v. 32, p. 455; Duranton, v. 18, Nos. 525, 528, 531; 6 An. 476; 26 An. 35; 21 Wall. 360; 96 U. S., p. 476.

The circumstance that there was a sign hanging outside of the shop, on which figured the name of C. Scherrer, coupled with the word ■ “agent,” adds no greater force to opponent’s claims as owner or pledgee, than does the registry of the nondescript act in the conveyance book •of the office of the Parish Recorder, which is barren of any binding effect on third persons.

Besides, it is not only probable, but morally certain, that the effects ■ contained in the shop in 1874, when the agreement was formed, were not, in their identity, those upon which the sheriff has levied in 1879.

The view which we have token of this case, on the question of ab- ■ sence of all possession, actual or constructive in the opponent, either as -transferree or as pledgee, and of the consequent beneficial effect to third persons, who remain unaffected by private agreements, relative to the disposition of movables, not ostensibly followed by unmistakable acts of delivery and possession, which are the only equivalents to notice, dispenses us from passing upon the issues of fraud and simulation raised by the judgment creditor in his answer to the petition for an injunction, and to the third opposition.

We find no error in the decree of the lower court, which applies the law.

.The judgment appealed from is affirmed with costs.


author: Fenner, J.

text:
    No. 8179.
    Widow Lenfroy Décuir vs. E. G. Benker, Sheriff, et al.
    Scot. 1691, Rev. Sta., which provides for a homestead in favor of the debtor having a family or mother, or father or persons “ dependent on him for support," means persons dependent for actual and necessary support, and not persons able to earn a living, A debtor supportingpersons of the latter class, is not entitled to the exemption of the homestead.
    APPEAL from the Fifteenth Judicial District Court, parish of Pointe Coupée. Fbisi, J.

      Haralson & Claiborne and Chas. W. DuBoy for Plaintiff and Appellee.

      A. L. Mahondeau and O. O. Provosty for Defendants and Appellants..
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff enjoins the execution of a judgment by seizure and sale, under ft. fa., of property which she claims as a homestead, under section 1691, Revised Statutes.

It is conceded that all the requisites of the homestead right exist, except the personal quality of the plaintiff as one “ having a family, or mother, or father, or persons dependent on her for support,” in the language of the statute.

The facts are, that plaintiff is seventy-five years of age; that she has three unmarried daughters, the oldest forty-five years, and the youngest twenty-six years of age, who live with her, and are maintained, fed and sheltered by her; that they are healthy and robust women, of some education, who attend to home work, pick cotton in the fall on their mother’s place, do washing, and take in outside sewing for pay.

It is perfectly clear, under the terms of the statute, that to entitle the debtor to tbe benefit of the homestead, there must be “ a family, father, mother, or persons dependent on her for support.” The dependency is applicable equally to tbe family, the father, the mother, and the other persons. This dependency must not only be actual, but necessary, and it must be also a dependency supported by some sort of natural claim or right. A debtor would not be allowed to assume the support of persons having no natural claim upon him as a foundation for the homestead claim.

In re Lambson, 2 Hugh. So. Ca. 233.

Whalen vs. Cadman, 11 Iowa, 226.

Where children, parents, and near relations having natural, even though not strictly legal, claims are concerned, then, as above stated, the dependency must be both actual and necessary. The law does not contemplate the case of a debtor who supports in idleness persons, even children, male or female, who are not minors, cripples, imbeciles, infirm-in constitution or health, or otherwise disabled from making a living for themselves. Such voluntary dependency incurs reprobation, rather than encouragement, at the hands of the law. Adults, male or, if unmarried, female, who have robust health, and all usual faculties, lie under the necessity of supporting themselves, unless they find others willing to support them who can do so, without making such service a foundation for exempting their property from liability to the payment of their just debts. It cannot be conceded as a rule sufficiently general to found any legal action upon, that persons so endowed are incapable of self-support, and are, therefore, entitled to live as dependents on the bounty of others, to the prejudice of the creditors of the latter. These latter days abound with examples of women, delicately reared, without preparation for, or expectation of, self-support, who have met and overcome such difficulties. And, in this country at least, it must be conceded that, with health, industry and ordinary faculties, every person may earn a living. In what we have said, we pay no attention to distinctions in social grade, or in rearing or .habits of life. The law is no respecter of persons, and, in this country, recognizes no distinctions of classes. The son or daughter of the bankrupt millionnaire lies under the same obligation of self-help, which is imposed upon the descendant -of the humblest laborer.

In the present case, we are satisfied that the dependency of these healthy, robust, adult daughters is neither actual nor necessary; not actual, because the evidence shows that they earn their living, and are , rather a help than a burden to the plaintiff; not necessary, because the evidence shows that they are fully capable of supporting themselves. If one of them were the owner of the farm, she might, perhaps, claim the homestead as the supporter of her aged mother.

The case does not, in our opinion, fall within the letter or the spirit of the homestead act.

It is to be observed that our statute is different from the homestead laws of some other States, where the right is based on the simple fact that the debtor is “ the head of a family,” and the question of the dependency of such family is more liberally construed. We make this remark, because the present constitutional homestead is differently worded, and may admit of more liberal construction.

The novelty of the question presented, and the probable good faith of the plaintiff induce us to deny the demand for damages.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that plaintiff’s injunction be dissolved, and her suit dismissed at her cost in both courts.


author: Levy, J. Fenner, J.

text:
    No. 7561.
    Mrs. A. M. Pilcher vs. New York Life Insurance Company. Louisiana National Bank vs. Same. Consolidated.
    A policy of insurance taken on the life of the husband in favor of the wife, vests the latter with a right, which the former cannot destroy or control without her consent.
    Such a policy belongs to the wife exclusively, and not to the Community of acquets and gains. Previous Decisions affirmed.
    Therefore, the insurer, having at the request of the husband and without the consent and knowledge of the wife, substituted to such a policy, one in favor of the husband, will remain liable to the wife on the original policy for the amount thereof, less the sums of premiums paid on the substituted policy.
    And the insurer will also be liable to the transferree of the substituted policy, because he is estopped from denying its legal and independent existence, having been instrumental in inducing innocent third persons to give value for it, by issuing it and representing it to the world as an original policy in favor of the husband, and consenting to its transfer.
    APPEAL from the Fifth District Court, parish of Orleans, Rogers, J.

      Geo. L Bright, for Mrs. Pilcher, Plaintiff and Appellee.

      Henry G. Miller and Branch K. Miller, for the Louisiana National Bank, Plaintiff and Appellant.

      B. R. Forman, Chamberlain, Carter & Baton, and T>. H. Chforiberlain and W. B. Hornblower, for the Insurance Company, Defendant and Appellant.
   The opinion of the Court was delivered by

Levy, J.

Mrs. A. M. Pilcher and the Louisiana National Bank instituted separate suits against the New York Life Insurance Company in which each plaintiff seeks to recover of said company the sum of -ten thousand dollars, the amount alleged to be due on the policy No. 10,034 issued on the Life of Mason Pilcher. These separate suits were ■consolidated and tried together in the Fifth District Court of the parish •of Orleans, and there was judgment in favor of Mrs. Pilcher for $8997 05 •and against the Louisiana National Bank, dismissing the bank’s suit at its costs. The New York Life Insurance Company and the Louisiana National Bank have both appealed. The appellee, Mrs. Pilcher, in hef •answer to the appeal prays for amendment of the judgment in her ■favor, and that she be decreed to recover of the New York Life Insurance Company ten thousand dollars, interest and costs.

