text:
    No. 998.
    Mary A. Querin, Administratrix, vs. E. Carlin.
    Where a natural tutor, without authority from the court, borrows money for his own account and in his individual name, and expends the money on improvements of a plantation owned in common by him and his minor children, but which improvements were for the use and benefit of a planting partnership in which the minors had no interest, the minors can not be made liable for the borrowed money to the lender of the same.
    And a subseauont mortgage of the minors’ property to secure such a debt will not be binding, although authorized by the proceedings of a family meeting homologated by an order of court.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Fontelieu, J.

      Fred. Gates for plaintiff and appellee.

      D. Caffery for defendant and appellant.
   • The opinion of the court was delivered by

Spencer, J.

E. Carlin owned in common with his eight minor children a tract of land in St. Mary parish; said children owning one half, in right of their deceased mother.

In 1870 Carlin entered into a contract of partnership with Felix Birg, to cultivate this land ; Carlin agreeing to furnish the land and supervise the cultivation ; Birg to advance the money for that purpose, without interest, etc. It was further agreed that “all buildings, including the sugar-house and its appurtenances, and fences are to be built at the expense” of Carlin.

It seems that Carlin, from time to time, obtained money from Birg which he used in whole or part in building the sugar-house, and other improvements on the land, until, in May, 1871, the loans by Birg to Carlin amounted to several tho usand dollars. Birg.became uneasy about the debt, and insisted that Carlin should give him a mortgage to secure it, not only on his own half of the property, but upon that of his minor children, of whom Carlin-was natural tutor.

Carlin, thereupon, presented a petition to the. probate court, setting out that he owned this property in common with his children; that he had borrowed money from Birg, and expended the same in improving the place, thereby benefiting said minors, and had given Birg his notes therefor. He prayed the convocation of a family meeting to authorize and advise his securing said debt to Birg by a mortgage of the whole property, including thstt of the minors.

The family meeting was convened, and so advised. Their deliberations were homologated, and Carlin executed the mortgage accordingly, to secure his notes for $8500 given to Birg.

This suit is brought by Birg’s administratrix against Carlin to enforce that mortgage. The under tutor of some of the minors, and others of the said children arrived at majority, intervene and oppose the plaintiff, In so far as she seeks to enforce her claim on their half of the property, alleging that they owed Birg nothing, and that the mortgage was granted Illegally and without consideration as to them; that the debt was that of their father and not for their benefit, etc. There was judgment for plaintiff, and intervenors and defendant appeal.

There is no doubt that Birg loaned Carlin money, and that considerable sums of this money were expended by Carlin in putting up a sugar-house and other improvements upon the common property. But it is not pretended that in borrowing money from Birg he acted as tutor, or in the name or behalf of his minor children, or that he had any authority whatever from the court so to do. These loans were effected in his own name, from his partner, to carry out his own obligation to put certain improvements upon the property put by him into the partnership. There is no pretense that Birg loaned the money to him •as tutor, or on the faith or credit of the minors.’ This planting partnership was an affair in which the minors had no interest or concern, and were in no way to be profited. It was a speculation of Carlin and Birg’s, and the sugar-house was put up that they might profit by it. It was only after disaster stared them in the face that they bethought themselves of saddling half this debt on the minors. Carlin owed Birg. The minors owed Birg nothing. They may or may not owe their tutor ; that will depend upon the extent to which their property has been enhanced in value, and upon the state of accounts between them and their tutor. There is evidence in this record tending to show that their tutor owed them largely' — far more than they could ever owe him for these improvements of their property. It being clear, therefore, that the minors owed Birg nothing, and rendered more than probable that their father owed them far more than would re-imburse Mm for useful improvements, there was no foundation or basis for a mortgage upon their property. They could not be thus made security for his debt to Birg. The law does not allow such a transaction between a tutor and his wards. Even if the ward owes the tutor the latter can not enforce the debt until the tutorship expires. What he can not do himself he can not do by interposing his creditors, or by subrogating them to his rights. The very best phase that can be put upon the facts of this case for plaintiff, would be that the minors owed Carlin, and that he owed plaintiff. But, as we have seen, a tutor’s rights are not executory against the minors pending the tutorship, and can only be ascertained and become executory on final settlement of the tutorship.' Besides, it does not follow that because a tutor has expended a given amount of money in constructing buildings upon bis wards’ property that, therefore, he is to be credited with that amount. The expenditure must be useful and beneficial. It is easy to see that a minor’s estate might be absorbed and swallowed up by injudicious and unauthorized improvements beyond his means and ability to pay. Such improvements, while costing thousands, might in reality bankrupt instead of enhancing his fortunes. Once admit the right of a tutor to “improve” ad libitum, and there is an end of protection for the ward. Upon the face of the tutor’s application in this case, the family meeting and the court should have refused the authority to mortgage the minors’ property. Even when the forms of law have been complied with, courts will look behind them to protect minors from loss in matters of contract. C. C. 1866 and 1867. Those who deal with minors must, at their peril, be prepared to vindicate the bona Udes and justice of their demands.

It is therefore ordered, adjudged, and decreed that the judgment appealed from, in so far as it rejects the demands of intervenors and subjects their half of the property in question to plaintiff’s debt and mortgage, be annulled, avoided, and reversed; and it is now ordered that the opposition of intervenors be sustained, and that they have judgment against plaintiff, and that their half of said property be decreed not subject to the debt and mortgage asserted by plaintiff.

It is further ordered that intervenors recover of plaintiff the c ists of their intervention in both courts. That in other respects said judgment is affirmed. t


source: Caselaw Access Project

author: Manning, C. J.

license: Public Domain

text:
    No. 1011.
    The State vs. Sarrazin Baker.
    The State has a right to ask the jurors in a criminal ease, whether they have conscientious scruples against finding a verdict which would entail capital punishment.
    A witness in a criminal case may be recalled, even after he has been examined and cross-examined.
    ■On the trial of an accused for murder no specific act of the deceased, unconnected with tho killing, is admissible in evidence.
    The crime of manslaughter is prescriptible in one year from its commission.
    'The entering of a nolle prosequi by the State’s Attorney, on a motion to quash an indictment amounts to a voluntary abandonment of the prosecution, in which case the indictment will not have the effect of interrupting prescription.
    APPEAL from the Sixteenth Judicial District Court, parish of Lafayette. Mouton, J.

      Joseph A. Gharcjois, District Attorney, for the State.

      M. E. Girard for defendant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Manning, C. J.

The State moves to dismiss this appeal for diminution of the record. The missing papers have been brought up in a supplemental transcript. The defendant would have the right to a certiorari to complete the record, but he has saved the Court and himself time in •supplying what is missing, and there is no pretence that these are not the papers which would come up in answer to a certiorari.

The motion to dismiss is denied.

On the Merits.

Upon an indictment for murder the defendant was convicted of manslaughter, and sentenced. His appeal is based upon three bills of exception, and the plea of prescription, the latter being filed in this ■court.

1. Three jurors, answering upon their voir dire, were asked if they had conscientious scruples against finding a verdict which would entail ■capital punishment. The prisoner objected to the question, but the Court allowed it, and the Court was right. The State has as much a right to a fair and unbiassed trial as has the prisoner. The State is vitally interested not only that offenders against her laws shall be punished in some way, but that they shall be punished in the way she has prescribed, and she has the right to know of a juror whether he has already determined not to punish in one of the modes she has provided, under the pretext of a tenderness of conscience which yearns towards the criminal and not to society. The question was properly permitted to be asked. State v. Melvin, XI Annual, 535. State v. Nolan, 13 Annual, 276.

2. Before the State had closed its evidence, a witness was recalled who had already been examined and cross-examined. The prisoner objected to any further examination of this witness, but the court allowed it.

This practice has obtained too long to be disallowed now. State v. Duncan, 8 Rob. 562. State v. Colbert, 29 Annual, 715.

3. The prisoner offered his mother as a witness to prove that the deceased had attempted on the day before the homicide to have carnal knowledge of her against her will. The State objected on the ground that evidence of character of the deceased is inadmissible.

The objection to the testimony 'is not put on the proper ground. The evidence was'not of the character oE the deceased, but of a specific act done by him, and its object was doubtless to shew that it was an incentive or inducement to the commission of the homicide, but there is nothing to connect it with that act. In the oft repeated language of the books, it did not form part of the res gestae, and was properly excluded.

