text:
    No. 8799.
    The Mayor and Council of Alexandria vs. John A. Williams et al.
    A town councilman, who became a justice of the peace, is'not recusable in a case wherein the legal composition of the Council, on the validity of its ordinances passed while he was a member thereof, is contested.
    The payment of taxes of whatever hind cannot he enforced by suit since the Constitution of 1879 became operative through the legislation thereunder upon that subject.
    APPEAL from the Justice Court, Alexandria Ward, Parish of Rapides. Whittington, J.

      Jno. 0. Ryan for Plaintiff and Appellee:
    1. Art. 338 C. P. gives the causes of recusation of Judges, and applies to justices of the peace as well as other Judges. Justice Whittington was not disqualified from any of the causes mentioned in said Article.
    2. Art. 210 of the Constitution is not self-operative, and has not been made operative as regards municipalities. 34 An. 733. tv
    3. Act 119, p. 167 of Acts 1882, is not imperative, hut simply leaves it to the option of political corporations.
    4. Section 9 of the Charter of Alexandria, Act 111 of Acts of 1868, gives the Council power to authorize its collectors to collect the tax in any manner they (the Council) may determine. The Council acting under this had authorized them to collect by suit.
    5. The office of Councilman is not such an. office as contemplated by the Constitution. 25 An. 140 j 15 An. 598; 5 An. 155.
    6. The corporation of Alexandria has the right to collect taxes on merchandise; its Charter gives it; also the Constitution. Sec. 10 of the Charter of Alexandria; Act 111 of Acts of 1868; Constitution Arts. 207 and 218.
    7. The defendant has not shown that the money collected for the engine has been used for any other purpose ; even if it has, it has been returned to the engine fund.
    8. See. 18 of the Charter of Alexandria does not mean that all by-laws and ordinances must he published ten days successively, but that they are not promulgated until ten days after publication, one publication is sufficient. 25 An. 391.
    9. Nor does it mean that all the by-laws and ordinances must he published, if there is no daily paper, as often as the weekly paper comes out. Art R. C. C. 1117 applies to notices of application to be appointed curators of successions. 29 An. 210.

      Robt. P. Hunter and A. J. Hertzog for Defendants and Appellants :
    Articles 210 and 218 of the Constitution of 1879 prohibit suits by municipal corporations for taxes. Act No. 119 of the Act* of 1882, is the enabling legislation to cany those Articles into effect So, also, is Act 96 of the Acts of 1882.
    The Charter of the Town of Alexandria does not permit it to levy both a license and a tax on. personal property. “Section 10 of the Charter.” Acts of 1868, No. 111.
    Municipal corporations in this State are required to pursue the same course in the collection of taxes, as the State and parish.
    Town ordinances of Alexandria aie required to he published for ten days. Section 18 of the Charter.
    “No rule is better settled than that charters of incorporations are tobe strictly construed against the corporators.” 34 An. No. 5, p. 429; 3 An. 294.
    ‘Laws giving municipal corporations the right of taxation are a delegation of sovereign, power, and should be construed strictly.” 9 An. 368.
    “The presumption being that the new law is better than the old, and intended to remedy some existing mischief, courts should applj it to all cases occurring after its promulgation, unless its application impair tlie obligation of a contract, or endanger good order by destroying •well founded expectations.under prior laws.” 2 An. G13.
    “ In interpreting a statute; regard should be had to the mischief it was intended to remedy.” C. C. 18 ; 6 An. 386 ; 9 An. 165; 12 An. 777.
    “ A remedial statute must be so construed as to correct the mischief at which it is aimed. Its policy, when evident, must he respected and enforced.” 10 An. 11; 12 An. 154.
    "An interpretation which would defeat the object of a statute is inadmissible.” 12 An. 835.
   Tlie opinion of the Court was delivered by

Manning, J.

This suit differs from that of the same plaintiff against Heyman in several particulars, one of which is that the exception here made is to the capacity of the justice of the peace to sit in the cause, for the reason that he was a member of the town council that passed the ordinance imposing the taxes—in other words, the defendants recused'the Judge.

This is not one of the grounds for recusation recognized by our Codes, and we know of no reason why it should be. A member of the legislature, afterwards raised to the Bench, can construe laws passed by the body of which he was a member, and consider and determine their validity. Elevation into a judicial atmosphere is supposed to free one from the disturbing influences of legislative miasmas, and there is equal reason to believe that a village councilman will divest himself of the partisan feelings of that role when he sits in the judgment-chair of a justice of the peace.

It must be noted, the ground of exception is not that he acted as councilman and assisted in passing the ordinances, the validity of which is attacked, after his qualification as justice and consequent alleged vacation of his office of councilman (a point upon which we do not pass, and which was raised only in the answer) but that having been councilman when the ordinance was passed, he could not sit as judge to determine its validity, nor to determine the question of the legal composition of that body.

Upon the exception being overruled an answer was filed, pleading in defence inter alios the constitutional prohibition of suit which was properly set up in the other case in an exception.

The prohibition is express and emphatic, and of such character that a- court must take cognisance of, whenever pleaded, whether in the answer or by way of exception. In either way it effectually disposes of this litigation in its present form.

It is therefore ordered and decreed that the judgments of the lower court are avoided and reversed, and that each of the defendants now have judgment against the plaintiff as in case of non-suit upon the claim herein preferred, and that each recover of the plaintiff the costs of the low.er court and of this appeal.


source: Caselaw Access Project

author: Todd, J. Bermudez, C. J.

license: Public Domain

text:
    No. 8837.
    W. R. McKowen, Tutor, vs. W. F. Kernan.
    An attorney-at-law employed to institute a suit for tlie revival of a judgment is not bound to cause the judicial mortgage to be reinscribed, unless he has contracted or been requested to do so, and is not liable in such case for damage or loss resulting from its peremption. *
    APPEAL from the Sixteenth District Court, Parish of East Feliciana. Sherburn, J., acting in place of Kernan, J., recused.

      Stone <& Brame for Plaintiff and Appellant.

      J. G. KJlbourne, Wedge & Moore and J. F. Kernan for Defendant and Appellee:
    1. A sale clothed with judicial sanction cannot be attacked or inquired into collaterally. .19 An. 353 ; 23 Aq. 46!); 28 An. 639 ; 29 An. 693.
    2. The purchaser at a probate sale is protected by the order of court. 6 R. 47l; 1 An. 29 ; 22 An. 175 ; .25 An. 55; 28 An. 755.
    3. Actions of nullity and rescission of prohate sales are prescribed by five years. R. C.. 0. 3543; 34 An. Sue. of Quinn ; 33 An. 1043 ; 29 An. 536 ; 22 An. 492; 14 An. 597 ; R. S. 2809%
    4. A suit, where plaintiff is non-suited, on motion of his counsel, does not interrupt prescription, even though it appear of record that the discontinuance was made, not with the" intention of abandonin g the claim, but of renewing it under more favorable circumstances. R. C. C. 3519; 9 An. 464. '
    5. Redress in damages for negligence and want of skill must be limited to the loss actually sustained; the negligence and want of skill must be conclusively shown. 17 L. 571; 16 An. 121; 24 An. 12.
    6. Payment.by the judgment debtor to the judgment creditor, or offsets acquired by him. previous to any notice of transfer, discharge said debtor of the debt. R. C. C. 2644 • 6 H. S. 297; 3 An. 220; 12 R. 8.
    7. Inscriptions of mortgages are erased by the consent of the.parties interested and having capacity for that purpose, this consent to be evidenced by a release or by a receipt given on the records of the couit rendering the judgment, on which the mortgage is founded. ' R. C. C. 3371; 24 An. 464.
    8. The withdrawal of a suit from the control of an attorney, before its completion, and the resumption of the control thereof by his client, either through himself or other counsel, releases the attorney from any liability for the result thereof. 33 An. 243, Charles E. Alter vs. Horner &, Benedict.
    9. An attorney is not liable for an error of judgment in a matter admitting the exercise of his discretion. 9 M. 372.
    10. This is an action for damages arising from an alleged quasi-offense and is prescribed by one year. (R. C. C. 3536 ) And the date from which this prescription begins to run is the date at which the alleged omission occurred.
    11. An "attorney’s duty does not extend to the execution or preservation of judgments, in the absence of a special contract to that effect. 8 H. S. 234 ,* U An. 30; .14 An. 137.
   ' The opinion of the Court was delivered by

Todd, J.

This is a suit to recover of the defendant three thousand dollars, the amount of loss alleged to have occurred through the neglect of the defendant, an attorney-at-law, to reinscribe a judicial-mortgage, resulting from tbe recordation of a judgment which the-defendant was employed to have revived, and which mortgage perempted after the institution of the suit to revive.

The material facts pertaining to the controversy are these:

The judgment referred to was rendered in the suit of the Executors of Win. Sillimau vs. Clinton and Port Hudson Railroad Company, No. 1892 on the docket of the District Court of East Feliciana, and rendered on the 8th of June, 1869, and recorded on the 11th of the same month and year. It was for $10,060 and interest. It will be referred to hereafter by its number for convenience.

This judgment was sold at succession sale after the death of Silliman and purchased by Mrs. M. A. Silliman, surviving widow of the deceased, on the 27th of July, 1871, for $6,500.

It was afterwards sold by Mrs. Silliman to A. G. Payne, but at what time and for what price the record does not show. Ths sale to Payne is disputed, but is made reasonably certain by the fact that it was inventoried after Payne’s death among the assets of his estate, and by the admission that an amount figuring upon the account of the executor of his estate, as paid by him to Mrs. Silliman, was a balance owing on account of the purchase of this judgment by Payne, and the further fact that it pnrports to have been sold as belonging to Payne’s succession, and repurchased by Mrs. Silliman.

This reacquisition of the judgment by Mrs. Silliman took place on the 23d of December, 1874, the date of the probate sale of Payne’s succession, and the price paid was $7,000.

•On the 11th of April, 1876, Mrs. Silliman accepted mortgage bonds of the railroad company, the judgment debtor, in settlement of the judgment, and authorized its satisfaction to be entered, and the mortgage resulting from its registry to be cancelled, which were accordingly done on the 20th of January, 1877.