In her petition, Mrs. Pilcher alleges that in the year 1854 the life of her husband, Mason Piloher, was insured by the New York Life Insurance Company for her benefit; that a policy, No. 10,034, was issued in her favor for said sum, and the premiums thereon were duly paid to ■ J une, 1871, when the said Mason Pilcher and said N. Y. Life Insurance ■Company agreed between themselves, and without her consent, that the «said policy should lapse for the non-payment of a premium, and then •made another written instrument, which they called a new policy, bear- j ing the same number as the one issued in 1854, but made in favor of or for the benefit of Mason Pilcher, instead of herself; that all this was ■concerted by Mason Pilcher, the Insurance Company, and Johnson & 'Goodrich, merchants in New Orleans, to whom Mr. Pilcher was indebted, in order that the policy might be pledged to said mercantile firm, all which, as above stated, was done. She alleges that this was a ■device to take her property to secure her husband’s debts ; that the policy belonged to her, and could not be destroyed without her consent; that the original policy lives, and is operating notwithstanding, and the ■death of her husband having taken place, the Insurance Company has •■become indebted to her in the sum of ten thousand dollars. She made-'the Insurance Company and the Louisiana National Bank parties to her ■suits, and prayed for judgment decreeing that the Louisiana National Bank has no right, title or interest in said insurance money; that said Ináurance Company be decreed to pay said sum to her. For answer to this petition the Louisiana National Bank set forth that it had acquired ■the policy of insurance, No. 10,034, issued on 5th July, 1871, by pledge ■and assignment from the firm of Johnson & Goodrich, in good faith, on -the 12th of March, 1874; that said firm had acquired said policy in good faith from Mason Pilcher on the 24th of July, 1871; denied that Mrs. Pilcher had any claim, right, title or interest in said policy; averred that ¡said bank had, since the assignment of 12th March, 1874, paid the sum of $2208 32 in payment of premiums on said policy, and prayed that the Insurance Company be condemned to pay the amount of the policy to the bank; but if the court should decree that the amount of said policy ■was due to Mrs. Pilcher, the bank should recover, and there should be paid to it out of said policy the sum of $2208 32 premiums’ paid by it as aforesaid.

The Insurance Company filed exceptions to both these suits on the-ground oí prematurity and insufficiency, alleged that it was unable to decide to which of the plaintiffs the payment of the policy was due; admitted the execution of the policy for $10,000 on the life of Mason? Pilcher, that it held the premium note of the Louisiana National Bank,, amounting with interest to $1002 95, which amount it claimed it was-entitled to compensate; that deducting this last mentioned sum, there? remained a balance due on the policy of $8997 05, which balance it tendered and deposited in court subject to the further orders and decrees-of the court, and prayed that it might be discharged of all liability in. respect of said policy, and discharged of all costs. The amount thus-tendered was by order of the court specially deposited in the Canal Bank in the City of New Orleans, subject to the final judgment of the-court.

The evidence discloses the following facts: the policy No. 10,034, issued in 1854 on the life of Mason Pilcher, was for the use of Mrs. Pilcher; in other words, she was named therein and acknowledged and-accepted by the company as the beneficiary. In June, 1871, this policy,, by agreement between Mason Pilcher arid the Insurance Company, was-allowed to lapse for the purpose of having a policy issued in its steady making the heirs or assigns of Mason Pilcher the beneficiaries. This-last-mentioned policy was dated the fifth of July, 1871, and was made payable to Mason Pilcher’s representatives. This was done without the knowledge or consent of Mrs. Pilcher. The policy dated July 5th, 1871,. was assigned on the 24th of July, 1871, by Mason Pilcher to Johnson. & Goodrich, on the 23rd of March, 1874, by Johnson & Goodrich to J. H. Oglesby (President of the Louisiana National Bank) and on the 14th. of July, 1877, by Oglesby to the Louisiana National Bank, all these assignments were duly notified to the Insurance Company and acknowledged by the company. On the 14th of October, in the year 1878, Mason Pilcher died.

We shall first consider the claim of Mrs. Pilcher to be paid the amount of the policy issued in 1854. We think that the right to the policy vested in Mrs. Pilcher, th e wife and beneficiary, and she could not be divested of that right without her consent, by her husband or the insurer, except by failure to comply with the requirements of the policy. We are of opinion, also, that the husband had not the right to dispose of the policy and that it could not be regarded as a community asset. This Court has, in repeated decisions, held these views. In Succession of Kugler, 23 An. 455, the Court said: “ We think the right of the widow and children to the policy existed before the death, and that the liability of the Insurance Company became fixed and exigible by the-death of the insured.” And in 26 An. 326, Succession of Hearing, this -doctrine is reaffirmed, and also in 27 An. 269, Succession of Clark. In Succession of Bofenschen, 29 An. 714, it was held, substantially, that -the proceeds oí a policy of life insurance taken out by the husband in favor of his wife, do not become a part of the community, but belong •exclusively to her and her heirs. These decisions, considered together, we think, effectually dispose of the question as to the right of the ■husband to the control of the policy as community property. If on the •death of the husband it could not enter into the commuity, but should ’be treated as the separate and exclusive property of the wife and •children, its character must have been the same during his lifetime. If-•then Mrs. Pilcher had a vested right to the policy for her sole and exclusive benefit, how was'she affected by the agreement of her husband -•and the Insurance Company, whereby it was sought, without her knowledge and consent, virtually, to continue in force the policy issued in her ■■name and for her benefit, but to change the beneficiary therein.

The basis, indeed the 'consideration of the policy of 5th of July, '1871, was the policy of 1854; in the issuance of that in 1871, there was ■no re-examination of the person whose life was insured, no physician’s -certificate, no increase of the annual premium regulated by the age of the person insured, although when this new policy, as it is styled, was issued, Mason Pilcher was eighteen years older than when the first policy was taken out. Indeed, it is shown that, with the exception of the change in the date and in the name of the beneficiary, that of July, 1871, is identical with that of 1854. The transfer of the policy of 1871 to Johnson & Goodrich was made in payment of the husband’s debts, ■and it is not contended or shown that its transfer enured to her separate benefit or advantage. The face of the original policy disclosed for •whose benefit it had been issued; and the Insurance Company better than any person knew this, and knew also that there had never been ■ any legal transfer of it by her. The pretended lapse of the policyi never actually took place; on the expiration of the time within which j •she or any one for her could pay the annual premium, without giving her an opportunity to avail herself of the benefit of a stipulation agreed to by the company, viz: “ If premiums are not paid at maturity, the •policy by its terms becomes forfeited, but it may within a reasonable "time be renewed at the office with satisfactory evidence of good health,” ■etc., the company with indecent haste issued what is claimed to be as to i Mrs. Pllchera new policy. It was not as to Mrs. Pilcher anew policy, but! merely as to her a continuation of the original one. The company notwith- ‘ ■standing the alleged failure to pay the premium at maturity, received the amount due therefor within a reasonable time, kept it alive with the same requirements, stipulations and consideration as. were contained in the original policy; and it even appears that the premium note putstanding at the death of the insured was a renewal, a continuation of the premium note on the policy of 1854 accepted from the bank in lieu of Mrs. Pilcher’s note.