Last, as to the plea of prescription.

The offence of manslaughter is prescriptible in one year. The homicide was committed on June 7,1871, and a bill was found in October of the same year. A motion to quash was made by the prisoner, and a similar motion having been sustained in other cases, a nolle pros, was entered on April 22, 1874 On the same day the Grand Jury found another bill, and on another motion to quash being made July 26, 1875, another nol. pros, was entered in October following, and immediately thereafter a third bill was found, and under it the conviction was obtained.

The State contends that there was not a voluntary abandonment of the prosecution under the first bill. The court had sustained a similar motion to quash in other indictments against other prisoners, and the District attorney therefore entered a nol. pros, in this without provoking a decision upon the motion in this case. He should have had the court to rule on the motion of the prisoner in this case.

But when the motion to quash the second indictment was made, the State again entered a nol. pros., and this time solely because the prosecuting officer was satisfied it would be sustained. Here was a voluntary abandonment of the prosecution, and the plea of prescription, interposed by the prisoner, is effectual for his protection.

TVe are referred to the State v. Cason, 28 Annual, 40, where the doctrine is broadly asserted that, if the prosecuting officer finds that the indictment is defective, he can enter a nol. pros., and proceed under a new indictment, although more than a year has elapsed from the commission of the crime to the finding of the new bill. We are.constrained to overrule that decision, since it does not accord with the established rules in criminal procedure. The opposite doctrine was asserted in State v. Thomas, 29 Annual, 301, and we reaffirm it.

We are asked by the State to remand the case, in the event we shall hold the plea of prescription to be good, and we shall take that course to enable the State to shew acts, or proceedings, or other matter, which may have interrupted prescription, or avoided its effect. Therefore

It is ordered and adjudged that the verdict of the jury is set aside, the judgment of the lower court thereon is avoided and reversed, and the cause is remanded to be proceeded in, and for a new trial of the prisoner, who is ordered td be retained in custody to await the same.


author: Spencer, J. Manning, C. J.

text:
    No. 981.
    Honoré Mêche et al vs. D. Lalamie, Administrator.
    Before the creditors, or -the administrator of a deceased vendor who has sold certain real estate by an act under private signature, can annul the act as simulated, it must appear that it injured the creditors, and that their debts existed before the execution of the act.
    The oath of an intervenor, going to show the nature and amount of his claim, is not admissible in evidence when filed for the first time in this court.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Hudspeth, J.

      A. Bailey for plaintiffs and appellees.

      Jas. M. Moore for defendant and appellant.

      Jno. H. Ogden and Kenneth Baillio for intervenor.
   . The opinion of the court was delivered by

Spencer, J.

Plaintiffs in this suit, the children and heirs of Hypoite Méche, deceased, late of the parish of St. Landry, alleging themselves, as heirs aforesaid, to be.owners of certain movable property in the possession of defendant, as the administrator of the estate of one Thomas Moore, deceased, late of said parish, seek to recover the same from the defendant. Their demand to be declared owners, and to be put in possession thereof, is accompanied by a writ of sequestration..

The answer of defendant to plaintiffs’ petition is a general denial, an averment that the property had always been in the possession of the deceased, Moore, and that the pretended act declared on was fraudulent and simulated. Mrs. Alfred Moore intervened, alleging that she was a privileged creditor of the estate of Thomas Moore, for a large amount, and an ordinary creditor for a considerable sum; but she specifies no amounts whatever. She joins the defendant, and prays that plaintiffs’ demands be rejected.

Upon these issues the case was tried. The district judge, afteran able and exhaustive review of the facts and law of the case, gave judgment for plaintiffs, and the defendant and intervenor appeal.

The basis of plaintiffs’ claim is an act of sale, sous seing privé, of date May 1,1871, whereby Thomas Moore sells to Hypolite Méche, for $1550 cash, the property in controversy; consisting of improvements on a certain tract of land, and a lot of cattle, horses, and other stock. This act appears to have been'recorded, but the date of its registry is not given. On the trial it was offered and received in evidence, without objection. We think that its execution is sufficiently proven by the testimony of Simeon Richard and Honoré Meche, two of the attesting witnesses. Its date is also shown, inferentially, to have been about that which it bears, by the testimony of Honoré Meche, who says that about five years ago he worked-a piece of the Thomas Moore land — that this was after the sale to Hypolite Méche by Moore. It also appears that this property was for several years assessed to Méche — that his son worked part of it without rent, and rented out part of it to one Willis. It is also shown that Moore on several occasions declined to give in the property for assessment as his, saying it belonged to Méche, and repeatedly stated that Meche was its owner. It is also shown that prior to this sale Méche paid some considerable debts of Moore’s, and that on the day of sale he paid him quite an amount in cash.

On the part of the defense it is shown that Moore continued in the possession of the property sold, but, it seems, disclaimed ownership, saying that Meche let him use it for a livelihood. Mrs. Alfred Moore, the-cook and housekeeper of Thomas Moore, and, we are informed, an ignorant colored woman, testifies to various declarations of Moore and oneTrask among themselves going to show that'the sale was a simulation. In fact, in this case as in all others like it, there is much contradictory swearing; and it would be unsafe for this court, which has no personal knowledge of these witnesses, and did not hear their testimony, to undertake, without grave reasons, to say that the learned judge of the court below erred in weighing their testimony.

In fact, the only circumstance in the case which in our opinion seriously militates against plaintiffs’ demand is the continued possession of Moore. But this is a contest between the estate of Moore, who was the vendor, and Méche, the vendee. The rule is that, as between the vendor and his heirs not forced and the vendee and his heirs, a counter letter is the only evidence admissible of simulation. True, the creditors of the vendor and, therefore, his administrator, may, by alleging and proving injury to themselves, criticise and attack the sale as simulated, and resort to parol proof of it. But before a creditor of the vendor can annul his acts as simulated it must appear that it injures the creditor, and that his debt existed before the execution of the act complained of.

We have examined with care.the evidence in this case, and think that the conclusion of the district judge should be maintained. He properly dismissed the intervenor, who neither alleged nor proved any specific amount of indebtedness. Of course, no evidence can be received in this court. Hence, the oath of the intervenor as to the nature and amount of her claim, filed for the first time in this court, must he disregarded.

It is therefore ordered, adjudged, and decreed by the court that the judgment appealed from be affirmed with costs of both courts,

On Rehearing.

Manning, C. J.

A careful reconsideration of our former decree has not shaken our confidence in its correctness, and therefore

It is ordered and adjudged that our former decree remain undisturbed.


author: Manning, O. J.

text:
    No. 997.
    Succession of Maria Bauman. On Opposition of Heirs.
    While administrators and executors must sustain the charges set forth in tlioir accounts, the kind and degree of proof vary according to other facts which may be proved, or which appear on the face of the papers. There is a presumption in favor of the correctness of an executor’s account whose general management evinces fidelity and integrity.
    Heirs who occupy a portion of the succession property are liable to the'succession for the rents of such property, during their occupancy.
    A PPEAL from the Parish Court of Iberia. Allison, J.

      Jos. A. Breaux and W. F. Schwing for opponents and appellants.

      B. 8. Perry and W. 8. Haase for executor and appellee.
   On Opposition of Heirs.

The opinion of the court was delivered by

Manning, O. J.

John Fisher was appointed and qualified as executor of Maria Bauman’s will. He was also one of her heirs. The property consists of improved lots in the town of New Iberia, which were inventoried at f7,350. He has filed three accounts, to which two of the heirs presented as many separate oppositions. The grounds of opposition are numerous, and evidently designed to put him to the proof of his whole gestión. Some of them were that the rents, due and uncollected, were not accounted for — that rents which ought to have been obtained, and were not, should be charged to him — that the sums paid for repairs, etc. are excessive, and were not owing by the property— that he paid his lawyers too much, and ought not to have paid them •at all out of the succession funds, but out of his own — that he can not retain the sum due (11156.50) for rent by some of the heirs, or remit to them what should be paid on that account, etc.