On the 4th of June, 1879, suit was instituted by W. R. McKowen, as tutor of the minor children of A. G. Payne, to annul the sale of this judgment to Mrs. Silliman, for causes unnecessary here to specify, and to erase the entry of its satisfaction and the cancellation of the mortgage, and at the same time to have the judgment revived.

A tender of the $7,000 paid by Mrs. Silliman for the judgment was made at the same time. The petition in the case was signed by W. F. Kernan, (the defendant in the case at bar) T. B. Lyons and T. J. Kernan as the attorneys of said McKowen, tutor. This suit will be designated by its number in the docket, 2501, for convenience.

On the lltli of the same month and year, seven days after the filing of this suit, the ten years expired from the date of the inscription of the judgment in the mortgage office.

On tlie 17th of June, 1880, the plaintiff, W. R. MeKowen, tutor, exe-cuted and signed the following receipt:

“ Eec’d from Pipes & Lyons their due bill for $2,500 and 8 per cent, interest from date, in full for all demands in suit of W. E. MeKowen, Tutor, vs. Mrs. M. A. SillimaD.”'

The case referred to in the receipt being the suit 2501 above mentioned to annul the sale of the judgment and procure its revival.

The Lyons named in the receipt was one of the attorneys of Mc-Kowen, tutor in the said suit; and Pipes & Lyons were then the owners of the Clinton and Port Hudson Railroad, which had been sold at sheriff’s sale under a judgment in favor of Geo. C. Comstock. Comstock was the purchaser at the sale, and subsequently sold the road to Pipes & Lyons. Pipes & Lyons had, also, then become owners of the mortgage bonds taken by Mrs. Silliman in settlement of this judgment 1892, and to which this controversy relates, and were under obligation to Mrs. Silliman to indemnify her against suit 2501. By these transactions they had become virtually the defendants, or the real parties in interest in that suit.

On the 16th of June, 1881, this suit 2501 was dismissed by MeKowen through an attorney employed by him—the defendant Kernan having been discharged and Lyons having withdrawn therefrom by reason of conflicting interest.

The present suit against the defendant Kernan to render him liable for alleged negligence, as above recited, was instituted on the 4th of September, 1880, before the other suit 2501 about which the negligence is charged was dismissed.

The defendant first excepted, alleging no cause of action, which was overruled. He then answered by a general denial and also set up substantially the following special defenses:

That a compromise had been made by plaintiff with Pipes & Lyons of the suit No. 2501, and that suit subsequently dismissed, which acts on plaintiff’s part precluded any action against him for the causes alleged. Pie denied that plaintiff had suffered any damage, and averred that Mrs. Silliman was responsible to him, if there was any liability on the part of anyone. He denied also that there was any contract with plaintiff by which he was to have the judgment rein-scribed, or that any such duty devolved upon him as an attorney-at-law.

There was a jury trial on the case and a verdict in favor of the defendant; and from the judgment thereon the plaintiff has appealed.

In order that plaintiff should recover in this case he must show a loss and damage to himself, and must further show that this loss or damage was caused by some act of the defendant, or resulted from some fault, omission or negligence on his part.

To arrive at any conclusion on these points, we should view the situation of matters relating to this controversy at the time the professional services of the defendant were engaged and the circumstances existing at the time suit No. 2501, referred to, was instituted.

At that time, plaintiff, or the minors he represented, were not the-acknowledged owners of the judgment and mortgage it was desired to enforce through the services of the defendant. In fact, there was no title to the judgment in them or in their father, from whom they, derived their claim of record, and never had been, so far as the evidence shows. On the contrary, that judgment, admitting the title of A. G-. Payne thereto—and we think ho once owned it—had been sold at a judicial sale. This sale, on the face of it, appears regular in form, and purports to have been made under the order of a competent court,rendered upon the petition of the legal representative of Payne’s succession, setting forth the adequate cause therefor, and who returned, into court a for mal proces verbal of the sale under the order.

We further find that under the authority and direction, and by the act of the purchaser of this judgment at such sale, and the acknowledged owner of it and of the mortgage resulting from its registry, at: that time, satisfaction of the judgment had been formally entered and the mortgage duly cancelled on the records. That this was done by virtue of a bona fide settlement made between.the ostensible owner of the judgment and the judgment debtor, and for a valuable considera-; tion. In short, according to the records, there was no judgment to revive and no mortgage to reinscribe.

Under this condition of things, the suit 2501 was instituted for the. declared object of annulling the probate sale of the judgment erasing the, entry of its satisfaction and the entry of the cancellation of the judicial mortgage resulting from it from the records, and reinstating, the succcession of Payne or his minor heirs in the ownership of the, same, and at the same time reviving the judgment which was about to prescribe.

This suit was never prosecuted to a judgment, but was dismissed by-plaintiff’s order and direction. This dismissal took place after what, we regard as a settlement or compromise of it, made between the plaintiff and Pipes & Lyons, who, as before stated, occupied the position of the defendants in that suit, from their purchase of the railroad and of the mortgage-bonds received by Mrs. Silliman, in satisfaction of the judgment and their obligation of indemnity to her, as previously stated.

What but a compromise or settlement can we infer from the language of the receipt signed at the time by plaintiff? It states explicitly the payment mentioned therein is “ in full of all demands in the suit,” referring to suit 2501. The only demands in that suit were the nullity of the sale of the judgment 1892 and its .revival. That such was the intent and meaning of the receipt is opposed by the testimony of the plaintiff, but is corroborated by the testimony of T. B. Lyons, who wrote the receipt. Such corroboration was unnecessary, as the document speaks for itself.

If this was a settlement of all demands in that suit, both against the judgment debtor and the opposing claimant of the judgment, it is difficult to perceive where or how any cause of action or ground of complaint was left against the defendant or anyone else for failure to reinscribe the judgment or judicial mortgage.

There is, however, another and last defense urged, against the demand made in this suit, which, in our opinion, should and must prevail, and that is, that there was no special contract or agreement between the plaintiff and defendant, that he, defendant, should have the judicial mortgage reinscribed, and there was no obligation or duty resulting from his employment as attorney in the suit to do so.

The evidence satisfies us that there was no such special engagement about the reinscription of the judgment, and not even a request from the plaintiff to the defendant to do so. From his employment in the suit mentioned, it was obligatory on the defendant to prosecute the same to the best of his ability, and there is no complaint that he did not do so. The reinseription of the mortgage formed no part of the demand in the suit, but was an act outside of it, to be performed by the recorder upon a simple request, requiring no professional knowledge or skill to make it. The plaintiff lived in the parish; as'tutor of the minor claiming the judgment, he knew or should have known the precise situation of affairs, and was bound tó do and perform whatever was necessary, with respect to this judgment, to protect the rights of his wards therein. Defendant was under no obligation to attend to the reinscribing for him in the absence of any request to do so ; it was no part of the attorney’s duty. We think the case is with the defendant on both points mentioned, and that the verdict in his favor and judgment thereon are correct.'

It is, therefore, ordered, adjudged and decreed, that the same be affirmed with costs.

Concurring Opinion.

Bermudez, C. J.

It does not appertain to the functions and duties of an attorney-at law employed to revive a judgment, to. give his personal attention and care to the reinscription of the judgment to be revived. In the absence of a special contract clearly shown in such a case, which is more an act of ordinary agency or administration, which is not shown in this case, the attorney cannot be held liable for damages, if any were sustained.

Por that reason I concur in the decree.

Manning, J. I place my concurrence on the ground stated by the Chief Justice.


author: Manning, J.

text:
    No. 8814.
    Thomas J. Majors vs. E. S. Dennis, Sheriff, et al.
    Where a sale of goods and merchandise is real and not simulated, and delivery has been made, a creditor of the seller must attack and annul the sale as in fraud of his rights, before he seizes the goods to satisfy his judgment against the seller.
    APPEAL from the Eighth District Court, Parish of Madison. JDélony, J.

      Spencer & Lucas for Plaintiff and Appellee.

      Jno. JB. Stone for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

A. K. Bonham & Co. obtained judgment against C. W. Wilson for $965.83, and Majors injoined the execution of it upon a lot of goods, on the ground that he was the owner of them by a sale from Wilson, accompanied by delivery, made several months before. He invokes the principle that where the sale is real and not simulated, it must first be attacked and annulled before the property, which is the subject of the sale, can be seized.

The defendant creditors in their answer aver the simulation, and justify the seizure because of it.

In this they have signally failed. The proof is complete of the verity of the sale, and of the good faith both of Wilson and Majors, and that creditors must resort to the revocatory action of sales of movables, as well as immovables, when such sales are real and not simulated, as decided in McAdam vs. Soria, 31 Ann. 862, where all previous decisions are reviewed.

As to a portion of the goods seized, the proof is uncontradie.ted that they form no part of the stock bought by Majors from Wilson, but were added afterwards, either by purchase from Maxwell, a rival merchant in the same village, or from without the State. It is probably on this account the lower court gave damages to Majors for the illegal seizure.

Majors was in some degree in fault. The circumstances under which hie bought had an appearance of an attempt to save himself. Wilson owed him over six thousand dollars, and owed others considerable sums. Their intention was to pay all, and Major’s good faith was attested by his paying several of Wilson’s creditors at once, and assuming to pay others. These identical goods had lain in the stove several months, boxed up by the sheriff, under an attachment which Majors had not judicially resisted nor complained of. Bonham should not be mulcted in damages for treating the goods as Majors had to all appearance treated them.

It is therefore ordered and decreed that the judgment of the lower court maintaining the injunction is affirmed, and so much of that judgment as awards damages against the defendants is reversed, the plaintiff and appellee to pay costs of appeal.


author: Eenner, J.

text:
    No. 8845.
    J. S. Ikerd vs. E. Borland, Sheriff, et al.
    An attorney-at-law, who lias been discharged by his client, cannot, against the will and orders 1 of the latter, give bond and prosecute an appeal in his name. And an appeal so taken will be dismissed on motion of the client.
    APPEAL from the Eighth District Court, Parish of East CarrolL Felony, J.

      Singleton & Browne for Plaintiff and Appellant.
    ■ F. F. Montgomery and J. M. Kennedy for Defendants and Appellees.