It appears from the evidence that the annual premiums due on the-policy issued in 1854 were paid by or for Mrs. Pilcher for all the years-from 1854.'.to,1870, inclusive, and by Johnson & Goodrich from 1871 to 1873, both inclusive, and from 1874 to 1878, both inclusive, by the Louisiana National Bank. Holding the company responsible and liable to-Mrs. Pilcher for the amount of the policy in her favor and for her benefit, we think it just and equitable that the company should compensate their indebtedness to her with the amount of the premiums-accrued from the date of the maturity of the' premium due for 1871,. viz: 17th June, 1871, to the date when the last annual premium became-due, i. e. from 187‡ to 1878, both inclusive, being eight years.

The first apparent knowledge of these transactions and the first notice to the Insurance Company and demand for recognition of her rights under the policy in her favor, on the part of Mrs. Pilcher, is evidenced by her letter, written conjointly with her husband, to the company, January 8th, 1876, and it is urged that not even then, nor thereafter, did she make any tender of the premiums; and that, therefore,, so far as she was concerned, her policy became forfeited. We think such position on the part of the company is not tenable, and should not prevail. It must be borne in mind, that the company itself was a party to the wrong committed against Mrs. Pilcher; it had done all in its power, without her knowledge or consent, to deprive her of a right;. it had, by its own act and contract, ignored any faculty on her part to reinstate herself to her rights in the policy; it 'denied the existence of any policy on which she, or any person for her, could pay the annual premiums, and, therefore, is estopped from complaining that she did. not do that which it had itself deprived her of the power of doing. If, upon the notification and demand made in the letter of January 8th, 1876, the company had offered to undo the wrong which it had participated in, and had offered to reinstate her in her rightful position, it. might perhaps with some reason and propriety have required on her-part the payment of these premiums as a condition 'precedent to such-reinstatement; but so far as the record shows, no such action was taken by it, and on the contrary, it preserved silence, made no response to her demand for recognition, and its conduct must be construed as persistence in its wrong and continued denial of her rights, which, under the circumstances, relieved her of the necessity of making a vain tender. It was not required that she should herself make the payments; vitality would be preserved in the policy in her favor, no matter by whom the premiums were paid, and these premiums were paid on a policy which, as to her, existed in her favor. If the company chose by its own act to attach to that policy a new character and liability, and by mere change of date and name of the beneficiary, to give it validity as to another party, and create thus a double obligation on itself, it .must bear the responsibility of its own acts, and cannot release itself from liability, and throw loss upon an innocent party who had no participation in its wrongful acts. Considerations of equity and good conscience require that if Mrs. Pilcher shall avail herself of the full benefits of the policy in her favor, she should comply with the obligations and requirements of the policy, when she is in a position where she can do so, and, therefore, we think the company should be allowed to compensate the premiums for the years from ’74 to ’78 inclusive, pro tanto.

We are next called upon to decide as to the claim of the Louisiana National Bank as transferree and holder of the policy of insurance issued on July 5th, 1871, in which Mason Pilcher’s representatives are named and constituted the beneficiaries. It is true a policy of insurance is not what is termed a negotiable instrument, but it is assignable and transferable, and indeed one of the articles or stipulations incorporated in the policy prescribes the manner in which its assignment may be made.

It is contended that Johnson & Goodrich, to whom the policy of 1871 was assigned, were fully informed as to the facts connected with the issuance thereof, and had full knowledge of the defects of that policy, and, therefore, if Johnson & Goodrich had no rights under the transfer to them by Mason Pilcher, the bank, transferree of Johnson & Goodrich, could acquire no greater rights than its transferrer had. But wa are clearly of opinion that the Insurance Company is estopped from making such defense as to the bank.

The Insurance Company joined Mason Pilcher in a wrongful attempt to divest Mrs. Pilcher in her right to the policy issued in 1854, in her favor and for her benefit. The company issued what they claimed to be a new policy, and sent it forth, subject to be assigned and transferred in the manner prescribed by them. It was so assigned and transferred to the bank; there is nothing to show that the bank had any knowledge whatever of the circumstances under which the policy sought to be assigned to them had been issued, or that the policy of 1854, in favor o: Mrs. Pilcher, “had been,” by the company, “allowed to lapse for the purpose ” of divesting Mrs. Pilcher of her rights therein, and “ having the policy of 1871 issued in its stead, making the heirs or assigns of Mason Pilcher the beneficiaries.” As to the bank this was a new policy; the company had issued it as such, its assignment to the bank was acknowledged by them, and they accepted the assignment, without which acknowledgment or acceptance, no validity would have attached to it, and thus the company is, we think, bound to the bank on its new policy, and is estopped from pleading against the bank the defect of the invalidity of the new policy which the company itself had issued for the purpose of depriving Mrs. Pilcher of. her rights, and avail itself in defense of a legal fraud perpetrated by itself. It may be that the company received the premiums on only one policy, but it can blame no one for that but itself. Its own attempted wrong prevented the beneficiary under the first policy from redeeming it when she had a right to do so, and from paying the annual premiums at the time they fell due; it issued as a new policy that of which the bank became assignee in due form, and with its own acknowledgment, acceptance and sanction, and so far as intrinsic evidence in the policy itself is concerned, having no connection with any previous policy, and affording no grounds for the slightest suspicion that it invaded the rights of other persons, or was in any manner tainted with invalidity.

Bliss Life Insurance, under head of Assignments of Policy and Assignments by Married Women, p. 540 et seq.

We think the company is liable to the bank, and cannot aver that there is any other policy to displace that which the bank holds. We regard the company’s liability to the bank as distinct and separate from that to Mrs. Pilcher; and this liability is, as contended by counsel of the bank, irrespective of any former policy. The case of Barry vs. Brune et al., 71 New York Reports, was different in its features from the present one. In that case, the court held there was but one policy, and the company should pay.but once; in this, as to Mrs. Pilcher and the bank, there were two policies practically, and by the act of the company the beneficiaries separately and distinctly created by the company are each, as to the company, entitled to recover the amounts for whose benefit each of them by distinct acts of the insurer had become entitled.

In support of the views which we have expressed in this opinion, we are sustained by the following authorities: 38 Conn. Rep. 294; 71 N. Y. 261; 36 Conn. 132; 52 N. Y. 312.

We are. of opinion that the bank should recover the amount of the policy of July 5th, 1871, less the amount due on its premium note, which must compensate pro tanto the indebtedness to the bank on said policy.

It is, therefore, ordered, adjudged and decreed, that the judgment rendered in favor of Mrs. A. M. Pilcher, by the court below, in suit No. 9571, Fifth District Court, parish of Orleans, be amended, and that there be judgment in her favor against the New York Life Insurance Company for the sum of ten thousand dollars, with five per cent per annum interest thereon from December 14th, 1878, to be credited with the sum of five hundred and twenty-five dollars, with five per cent interest from 17th June, 1871; with a like sum with like interest from June 17th, 1872; with a like sum with like interest from June 17th, 1873; with a like sum with like interest from June 18th, 1874; with a like sum with like interest from June 17th, 1875; with a like sum with like interest from June 17th, 1876; with a like sum with like interest from June 17th, 1877, and with a like sum with like interest from June 17th, 1878; and that the judgment of said lower court in the case of the Louisiana National Bank vs. New York Life Insurance Company, No. 9685, be annulled, -avoided and reversed; and proceeding to render such judgment as -should have been rendered by the court below, it is ordered, adjudged and decreed that the Louisiana National Bank do have and recover judgment against the New York Life Insurance Company for the sum of ten thousand dollars, with five per cent per annum interest thereon •from December 14th, 1878, subject to a credit of one thousand and two dollars and ninety-five cents, to be applied to the principal and interest due to said Louisiana National Bank on the judgment herein, as of the -date of March 14th, 1879. It is further ordered, adjudged and decreed, -that the amount of eight thousand nine hundred and ninety-seven dollars and ninety-five cents, tendered by the defendant and deposited by order of the lower court in the Canal Bank, in the city of New Orleans, be applied pro rata to the judgments herein rendered; the balance due on each of said judgments to be paid by said New York Life Insurance Company. The costs of this appeal to be paid jointly by the New York Life Insurance Company, defendant and appellant, and Mrs. A. M. Pilcher, plaintiff and appellee, and the costs of the lower court by the New York Life Insurance Company.