It is quite impossible, and would be improper, to go through these •accounts in this opinion item by item, and state the charge, the proof, and its effect. The vouchers and the oral testimony of the executor are very complete, and in our judgment substantiate the account in its entirety. Besides which, we meet in this case what we had placed before us in another case at this term — two whole transcripts of other cases offered, we are informed, to prove rem ipsam. The fact could ■so easily have been stated under the form of a joint admission that we are not inclined hereafter to permit this mode of burthening the court with unnecessary labour.

It is very easy for persons, who have had nothing to do with the practical management of an estate, to conceive sundry ways in which its revenues might and ought to have been increased, and its expenses diminished. This house did not rent for what might have been obtained for it, or that house was shut up when a tenant might have been had. The ■sum charged here for repairs is excessive, and that charged there was' uselessly expended. But all who are familiar with the management of successions in the last few years, either as executor or lawyer, know the many and serious embarrassments, and hindrances, that have, existed to the successful gestión of an estate. The executor of Mrs. Bauman has shewn more than ordinary care, judgment, and diligence, in the collection of the small rents for each lot, and as a whole, his administration, thus far is not fairly liable to attack.

There is some question as to the proof of some of the items — its ■sufficiency, completeness, etc. An executor must sustain his charges by proof, but the kind and degree of proof varies according to other facts which may be proved, or which appear on the face of the papers. For instance, an executor whose general management is characterized by fidelity and integrity, will have a presumption raised in his favor of the correctness of his account, and many items charged by such a representative of a succession will be admitted and approved upon slenderer proof than would be required of one who had by his conduct exhibited •the purpose to administer for his personal benefit, instead of for that of those who are entitled to the succession, and who had united negligence to rapacity in dealing with the property and funds of the succession.

The appellee prays the amendment of the judgment, so as to decree that the heirs are not responsible for rents. Some of the heirs occupy some of the houses. It would be unjust and unequal to permit these to-use'portions of the property free of charge, while other heirs are not using any part of the property. And there are probably not two heirs-who are using property of same value. The rent of the house, used by one may be much larger than the rent of that used by another. The heirs should account for the rents when the final settlement is made.. The rents are to be considered as so much advance paid to the heirs by the executor on each of their portions.

The judgment of the lower court is correct, and it is affirmed.


author: Marr, J.

text:
    No. 992.
    W. C. Teal et al. vs. Oscar S. Lyons et al.
    A reeonvantional demand must set forth the claim of defendant with the same precision as would be required in a petition for the same cause of action, and a mere reference in his answer, to a former suit brought by the defendant, does not make the allegation^ of the petition in that suit a part of his answer-
    When the offsetting claim set up by the defendant is wholly independent of, and distinct from the claim of the plaintiffs, the mere fact that one of the plaintiffs is in another parish from tho one in which the suit is brought, will not authorize tho defendant to plead his claim in reconvention.
    Where property wrongfully attached is lost while in the sheriff’s keeping, tho owner is entitled to recover its full value from the plaintiff in attachment, and his sureties. If no malice is shown in tho plaintiff, the owner is only entitled to full reparation for the actual damage he has suffered.
    APPEAL from the Eighth Judicial District Court, parish of Calcasieu-Hudspeth, J.

      «Geo. H. Wells for plaintiffs.

      L. Leveque and P. Perrodin for defendants.
   The opinion of the court was delivered by

Marr, J.

On the tenth March, 1874, Lyons brought suit against Teal and Nicholls; and, under art. 240, number four of the Code of Practice, he caused process of attachment to issue, under which the sheriff seized one thousand logs, “ more or less,” lying in the Hickory Branch of the Calcasieu, and placed them in charge of a keeper.

Pending the suit a -flood carried off the greater part of the logs, some of which were collected and secured by the keeper. Plaintiff represented to the court that the logs were perishable; and obtained an order that they be sold for cash, and the' proceeds retained by the sheriff to abide the result of the suit. The sheriff advertised for sale 700 logs, “ more or less; ” and he actually sold 399, for $540 96.

On trial on the merits, the court rejected the demand of Lyons-•as in case of nonsuit; and dissolved the attachment, reserving to the ■defendants the right to sue on the attachment bond for damages. This judgment was affirmed on appeal, 28 An. 592; and this suit was brought •against Lyons and Smart his surety to recover of them, in solido, the full •amount of the bond, $1125, and against Lyons alone the additional sum of $343 56, damages for the wrongful issuing of the attachment.

Defendants plead the general issue ; “ and Oscar Lyons, one of the defendants, re-averring, as in his original petition, and praying as therein prayed for, they pray that plaintiffs’ demand be rejected at their cost, ahd for general relief.”

A few days after defendants offered an amended answer, alleging that plaintiffs were indebted to Lyons in the sum of $736, and praying judgment for that amount, with interest, “ as claimed in his original petition.” This was followed by a second amended answer, alleging the indebtedness of plaintiffs to Lyons in the sum of seven hundred and thirty-six. dollars, “ which they hereby plead in reconvention.” They ■also allege that Teal, one of the plaintiffs, is a resident of the parish of St. Landry.

Both these amendments were disallowed by the court; and we think correctly. A reconventional demand must set out the claim of ■defendant with the'same precision as would be required in a petition for the same cause of action; and a mere reference to a former suit does not make the allegations of the petition in that suit part of the pleading in which it is so referred to. The indebtedness of Teal and Nicholls to Lyons is wholly independent of and distinct from the claim of Teal andNicholls against Lyons and his surety for the wrongful issuing of an •attachment. The suit was pending in the parish of Calcasieu, the residence of Lyons and Smart, and of Nicholls, one of the plaintiffs; and the fact that Teal, one of the plaintiffs, resided in St. Landry does not authorize the defendants to institute a reconventional demand against Nicholls and Teal. C. P. 374, 375.

The judgment of the district court was in favor of plaintiffs for $540 96, the value of the logs actually sold by the sheriff, and $75, for attorney’s fees in the attachment suit; and on the same day, on rule taken by plaintiffs on the sheriff, and upon his confession, judgment was rendered against him for the $540 96, less $25, paid, with stay of ■execution for six months, the $25 paid, and so much of the remainder as might be paid to be applied by plaintiffs to the satisfaction of the judgment in their favor against Lyons and Smart.

Both parties appealed from the judgment in favor of plaintiffs' ■against Lyons and Smart; and plaintiffs, in answer to the appeal of ■defendants,' pray that the judgment be so amended as to allow them the additional sum of $751 25, the value of 601 logs, at $1 25 per log, they -claiming that the whole number seized under the attachment was 1000, of which the 399 sold by the sheriff were part.

The testimony is not satisfactory as to the number of logs seized by the sheriff; and his keeper could not state the number. No doubt Teal and Nicholls had as many as 1000 logs ; but it is by no means clear that there was that number at the mouth of the Hickory Branch; and none others were taken into possession by the sheriff or his keeper.. The district judge heard the numerous witnesses ; and he concluded that the plaintiffs were entitled to recover only for the 399 actually sold by the sheriff. The testimony leaves the impression on our minds that there must have been between 800 and 1000 logs in the lot seized by the sheriff. Some of the witnesses say not less than 1000, one says 900 to 1200. Whether all that were seized by the sheriff were carried off' by the flood, or part only, \ye can not determine; but the greater part of them certainly floated off. Some of them were recovered, but strange to say, the testimony does not fix the number. The plaintiffs are clearly entitled to full reparation for the damage caused them by the wrongful issuing of the attachment; but they are entitled to nothing more, because there is neither allegation nor proof of malice or other bad motive on the part of Lyons.

The sheriff’s return shows that he supposed he had seized 1000 logs; but he did not take the trouble to count them, nor to have them counted, and he qualifies the return by the words “ more or less.” When he advertised the logs for sale, he did not know how many had been or would be recovered; and he states the number to be sold at 700, “more or less.”" We think we may fairly assume that 700 will not be in excess of the number of which plaintiffs were deprived by the attachment; that is,, the 399, actually sold, and 301, lost; and that plaintiffs are entitled to recover the value of the 301, at $1 25 per log, proved to be the average price.

With respect to the 399 logs sold by the sheriff, plaintiffs might have pursued the sheriff for the proceeds in his. hands, and have obtained judgment against him, with interest from the date of default on his part; and they might also have obtained judgment against Lyons- and his surety for the value of these logs ; but they could have but one satisfaction.