      W. G. Wyly and F. H. Farrar for W. Gf. Wyly, Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Eenner, J.

The plaintiff in this cause, with consent of other parties thereto, moves to dismiss his own appeal, alleging that all matters in controversy therein have been compromised, and that said compromise has been reduced to a final judgment in the lower court, thus ending the litigation at issue between the parties; and that after said compromise had been executed, the present appeal which had been previously applied for, from an interlocutory decree, had been consummated by the giving bond and bringing up of the transcript by W. Gr. Wyly, Esq., former counsel of plaintiff, without authority from him, and against his special orders and direction; like motions on similar grounds are filed by appellees.

W. G. Wyly, Esq., the counsel referred to, without traversing the facts stated, opposes the dismissal of the appeal on the grounds : that he has never been legally discharged as counsel of plaintiff; that his fees and costs have not been paid; that the compromise referred to was fraudulent and collusive, for the purpose of defeating his rights to compensation ; that, under his contract with plaintiff, the latter had no power to dismiss his suit in the lower court or to dismiss this appeal, without first compensating him; that he had taken appeal from the judgment in the lower court dismissing plaintiff’s suit, the legality whereof is thus at issue on said appeal in this Court; that he has the right to prosecute the said suit as if the compromise had never been made; and that, in exercise of such right, he brought up the present appeal; wherefore he prays that this cause be remanded to the lower court to try the issues of fact here presented, and that, after due hearing, the motions to dismiss be denied.

Fortunately, controversies of the kind here presented, between attorney and client, have rarely occurred in this State.

The right here asserted is not merely to resist the dismissal of an appeal taken by the client, but actually to take an appeal by giving bond in the name of his client against the latter’s will and orders.

The lien of an attorney at common law is of á much more extensive character than in this State, and the powers exercised by courts in protection and enforcement thereof are more liberal. But, even under that system, we know of no authority supporting his right to execute bond in the name of his client against his will.

Here, tho only lien or privilege securing the fees of an attorney is that upon the judgment when obtained. This Court has said in an analagous ease : we know of no law giving an attorney a privilege upon a judgment not yet in existence, and no law to compel a party to prosecute a suit to judgment, in order that the attorney may obtain and enforce a privilege on the said judgmeut for his professional services.” Rind vs. Hunsicker, 24 An. 571.

If his client, in compromising and dismissing his suit below, has violated his contract with him, he must assert his rights to resist this breach in his own name and right, as we understand him to have done by his attempted interventiou and appeal from the judgment of dismissal. He had no more right to perfect and prosecute the present appeal, by giving bond in the name of his client, than he would have had' to appeal from the judgment of dismissal in the same manner.

It is, therefore, ordered that the appeal herein be dismissed at appellant’s cof t.


text:
    No. 8078.
    L. C. Ferguson vs. A. Chastant.
    The intent to defraud must exist to justify an attachment. It does not suffice that appearances indicate it.
    A PPEAL from the Second District Court for the Parish of Orleans. Tissot, J.
    •/. Q. A. Fellows for Plaintiff and Appellant:
    An attachment is improperly dissolved where the defendant fails to prove that ho never made any attempt to sell the property, where the grounds of th§ attachment are that he was about to convert his property into evidences of debt, to place it beyond the reach of his creditors. “Wetherow vs. Croslin, 24 An. 128; 55 An. 200; 27 An. 617, 104 ; 15 An. 425.
    To dissolve an attachment it is necessary to specially deny the grounds set up, and the bur-' den of proof is on him to disprove the allegation. Miller vs. Chandler, 29 An. 88; 30 An. 394; Cure vs. Variol, 30 An., not reported.
    Chas. F. Claiborne for Defendant and Appellee;
    ‘W’hqre agent authorized to substitute has exercised the power and appointed another in his stead, he is divested of all power, which he cannot revive nor subsequently act for his former principal. Saul vs. Lalaurie, 1 An. 401.
    Plaintiff in attachment, after his affidavit is rebutted by defendant on a rule to dissolve, must prove that defendant was about to dispose of his property with intent to defraud his creditors.
    The fraudulent intent is the essential ingredient. C. P. 240, Sec. 4; 22 An. 531; 24 An. 82, 568; 25 An. 500; 26 An. 258, 641; 28 An. 309, 819; 30 An. 393; 32 An. 344; 9 An. 535.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff brought suit on March 20, 1880, to recover a moneyed judgment of the defendant. By supplemental petition of April 16 following, he prayed and obtained an attachment on the allegation that the plaintiff “has mortgaged and is about to dispose of his property with intent to defraud his creditors and especially petitioner, and to convert the same into money and evidences of debt with intent to place the same beyond the reach of his creditors.”

Upon a rule taken by the defendant to dissolve upon sundry grounds, one of which was that the facts and allegations are untrue and insufficient to justify an attachment, the attachment was set aside, and the plaintiff has appealed.

The evidence, shewed that two years before the institution of the suit the defendant had mortgaged an improved lot in this city to secure the payment of his note for $4,000 due March 20, 1879, which had been .extended for one year, and which therefore fell due on the very day of the institution of the plaintiff’s suit. Executory process had issued instantly, and at the defendant’s solicitation his creditor had permitted him to sell, or attempt.to sell, through an auctioneer and without the intervention of the sheriff, and accordingly an advertisement appeared in a newspaper on April Ilth of the sale to be made by the auctioneer on the 17th.

The plaintiff sued out his attachment the day before the sale day.

The property was offered notwithstanding, but the highest bid. was $6,200, less by three hundred dollars than til© limit imposed on the auctioneer by Chastant, and It was withdrawn. Through the good offices of a brother of the defendant, the money was obtained for the holder of the note, which was transferred to the lender of the money.

All of which shewed the defendant had no intention to defraud any one, however much the coincidence in dates of these acts wore that appearance. Chastant had no other property, and the advertisement of its sale was well calculated to induce suspicion of his purpose, but the evidence shewed it was not well founded. The intent to defraud must exist to justify an attachment. It does not suffice that appearances indicate it. Abney vs. Whitted, 28 Aim. 818; Hermann vs. Amedee, 30 Ann. 393, and authorities there cited.

Judgment affirmed.

Bermudez, C. J., recused.


text:
    No. 8790.
    The State of Louisiana vs. Henry J. Brown.
    The postponement of a criminal trial to the next day after that on which' it is set, although it may occasion inconvenience to the counsel and expense to the parish, will not of itself prejudice the prisoner’s rights, nor will the fact that a civil cause is put aside in order to take up the criminal trial affect the regularity or legality of the conviction.
    The State has the right to ascertain the fact of a juror's ñtness and impartiality by other than ■ the stereotyped questions on the voir dire, and may interrogate the juror in such manner and form- as will best- serve to shew whether the juror has been subjected, knowingly or not, to influences that would unfit him for the discharge of his functions.
    When the venue has been changed, the indictment must be transmitted to the court to which the cause has been removed and does notneed to have stamped upon it the seal of the court from which it comes. If a trial is had and the judgment is set aside, the indictment remains in the court where the trial was had, and no more needs the seal of either court for the second trial than for the first. The new forum stands in the place of that in which the indictment was found, and as it would not need a seal if the trial had taken place in the latter court, so it does not in the other. The minutes of court, its orders, etc., cannot be sent up, and therefore must be copied, and the copy attested by a seal.
    Counsel should not.be permitted to re-argue the question after the court has decided it. Their remedy is by exooption to the ruling.
    APPEAL from, the-Twelfth District Court; Parish of Grant. Bardin, J.
    - JE. G. Hunter, District Attorney, for the State, Appellee.

      ’ M. Jtyan, Bobt. P. Hunter and Jno. 0. Byan for Deféndant and Ap pellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was indicted for murder in the District Court for Rapides, and on his application, the venue was changed to Grant. The trial there resulted in a conviction of manslaughter and sentence to hard labor for ten years, which was reversed on appeal. State vs. Brown, 33 Ann. 1151.

His second trial had the same result, and this appeal is front the judgment then rendered. The errors complained of are set forth in four bills of exception, which we will examine in their order:

1. On the day for trial, the court deferred calling the case until 2' o’clock p. m:., on the application of the prosecuting officer, the object being to give the witnesses (all of whom- lived in Rapides) time' to reach the courthouse. At that hour, the witnesses not yet having « arrived, the court granted attachments for them, and postponed the trial until the next day. The ground of exception is that it was an unwarranted waste of time of the court, and an expense to the parish, to wait for the return of the attachments, and “both counsel for the accused notified the eourt that they had other' important matters requiring their attention at home,” and that they had attended on the day'assigned for the trial-of the defendant, and could not Wait from day to day for the return of the attachments.

Any and all allegations of harm to the prisoner, resulting from this course, are conspicuously absent from the bill. The time of the eourt may have been wasted, and the parish subjected to greater expense, and the counsel pub to inconvenience, but all these together will not affect the regularity and legality of the trial.

2. The trial was had on the next day’’, and a civil ease was put' aside, though the eourt was in the .midst of hearing it, in order that this criminal trial might be speedily had. The ground of exception here is that it was “ irregular, illegal, and prejudicial to the defend-' ant’s rights and interests.”

How, or in what respect prejudicial is not stated, nor can we divine it. The course pursued was not illegal, and the insularity was enforced by the clamor for a trial the:day before. ■ ■ On-the first day, ihe prisoner excepted to a delay, imperatively demanded by the interests of the State, and on the day next following, complained that no further delay would be permitted. A court cannot adapt its order of business to the varying moods of a prisoner.

3. The district attorney, having interrogated one of the panel of jurors if he had formed and expressed an opinion, etc., then asked if lie had conversed about the case with Harvey Williamson—this person not being a witness or connected in any way with the case. The objection was that there could be but one purpose of the question, viz., to inferentially charge a corrupt combination between the prisoner and Williamson to influence jurors in advance of the trial, and thus to prejudice the jurors who were -within hearing against the prisoner.

It is an inference of counsel that this was the object of the prosecuting officer in asking the question. He does not state what was his object, but it was competent for the State’s attorney to ascertain, by examination of the person offered as a juror on his voir dire, in other questions than the stereotyped forms, whether the juror had been subjected, knowingly or unwittingly, to influences that would have unfitted him for the discharge of his functions.