On Application for Rehearing.

The opinion of the Court was delivered by

Fenner, J.

In this case briefs have been filed in support of the •application for rehearing not only by the original able counsel of the -Insurance Company, but also by distinguished counsel of the City of New York, whose ability and learning have been enlisted to press the •application with all possible force. These briefs are so elaborate, and have so completely exhausted all resources of reasoning and learning which could sustain the relief applied for, that we feel safe in resting ■our final determination on the arguments and authorities therein contained, which we have now considered and weighed as fully as if the •present were a decision of the case in the first instance. Our convictions ■remain unshaken as to the correctness of all the propositions on which' •our original opinion rests.

1st. Mrs. Pilcher had such vested interest in the policy, as thebeneficiafy thereof, as disabled her husband from assigning or disposing" of it without her consent.

To the extent of the premiums which had been paid by Pilcher for her benefit, and of the valuable interest in the policy resulting therefrom, the gift to her had been fully executed, and the resultant interest was her separate and indefeasible property. The additional right was-vested in her to continue the policy in force by paying future premiums,, if her husband failed or refused to do so. Eor this purpose, if not otherwise able, she would have had the right to pledge the accrued value of the policy in order to raise the means to pay future premiums. These were valuable rights of which, without her consent, her husband' had not the right to deprive her, by assigning, or disposing of, them to-others for his own benefit.

The conduct of the company and Pilcher in this transaction imports* by strong implication, a concession on their part of the existence of these rights in Mrs. Pilcher. If they had supposed that he had the absolute right, now contended for, of disposing of the policy in his sole- and at his pleasure, it is impossible to conceive that they would have resorted to the tortuous and indirect mode of accomplishing their' purposes which they actually employed.

If such an assignment had been made, it would have been illegal, null and void, and would not have divested Mrs. Pilcher’s interest in the policy, which would have continued unimpaired as long as the-policy, by whosesoever acts, continued in force, subject of course to the-duty of refunding with interest any premiums paid by others than her husband, and inuring to her benefit.

;. It is conceded that Pilcher was not bound to continue the payment' of premiums, and that if thereby, he had suffered the policy to lapse, Mrs. Pilcher’s rights might have been forfeited. But there is a broad distinction between the right to suffer the policy to lapse, and the right J to assign and dispose of it for his own benefit. There could have been* no motive for him to permit the policy to lapse, from which event he-would have derived no benefit, and his wife would have been subjeetedto wanton injury. He would have used every exertion to avoid such a loss, or to enable his wife to avoid it; and the same considerations-which, under the transaction as made, enabled him to raise a large sum of money on the policy, would have enabled his wife to have obtained,, on the same security, the means of paying accruing premiums, and thus-keeping the policy alive. The law, by denying him the power of assigning or disposing of the policy for his own benefit, without the consent of the wife, wisely removes the temptation, to which he would otherwise be subjected, of sacrificing the interest of his wife for his own advantage-

We remain fully of the opinion that the legal propositions above-stated are fully sustained by the authorities quoted in the original opinion, and we think the distinctions sought to be traced between them and the instant case are shadowy and unsubstantial. We find nothing-in the New York statutes cited on which it is charged the decisions in that State rest, which is entitled to more effect than the doctrines settled by Louisiana jurisprudence in the cases quoted by us, have in the same-direction. Our jurisprudence recognizes the rights of the beneficiary wife quite as amply as do the New York statutes.

If, as held in Louisiana, in repeated decisions, the insurance by the-\ husband for the benefit of the wife, is such a valid gratuity in her favor,, as to make her right under the policy at his death her absolute and separate estate, the like effect logically attaches pro tanto to the valuable interest under the policy created by the payments of premiums-for her benefit, as the same are made; and this interest becomes likewise her separate property not disposable by the husband.

2d. We think we rightly held that the transaction between Pilcher- and the company, under which the pretended new policy was issued,, operated only as a substitute and equivalent for the prohibited assignment of the original policy, and, as between Mrs. Pilcher and the-company, is entitled to no greater effect than such illegal and void-assignment would have had. Her policy, therefore, did not lapse, but continued and was carried forward in the policy of 1871. In this position we think the authorities cited by us fully sustain us, and we consider them the best authorities on the question.

In reaching our original conclusion as to the solution of Mrs. Pilcher’s rights in the premises, we hesitated long between that adopted by ourselves and the one adopted by Chief Justice Beasley as the organ-of the court in Landrum vs. Knowles, 22 N. J. Eq., 594, where the beneficiary was allowed only an interest in the insurance to the value of the-premiums paid before the transfer. We thought, however, our own solution, based upon the New York and Connecticut decisions quoted by us, was both more logical and more equitable. We hold that the I right of the beneficiary wife in the policy could only be terminated by f its lapse. We held it never lapsed. Therefore, she was entitled to the-insurance, subject to the necessary condition of paying to the party entitled thereto the amount of the premiums and interest which had been paid for her benefit. Had the parties, who paid these premiums, been denied the benefit of the insurance, they would have had the right to reclaim them from Mrs. Pilcher, to whose benefit they had enured. But as, under the peculiar circumstances of this case, we awarded the bank the amount of the insurance, the equitable right to reclaim these pre-■miums passed, to the company and they were allowed as a necessary ■offset to Mrs. Pilcher’s claim for insurance.

3d. The branch of our decision upon the correctness of which we-'felt, and still feel, the least doubt, is that which maintained the estoppel, in favor of the bank, against the denial by the company of its title to ■the policy.

Our position on this subject, is not that stated by counsel, viz: •" That the policy of 1871 is in law void as to Mrs. Pilcher, but is in fact valid as to the bank because of the estoppel, etc.”

Our position is that the title to the policy is, in law, in Mrs. Pilcher, and, therefore, she is entitled to recover, and that the bank is also entitled to recover, not because it has, in truth, a legal title to the policy, but because the company, by its acts, is estopped from denying the . bank’s title.

In our original opinion we have, perhaps, not expressed ourselves with perfect accuracy, where we speak of two policies; but the whole context of the opinion explains that we considered the policy of 1871 as \ being strictly a continuation of the original policy.

The question, therefore, is not as to the validity of the policy, nor as to defenses which the company might have against it. The validity of the policy is not disputed, nor does the company pretend to have any defenses against it. The sole question involved is as to the title to the policy.