By proceeding against the sheriff, they ratified the sale made by him; and they could have claimed no more than the proceeds of Lyons and Smart, as the value of those logs. The sheriff was entitled to no delay or indulgence. He is bound to be always ready to pay, at once, to the party entitled, money received by him in his official capacity; and when plaintiffs, instead of compelling the sheriff to pay, immediately granted him a stay of execution for six months, they treated and dealt with the money in his hands as their own; and subjected Lyons to the risk oí the loss of that amount. Probably the sureties of the sheriff would claim to be released by this indulgence.

We think the defendants are liable for the value of the 700 logs, with interest from judicial demand, by which they were put in default; and $75 for attorney’s fees, subject to a credit of $540 96, on the twenty-fourth March, 1877, the date of the judgment granting stay of execution to the sheriff.

The yalue of the 399 logs is fixed at $540 96 : the value of the 301, at the average price $1 25, is $376 25, in all $917 21: to which add the $75 for attorney’s fees, the total is $992 21, on which plaintiffs are entitled to legal interest from judicial demand, September 7,1876: say up to March 24, 1877, six months seventeen days, $27 12, in all $1019 33. Deduct the $540 96, March 24, there remains a balance of $478 37.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be so amended as to read as follows, and decree: That plaintiffs, William C. Teal and Lewis M. Nicholls, do have and recover of and from the defendants, Oscar S. Lyons and William W. Smart, his surety in the attachment bond, in solido, the sum of four hundred and seventy-eight dollars and thirty-seven cents ($478 37), with interest at five per cent per annum from the twenty-fourth March, 1877, until paid: and that, as thus amended, the said judgment be affirmed, with costs.


author: DeBlanc, J.

text:
    No. 1019.
    Parish of Iberia vs. R. A. Chiapella.
    Property situated within an incorporated town, and the inhabitants of the town, are subt'cfc to the imposition of property and license taxes by the police jury of the parish, unless specially exempted by some act of the Legislature.
    APPEAL from the Second Justice’s Court, First Ward, parish of Iberia. Batter, J.

      W. F. Sclnoing, District Attorney, for plaintiff and appellant.

      Jos. A. Breaux for defendant and appellee.
   The opinion of the court was delivered by

DeBlanc, J.

Can three licenses and three taxes be imposed and levied — within the limits of an incorporated town — on a retail merchant residing in that town — one by the State, one by the parish and one by the authorities of the corporation ? This is the question presented in this case.

The defendant is a resident of the town of Jeannerette, which was incorporated by an act of the Legislature, approved on the 15th of March 1878, and that town is a portion of the parish of Iberia. He has paid to said town, as retail merchant, a license of fifteen dollars, and— besides — a five-mill tax on the assessment of his stock in trade. He declines to pay to the parish of Iberia an additional tax and an additional license. He contends that there is no law which expressly authorizes the police jury to levy a tax on “ stock in trade,” and that he can not, justly, be compelled to assist in defraying the expenses of two local governments, that of the town and that of the parish.

Under section 2743 of the Revised Statutes, “police jurors have authority to levy such taxes as they may judge necessary to defray the expenses of their respective parishes, and their jurisdiction extends over all the parts of said parishes, not expressly exempted.”

15th A. 445.

In the case of Victor Maurin et als. vs. the Tax Collector of Ascension, this court said: “ the question in this suit is whether or not parish taxes can be collected from owners of property situated in an incorporated town, when such property is not expressly exempted by law from, such tax, and the police jury is vested with power to assess taxes upon the ordinary objects of taxation.

“ We consider this not an open question. 13 A. 42019 A. 99. Unless the property within an incorporated town is expressly exempted by law from a parish tax, the general power conferred on the police jury of the parish to assess a tax on all ordinary objects of taxation will reach such property.”

25th A. p. 445.

“ That question is one of intent, and in ascertaining such intent it will not be presumed that the Legislature intended to restrict or diminish the power of taxation delegated to any subdivision of the State, unless such intent be plainly expressed.”

Burroughs on Taxation, p. 387-388. 9 A. 305. 11 A. 68., 20 A. 283. 26 A. 151.

In the act incorporating the town of Jeannerette, no such exemption is to be found) and — it is probable — the statute of 1878 cited by defendant and directing the levy of a tax in and out of incorporated towns, to defray the expenses in criminal proceedings, was passed for the sole purpose of subjecting to that special tax the towns which — previously— were exempt from such taxation. The repealing clause of the statute so indicates.

Act of 1878, p. 144.

Defendant complains that the tax and license thus imposed upon him and his property are not equal and uniform. They are, so far at least as the parish of Iberia is concerned; and — if any one of the three licenses and taxes were unconstitutional, it 'would be the last of the three, that imposed by the newly incorporated town.

We think — with a French economist — that “taxes should be like •those light vapors which the sun draws from and returns to the earth in fertilizing dew,” and entertain no doubt that, on proper application, the Legislature would not hesitate to extend to the town of Jeannerette the advantages and exemptions which have been extended to nearly •every town of the State. Until then, the law must be applied as it is.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed.

It is further ordered, adjudged and decreed that the parish of Iberia do have judgment against and recover of E. A. Ohiapella the sum of twenty five dollars, amount of his parish license and tax for the year 1878; and the lien and privilege securing the payment of said amount is hereby recognized: the costs in both courts to be paid by defendant.


text:
    No. 1023.
    Succession of Jacob Anselm. Opposition of a Creditor.
    'The filing ol an amended opposition to a tableau of distribution will not be permitted, when it prays the court to do the very reverse of what the same opposer, in his original opposition, has judicially admitted ought to be done.
    j^PPEAL from the Parish Court of St. Landry. Fontenot, J.

      H. L. Garland for administrator and appellant.

      B. A. Martel for opponent and appellee.
   The opinion of the court was delivered by

Manning, C. J.

Jacob Anselm died in 1862, and Cleophas Comeau was appointed his administrator the following year. No tableau of ■classification of the debts, nor of distribution of the assets, of the sue-■cession was made until 1872. Meanwhile Charles Thompson had sued •the succession upon certain notes of the deceased, given for the purchase price of a frame building, and had obtained judgment for eleven hundred and eighty six dollars and 37 cents, with interest for several years, subject to a credit of $250, with recognition of his privilege as vendor upon the fund in the administrator’s hands, which was produced by the sale of the building. All the property of Anselm had been sold under order of court for the payment of debts, and this building of which Thompson was the vendor to him, brought seven hundred dollars .at the succession sale.

On appeal, the judgment for the moneyed demand was affirmed, but the recognition, of the . vendor’s privilege was stricken out, and the case was remanded to ascertain whether it had been preserved.

When examined on the trial of this opposition, it was ascertained the privilege had not been recorded, and was therefore lost as to third persons — other creditors of the succession — who were contesting Thompson’s claim to the fund. The administrator did not place Thompson on his tableau as a privileged creditor, but after distributing the funds among the privilege and mortgage creditors -whom he did recognise, apportioned what was left among the ordinary creditors, so that Thompson was allotted only $340.40. He opposed the tableau, because he was not placed thereon for the amount of his judgment, with a privilege on $700, the fund produced by the sale of the building, to the exclusion of all other creditors; and prayed that the tableau be amended in that respect, and as thus amended, that it be homologated. This opposition was filed in March 1872.

Four years later, in February, 1876, Thompson presented another opposition, or amended the original, pleading prescription to all or several of the mortgage notes of deceased, which had been recognized on the tableau as mortgage notes, and among the holders of which, the administrator had proposed to distribute the funds in the manner already stated. The maintenance of this plea would of course so far diminish the consumption of the funds of the estate by the mortgage claims as to leave probably enough to pay the ordinary creditors in full.

Objection was made to the filing of this amended opposition upon the ground that it changed the issue, and altered the substance of the demand in opposition, but the court overruled the objection, and permitted it to be filed, because the plea of prescription can be filed at any time. The administrator reserved a bill to this ruling.