4. That the indictment has not the seal of the Rapides court, and is therefore unauthenticated, and that the counsel for the prisoner, when making the objection, wanted to read the decision of this Court on the former appeal, but was prevented by the Judge.

The Judge corrects this statement, and certifies the fact to be that the prisoner’s counsel argued the point and spoke until he was apparently through, and had turned away and walked off. The Judge then overruled the objection, and the counsel wanted to argue it over and to read the opinion of this Court, etc.

The Judge was right. Counsel should not be permitted to re-argue a question after the court has ruled upon it. If the ruling is wrong, the remedy was by exception, and that remedy was used.

The indictment needed no seal. It is an original, and the law is express that the original indictment and other papers appertaining to the cause,” with a copy of all orders, etc., shall be sent to the court to which the cause has been removed. Rev. Stats. Sec. 1024. The court of Grant parish no more needed a seal to the indictment to authenticate it than would the court of Rapides, had the case been tried there where the bill was found. The original papers must be transmitted from the one court to the other when the venue is changed. The minutes of the court, its orders, etc., must be copied, and the seal of the court must authenticate the certificate that they are correctly copied. •

There is no error in the trial in the lower court, and its judgment is affirmed.


author: Bermudez, C. J.

text:
    No. 8823.
    Succession of Matthew Coughlin.
    Where a judgment is rendered striking out an unproved item on the passive side of a succession account and adding the amount to the balance previously struck, for distribution among ordinary creditors, and where, before such distribution has taken place, the creditor whose claim was disallowed for want of proof, has established the same by sufficient evidence, the distribution first ordered must be modified and the proved claim ordered to bo paid.
    Judgments of homologation of accounts in insolvent successions, directing a distribution of funds, do not invariably constitute res judicata, so as to prevent a review of the distribution and directions for a different one.
    Creditors who have been paid in conformity with a decree of distribution, in case of deficiency can be compelled to refund the proportion which they are bound to contribute, in order to give new creditors an equal part.
    The doctrine in the Succession of Warren, 4 An., requiring proof in insolvent estates, in addition to notes held by creditors, must not bo carried too far.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Oole, J.

      Sam’l Matthews for the Administrator, Appellant.

      Barrow & Pope, (Bias. 0. Lauve and Alex. Hébert for the Opponents, Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

The matters at issue in this case were before this Court last year. 34 An. 916.

The contest was between the administrator and the creditors of the succession, touching the validity of a mortgage claim of the former for $2,658.33, against which want of consideration as to the notes, simulation against the mortgage and undue preference as to the creditor, were charged.

This Court held, that Beyris, the administrator, assex-ting himself a creditor, with mortgage, had failed to substantiate his demand by evidence besides the notes and the act of mortgage and his own passing testimony, and that such corroborating proof was necessary in an insolvent succession like this.

The Court, therefore, ordered that the item opposed be stricken from the account, as in favor of Beyris, thereby non-suitiDg him.

Treating the account as though this item of $2,658.33 had not been allowed at all to Beyris, aud adding it to that proposed to be distributed among the ordinary creditors, $1,027.99, thus forming an aggregate of $3,686.32, the Court ordered that sum to be distributed among the creditox’S, reserving the rights of Beyris to claim and prove thereafter what lie had then failed to establish.

It appears that the parties in interest viewed the judgment of this Court from different standpoints.: in one. respect, as a judgment of non-suit, and in others, as a final and executory judgment, constituting res judicata.

lienee, the creditors took on Beyris a rule to compel him to pay them the sum of $3,686.32, and in default, to entitle them to an execution therefor against him individually.

On the other hand, Beyris took proceedings for a new trial of his .claim as .a mortgage creditor for $2,658.33.

For reasons of expediency there .was made no objection to form, and the pretensions of both the creditors and the administrator, as a creditor, were tried together.

It is important to note that the $2,658.33, which Beyris had apportioned to himself by the account, had not been then and have not since been distributed.

The issues w.ere determined by reasons separately assigned, culminating into one judgment only.

Viewing our judgment as res judicata in favor of the opponents, their rule was made absolute and Beyris, administrator, was ordered .to apply,, the money .to them, and provision was made for execution against him in case of default. ,

Treating Beyris as a non-suited creditor, and considering that lie had offered proof sufficient, establishing his mortgage claim to the $2,658.33, the Court.recognized it as such, but vvithout any privilege or preference, the same to be satisfied out of the funds in his hands which were, ordered .to .be paid out by.the first part of the judgment.

It isfrpm .the judgment thus rendered that the parties have appealed.

I.

Our judgment directing the distribution of the $3,686.32 did not constitute res judicata, as it disallowed the $2,658.33 to Beyris, for want of proof in support of it, added that sum to the remaining $1,027.99 and authorized the distribution of the whole among the’ creditors. This would, no doubt, have taken place had the administrator been a person different from Beyris. Had such distribution taken place, such administrator could not have been attacked or disturbed for it, in case Beyris had subsequently made good his mortgage claim, for he -would have had as his authority for doing so the judgment of this Court.

The law provides that, in some cases, unpaid creditors may call upon creditors who have been paid, to return what proportion in excess they may have received, in order that a different distribution may be made by the succession representative. R. C. C. 1188, 1184, 1185, 1186, 1187.

A judgment homologating an account and ordering a distribution of funds is not, therefore, such as absolutely constitutes res judicatain all cases.

But it so happens in this case that the administrator and the creditor are the same person, and that the sum authorized to be distributed has remained in his purse.

The correctness of the judgment of the lower court ordering payment of that sum to the ruling creditors and the issuing of an execution for the same in their favor is, however, contingent upon that allowing or rejecting Beyris’ claim as a mortgage creditor.

If it be such, his claim should be satisfied by preference out of the proceeds of the mortgaged property included in said $3,686.32; if he be only an ordinary creditor, he would be entitled as such only to a participation concurrently with the other ordinary creditors in the repartition of that same sum ; if he be no creditor, he would then be entitled to nothing at all.

II.

Whether Beyris is a creditor and whether his claim is secured by mortgage is the pivotal fact upon which turns all this litigation.

On the first trial the proof adduced by him was properly considered insufficient. On the second trial he has offered not only the notes and the act which had been previously introduced, but also his own and corroborating testimony, which shows his ability to make the loans, his having made them and the acknowledgments of Coughlin.

Whatever reflections may have been cast upon his credibility and the reality of the transaction, they are not such as can successfully overthrow the proof administered by him. The doctrine in the succession of Warren, 4 An., affirmed in our previous opinion, is no doubt conservative and sound, but it must not be carried too far.

The District Judge has taken pains in investigating the facts. He has discussed them and has come to the conclusiou that Beyris is a mortgage creditor.

His opinion fortifies the already strong impression which we have derived, after reviewing the testimony adduced on the last trial, so effectually, that we consider that he has correctly decided the question of fact.

The judgment, in so far as it makes the rule absolute and directs execution to issue for $3,686.32, is erroneous; and in so far as it recognizes Beyris as a mortgage creditor for $2,658.33, is correct. That portion of it, however, which denies him any privilege or preference to be paid out of his hands cannot remain.

It is, therefore, ordered and decreed that the judgment appealed from making absolute the rule for execution be reversed, and that said rule be dismissed, without prejudice to the rights of the creditors, plaintiffs in rule, to a distribution of the $1027.99, or so much thereof as may be on hand.

It is further ordered, that the same judgment, in so far as it refuses a privilege or preference to Beyris, be likewise reversed, and that in so far as it recognizes the claim of Beyris as a mortgage creditor for the sum of $2,658.33, for which he is placed ou the account, be affirmed, and that said Beyris be paid accordingly said amount out of said $3,686.32 in his hands.

It is further ordered that the costs of this appeal and of the lower court, incurred since the case was first tried here, be paid equally by the creditors, plaintiffs in the rule, and by the succession of Coughlin.


author: Fenner, J.

text:
    No. 8041.
    Henry Denegre vs. P. S. Moran.
    In Teal vs. Pirtle, 34 An. 892, we hold that, where in an aotion for account, the plaintiff alleged a certain sum as the amount which he claimed as duo to him, that allegation flxed the limit of his demand.
    In this case the plaintiff claims $1,100 as the amount due him on proper accounting, for which ho prays. The defendant answers, admitting $173 as due. The difference, $927, is Ikeonly amount in dispute, and excludes our appellate juiisdiotion. 33 An. 1089; 26 An. 291.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      Bayne <& Denegre for Plaintiff and Appellee :

      Gibson, Hall & Montgomery for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

On the argument of this cause, our attention was called to a defect of jurisdiction ratione material, because the amount in dispute does not exceed one thousand dollars.

A motion to dismiss was filed on this ground, which we observe, since the trial thereof, has been discontinued by consent of both parties. We fully recognize this as the equivalent of a consent between the parties that we should exercise jurisdiction, to which we would gladly give effect, if such a course were consistent with our sense of judicial duty. We cannot conscientiously do so,.

We, in common with all other courts, are bound to confine ourselves within the limits of the jurisdiction conferred upon us by the Constitution. One branch of our supervisory powers requires us, not infrequently, to restrain inferior courts from exceeding the bounds of their jurisdiction, and we are sometimes called on to pronounce their judgments in excess thereof absolute nullities, even notwithstanding the consent of parties. We should expose ourselves to just censure if we should govern our own action by rules different from those which we apply to that of other courts.

In the present case the limit of the plaintiff’s demand was for eleven hundred dollars.

We have carefully examined the petition and, although it demanded an account from the defendant, yet it distinctly alleged that defendant is indebted to him in the sum of eleven hundred dollars, which he refuses to pay over.” This petition was sworn to, and a writ of attachment was issued on the basis thereof.

The prayer demanded an accounting, and “that judgment be rendered in favor of petitioner for eleven hundred dollars or such sum as will be found to be due him on settlement, etc.” Thus, by his own valuation, the plaintiff fixed the limit of his claim, and demand at eleven hundred dollars and could, under no circumstances, have asked judgment for more.