This policy belonged originally, and notwitstanding the change, continued to belong to Mrs. Pilcher. As originally executed, her title thereto appeared affirmatively on the face of the instrument. The company, by unlawful collusion with Pilcher, suppressed this original instrument, and issued a new one in lieu thereof, in which it falsely declared that the policy was Pilcher’s own, and, therefore, assignable by him. It did this, as the evidence shows, for the express purpose of enabling him, under cover of this apparent title, to raise money on the policy. It accepted his assignment thereof, and the subsequent reassignment by his first assignees to a perfectly ignorant and innocent holder, who acted upon the faith of title as represented by the company itself in the body of the instrument and as recognized by the company in all its acts. It collected from this assignee the premiums down to ■the death of the insured.

We accuse the company of no intentional wrong; but, for the pur■poses of this case, it occupies the same position as if it were a deliber- . ate and intentional wrong-doer. It was a party to unlawful acts, and, as every one is presumed to know the law, it is presumed to have known they were unlawful. By its affirmative declaration in the body of the instrument that the policy was Pilcher’s while (as is presumed) knowing, and unlawfully concealing, the fact that it was really his wife’s; by it» acceptance and recognition of Pilcher’s assignment and of the reassignment to the bank; and by the reception from the latter of the premiums, “ it distinctly authorized and induced the bank to accept and act upon, as true, the state of facts thus represented by itself; and it, is now conclusively estopped from denying the truth thereof, and from escaping the performance of those obligations, which result in law therefrom.

It is manifest that none of the numerous cases cited by counsel apply to such a state of case as is here presented.

The difference of facts in the case of Barry vs. Brune, 71 N. Y. 261, from the above, is apparent at a glance. There, the company, in cancelling the policies in favor of the wife and substituting therefor policies in favor of another, acted upon a direct assignment by the wife herself, which was, in fact; genuine, and which the company had no reason to believe invalid. Its conduct was perfectly lawful and innocent. It was, however, proved that the wife’s assignment had been obtained through coercion, and was, therefore, invalid. The court decreed, in consequence, that she had never parted with her interest; that the substituted policies took the place of the old policies, and that the money payable thereon must go to the party entitled under the latter. There was, of course, no shadow of ground, in that case, for holding the company liable over again to the apparent holder.

We maintain, therefore, that this case is perfect authority for our decision in favor of Mrs. Pilcher; but is no authority at all against our decision in favor of the Bank. No decision has been, nor, in our opinion, can be cited, which is opposed to the clear right of the bank under the facts here presented.

The application of Mrs. Pilcher for rehearing has no merit whatever. She has received all that the most liberal construction of her rights could possibly allow.

Rehearing refused.


author: Poché, J.

text:
    No. 7830.
    A. L. Gusman et al. vs. Léopold DePoret et al.
    A special power of attorney to prosecute a claim, does not empower the agent to defend and stand in judgment in a suit brought by the debtor for damages for slander and libel.
    In an injunction suit to restrain the execution of a judgment, the plaintiff cannot plead and prove matters which were at issue and have been adjudicated upon in the original suit between the same parties, on the ground that new evidence has “been subsequently discovered.
    A defendant in execution cannot enjoin the sale of his property by the sheriff, on the ground that no valid seizure has been made of the same.

      'The defendant in execution, who complains that the sheriff has seized more property than necessary, must proceed under Article 652, C. P., and not by injunction, to have the seizure reduced.
    It is no valid ground of injunction for the defendant in execution, that the sheriff has seized property which does not belong to him.
    An attachment having been maintained, cannot be a legal cause of action for damages.
    'The seizing creditor, who has given no instructions to the sheriffforthe keeping or administering of the property seized, cannot be held responsible for the illegal manner in which that officer discharged his duty.
    A PPEAL from the Fifth Judicial District Court, Parish of East Baton Bouge. Me Vea, J.

      ■ E.W. & S. M. Robertson for Plaintiffs and Appellants:
    'When a new trial is granted, the writ of fi. fa. must issue upon the judgment rendered therein, and not upon the first judgment, although the two judgments may be similar.
    .-Fraud is a valid ground of injunction, for fraud vitiates everything. Freeman on Judgments, section 99; Holland on New Trials, chapter 18, section 22.
    .Absence of actual seizure can, when coupled with other grounds, be legally alleged and ' proven as a cause for injunction before sale. 28 An. 60.
    'When the prayer of the petition is that the attached property be sold to satisfy plaintiff’s claim, and the judgment rendered accordingly, and the writ of fi. fa. provides only for the sale of this property, the sheriff cannot proceed against other property until after the .•attached property has been exhausted by sale. 11 La. 445; 11M. 246. This is specially true when two previous appraisements had shown the property to be worth twice the amount of the judgment.
    'The debtor being interested, as warrantor, that the seizure be made in accordance with his rights in the property, has the right to protect himself, by an injunction, from a forced assumption of warranty tó a whole lot when he owns only one-half. 14 An. 108; 4 An. 293.
    When the interest of the debtor has been divested by an anterior seizure, there is nothing left to seize; so that the debtor has the right to protect himself, by an injunction, from the fastening upon him of a warranty he cannot legaEy assume under the second seizure.
    When the agent’s power grants him “full and whole power, strength and authority in all matters pertaining to ” several successions, and the principal becomes guilty of libel in a litigation relative to matters pertaining to these successions, the agent should be held empowered to receive citation in an action because of such libel.
    'The appearance of appellee, his joining oí issue and general denial, cured the want of citation in case the power of his agent did not empower her to receive citation. 7 La. 393; 11M. 20; 15 An. 86; 4 R. 193; 11 An. 326.
    .Appellee-having judicially averred that he is “ a citizen of Baton Rouge, State of Louisiana,” cannot be heard to disclaim his residenceship in the Parish of East Baton Rouge. Constitution United States, Amendment.XIT.
    'The appearance and pleading to the merits gave the court a qua jurisdiction over appellee, regardless of his residence or non-residence in the parish. 20 An. 195.
    An action for slander and libel oan be cumulated with one for an injunction. C. P. 148-151; 15 An. 491-621; 29 An. 507; 2 H. S. 323.
    In an action for slander, maüce is impHod. 5 R. 101. And suit of damages is not necessary to recover. 3 An. 69; 11 An. 206; 27 An. 214. Written slander is justly considered more pernicious than that uttered by words. 27 An. 214.
    Written publications defamatory of the dead arel Ebelous, and entitle the Hving children to damages.
    ffn an attachment the sheriff is the agent of the attaching plaintiff, so that the latter is hound to see to it that the sheriff takes proper care of the property, and upon his failure to do so is responsible to the defendant for all damages arising from the gross negligence and want of care of the sheriff.
    A claim ex contractu on the attachment bond, against both the principal and surety, does not bar a subsequent claim, for damages ex delicto against the principal alone.
    ■When the plaintiff in injunction partially succeeds, and the court a qua orders the execution to be decreased by more than 20 per cent, and the defendant acquiesces in the order, the plaintiff, in law and equity, should not be mulcted in damages, much less in damages upon the decreased amount, and it is the duty of the appellate court, in case itfinds the injunction otherwise wrong, to at least correct the injustice and remit all the damages. 29 An. 129; 30 An. 375.