The true ground of objection to the filing of the amended opposition is, that it is in contradiction to the original — that what it prayed the court to do, is the reverse of what the same party had judicially admitted ought to be done. The concluding sentence of the original opposition was, a prayer that the tableau should be homologated after it was amended in the single particular mentioned, and therefore the opponent, had prayed that all these mortgage notes, classified and recognised on the tableau as valid and subsisting claims, and as entitled to certain specified portions of the assets, should be paid in the manner, to the extent, and with the fund, set forth on the tableau of distribution. All that the opponent complained of then, was the refusal of the administrator to admit the existence of his privilege upon a certain fund, and thereby assure to him the whole of that fund. He opposed only that feature of the proposed distribution of assets, but if he had gone no farther, the plea of prescription would have been available to him. He could have made it, and if he could have sustained it, his claim wa& safe. But he expressly prayed that, after the tableau was amended in the one particular, every thing upon it should be approved. And the mortgage notes were on it, classified in their rank, and assets assigned to them sufficient for their payment.

It is indisputable that prescription can be pleaded even here, at anytime before a cause is submitted to the Court, but the question here is,, not as to the time when prescription may be pleaded, but whether that, or any other plea, can be heard which runs counter to what the pleader has in the same contestation judicially demanded of the Court 'to do. It' has been uniformly held that a party is bound by his admissions, made, and demands preferred, in judicial proceedings. Civil Code art. 2270 new no. 2291.

The judge below amended the tableau in sundry particulars. There-was no opponent but Thompson, and some of the amendments made were not prayed. There was no contest over the items, as the administrator had ranked them. A tableau or an account can only be amended in the items opposed. If all parties agree that they shall remain as classified, the Court need not disturb them.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that the tableau presented by the administrator is now approved and homologated, and that the opponent pay the costs of his opposition in the lower court, and of this appeal.


text:
    No. 782.
    Edward Nalle vs. T. W. Baird.
    On the trial ol the exception o£ no cause oi action, the Court can consider only the allegations of the petition, and the exhibits referred to, and made part thereof.
    No recovery can be had against the surety on a release bond, given for the release of seauestered property, on which the plaintiff claims a lien, where the judgment is a merely personal one against the principal on the bond, containing no recognition of the plaintiff’s lien or privilege on the property'released, nor decreeing a restoration of the property to the plaintiff.
    APPEAL from the Fourteenth Judicial District Court, parish of More-house. Parsons, J.

      Bussey & Morgan for plaintiff and appellant.

      Todd & Brigham for defendant and appellee.
   The opinion of the court was delivered by

Marr, J.

Nalle brought suit against his lessee, F. M. Grant, to recover the rent of a plantation for two years. In the petition he claimed the lessor’s privilege on the crop and movables found on the premises, which he caused to be sequestered ; and he prayed for judgment, “ and that his privilege and right of pledge be recognized, and that the property seized be sold to pay his debt.”

Grant procured an order under which the property sequestered was released on his giving bond, with Baird as his surety, in favor-of Nalle, in the amount fixed by the order of the judge, the condition of which is if the said plaintiff shall faithfully present the said property, or its value, provided judgment should be rendered against him, then this bond to be null and void, otherwise to remain in full force and effect.”

Nalle prosecuted his suit to judgment; which was rendered for the whole amount of the rent due, subject to certain credits, and which is entirely silent as to the privilege and right of pledge claimed in the petition. Execution issued on the judgment, the result of which was that the sheriff found no property, after demand made of Grant to point out the property sequestered, and to point out other property to satisfy the writ. Thereupon this suit was brought against Baird, the surety in the release bond.

Baird excepted that the petition discloses no cause of action; and that no liability has attached to him, for the reason that no cause of action could accrue against him as a judicial surety, until the necessary steps have been taken to enforce judgment against the principal, “ which has not been done in this case.”

The Judge of the District Court maintained the first ground of exception, and dismissed the suit, without passing upon the second ground: and plaintiff appealed.

On the trial of the exception the defendant offered in evidence, without objection, the record and proceedings in the original suit, Nalle vs. Grant; but, on an exception that the petition discloses no cause of action, the Court can consider only the allegations of the petition, and the exhibits referred to and made part of the petition. The release bond is the only part of the record which is made part of the petition. The plaintiff states that he recovered judgment against Grant, that he caused fieri facias to issue on that judgment: that demand was made of Grant to deliver the property that was sequestered, “and he failed and refused to deliver said property to the sheriff, and demand was then made upon him to point out other property * * * and that he failed to point out other property,, and plaintiff knowing of no other property, and the sheriff being unable to find property belonging to Grant * * the writ was returned nulla bona, and in no part satisfied.”

The release bond is in no respect in conformity with the Code of Practice. Article 279 requires the bond to be given to the sheriff. This bond is in favor of the plaintiff. Article 280 prescribes the condition of the bond, that defendant shall not send away the movables sequestered out of the jurisdiction of the court; that he shall not make an improper use of them; “and that he will faithfully present them, after definitive judgment, in case he should be decreed to restore the same to the plaintiff.”

It is well settled that judicial bonds must be construed with ref■erence to the law or the order of the court under which they are given. Perhaps it might not be material, so far as the liability of the surety is concerned, that this bond was not given in favor of the sheriff, as the 'law requires ; and perhaps we might substitute, in the condition, the word defendant for plaintiff. But if we had the authority to change the condition in any respect, we should be compelled to add the clause, “ in •case he should be decreed to restore the same to the plaintiff.”

The release bond takes the place of the property ; and the law intends and requires that the sheriff shall take the boncl, upon his official responsibility. He must, at his peril, see that the sureties are good and ■solvent. He must return the bond into court, and assign it to the plaintiff, who is allowed twenty days within which to object to the suffi•ciency of the security ; and if it be found insufficient on such objection, the sheriff shall be liable as surety on the bond. C. P. 225, 226, 259, 279. It is the business and the duty of the sheriffs to conform to these re■quirements of the law; and their failure to do so might subject them to 'liability for the value of the property sequestered.

If we take this bond as it is, the condition is absurd, and no recoVj «ery can be had upon it. If we reform it, we must make it conform ti the requirements of article 280; and in that case the surety would be liable only in the event that the defendant should be decreed to restore the property to the plaintiff. It is not alleged, it must therefore be assumed that it is not true, that any such decree was rendered in the •suit in which the bond was given. The judgment is purely in personam, against Grant, the lessee, for the rent due; and the lessor’s privilege and right of pledge are wholly ignored.

And here a distinction must be observed. A lessor might sue his ■tenant for the rent, and fail to sequester or to seize provisionally the property subject to his privilege and right of pledge, or to pray for a recognition of his rights. This would not impair his right to seize the property, and to subject it, if still on the leased premises, as effectually •as if he had sequestered or seized provisionally in limine. But where the plaintiff in a suit demands the recognition of his privilege and right of pledge, and allows judgment to be rendered for the debt only, without mention of the accessory rights demanded, the judgment is conclusive ■against these rights.

Now, the surety in a release bond is entitled by law to full subrogation to the rights of the plaintiff; and if the plaintiff allows a judgment ■•to be rendered by which his rights and privileges on the property are lost, this of itself would discharge the surety to the extent of the value of the property. See Hill vs. Bourcier & Pond, 29 An. 841.

We think the petition fails to disclose a cause of action against Baird, the surety, because it fails to allege that the defendant was decreed to restore the property to the plaintiff. Where the suit is to enforce a privilege and right of pledge, the usual formula is to decree in favor of plaintiff the debt demanded, with lien and privilege, and in cases of rent, with lessor’s right of pledge on the property sequestered or provisionally seized. This would be a decree, in effect, requiring the defendant to restore the property in order that it might be subjected to plaintiff’s rights. If the plaintiff were the owner of the property, the decree would declare him to be the owner, and decree that it be restored to him ; but without a decree which, in effect, condemns the defendant to restore the property, the surety in the release bond is not legally liable.

The judgment appealed from is in accordance with our views of the law ; and it is, therefore, affirmed with costs.


author: Egan, J. Spencer, J.

text:
    No. 803.
    Ed. J. Forstall & Sons vs. Board of Liquidation, the State Intervenor.
    As to the 10710 fide holders of the bonds issued by the State in the year 1828 in aid of the Consolidated Association of the Planters of Louisiana, the State is the principal and sole obligor on those bonds, and such bonds are entitled to be received by the Board of Liauidation in exchange for the new consolidated bonds of the State.
    J^PPEAL from the Third District Court, parish of Orleans. Monroe,

      Breaux, Fenner & Hall for plaintiffs and appellees.

      H. N. Ogden, Attorney General, for respondents, intervenors, and appellants.
   The opinion of the court was delivered by

Egan, J.