By paying that amount with interest and costs into court, defendant could have discharged the suit. The alternative prayer only meant such an amount less than $1100 as might be found due. This point has been expressly decided by us in a case precisely analogous. Teal vs. Pirtle, 34 An. 892. O. B. 56, p. 786.

The defendant’s answer admits owing one hundred and seventy-three dollars. The amount in dispute, therefore, could not exceed nine hundred and twenty-seven dollars.

Had the judgment been for only $173, the plaintiff could not have maintained an appeal.

We have examined the cases referred to by defendant’s counsel, but find them inapplicable to the present case.

In a case precisely similar to this, we have heretofore held that we had no jurisdiction under the circumstances presented. Stubbs vs. Maguire, 33 An. 1089; see also Girardey vs. City, 26 An. 291,

It is, therefore, ordered that the appeal herein be dismissed at appellant’s cost.

Rehearing refused.


text:
    No. 8800.
    A. Baldwin & Co. vs. C. H. Mumford et al.
    » Where it ia apparent that an appellee can recover fiom a surety on an appeal bond the amount of the judgment appealed from, if affirmed, the appeal will not be dismissed owing to alleged deficiencies in the bond.
    Where the proof shows that plaintiffs in attachment were authorized to entertain the fears declared in their petition, the execution of the writ can oause no damage. The verdict of a jury allowing such on a reoonventional demand lacks foundation and must fall.
    APPEAL from the Twelfth District Court, Parish of Grant. Harbin, J.

      Jno. 0. Wioleliffe for Plaintiffs and Appellants.

      Thorpe, Peterman & Thorpe for Defendants and Appellees.
   On Motion to Dismiss.

• The opinion of the Court was delivered by

Bermudez, C. J.

The motion to dismiss contains charges that the bond of appeal is deficient.

We deem it unnecessary to inquire into them specially. It is patent from the face and tenor of the bond, which is given for one-half over the amount of the judgment and which expressly binds the surety up to that amount, should the judgment be affirmed, that the appellee, in case of such affirmance and of suit on the bond, would be entitled to recover.

The motion is denied.

On the Merits.

The plaintiffs sued the defendants for $457 and attached property belonging to them, or supposed to belong to them. On a rule to dissolve, the writ was quashed owing to an irregularity in the bond, which consisted in its not being made payable to the clerk.

There were then filed another affidavit and another bond. A motion to dissolve the second attachment was then taken and discharged.

This rule is not to be found in the transcript, but the District Judge and the clerk certify that it was filed on the 23d of November, tried and overruled on the following day. This is shown by the minutes.

The presumption is, that it was grounded mainly as was the first, which charged the untruth of the allegations of fact on-which the writ was granted. It appears that much testimony was adduced on the trial of the case thus presented.

The brief entry on the minutes is to the effect that the motion was overruled.

The defendants, Mumford & Pirtle, who were represented as cotnmercial partners, composing the firm, of C. H. Mumford, answered separately.

Mumford denied any liability to plaintiffs, charged that the attach-’ inent proceedings were wrongful, illegal and malicious, and had caused him $7,500 damages, which he pleaded in compensation and reconvention. He concludes by praying for a jury, and that plaintiffs’ demand be rejected; also, that they be condemned to pay him the amount of damages claimed.

Pirtle denied any liability, averring that he never was a partner of Mumford, that he was a mere clerk interested in the profits, without any responsibility for debts and losses.

The jury rendered a verdict for $3,000 in favor of Mumford, less' plaintiffs’ claim. The court thereupon rendered judgment in solido against Mumford & Pirtle for the amount sued' for, and condemned plaintiffs to pay three thousand dollars to Mumford, less plaintiffs’ claim, and dissolved the attachment.

From this judgment against them the plaintiffs have appealed.

On the trial of the case plaintiffs introduced evidence to sustain their claim, and the case being with the defendants, testimony was offered to prove the damages alleged to have been sustained in consequence of the wrongful issuance and execution of the attachment.

Whereupon, plaintiffs objected, on the ground that the court having overruled the motion to dissolve the attachment, the legality of the issuance thereof could not be inquired into by the jury, but the court discarded the objection and allowed the evidence to be introduced. To this ruling the plaintiffs reserved a bill.

We do not consider it necessary to pass upon the bill.

A review of the testimony adduced in justification of the apprehensions of the plaintiffs, rendering an attachment necessary for the protection of their rights, satisfies us that, under the circumstances disclosed, the plaintiffs were authorized to entertain the fears which inspired the application for the conservatory process.

They show that he was insolvent; that he had put away some hides of his in the warehouse of another party, when he had one of his own ; that he had likewise placed some cotton of his ; that ho had shipped some cotton, denying having done so; that he had told plaintiffs’ attorney that he would pay certain named, creditors in full before he would pay any others; that he had taken advice about disposing of his goods in a summary way, and that for thus acting he offered no satisfactory explanation.

If the jury had the right, under the proof adduced, to revise the ruling of the Judge, it is clear that they erred in deciding differently from what he did.

The attachment., then, having properly issued, the execution of it could cause the defendants no injury. If they suffeied, it is damnum absque injuria.

The judgment in favor of plaintiffs against defendants not being within our appellate jurisdiction, is not reviewable by us and, therefore, remains undisturbed.

The verdict of the jury on the reconventional demand has no foundation upon which to stand, and the judgment upon it must fall.

It is, therefore, ordered and decreed that the said verdict be set aside, and that the judgment upon it, condemning plaintiffs to pay to the defendant, Mnmford, three thousand dollars and dissolving the attachment, be reversed.

It is now ordered and decreed that there now be judgment rejecting the reconventional demand herein, with judgment thereon in favor of Baldwin & Co., with costs in both Courts.

Todd, J., dissents on the motion to dismiss, and concurs in the decree on the merits.


author: Poché, J. Manning, J.

text:
    No. 8828.
    The State of Louisiana vs. Jesse Conway.
    TTnder Act No. 44 of 1877, regulating the maimer of drawing juries in this State, the clerk is the most responsible, and is an essential and indispensable member of the jury commission. Hence, no jury can be legally drawn during his absence, and without his cooperation.
    An indictment for burglary is not bad for duplicity because it charges the offense of breaking and entering with intent to steal and rob, and that of breaking and entering with intent to kill and murder. 34 An. 48 j 30 An. 487, reaffirmed. *
    APPEAL from the Twenty-third District Court, Parish of Iberville. Cole, J.

      J. G. JEgan, Attorney General, for the State, Appellee :
    1. Any three members of the jury commission are sufficient to perform all the duties appertaining to said commission. Sec. 3, Act No. 44 of 1877, p. 56.
    2. Prescribing certain duties to be performed by the clerk of court, an ex-ojfieio member of the commission, is merely directory, and not sacramental; any other member of the commission may perform those duties.
    3. “ No defect or irregularity in the drawing thereof or the summoning of the jury shall ho sufficient cause (to challenge the general venire, or set aside the venire! if it shall not appear that some fraud has been practiced, or great wrong committed in the drawing or summoning of the jury, that would work a great and irreparable injury.” Ib., Sec. 10.

      4. Crimes of the same nature, resulting from the same transaction, may he alleged in separate counts in the same indictment. And where several crimes are denounced in the statute, they may be cumulated in one count by using the conjunctive “ and " in place of the disjunctive “or.” 33 An, 1295; Bishop on Crim. Procedure, Yol. 1, Secs. 436, 450 and 451; Wharton, Sec. 390 ; Bishop on Stat. Crimes, Sec. 383, p. 254; 30 An. 62.

      5. A motion in arrest of judgment may embrace only those errors on the face of the record which vitiates the proceedings. .Bishop on Crim. Proc., Secs. 1107,1108 and 1109.
    6. A variance between proofs and allegations, or any matter appearing only in the evidence at the trial will not be reached by this motion. Ib. 1285; State vs. Frey, 34 An.

      Alex. Hebert and T. H. Grace for Defendant and Appellant.
   ■ The opinion of the Court was delivered by

Poché, J.

Having been convicted of burglary and sentenced to hard labor for life, the accused complains :

1. That the indictment found against' him is bad for duplicity, because it charges two distinct offenses: that of breaking and entering, etc., with intent to rob, steal, etc., and the other of breaking and entering, etc., with the intent to kill and murder.

The objection is not well founded. The two offenses are charged in separate counts and are denounced in the same statute.

' It is now well settled by authority that, in an indictment for burglary such separate offenses can be legally charged. State vs. Johnson, 34 An. 48; State vs. Depass, 30 An. 487.

2. The accused charges that the jury which found the indictment against him was illegally drawn, because the drawing was made by three of the jury commissioners without the presence and co-operation of the clerk, a necessary member of the commission.

This point was well taken and must be sustained.

A careful consideration of Act No. 44 of 1877, regulating the manner of drawing juries, has satisfied our minds that the clerk is not only a necessary but an essential and indispensable member of the jury commission created under the provisions of that legislation.

Many, and by far the most important, acts to be performed during the operation of drawing a jury are imperatively required, under the law, to be done by that officer. The reasons of such a requirement are obvious.

The proper drawing of the jury is of vast importance to all persons who may be accused of crimes and offenses by a portion of the jurors thus drawn, and who may be tried by another portion of the same venire of jurors.

From the very nature of the proceeding, the persons so vitally interested in this operation cannot be directly represented and can have no voice in the proceeding.

Hence, the law jealously guards and protects the interests of the State and of the persons to be affected by the operation through rigorous rules to be strictly followed, under penalty of nullity.

Of the five members who compose the jury commission, the clerk is the only commissioned officer and the only member who is elected by the people, and who receives his mandate from the State directly, The other inembers'of the commission receive their mandates from the-Judge, and their tenure is subject to his will only.

Obviously, for those reasons, the law has entrusted the clerk with the performance of the most important and essential duties connected with the drawing of the jury, and we hold that such duties cannot he legally performed in his absence or by any other member of the commission, as is shown by the record to have been done in this case.

While the point in its present bearing comes up for judicial inquiry for the first time, the nature of the duties imposed on the clerk have already been judicially considered in several cases, in which tlieir importance, has been fully appreciated.