      J. W Burgess and Favrot & Lawson for Defendants and Appellees ;
    First — An unliquidated demand for damages cannot be opposed in compensation to a definitive judgment for a fixed sum of money.
    Second — The power to an agent to stand in judgment for his principal must be express and special. 4 A. 61; 5 A. 117; 5 A. 562; 29 A. 363.
    ‘Third — An injunction cannot issue to stay execution on grounds which might have been pleaded in defense before judgment. 12 A. 5; 13 A. 374.
    Fourth — Where the plaintiff, in execution of a judgment, does not interfere with the sheriff nor give him any orders in regard to property under seizure, the sheriff alone will be responsible for any injury sustained. C. P. 659; 11 A. 476; Monssieur vs. Ztmtz, 14 A. 15.
    'Fifth — Issues passed upon before judgment cannot be revised ny an injunction.
    ’Sixth — The sheriff is not required to take actual possession of tenanted property. C. P. 657; 2 An. 157.
    •Seventh — Where a seizure is excessive, the defendant should not enjoin, but should apply for a reduction. C. P. 652; 29 An. 149.
    Eighth — A want of accurate description of property is not a good ground for an injunction. 26 An. 156.
    Ninth — The sheriff accounts for rents which come into his hands when he makes a final settlement. 29 An. 358.
   The opinion of the Court was delivered by

Poché, J.

In execution of a judgdment rendered in the suit of DePoret vs. Gusman et al., and affirmed by this Court in 30 An. 930, DePoret, the defendant in this case, obtained a writ of ft. fa., under which plaintiffs property was seized by the sheriff. Whereupon plaintiffs instituted the present suit for the purpose of enjoining said execution, and of recovering damages for the alleged illegal seizure of their property, cumulating therewith a demand for the rents of the same ■pending the seizure, and pending a preliminary attachment in the original suit; and also for deterioration of the property. They also •cumulated in the same suit an action for damages in the sum of fifteen thousand dollars for slander and libel, of themselves and of their deceased father, Gabriel Gusman, by the defendant. DePoret being a resident of France, service of this suit was made on Mrs. W. Hearsey, his agent, residing in Baton Rouge.

Her first step was naturally to file an exception, urging that having been instituted by DePoret, as his special agent, with the express and limited power to collect .and sue for his claim against these plaintiffs, (which had been recognized in the judgment affirmed by this Court above referred to), she had no authority to appear for and represent him, especially in an action for damages, and she prayed that that part of plaintiffs’ petition, alleging and praying for damages for slander, be stricken out.

This exception was overruled, but subsequently on the trial of the-case on its merits, the court rejected all testimony offered by plaintiffs in support of the alleged damages on the grounds urged in the exception. Before proceeding to investigate the case on its merits, we must dispose of this vexatious question, involving the cumulation of an action for damages on slander and libel, with an injunction to stay the execution of a moneyed judgment.

We find it unnecessary to pass upon the right of cumulating two such actions, confessing, however, that the proceeding appears at least anomalous.

On examination of the power of attorney from DePoret to Mrs. Hearsey, we find that it clearly confines her mission, and limits her power to the enforcement of his claim against these plaintiffs, and our conclusion is that under the most extended and elastic construction, it could not be made to imply the power in his agent thus constituted, to-represent him in any action instituted against him on a moneyed demand. To claim that under such a power the agent could be authorized to stand in judgment in a slander suit, would involve an interpretation -of human language, under which it could be made to mean anything. 4 An. 61; 5 An. 117; 5 An. 562; 29 An. 363.

Therefore, the judge did not err in rejeeting all that testimony, and to completely ignore that demand. The grounds on which plaintiffs base their injunction, are the following:

1st. That this Court had granted a rehearing from the decree-affirming the judgment of the lower court in the suit of DePoret vs. Gusman et al.

2d. That the judgment in that cause had been obtained by fraudulent misrepresentations, and that DePoret was not the real owner of said judgment.

3d. That the sheriff had made no actual seizure of the property which he had advertised for sale under the fi. fa.

4th. That under the judgment and the fi. fa. in the suit of DePoret vs. Gusman et al., the sheriff was restricted in his seizure to the property originally attached in that suit, and that he had illegally seized other property of the defendants in execution.

5th. That Gusman, owning but one-half of lot 11, square 3, Devall town, the sheriff has illegally seized the whole of it in this execution.

6th. That the interest of Mrs. Garig, one of the defendants in the lots seized, had previously been seized under a writ emanating from the parish court.

Eor answer the defendant filed a general denial, coupled with the plea of res adjuéicata, as to several allegations in the petition which had been disposed of as matters of defense in the original suit, and reiterated the grounds of his exception as to want of authority in Mrs. Hearsey to stand in judgment in the slander suit, specially reserving his rights under his exception.

The judgment of the lower court was in favor of defendant, dissolving plaintiffs’ injunction, and condemning them to pay to defendant §50 special damages for attorneys’ fees, and ten per cent interest on §1075 from August 6th, 1878, crediting the writ with the sum of §185 for rents collected by.the sheriff.

Plaintiffs have appealed, and defendant prays for an amendment of the judgment, with a view to an increase of the damages allowed him, and for damages for'a frivolous appeal.

1. We are really at a loss to comprehend the meaning of the first ground of injunction urged by plaintiffs. While it is true that a rehear-' ing-had been granted by this Court from the decree affirming the judgment of the lower court, it is equally true that on said rehearing the former decree was left undisturbed. (See 29 An. 934). And from the' record it appears that the decree of the Supreme Court was received and recorded in the District Court on June 19th, 1878, and that the writ of fi. fa. issued on the 3d of July following. Counsel for plaintiffs, while seriously urging this ground of injunction, have utterly failed to inform us, or to suggest what more could be exacted, in their opinion, from a plaintiff in execution; and we conclude that there is no force in the objection.

2. The second ground of injunction is equally untenable. The want of interest of DePoret in the claim against Gusman et al. had been put directly at issue in the original suit, and was very elaborately developed by Judge Spencer, the organ of this 'Court, in the opinion rendered in the case; and that adjudication did unquestionably set that issue at rest. There is no force in the suggestion by plaintiffs, that the issue now raised is supported by evidence discovered since the decision above referred to. Plaintiffs do not sue for the nullity of the judgment, and cannot be allowed to reopen one of the issues of the case in this collateral manner. The judge very properly rejected the testimony offered on that point.

If the latitude claimed by plaintiffs could be allowed, litigation would soon become interminable.

3. If, as alleged by plaintiffs, their property has not been actually seized by the sheriff, we are embarrassed to discover their reasons for complaint.

The very object of the injunction is to restrain the performance of the very act which, under the allegation, has not been performed. If the sheriff has made no seizure in law, his sale will be null, and plaintiffs will not have been disturbed in their ownership and possession of the property which they are so zealously defending. Such a complaint does not lie in the mouth of the defendant in execution. 9 R. 182; 23 An. 550.

4. Plaintiffs’ pretension that the sheriff was restricted in his seizure, both by the judgment and by the writ of fi. fa., to the property attached in the original suit, is n,ot borne out by the record. On examination we find that the judgment is a personal one for money, interests and costs, and maintains the attachment of Gusman’s property. And we also find that the writ conforms with the judgment.

■ If, as alleged, the sheriff has seized property in excess of the amount called for by the writ, the remedy of the party seized is not by an injunction, but he must have recourse to Art. 652 of the CodejOf Practice, providing for a reduction of the seizure. 29 An. 149. But in no circumstance could the execution be stayed in its entirety, for the reason that the sheriff seized more property than was sufficient to satisfy the writ entrusted to him for execution. Plaintiff in execution cannot be made to suffer for the errors alleged to have been committed by the sheriff.