This is a proceeding by mandamus to compel the funding of certain bonds of the State of Louisiana, issued in aid of the Consolidated Association of the Planters of Louisiana, under article number 19 of 1828, and of certain interest coupons, amounting at the time of the application to $79,927 50. These bonds and coupons are of the same class and series with those in the case of Lesassier and Binder vs. the Board of Liquidation, decided by us in March last, and not yet reported. In obedience to the view taken by this court in that case, the Board was proceeding to fund the bonds, etc., in question in this case, and had actually taken all the preliminary steps for that purpose when they stopped, as we are informed, in consequence of their interpretation of a dictum and the opinion of the majority of the court in the case of the N. O. Pacific Railway Company vs. Francis T. Nicholls, Governor, et al., recently decided by us in New Orleans. We do not, however, consider this important under the view we have taken of the present case otherwise. In the Lesassier and Binder case we copied one of the bonds in the opinion, and it is unnecessary now to do so again. By reference to that case and to the act under which they were issued it will appear that the bonds in question are the absolute and unconditional promises of the State of Louisiana to pay the same, and that the State is the sole obligor in the bonds. They are signed by the Governor, Derbigny, and countersigned by the Treasurer, Gardere, on behalf of the State, in accordance with the terms of the act under which they were issued, and by no one else; and, as was said in the Lesassier and Binder case, whatever may be the relation between the'State and the association as between themselves, by no possible interpretation can the State be con.sidered any thing less or other than the principal, and indeed the sole obligor upon the bonds, as to the holders thereof.' The fact that the act made them transferable by the indorsement of the president and cashier of the association no more modified or changed the obligation of the State than if they had been drawn payable to bearer, or had been the obligations of any-individual or private person. Indeed, it is contended, and it appears with great show of reason, that the indorsement under the act by those officers for the mere purpose of transfer of title created no obligation on the part of the association, as appears to have been expressly decided by the Supreme Court of the United States in two similar cases quoted in the brief of relators’ counsel, to wit: Curran vs. Arkansas, 15 Howard, 317; and Chamberlain vs. St. Paul, 2 Otto, 300.

If the association is bound, it would seem to be not upon the bonds in question, but by virtue of a new and independent contract or obligation, assumed by it in favor of the holders, by way of guaranty of their payment, in order to give them greater currency and credit, no doubt, and which was not only assumed subsequent to the execution of the bonds by the State, but formed no part of this obligation, as will be seen by reference to the opinion in the Lesassier and Binder case, into which it also is copied. There is here no obligation by which the State binds herself for another already bound to satisfy the obligation in case that other does not. '• These are no accessory but original and principal obligations, not payable contingently, but absolutely and at all events. They are unquestioned and unquestionably debts of the State of Louisiana, possessing all the requisites and characteristics, as we held in the Lesassier and Binder case, which entitled them to be exchanged for consolidated bonds, under the provisions of the funding bill and its amendment. No distinction is made against them by the broad and general terms either of the act or of the constitutional amendment. By the third section of the original funding act it is provided that upon application by the holders new consolidated bonds “ shall be exchanged by the Board of Liquidation for all valid outstanding bonds of the State.” Those now under consideration are both valid and outstanding. The fact that they were at one time classed by the Auditor in his report as contingent liabilities of the State could not and does not change their form or obligation. Neither does the amount of issues of consolidated bonds provided for in the funding bill, of which it need only be remarked that if found insufficient that is a matter under legislative control, and, at all events, no such ground of defense is set up in the present case. So far as appears, and we are informed by the Auditor’s report and this record there is no obstacle on this score to the funding of the relators’ bonds and coupons. It has been argued with great earnestness that there are very marked distinctions between the bonds issued to the Consolidated Association and those issued to or on account of the Citizens’ Bank — a matter we are not called on to determine in this case, however.

The judgment below made the mandamus peremptory. It was correct, and is affirmed.

Dissenting Opinion.

Spencer, J.

For the reasons stated in the ease of “ The State ex rel. N. O. Pacific Railroad Company vs. F. T. Nicholls, et al.,” I dissent from the decree in this case.

In my opinion it is matter of no moment whether the bonds issued to the Planters’ Association were or not absolute liabilities of the State, or merely “contingent” and conditional. It is clear to me from the proceedings of the Legislature in adopting the funding bill and in proposing the amendments of the Constitution relative thereto, that the Citizens’ Bank bonds and the Planters’ Association bonds were excepted and excluded from the funding scheme. The report of the Auditor, referred to in the Pacific Railroad case, classing these Planters’ Association bonds as “ contingent ” liabilities, does not, of course, make them “ contingent,” and in that decision we refer to them as “ contingent ” simply as a convenient mode of designating those bonds which were excluded from the proposed funding process, and because under that appellation they figured on the Auditor’s report, which served and was adopted as the basis of the funding bill and the accompanying amendments. I hold that these bonds can not be funded because the Legislature did not intend to embrace them in the scheme, and not because they are or not in fact “contingent” debts of the State. This question was not raised or .brought to our notice in the Lesassier and Binder case, and in that case we simply decided that these bonds were absolute valid debts of the ■State, and I still think they are; but for the reasons stated they are not fundable.

Manning, C. J. I concur in the dissent of Mr. Justice Spencer.


author: Spencer, J.

text:
    No. 772.
    The State vs. Thomas Ross.
    Where the regular venire has bpen exhausted without completing the jury, it is the duty of the judge, if the accused shall so request, to order the sheriff to call the absent members of the regular panel at the courthouse door before the summoning of talesmen to complete the jury.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      W IV. Potts, District Attorney, for plaintiff and appellee.

      David Todd and Robert Ray for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

Defendant, having been indicted and convicted of mur•der, without capital punishment, appeals and has assigned various -grounds of reversal. It will be necessary to notice but one of them.

It appears by bill of exceptions that in impaneling the jury there were a number of the regular venire who failed to answer to their names ■when called by the sheriff at his desk inside the courthouse ; that without completing the jury the panel was exhausted, and, thereupon, the •court ordered the sheriff to summon talesmen to complete it. The defendant requested, thereupon, that the court order the sheriff to call -the absent regular jurors at the courthouse door, and objected to tales-men being summoned until that was done. The court overruled the objection and refused the request, stating as a reason that he had •announced previously that jurors would be called at the bar, and not at -the door, and must be present in the court-room.

We think the judge should have ordered the absent jurors to 'be called at the door of the courthouse, if required by the accused. He had the legal right to be tried by a jury from the regular panel, if it could be procured without unnecessary delay. Talesmen are only to be taken in the event this can not be conveniently done. We think it was a reasonable request, one easily and speedily complied with, occasioning •no delay in the cause, and in nowise prejudicing the rights of the State.

It is a customary and usual practice to repeat the call at the door of ■the courthouse, and one which should not be refused if required by the ■accused, in order to verify the absence of the jurors. It is easy to see ■that an impartial trial is more likely to be had by a jury taken from the regular panel by lot than by talesmen selected by the sheriff. In so ■grave a case as this we are not disposed to sanction the non-observ•ance of any of the usual forms tending to secure a fair trial. The judge might very well notify and require jurors to remain in the building, and ■punish them for disobedience ; but the fact that he had so notified them ■should not deprive the accused of having so reasonable a verification of ■their absence as that asked in this case.

It is therefore ordered and decreed that the verdict and sentence appealed from be set aside, and that this case be remanded for new 'trial, and to be proceeded with according to law.


text:
    No. 773.
    The State vs. Lou. Outs.
    It is not necessary that the accused, who is being tried for a felony, should be present in court, whenever any step, no matter how insignificant, is taken in the ease.
    'Oral observations addressed by the judge to the jury after the reading of his written charge to them, and which are not alleged to contain any error, will not furnish ground for a bill of exception when not objected to at the time they were delivered.
    Tn a prosecution for forging a certain instrument evidence is admissible to show that the accused was in possession of the instrument on the day of its date, and that she presented it in payment of goods purchased by her.
    Jforging an order for merchandise is a crime under the law of this State, and punishable as such. Revised Statutes, see. 833.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

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

      Pobert Pay for defendant and appellant.
   The opinion of the court was delivered by

Manning, O. J.