In passing upon the invalidity of the drawing of the jury, by reason of the failure of the clerk to have taken an oath as jury commissioner, this Court said, in the case of the State vs. Williams, 30 An. 1028: li What three of the commissioners might have done without the presence of the others, the whole commission could not legally do with the participation of the unsworn clerk.” “ His duties are the most responsible of those which devolve upon the said commission ; he makes, under its supervision, the proces verbal of its acts, the list of persons from whom the jurors are to be drawn, keeps a record of the drawing, showing the weeks for which the jurors are to serve, delivers to the sheriff, and publishes in the official journal, a list of their names.” * • * *

In the case of the. State vs. Thompson, 32 An. 879, involving the same point, we used the following language: The clerk is the most important member of the jury commission, and performs the acts which are of the essence of the proceedings.” * * *

, W.e are, therefore, forced to the conclusion that the drawing of the jury which disposed of this case was fatally defective, and that the indictment must he quashed.

This view of the case obviates the necessity of considering other-errors complained of by the accused as having' occurred during the progress of the trial.

It is, therefore, ordered that the verdict of the jury l>e set aside and the judgment of the court avoided and reversed; and it is now ordered that the indictment found against the accused in this case he quashed and set aside.

Dissenting Opinion.

Manning, J.

I do not think the clerk must be one of the three jury commissioners who are to select a jury. Doubtless it would be convenient that he should he, but it is not essential.

Tlie law prescribes that three members of the commission shall be a sufficient number to perform the duties imposed by this act,” and directs that the members of the commission or a majority of them” shall, etc. This appears to me to exclude the idea that a particular member must be one of the three.

And besides the statute- has a saving- clause which amply covers an irregularity of this kind, even it be conceded that it is.irregular :

“ No defect or irregularity in the drawing thereof or the summoning of the jury shall be sufficient cause (to challenge the general venire,' or set aside the venire) if it shall not appear that some fraud has been practiced, or great wrong committed in the drawing or summoning of the jury, that would work a great and irreparable injury.” Acts 1877,-p. 58. ...

Even were it less plain to my understanding, I should hesitate to adopt a construction on a matter of detail which will in all probability upset uiany criminal prosecutions now pending, and there is no suggestion that a fraud has been practiced, or great wrong committed that would work, or has worked, irreparable injury to the prisoner.

Experience demonstrated that numerous indictments were quashed in consequence of a similar ruling in State vs. Williams, 30 Ann. 1028, upon another detail of the same statute, and I fear a like result of the construction now made,

Fenner, J., concurs in this opinion.


text:
    No. 8570.
    Mortimer Edson vs. The Merchants’ Mutual Insurance Co.
    The condition in a policy of insurance that claims thereunder shall be barred, unless j udicially prosecuted, within one year from the date of loss, is legal and not violative either of ex-, press provisions, or of the policy, of the law of prescription of this State.
    The fact that plaintiff was arrested and prosecuted for arson, especially when such prosecution was not at the instance of defendant, furnishes no excuse for non-compliance with such condition,
    APPEAL from the Civil District Court for the Parish of Orleans. J.

      T, A. JBartlette for Plaintiff and. Appellant.

      T. II. Kennedy for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

This is a suit upon two policies of insurance, which. contain the following express condition : All claims under this policy are barred unless judicially prosecuted within one year from the date of loss.”

• Tlie loss here claimed occurred on the 23d and 24th of December, 1879. Suit was nob brought until December 1st, 1881. The petition contains no explanation of or excuse for the delay.

The Company, by way of peremptory'exception, pleaded the above condition in bar of the action.

The only evidence consists of certain admissions to the effect that the plaintiff was arrested on charge of arson on the night of the fire; ■ sent before the Criminal Court without bail; tried twice, in May and in June, 1880,,the jury each time failing to agree; released on bond July 23d, 1880; and finally discharged by entry of nol. pros., May, 1881. ' • .

There is no suggestion that the defendant had anything to do with, his arrest • or prosecution; and it appears from the above that he was released from oustody several months prior to the expiration of the term within which the condition of the policy required suit to be brought. ■ These facts dispose of the suggestion that the breach of the condition was due to any fault of defendant or to any vis major.

See on this questiou McCall vs. Ins. Co., 33 An. 142.

The objections that the condition is void because contrary either to the express provisions, or to the policy', of the law of prescription of this State, are untenable. It does not violate either Arts. 3460 or 3470 of the Civil Code.

Such conditions have been heretofore enforced by this Court. Carraway vs. Ins. Co., 26 An. 298.

The question' has been exhaustively considered and decided in the same sense by the Supreme Court of-the United States, quoting numerous authorities and decisions and disposing of the very points here urged. Riddleberger vs. Hartford, 7 Wall. 288.

The exception was properly sustained.

Judgment affirmed at appellant’s costs.


text:
    No. 8804.
    Susan Dalton vs. Robt. C. Wickliffe.
    In an action for slander of title the verity and sufficiency of plaintiff’s title is not at issue. The action admits of three defenses: l&t, denial of plaintiff’s possession 5 2d, denial of the slander; 3d, admission of the slander. In the last case, if the admission of the slander he unaccompanied with averments of better title in defendant, the judgment shall be one Ordering the latter to bring suit within delay fixed and establish his pretensions; but if the defendant accompany his admission with averments of his own title, the court may proceed to investigate said title in the same action, in which case defendant becomes the actor, with the omts on himself, and bound to succeed on the strength of his own title, and not on the weakness of his adversary’s.
    An exparte order of a court recognizing a party as testamentary heir of an absentee and putting bim in possession as such, is not res judicata as to third persons, and may be collaterally questioned when offered as the title in virtue of which property is claimed and the rights of third persons sought to he disturbed. A party claiming .as testamentary heir must find his rights in the will, and not in the exparte order of a court.
    The will iu this case, under which defendant was recognized and put in possession as testa* mentary heir, is a nullity on its face, being one by public nuncupative act, and containing no express mention that it was received, or dictated by the testator, or written down by the notary, all in the presence of the witnesses. Moreover, under the terms of the will itself, defendant is not testamentary heir, having been constituted such only on conditions which have never happened, and cannot, iu the nature of things, ever happen now.
    Defendant having thus failed to establish title in himself personally, or in any representative capacity of W. M. Dalton, his defense fails without the necessity of determining what would be the rights of Dalton or his legal representatives.
    APPEAL from the Fifteenth District Court, Parish of West Feliciana. Yoistj J.

      Farrar <& Montgomery and W. W, Lealcc for Plaintiff and Appellee:
    Courts have power, in their discretion, to determine whether a paper filed in a suit styled a peremptory exception shall be considered as an answer to the merits. 5 An. 41; 20 An. 428; 32 An. 613.
    In an action for slander of title, the defendant, by setting title in himself to the property, stands in the position of a plaintiff in a petitory action, and must make out his case on the strength of his own title, and not on the weakness of his adversary’s. 32 An. 613, 698; 33 An. 249.
    A nuncupative will, by public act, must be dictated and written down by the notary as dictated, in the presence and hearing of the witnesses; it must show on its face that all the formalities prescribed by law have been strictly complied with, otherwise it will he declared null and void. 20 An. 202; K. O. C. 1578; 11 An. 108; 25 An. 85, 479, 663.
    An exparte order of court recognizing one as heir of a deceased person, and putting her iu possession of 1ns succession, lacks the essential elements of the thing adjudged, and cannot be pleaded as res adjudicada. 25 An. 85; 34 An , Succession of Lampton.
    One who has been in actual and undisturbed possession of real estate for a year and a day, can maintain an action against a mere intermeddler without title. C. P. 47; 32 An. 698.

      G. Tj. Fisher and It. K. Howell lor Defendant and Appellant:
    The exception of no requisito possession in plaintiff should have been tried and sustained where ownership by prescription of thirty years is claimed; a possession of less .than that time renders the party a naked possessor or trespasser, who cannot take advantage of any defects in the other party’s title, which need only be apparently good and of date prior to such possession. 15 An. 76, 454. And this possession must he uninterrupted.

      Lessee oannot acquire title by prescription.
    A slave, under tbo Code of 1825, was incapable of acquiring title to real property by possession or otherwise. C. C. 175. His or her possession was that of the master. Hor could a slave make'any kind of a contract. C. 0.176. ■
    Title taken ])y a curator of .an absentee, in pursuance of an agreement between tlie vendor and absentee, is valid, although the curator may not have taken the oath and given bond.
    Tlie appointment of one, named universal heir, as provisional possessor of an estate of an absentee, ¡cannot be attacked l>y a naked possessor, on the ground that the will is null in form, or its dispositions are without force and effect.
    Being an administrator only of the estate, his appointment oannot be attacked collaterally. Appointment of an administrator of a succession cannot be attacked collaterally. 26 An, 595; 28 An. 807.
    Citation of heirs and appointment of attorney for absent heirs not necessary -in making appointment of provisional possessor of estate of an absentee.
   The opinion of the Court was delivered by

Fenner, J.

This is an action for slander of title, otherwise termed a jactitation suit. , .

Plaintiff avers that she has had peaceable and undisturbed possession of tlie immovable property in-controversy, as owner, for over thirty years, and that defendant, since December, 1880, has slandered her title, declaring himself to he the owner, causing her tenants to refuse to pay her rents, and otherwise injuring her.

Defendant filed exceptions to the effect: li 1st, that plaintiff has not that possession which is required to maintain this action ; 2d, that defendant is the legal possessor and oannot be sued in this form of action.”

These exceptions were referred to the merits, of which action of the court the defendant complains. His complaint is unfounded. The matter of the exception is obviously defensive to the merits and involving issues of fact on which the plaintiff would have been entitled to trial by jury. Had the exceptions set up that the petition did not set forth such possession as is required to maintain the action, the case would be different. Authorities quoted from 11 An. 174, and 14 An. 849, where separate trial of exceptions, such as those here presented, was had, in absence of objection, have no application.

Defendant then answered, reiterating the substance of his exceptions, admitting the slander of plaintiff’s title, and setting up title in himself through Wm. M. Dalton, the nature of which will be hereafter stated.

Though not specifically regulated by our Codes, the nature, objects and requisites of the action of slander of title have’been fully settled by our jurisprudence.