5. To the objection that the sheriff erred in seizing the whole of a lot of ground, one-half of which alone is owned by Gusman, the answer is that such an error, even if it were urged by the owner óf the other half, could not stay the execution as to the whole lot; it could at most restrain the seizure and sale of so much of the property as does not belong to the defendant in execution.

But Gusman, who acknowledges that he does own one-half of the property thus seized, has no standing in court to champion the rights of the owner of the other half, who does not complain, as far as the record shows.

There is no force in the suggestion of plaintiffs’ counsel that Gus-man could, in the future, be held as warrantor for the whole lot, when in point of fact he owned but one-half of the same.

But, besides, it appears from the record that at a public sale for partition of the property belonging to the heirs of G, Gusman, this identical lot was adjudicated on the 5th of September, 1874, to A. L. Gusman, and we have been referred to no evidence showing that he had since parted with any portion of it.

6. There is no force in the sixth and last ground of injunction urging that Mrs. Garig’s interest in the lots seized was then under seizure on a writ emanating from the parish court, in a different suit. nothing in our law prevents the execution of several writs of ft. fa. on ■the same property. And here again these plaintiffs undertake to champion the rights of third parties, who could alone complain in the premises.

Having thus carefully reviewed all the grounds on which plaintiffs rested their injunction, we conclude that the lower court did not err in ordering its dissolution.

The claim of plaintiffs against this defendant for damages caused to Gusman’s property pending the attachment in the original suit, and for "the negligence or malfeasance of the sheriff in omitting to rent the same, cannot be urged against the seizing creditor under these pleadings.

His attachment having been maintaind, he is certainly free of charge ■for any damages for having obtained it.

It is not alleged that he instructed the sheriff as to the manner of keeping or administering the property while it was in his possession, or that he in any way interfered with that officer in the discharge of his duty, and he, therefore, cannot be held responsible for the damages if any, caused “by the negligence, recklessness, or other illegal acts of the sheriff.” 32 An. 1182; 11 An. 476; 14 An. 15; C. P. 659.

We do not feel justified to increase the damages allowed by the judge a quo, who seems to have done substantial justice to the parties.

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


text:
    No. 8139.
    Widow John Fields, Tutrix, vs. Joseph A. Gagné and Wife.
    The order of a District judge recusing himself and directing a case to be tried by the judge of an adjoining District, instead of by an attorney of the bar as judge ad hoc, is an interlocutory decree, which can cause no irreparable injury and from which, therefore, no appeal lies.
    The consent of both Appellant and Appellee cannot vest this Court with jurisdiction.
    APPEAL from the Nineteenth Judicial District Court, parish of Terrebonne. Goode, J.

      Winder & Armitage and Walter Guión for Plaintiff and Appellee.

      L. F. Suthon and Jno. B. Winder for Defendants and Appellants;
    -An order of recusation works such an irreparable injury as entitles a party to appeal. 5 M. O. S., p. 293 ; 6 M. O. S., p. 130, ■
    Where the record shows that the judge is only professionally, and not personally interested, the matter should be tried by a lawyer of the district, and not by the judge of an ad* .joining district. Sec. 3, Act Ko. 8,1880.
   The opinion of the Court was delivered by

Poché, J.

The District Judge having recused himself in this case, on his own motion, on the ground o£ personal interest, defendants have-taken a suspensive appeal from the order Qf recusation, from a decree-overruling their motion to vacate said order, and from a decree overruling their motion to refer the trial of the cause to an attorney of that Bar, instead of the judge of an adjoining district as directed in the order of recusation.

The right to appeal from such interlocutory decrees presents itself, at the threshold of the case, and must be denied.

In order to test the question, the three orders or decrees complained of must be considered together, as forming but one subject matter, to be disposed of by the same reasoning.

Eager for a decision of his case on the merits, appellee’s counsel waives his well founded objections to his opponents’ rights of appeal,, and urges us to overlook them, and to pass on the merits of the orders complained of. But reason, law and authority dictate a different course, and prohibit our interference in the case at this stage. Consent cannot give jurisdiction, when not vested by law. As the order of recusation made by the District Judge, as well as his rulings on defendants’ motion to which they have reserved bills of exception, are proper subject for review by this Court on appeal from the final judgment in the case, they cannot be said to work irreparable injury to either party, and are, therefore, not appealable at this stage of the proceedings.

The right to appeal from an interlocutory judgment rests on the irreparable character of the injury which either party may sustain thereby.

But if the interlocutory decree complained of, pregnant though it may be with consequences to either party, is of such a nature as to be ■ covered by the appeal from the final judgment, and if the decree of the appellate court can restore the parties, without the loss of any right under the pleadings, to the identical position which they respectively occupied before the rendering of the interlocutory decree or order complained of, the injury to either party is clearly not irreparable, and,. therefore, the right of appeal does not exist. O. P. Art. 566.

If on appeal from a final judgment in this case, it should appear that these rulings of the judge were erroneous, and that in consequence the case had been tried by an incompetent judge, bis judgment will be set aside, the order of recusation will be overruled and annulled, and the cause remanded for trial according to law; and then the parties will be in the same position which they held previous to the erroneous-orders, and thus all injuries sustained will have been repaired; therefore, they are not irreparable.

Appellants complain with great earnestness of the long delay which. •will be thus caused, and of the great inconvenience which they would suffer by this circuitous mode of obtaining redress.

They are doubtless correct, but this cannot justify our interference, ■when it is apparent that they can be relieved on a final judgment.

Mere delay and inconvenience are not such grievances as to justify us in maintaining an appeal, not conferred by law. 31 An. 47; 3 N. S. 25; C. P. Art. 566.

It is, therefore, ordered that this appeal be dismissed at appellants’ ■costs.


author: Todd, J.

text:
    No. 8201.
    Folger & Son vs. W. S. Slaughter et al.
    In an action to revive a,judgment, the defendant cannot set up in opposition to the revival, irregularities or relative nullities with which the original judgment was affected. In such an action, the sole questions that can arise or be determined, are, whether the judgment sought to be revived, was ever rendered and whether it still exists or has been extinguished in any of the ways provided* by law. It is only to the revival of judgments which are absolutely void, as for want of citation or other like radical defects, that opposition can be made on the ground of nullity of the judgment.
    A PPEAL from the Seventeenth Judicial District Court, parish of East Baton Rouge. Sherburne, J.

      Samuel P. Qreves for Plaintiffs and Appellees.

      Herron & Beale for Defendants and Appellants:
    Where a judgment .shows on its face, that it was rendered without issue joined, and without reasons being given by the judge for the same, it is absolutely null, and cannot he revived. Const. 1868, Art. 80; 32 An. 1006; 30 An. 363; id. 692.
   The opinion of the Court was delivered by

Todd, J.

This is a suit to revive a judgment.

The revival of the judgment is opposed on the grounds set up in. -the answer, which are substantially that plaintiff has no valid judgment against the defendant, susceptible of revival; that what is claimed to be a judgment shows on its face that it was 'rendered without issue ;joined on trial, and is, therefore, a nullity.