The defendant was convicted of forgery, and sen•'tenced to imprisonment at hard labour for two years. She assigns for error, that the minutes of the court shew that the case was set for trial Dec. 15,1877, and do not shew that the accused was present in the court room at that time — that the minutes shew the ease was on that day continued without her being present — that the minutes shew a motion for a new trial was made May 2,1878, and do not shew her presence then — ■ that the minutes shew the motion for a new trial was overruled May 13 •and do not shew that she was present. This assignment states that it is based on. Christian’s ease, 30 Annual, 367, the syllabus of which is, that-when the record of a criminal cause fails to shew that the accused was-present at any time from the moment of his arraignment to his sentence,, the judgment and verdict will be annulled.

Let us see if the record of this cause, fails to shew the presence-of the accused, and when. The minutes of May 21,1877 shew that the-accused was brought into court, was arraigned, and pleaded not guilty.. The minutes of May 1,1878 shew that she was brought into court, the jury impanelled, the case tried, and verdict rendered. The minutes of May 13 shew that she was present when the new trial was moved, and the arrest of judgment prayed. “Now comes the defendant in open court &c” is the opening sentence of the motion in arrest. The minutes-of May 17 shew she was in court when that motion was tried and overruled, and she was sentenced, and her appeal was taken. The record, instead of failing to shew that the accused was present at any time between arraignment and sentence, shews affirmatively that she was in court at every stage of the trial when her presence was needful. In the old English cases, which were very strictly followed in the early jurisprudence of America, it was rigorously held that the prisoner must be personally present in court whenever any step was taken in his cause, if the prosecution was for a felony. The early American courts, in adhering blindly and tenaciously to this rule, lost sight of the reason upon-which it was founded.

Formerly, a person accused of crime in England was not permitted to have counsel. The barbarous instincts of that people had disappeared under the humanizing influences of a later civilization long before this cruel prohibition was expunged. Practically it had been ignored. At first, the English judges modified the rigour of the rule by watching over the safety of the prisoner themselves, and later, they disregarded the prohibition and allowed counsel, but the Parliament waited until long after the present century had begun, and until the American courts had swung round to the opposite idea, and assigned counsel to prisoners-when they had none, before the prohibition was formally removed. As no counsel was allowed in that country in those days to represent a prisoner, and protect him, and he could only defend himself, the courts then held that he must be in court whenever any step was taken in his cause, however insignificant or unimportant. It is still universally required that he must be present when the verdict in a case of felony is received. State vs. Ford, 30 Annual, 311.

There were t-wo bills of exception taken, the first to the alleged omission of the judge to reduce his charge to writing when requested by the-prisoner’s counsel. The judge did write his charge, but it appears after delivering it, he added some oral observations, to which no objection was-made at the time. It is not objected now that the additional oral observations contained any error. The judge complied with the demand, and if there were any objection to his saying any thing to the jury beyond what he had written, it should have been made then.

The second bill is to the reception of the testimony touching the uttering or publishing the forged order, because it was not responsive to the charge. Forgery is quite distinct from the offence of uttering a forged paper, and while the latter is necessarily an act publicly done, the former is secretly performed. The proof of the latter is .rarely to be obtained except circumstantially. The testimony admitted on this trial was as to ifche possession by the accused of the forged order on the day of its date, and its presentation to pay an account for goods which she had bought, and which she was told she could not take away without, such an order as was subsequently forged and presented. The proof was a link in the ■chain of evidence necessary to establish the commission of the crime charged, and was admissible on that ground.

The prisoner also moved in arrest of judgment, that there is no law in this State against forging an order for merchandise. The reading of Rev. Stats, sec. 838 will dispel that delusion.

The judgment of the lower court is affirmed.


text:
    No. 781.
    Moore & Coleman vs. Mary F. Rush.
    A married woman duly authorized but not coerced by her husband, who executes a mortgage on her property to secure the payment of her own debt, is bound by the mortgage.
    'Parol evidence is admissible to prove that a written contract was signed under the influence of force or violence.
    A married woman is not estopped from disproving the averments of an authentic act executed by her, and which she alleges she was forced to sign.
    APPEAL from the Fourteenth Judicial District Court, parish of Rich-land. Parsons, J.

      W. W. Farmer and Cobb & Guriby for plaintiffs and appellants.

      Potts & Hudson and Wells & Williams for defendants and appellee.
   The opinion of the court was delivered by

Manning, C. J.

The defendant is a married woman, separated in •property from her husband. The judgment of separation was rendered •at her instance in 1873, upon her suit for the recovery of her paraphernal •claim. Her husband was at that time a member of the commercial ■firm of Balfour & Co., at Rayville. In part satisfaction of his wife’s .'judgment, rendered on May 8th. he conveyed to her on the 9th. all of his property; viz an undivided interest in certain lots of ground and improvements in the village where they lived, and also his share and interest in the mercantile firm of Balfour & Co. Thereupon Mrs. Rush, became a partner in that firm, and her husband went into bankruptcy..

Britton, Moore, and Coleman were the New-Orleans factors and correspondents of Balfour & Co. By March 1876, the Rayville firm had become indebted to the New-Orleans firm in the sum of $4,841 00, and suit was instituted for its recovery. Pending that suit a compromise was made, by which Balfour paid or satisfactorily settled with the plaintiffs therein for his part of the debt, and Mrs. Rush gave her two notes-for her part of it, and executed a mortgage to secure them, and also-pledged other notes of other parties, owned by her as collateral. Her notes, thus given, did not mature until nearly one and two years after their date. '

These notes were not paid, and the present plaintiffs, now holding them under a transfer from their former firm (Britton having retired), bring this suit to obtain judgment for the amount of the notes, and a foreclosure of the mortgage, and a sale of the pledged notes. The defendant resists their demand upon the grounds that the notes were given for the husband’s debt, and that she signed them, and the mortgage, under marital coercion.

There is no testimony whatever in support of the first ground. On the contrary, the proof is complete that the debt was the wife’s, contracted in her capacity as a public merchant.

The testimony relative to the second ground is conflicting, but we-have no difficulty in extracting the truth from it.. Nicholas D. Coleman, one of the plaintiffs, as a witness states that, being in Rayville the month' following the institution of the first suit, he was requested by the husband of the defendant to compromise that litigation, and that he was. averse from taking that course, but finally yielded to his entreaties. Dr. Rush was acting as the agent of his wife, and was representing her in. her commercial affairs. By the compromise resulting from that negotiation, the wife obtained two years time for the larger part of her debt, and the plaintiffs obtained the security of a mortgage. Mr. Coleman was-present when the mortgage was executed. Mrs. Rush had recently been confined, and the signatures were made in her bed-chamber, she being-still lying-in. She sat up in her bed, while Mr. Coleman handed her a-book upon which to place the paper, and a pen with which she wrote-her name. She said to him that the arrangement met her entire approval, and would enable her to pay the debt without detriment to her property, and after the signing was completed she added that she had simply performed her duty in securing his firm against loss.

The defendant’s witnesses were herself, her sister, her nephew, and! a coloured vfoman, her nurse. They narrate the incidents of a scene that preceded the execution of the mortgage and notes, when the husband is represented as inquiring whether Mrs. Rush intended to sign the papers, which she vehemently declared her determination not to do, giving vent to imprecations in attestation of her firm resolve. Her obstinacy was subdued only when her husband threatened he would go off, and take the two eldest children with him, if she did not sign. Maternal tenderness was victorious over the instinct of property preservation. These witnesses represent the notary as reading the act of mortgage in her presence with great rapidity of utterance, and impart some accessorial ornamentation to the scene. Mrs. Rush was so feeble that she could not raise her body so as to sit upright on the bed. Mr. Coleman raised her body, and supported it with his own, or with his arms, and guided her hand while the signature was traced. She had heen daily visited by her physician, who had alleviated her pains by copious opiates,.and she was thus mentally and physically incapacitated for transacting business intelligently.

Mr. Coleman, the notary, and the physician emphatically contradict this story. The notary was careful to read the mortgage audibly and distinctly in Mrs. Rush’s hearing. Her husband suggested to him to dispense with the reading, but he would not. “ I was on my guard, he says, and was careful to read it clearly and distinctly, for I expected that they would try to take some advantage of it.” Mrs. Rush did not object to-any part of it, or express any unwillingness to sign it. She signed without help from any one, except that Mr. Coleman dipped the pen in the-ink and handed it to her, after having given her a book on which to ■write.