The object of the action,” said Judge Porter, is to protect possession ; to give it the same advantages when disturbed by slander, as by actual intrusion ; to force the defamer to bring suit, and to throw the burthen on him of proving what he asserted.” Livingston vs. Heerman, 9 Mart. 714.

The action admits of three responses: 1st, a denial of plaintiff’s possession ; 2d, a denial of the slander; 3d, an admission of the slander. In the last case, if he simply admits the slander, without setting-up specific title in himself, the appropriate judgment is one ordering him to bring suit and establish his pretensions. Proctor vs. Richardson, 11 La. 188; Packwood vs. Dorsey, 4 An. 90.

But, if the defendant, after admitting the slander, avers a better title in himself, the court need not order a new suit, hut may investigate and pass upon his title, in which case he assumes the position of. actor, with the onus on himself, and dependent for success on the strength of his own title, and not on the weakness of his adversary’s. Proctor vs. Richardson, 11 La. 188; Short vs. Methodist, 11 An. 174; Clarkston vs. Vincent, 32 An. 613; Gay vs. Ellis, 33 An. 249.

In the instant ease, defendant relies on two defenses : 1st, denial of plaintiff’s possession ; 2d, averment of better title in himself.

I.

.As to the fact of plaintiff’s possession, it was not necessary for her, as claimed by defendant, to establish a possession thirty years, sufficient by itself to create prescriptive title. Her title is not at issue, ex, cept so far-as it may be destroyed by the establishment of abetter ■title in defendant. The evidence conclusively establishes that, for many years prior t.o December, 1880, she had occupied and possessed the property animo domini, living thereon, paying taxes; leasing and collecting the rents, making- improvements and exercising all powers of ownership, without disturbance from any source.

This is sufficient to maintain her suit, unless it be proved, as averred by defendant, that about the date above mentioned and prior to the institution of, her suit, she had voluntarily relinquished her possession, and acknowledged defendant’s adverse right to possession and owner, ship.

. On tills point the testimony is directly in conflict. Considering that it has been weighed and determined in favor of plaintiff by the District Judge; that she has continuously occupied the property, and that there has been no physical change of possession; that she collected the rents up to January 1st, 1881; that, although her tenants had accepted a lease from defendant from that date, she had, thereafter, continued to demand the rent from them, and had actually brought suit therefor, which suit was tried contradictorily with defendant, who was called in warranty, and was decided in her favor, we can find no warrant for disturbing the conclusion of the court a qua on this point.

In view of the above considerations, defendant’s impressions and recollections of an oral interview with plaintiff, sincere as we know them to be, are not sufficient to establish such a perfect aggregatio mentium as would be necessary to support so important a transfer of valuable rights.

II.

In support of his own title defendant claims that title was in one H. C. Hill, prior to December, I860; that, at that date, Hill sold it to W. M. Dalton, who was, at that time, an absentee, and who was represented by John C. Nibling, judicially appointed as his curator, the title being accepted by said curator.

He further exhibits a certain judicial proceeding had in December, 1880, entitled, ‘‘ In the matter of the absentee, Win. M. Dalton,” wherein the defendant presented a petition to the court, representing the continued absence of Dalton; that he had no children, parent, brother, sister or other near relative; that he had executed a will by public nuncupative act, wherein the defendant had been constituted and appointed sole heir and universal legatee; that he, defendant, was desirous of being put in provisional possession of his estate and of having an inventory and appraisement made thereof; and be, therefore, prayed that such inventory and appraisement be made; that, upon giving bond and security, he be placed in provisional possession of the estate, to enjoy the said property and exercise all the rights' therein and therefrom arising accorded him by law. The will was produced and proved; the allegations of the petition were verified by ex-parte affidavits, and a judgment was rendered, recognizing defendant as sole heir and universal legatee, with seizin, and putting him in provisional possession. To this title of defendant the plaintiff opposes three objections, viz:

1. That the transfer from Hill to Nibling was inoperative because, although the latter was appointed curator, he never caused an inventory to be made, never qualified by taking oath or giving bond as required by law, which were conditions of his appointment imposed not only by the law, but by the express terms of the order itself.

2. That the will, by public nuncupative act under which defendant claims, is null and void for want of observance of the formalities prescribed by law, because express mention is not made that the will was received by the notary, dictated by the testator and written by the notary, as dictated—all in the presence of the witnesses, as required by Art. 1577, Rev. C. C.

• 3. That, under the terms of the will itself, the defendant was not constituted sole heir and universal legatee, except upon- conditions which never happened and never can happen, and that he derives no interest whatever from the will, except as executor.

Waiving the first objection, we consider the two last fatal.

William M. Dalton, in whose right defendant claims, is an absentee, and not, in the eye of the law, a dead man. Defendant does not claim to be his curator.

The law recognizes the right of no other persons to be put in provisional possession of the estate of an absentee, except his presumptive or his testamentary heirs, or husband or wife. Except by the appointment of a curator, the decree of a court putting any-other than the persons above mentioned in possession of the estate of an absentee,' would be an absolute nullity for want of jurisdiction rations materia.

Defendant does not pretend to be a presumptive heir. He claims to be the testamentary lieir. He presents an order or judgment of court recognizing him as such. But such judgment is exporte and has not the force of res judicata. It is well settled that judgments of this character may even be questioned collaterally, when offered as the title in virtue of which property is claimed and the rights of third persons sought to be disturbed. Sophie vs. Duplessis, 2 An. 724; Succession of Duplessis, 10 Rob. 193; Arston vs. Arston, 15 An. 137; Fuentes vs. Gaines, 25 An. 86.

The rights of defendant, as testamentary heir in provisional possession, certainly are not greater than if he claimed as testamentary heir', under the will of a dead man.

We are bound to find his rights, if they exist, in the will and not in an ex parte order of a court.

.■ The will is clearly defective in the respects heretofore mentioned. There is entirely wanting therein any express mention that the will “was received” by the notary, or was “dictated by the testator,”-or “ written by the notary” in the presence of the witnesses. G. C. 1578; These defects are fatal, under Art. 1595, as has been expressly held in a case entirely parallel. Devall vs. Palms, 20 An. 203.

• -It is equally clear that defendant is not testamentary heir under the terms of Dalton’s will. That will was executed in the days of slavery,’ and contained provisions for the emancipation of certain slaves. It was only on condition that his legal heirs should oppose the execution of those provisions that defendant was to become his instituted heir; That event, in the nature of things, can never happen. Defendant; .having failed to establish any title as testamentary heir, or otherwise, to the provisional possession of Dalton’s estate, in whose right he claims, we are under no necessity of determining what would be the rights of Win. M. Dalton or his legal representatives.

We have found no necessity for stating the particular facts of tills case, but they lead ns to doubt that Dalton, if alive, would question the rights of plaintiff, and make us the more particular in requiring clear representative capacity in anyone who acts in his right.

Judgment affirmed.


author: JPoché, J.

text:
    No. 8802.
    T. O. Meaux vs. W. B. Pittman et als.
    In an action on an injunction bond famished to stay execution of an order of seizure and sale, the damages provided for by Article 304 of the Code of Practice, which arc punitory in their character, cannot be allowed. In such an action only specially alleged damages can be recovered.
    In such cases, however, counsel fees for the dissolution of the injunction may he allowed, even when not proved to have been paid; it suffices that the liability therefor has been incurred.
    An exception that the action is premature is dilatory in its character, and must ho pleaded in limine.

    APPEAL from the Eighth District Court, Parish of Madison., Felony, J.
    J. 0. Seale for Plaintiff and Appellee:
    1. In a suit for damages on an injunction bond, if the record shows that the equitable remedy of injunction has been abused and the administration of justice has been trifled with, then, and in such case the, court will assess against such party the highest damages allowed by law. 23 An. 799. '
    2. There is no doubt that the decree for the issuance of the executory process is a final judg* , menfc, exhausting the power of the court quoad the application, leaving nothing to he decided and no contest or issne between the parties. 32 An. 406, Meaux vs. Pittman.

      Walton Farrar, F. D. Farrar and Alf. B. Pittman for Defendants and Appellants.
   The opinion of the Court was delivered by

JPoché, J.

This is an action for damages against the principal and his surety on an injunction bond, and is predicated on the following facts and proceedings:

As holder of several promissory notes secured by- mortgage and vendor’s privilege on a plantation owned by tbe defendant, Pittman, plaintiff sued out executory process against the mortgaged property ihi ISiovember, 1879.

• On showing that he was a resident of. the State .of Mississippi,-, defendant obtained an order of removal of the case to the United States Circuit Court, District of Louisiana, which order was, on appeal to this Court, reversed and set aside. See Meaux vs. Pittman, 32 An. 405.

Whereupon the defendant then instituted, in the District Court of Madison, a suit for the purpose of enjoining the seizure and sale of his property, and on Lis motion, that suit was removed to the United States Circuit Court, where his injunction was subsequently dissolved, and the seized property was thereafter sold by the sheriff of Madison Parish.

Plaintiff now seeks to recover as damages ten per cent, on the amount of his claim, twenty per cent, on the same as general damages, and counsel fees incurred in the proceedings for the dissolution of the injunction, which he values at five hundred dollars.

The defense is a general denial, followed by a special denial of the right of plaintiff to claim statutory damages for the dissolution of an injunction staying an executory process.

With the exception of his claim for attorney’s fees, incurred for services in the motion to dissolve the injunction, plaintiff’s petition discloses no special damages on account of the injunction, and it is evident that the damages which he claims are those provided for in Article 304 of the Code of Practice.

Defendant’s proposition under his answer is, that none of the provisions of that Article apply to an action for damages alleged to have been caused by an injunction staying the execution of an order of seizure and sale, but refer exclusively to cases growing out of an injunction of a judgment, as contradistinguished from a writ of executory process, which contains but few of the features and elements of a judgment.

As a new question, defendant’s proposition might be met with very strong arguments, but his position is sustained by several recent decisions of this Court, under which the distinction invoked by him has been sanctioned and authorized, and must now be considered as firmly settled in our jurisprudence. Dejean vs. Hebert, 21 An. 729; Thompson vs. Lemelle, 32 An. 932; Burgess vs. Gordy, 32 An. 1296; Testard vs. Belot, Opinion Book No. 55, p. 241; Hodgson vs. Roth, 33 An. 941.