The judgment sought to be revived is as follows:

This cause coming up for trial on the plea of prescription, filed by defendant, and the law and the evidence being in favor ■ thereof, it is ordered, adjudged and decreed that there be a judgment in favor of Alexander Smith on the plea of prescription and against the plaintiff. It is further ordered that there be judgment in favor of ¥m. S. Slaughter -on one .of the drafts sued on, to wit: the one dated February 8th, 1860,^ $1853 65 due ten months after date, and against the said plaintiffs; and it is further ordered that there be judgment in favor of plaintiffs and against Wm. S. Slaughter on the draft dated May 28th, 1860, for 1488 09, and due 1st January, 1861, with eight per cent interest from maturity until paid, and four dollars costs of protest and cost of suit to be taxed.. Thus done, read and signed in open court, this 10th July, 1870.”

The record of the proceeding in the original suit shows:

That on the 21st of March, 1870, a judgment by default was entered' against the defendant; that on the 28th of the same month the defendant filed a plea of prescription to the action.

That on the 6th of July testimony in open court was taken on exception, and the drafts sued on were introduced in evidence, and them follows the judgment signed on the 10th of July, 1870.

There is no evidence that there was a motion made for a new trial,, or that any appeal was taken from the judgment.

The statute authorizing the proceeding to revive a judgment was-passed in 1853. Prior to that time judgments were unprescriptible,. and the object of the statute, as its title imports, was to subject judgments to extinguishment by prescription, and provide a mode by .which such prescription might be interrupted. It was never intended by the-act to provide a new and additional mode of annulling judgments. To-accomplish this, parties must pursue the remedies provided by the Code of Practice, by new trial, appeal, actions of nullity and rescission, none of which were resorted-to in this case. In an action to revive a judgment, the sole questions that can arise or be determined, are whether such judgment was ever rendered, and whether it still existed, or had not been extinguished in any of the ways provided by law. 30 An. 1330; 31 An. 326; 29 An. 69.

No judgment absolutely void, as for want of citation or other like radical defect, can be revived, because it is considered in law as never having been rendered; but nullities which áre not absolute, but relative,, cannot be invoked in such proceeding. Whatever be the legal force and effect of such judgment, not absolutely null, and however irregularly rendered, a party interested is entitled to have it revived. The judgment of revival does not correct defects in the original judgment, does not impart any additional force to it but whatever it is or was in the beginning, merely preserves it and saves it from extinction.

In the present case, the defendant was cited, a judgment by default was regularly rendered against him, more than two judicial days elapsed thereafter, a peremptory exception was filed by him, evidence was offered in proof of the demand, being the instruments that constituted the basis of the suit, and were before the judge when he rendered the judgment. No step was taken to correct any error in the judgment, or irregularity in the proceeding, if any existed. The judgment was in favor of one of the defendants sued for the entire amount demanded, and largely in favor of the defendant now opposing the revival.

Under these facts, we cannot hold that the judgment was absolutely null, although the proceedings connected with it were somewhat irregular.

The plaintiffs were entitled to a revival of the judgment.

Judgment affirmed with costs.


text:
    No. 8187.
    Succession of Mary L. Tabor, Wife of James R. Devall.
    The right of creditors of a succession to have the property thereof sold by the Executor to pay their claims, is absolute and ia no manner dependent upon, or to be preceded by, an Account of administration or Tableau of distribution.
    APPEAL from the Twenty-third Judicial District Court, parish of West Baton Rouge. Cole, J.

      Barrow & Pope and 3. L. Edwards for Plaintiffs and Appellants.

      Serrón & Beale for Defendants and Appellees:
    A creditor cannot force the sale of all the property of a succession, without first provoking the rendition of an account by the executor. R. C. C. 1668; 16 L. R. 74; 10 A. 224.
   The opinion of the Court was delivered by

Poché, J.

The Police Jury of West Baton Rouge and Widow George C. Laurison, judgment creditors of the succession of Mary L. Devall, proceeded by rule against the executor and the heirs of the succession for an order directing the sale of succession property for the payment of their judgments.

Appearance was made by the heirs alone, who urged that plaintiffs’ demand was premature, and could not be enforced before the filing of an account by the executor, who had never yet presented an account of administration. They urged that the succession had been opened in 1871, at which time it contained real estate valued at $17,430, and movable property valued at $34,294. And that non constat that the debts could not be paid without the sale of property for that purpose. This defense was maintained by the District Judge, and plaintiffs have appealed. The judge a quo has not favored us with the reasons which led him to the conclusion which he reached, and we would be curious to be informed as to the authority or precedents on which he based his decree.

The right of creditors of all successions, whether vacant or administered by administrators or executors, to enforce the payment of their claims by the sale of succession property, is absolutely recognized and clearly defined by our Code of Practice, Arts. 990, 991, 992.

These unambiguous provisions of law contain no language or reservation to justify the conclusion that the application of the creditor must be preceded by, or predicated upon, an account of administration or tableau of distribution, by the executor or administrator of the succession. It is the first and paramount duty of executors and administrators to watch over the interest of creditors, and to see to, and provide for, the payment of their just claims against the successions which they represent, and to that end they are vested by law with full power to provoke the sale of the personal, and if need be, the immovable property of the succession. C. C. 1668, 1670; 2 An. 925; 18 An. 63.

And in case of the failure of the executor or administrator to comply with his plain duty as directed by the salutary provisions pointed out above, the creditors have then the compulsory remedy provided for in the Oode of Practice.

And when the claims of any creditors have ripened into judgments, as is the case with plaintiffs in this rule, it is not a violent presumption to suppose, and even to conclude, that the executor has no funds wherewith to pay their judgments; and the law does not require the creditors to incur the additional delay, to be occasioned by proceedings against the executor or administrator for the rendition of an account, as a condition and precedent to the exercise of a right unconditionally granted to them by law. 22 An. 371; 9 An. 107; ,7 An. 231; 10 R. 458.

If, as suggested by defendants, the executor had funds sufficient to ' meet the demand of the complaining creditor, it was his duty to urge and prove such a plain defense, and the demand of the creditor would be easily and summarily disposed of. Defendants earnestly contend that under Art. 1688 of the Civil Code, the executor’s authority to sell property, etc., can be exercised only “ in default of funds sufficient to discharge the debts and legacies of sums of money,” and that, therefore, the demand for such sale at the instance of a creditor must be preceded by an account of the executor, showing that he has no funds wherewith to pay the debts due by the succession. But this is a non sequitur. In the case of a sale provoked by the executor, the law wisely provided that he should not have recourse to such a proceeding, as long as he had funds sufficient to discharge the debts and moneyed legacies, and the law presumes knowledge in him of the existence or absence of such “funds, and, therefore, imposes the absence of such funds as a condition' precedent to the sale of property.

But under the articles 990, 991 and 992 of the Code of Practice, de-. fining the rights of creditors in the enforcement of their claims, no such condition is imposed, or even mentioned.

The failure of the executor in this case, where the succession has been under his administration since 1871, to pay the amounts due to creditors, creates the presumption 'that he had no funds to meet the payment of these judgments, and makes it incumbent on him and on the heirs to rebut such presumption, or else they must fail in their resistance to the creditors’ just and legal demand.

The judgment of the lower court is manifestly erroneous, and must be set aside.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered, it is ordered that the rule taken by the Police Jury of West Baton Rouge and Widow (3. O. Laurison, against the executor and heirs of the succession of Mary L. Devall, be made absolute, and that as much of the property of said succession as may be necessary to pay the debts of the same, be sold at public auction according to law, and that the costs of these proceedings in both courts be borne by said succession.