.The rule established under the authorities is, that not only the damages, punitory in their character, allowed under Art. 304, Code of Practice, cannot he granted in the same, judgment which dissolves an injunction of an order of seizure and sale, but that, in sueh cases, these damages of ten per cent, interest on the amount of the judgment, and twenty per cent, on the same as special damages, cannot be recovered even iu a separate action on tlie injunction bond. In such eases the recovery must be predicated on allegation and proof of special damages as the result of the injunction. Hence, there was error iu the judgment allowing ten per cent, damages to plaintiff on the amount of his original claim against the defendant.

2. Defendant’s next proposition is, that counsel fees cannot be allowed when not proven to have been actually paid.

On this point, which has been frequently considered in our courts, we find a slight conflict of opinion in our jurisprudence. But, after a serious examination and comparison of numerous opinions, we find the preponderance of authority in support of the proposition that, in such cases, counsel fees, though not shown to have been actually paid, may bo allowed; it suffices that the liability therefor be incurred.

In the present case the value of the attorney’s fees incurred in the proceedings for the dissolution of the injunction has been established and proved by competent testimony. Pargoud vs. Morgan, 2 La. 102; Ricard vs. Hiriart, 5 La. 246; Hereford vs. Babin, 14 An. 333; Brown vs. Lambeth, 2 An. 822; McRae vs. Brown, 12 An. 181. Hence, we find no error in that part of the judgment which allows to plaintiff counsel fees in the sum of three hundred and fifty dollars. It is supported by evidence of the nature and of the value of the services rendered.

In a brief filed since the oral argument of this case, defendant suggests the point that, in the absence of any allegation of the final determination of Pittman’s injunction suit in the Federal Court, a suit for damages is premature, and hence, the present action cannot be maintained. It is obvious, as an elementary proposition in our system of practice, that this objection, which is at most a dilatory exception, should have been specially pleaded and should have been made in limine. After an answer joining issue on the merits, this defense is always considered as waived. This conclusion is irresistible when the point is suggested for the first time in a brief filed after submission of the cause on appeal.

The judgment of the lower court is therefore reversed, in so far as it allows ten per cent, as damages on plaintiff’s original mortgage claim against defendant, for which damages and for the additional damages of twenty per cent., plaintiff’s demand is rejected; and it is ordered that said judgment as thus amended be affirmed, costs of appeal to be paid by plaintiff, and costs in the lower court by defendant.


text:
    No. 8788.
    Succession of Meredith Calhoun.
    Where the only stipulated condition in an appeal bond is that, if the appellant shall well and, truly pay, or cause to be paid, all such damages as the appellee may sustain in case it should he decided that the appeal was wrongfully obtained, the obligation is to be void, or else to remain in full force and virtue iu law; tbe bond will not be considered as given under tbe law regulating tbe form and substance of appeal bonds.
    The bond herein furnished is worded as are those required for conservatory writs.
    Ko legal bond having been given, the appeal is dismissed.
    APPEAL from the Twelfth District Court, Parish of Rapides. Bar-bin, J.

      Bold. P. Hunter for the Administrator, Appellee :
    1. An appeal bond is fatally defective if it does not contain -the condition that “ appellants shall prosecute the appeal.” Art. 579, C.P ; 33 An 421; 27 An. 645; 2 An. 1013.
    2. The omission of such a condition cannot be supplied by intendment, nor can the surety’s liability be extended to it. 3 An. 685; 9 An. 423; 10 An. 155.
    3. The condition is material. 2 An. 1013; 33 An. 421.
    4. Suspensive appeal bond must conform to Arts 575 and 579, C. P.

      Jos. P, Bor nor and F. W. Baker, contra.

   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

Tbe appellee assigns numerous reasons in justification of bis motion to dismiss, wliich are all levelled at the bond furnished by the appellant.

It suffices to consider one of them.

The appeal is taken from a . judgment appointing an administrator, and is necessarily devolutive. C. P. 580.

The bond required was then to he furnished under the provisions of Article 579, C. P., which relates to all appeals.

It contains as the condition on which it is signed by the surety, that if the principal “ shall well and truly pay, or canse to be paid, all such damages the said * * * administrator may sustain in case it should be decided that the said appeal was wrongfully obtained, then and in such case, the above obligation to be null and void, otherwise to be and remain in fall force and virtue in law.”

However much it may be claimed that judicial bonds are to be construed with reference to the law under which they are given, and that any clause which is superadded must be rejected, and any that is omitted, supplied, it surely cannot be insisted that where the surety on a judicial bond has bound himself in a particular contingency only, he can be held liable in other contingencies. 4 An. 3.

Tested by this general rule, however, the bond in this case is in no way responsive to the requirements of Article 579 of the Code of Practice, under which it should have been given.

The condition of this bond is that which the Code of Practice requires from litigants invoking conservatory writs for the protection of parties against whom they issued, to pay such damages as may be sustained in case it be decided that the writ was wrongfully obtained. C. P. 214, 276, 304.

The surety in this case has only bound himself to pay such damages as the appointed administrator may sustain in case it should be decided that the appeal was wrongfully obtained.

It is difficult to conceive how the contingency provided for can ever arise at all. The su'rety has not bound himself to pay the costs of the litigation. In the absence of such obligation no recovery could be had against him for the same.

The bond should have been given as prescribed by Article 579, C. P. As it was not framed accordingly, but formulated under different Articles, it is no valid bond in law.

It is, therefore, ordered that the appeal be dismissed with costs in both Courts.


text:
    No. 8840.
    The Mechanics’ & Traders’ Insurance Co. vs. Temple S. Coons.
    The holder of a check, in order to recover against the drawer, must prove due presentment and notice of non-payment, or some legal excuse for the absence thereof.
    Where there is no evidence on these points, he will be non-suited.
    Where a note signed by an agent, whose authority is denied, and containing the endorsement of sundry credits, is received in evidence without objection, and the authority of the agent is established by his own testimony, the credits will serve as corroborating circumstances in support of his evidence, in absence of explanation of the same.
    APPEAL from the Eighth District Court, Parish of Madison. Delony, J.

      A- L. Slack for Plaintiff and Appellee.

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

Fenner, J.


text:
    No. 8738.
    The State of Louisiana ex rel. Unbehagen vs. F. A. Nephler, Justice of the Peace, Parish of East Baton Rouge.
    In an application for a certiorari, wherein it is not charged that the .fudge arbitrarily refused to admit legal evidence, this Court will not pass upon the correctness of his action. He' had the legal power to admit, or reject evidence, and he has exercised it in the form pointed out by law.
    The Supreme Court, iu the exercise of its supervisory powers over inferior courts, will not transform itself into a court of appeal, for the revision of the rulings of such courts.
    Where a court renders judgment in favor of a plaintiff and does not expressly pass upon a re-' conventional demand, the omission to do so is equivalent to a rejection of such demand. • Where it is charged that a justice’s court has illegally, but not arbitrarily, refused to issue its process on a call in warranty, tbe error, if any, was committed in the exercise of a legal discretion, alud is not revisable in this Court in any form.
    Application for a Certiorari.

      Burgess & Burgess (& Bussell and B. W. Kniclcerboolcer for the Relator.
    -The Respondent impropria persona.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a certiorari.

The relator charges that in two suits for rent brought against him before the Justice, defendant herein, he was illegally condemned to pay $7.50 in the first, and $10 in the second ; that in the trial of both cases he offered to prove payment by receipts in his possession, which the Justice refused to permit him to introduce in evidence. He further complains that, in an ejectment suit, he offered-an answer containing a reconventional demand and a call -in-warranty; but that tbe Justice refused to receive such answer and to issue tbe process of tbe law in accordance.

In answer to the mandate issued herein, the Justice has transmitted to this Court the proceedings had before him in those cases, and lias made a- return, explanatory of his conduct in tbe premises.

I and II.

It does not appear that the relator, in the two suits for rent, had pleaded payment, which is a special defense. Had he done so, he does not allege that the Justice has arbitrarily refused to admit the receipts iu evidence. This was necessary. The receipts appear to have been filed. The Justice, besides, states tbe reasons for wbicb be did not consider tbat they showed payment.

In the case of tbe State ex rel. Wallace vs. Judge Second City Court, N. R., O. B. 56, fo. 854, and which had reference to the ejectment of a tenant, we said, and we adhere to the views then expressed: ,

“ The relatrix does not charge that the City Judge has arbitrarily refused to hoar her witnesses. C. P. 857, * * Un$er the showing made, the City Judge was vested with jurisdiction and had authority to decide whether the testimony offered was or not admissible. He has rejected it, assigning reasons in support of his ruling. It may well be that he has erred, or that he has correctly decided. However that may he, we cannot review his ruling. We have not «infrequently held, that in applications for a certiorari we would not inquire into and pass upon them¿rí«s¿e correctness of the action of an inferior court, hut would only determine of the extrinsic regularity and validity of the proceeding. Vide 33 An. 1225; 33 An. 16, and other cases. * * *

The City Judge appears to have exercised a legal discretion on a subject over which he had jurisdiction. We cannot transform this Court into a court of appeal, for the revision of rulings of inferior courts in cases in which no appeal lies.”

III.

The complaint that the answer offered in the ejectment, suit was not , received, is contradicted by the filing ou the back thereof, and the note of the same made in the memoranda of proceedings before the Justice, and made by him.

The answer contains a denial of plaintiff’s right to eject the defendant, averments of damages sustained, to tlie extent of $100, and a call in warranty.

The Justice had jurisdiction over the subject matter involved in the case, as presented by the parties. It is true that he rendered judgment ejecting defendant, without passing on the reconventional demand, but such omission amounts to a rejection of the demand. If he erred in refusing to issue process in the call in warranty, the error was committed in the exercise of a legal discretion, and is not revisahle in this Court, in this or any other proceeding.

It is, therefore, ordered and decreed that the application he dismissed, and that the proceedings transmitted to this Court be returned to the Justice who sent them up, and that relator pay costs.