The physician says she was delivered on the 21st of March, and he made his last visit to her on the 24th. She sa.ys her child was born on this last day. He can not state positively, but he thinks he did prescribe-opiates, but not an unusual quantity of them.

Mr. Coleman says he did not touch her person. She sat upright without assistance, wrote her signature, and manifested no symptom of disapprobation in his presence, but on the contrary thanked him for the consideration he had shewn her. On parting he shook hands with her. There is nothing to shew that Mr. Coleman was aware, or suspected, that the husband had used any influence over his wife to induce her to sign, nor is it important that knowledge of it should be brought home to him. If the fact of threats or violence were established, it would matter little whether he knew it or not. A contract produced by either of these causes is void, although the party to be benefitted by it, was not the author of them, or was ignorant of them. Civil Code, art. 1846 new no. 1852. But if the contract has been approved after the violence or danger lias ceased, the previous threats will not invalidate it, and there are other instances mentioned in the Code, wherein such threats will not affect it. arts. 1819, 1852. new nos. 1855,1858.

The testimony however satisfies us that the husband’s threats, if he used the expressions attributed to him by the wife and her witnesses, were either empty menaces, not to be performed, and were so understood by his wife, or that what he did say was totally different from those expressions. Other witnesses say he told her if she did not sign the mortgage, her property would be taken away from her, because the plaintiffs would press their suit (the first one) to a judgment, and then an execution would sweep it all. Feminine imagination, that can distort the polite act of a gentleman handing a pen to a lady, into mounting on the bed and using his own body as a support to hers while she wrote, is quite capable of misunderstanding words spoken with such surroundings. Even if the credibility of the witnesses wore equal, those of the plaintiff are supported by circumstances — are in accord with the probabilities, and therefore are entitled to the preponderance.

Three years before the first suit of the plaintiffs, Mrs. Rush had become satisfied that-her husband’s affairs were so deranged that prudence required her to assert her paraphernal rights. Even at that early date, she evinced her independence of marital constraint by instituting a suit against him for $1,710, and alleged that his debts to others were so large, that promptitude of action was necessary, and she prayed and obtained a judgment for all that she asked. No sooner was this judgment rendered, than she surpassed the celerity with which the law works through the medium of a fieri facias, and displayed such a mastery over her debtor that she extorted from him a conveyance of all that he had to satisfy only a part of her judgment, while he took refuge from the pursuit of less vigilant and less determined creditors under the shelter of a discharge in bankruptcy. It is not credible that a woman, who can thus bend to her-will a recalcitrant debtor, would on the very next occasion, when the safety of her property was involved, have become so complaisant as to yield to his entreaties or his threats that which she had wrested from his improvident hands.

Nor is it more credible that a man, who had flaunted his certificate of bankruptcy in the face of impotent creditors, and who is cognisant of and authorizes his wife to make the defence she does present in these pleadings, would have been so sternly and strongly impelled by the impulses of honesty as to endeavour, or to desire, to compel his wife to do what a proper regard for her own obligations should have prompted her to do of her own volition.

There is no pretence that the debt was not, and is not, owing to the plaintiffs. The allegation that it was the husband’s, and did not enure to the wife’s benefit, is seemingly abandoned, and at any rate is disproved. She was in fact solidarily bound for the whole of the original -claim, but Balfour paid a part — paid all that he ought to have paid, since in a settlement of the partnership, it was ascertained that Mrs. Rush, by paying that part of the debt which the notes now in suit represent, was paying also what she owed her partner. Nor is there any resulting injury to her from the execution of the mortgage, and the notes which it secures. Her debt was not increased. The time and terms of payment were made less onerous. The petition is wholly wanting in any ■allegation even of injury of any kind. She does not pretend in her pleadings that she has been damaged by the act which she seeks to ■annul. In her testimony, she says her credit was affected by the mortgage, and her ability to obtain supplies was lessened. In other words, that she obtained the dismissal of a suit wherein a judgment for this debt was imminent, which would have been followed by an execution to •enforce its payment, and she injured her credit by substituting to this perilous situation, one in which she obtained one and two years’ time, and assured the possession of her property, and the consequent ability to work it during that time.

The only bill of exceptions that need be noticed is that of the plaintiffs to the admission of the testimony of the defendant, and other witnesses, on the matter of violence or threats, on the ground that the ■averments of an authentic instrument could not be varied or contradicted by parol, and that the signatary of such writing is estopped in ■law and equity from denying or attempting to repudiate the transaction or compromise which is set forth in the writing.

The objections to the testimony were properly overruled. Where a married woman had expressly declared in a mortgage that the advances, secured in it, enured to her benefit, it was held that she was not estopped from shewing the contrary, and thus relieving herself from liability. Patterson v. Frazer, 5 Annual, 586. A fortiori must evidence of threats or violence, as the moving causes of her execution of the mortgage, be ■admitted, since their due proof would wholly invalidate the act.

The lower court sustained the defence of coercion, and rendered judgment against the plaintiffs. There is manifest error, and we must reverse it.

It is ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that the plaintiffs have and recover of the defendant Mary F. Rush the sum of thirteen hundred and sixty four 87-100 dollars with eight per centum per annum interest thereon from February 16, 1877, and the further sum of two thousand one hundred and forty four 27-100 dollars with the same rate of interest-thereon from February 16,1878, and the additional sum of ten per centum upon the aggregate of these two sums and interest, as attorneys fees, and the-costs of both courts including six dollars as cost of copies. It is further ordered and decreed that the mortgage claimed by the plaintiffs is recognized upon the property described therein as operating thereon from its date, and is ordered to be executed, and that the notes, called the Barfield notes, pledged for the security of the payment of the notes of defendant, be also sold to pay this judgment.

Rehearing refused.


author: DeBlano, J.

text:
    No. 777.
    The State vs. Ishmael Williams.
    Where in a criminal case, in which the defendant has waived a jury, the sentence-pronounced on the defendantis not responsive to the decree signed bythe judge,, the j udgment will be set aside and the case rem anded.
    The parish judge has authority to sentence the accused to imprisonment in the Penitentiary in criminal eases wherein the defendant has waived trial by jury.
    A PPEAL from the Parish Court of Terrebonne. Sidney, J.

      Lucius F. Luihon for the State,

      Van. P. Winder for defendant.
   The opinion of the court was delivered by

DeBlano, J.

The information filed against the accused charges, “that Ishmael Williams, late of the parish of Terrebonne, on the 26th of May, 1878, did — with a dangerous weapon — to'wit: a pistol, and with intent to Mil, inflict a wound less than mayhem, etc.”

The offence thus charged is that defined by section 794 of the Revised Statutes, and is punishable by imprisonment, with or without hard labor,, not exceeding two years, nor less than six months, and by fine not exceeding one thousand dollars.

The accused waived the privilege of being tried by a jury, and,, according to a statement which appears in the record, was found guilty as charged, and that is of having, with a dangerous weapon and with intent to MU, inflicted a wound less than mayhem. In the decree signed’ by the parish judge, he declares the prisoner guilty of the crime of wounding less than mayhem, and, nevertheless, condemned him to imprisonment at hard labor for. the space of one year and to pay a fine of five cents.

The offence mentioned in that decree, which can be but that of wounding short of maiming, and without the intent to kill, is punishable-by fine or imprisonment, or both, at the discretion of the Court, and— under the restrictions imposed upon its discretion, the Court had no. power to condemn the accused to hard labor in the penitentiary.

Bevised Statutes, sections 796, 982.

The sentence pronounced on the prisoner is responsive to the. charge laid in the information, but not to the decree signed by the parish judge, and — for that reason alone — is not sanctioned by law.

We consider it proper to say that the ground urged by defendant, “ that the parish Court has no authority to sentence an accused to imprisonment in the penitentianj,” is not tenable. In criminal matters, when the. prisoner waives trial by jury, the authority of that Court to pass such a sentence is incontestible.

Constitution of 1868, art. 87, 23 A. 600.

It is, therefore, ordered, adjudged and decreed that the judgment, appealed from is annulled, avoided and reversed, and this case remanded, to the lower Court to be proceeded with according to law.


text:
    No. 810.
    W. C. Williamson vs. T. P. Richardson, Sheriff, et al.
    The defendant in injunction is authorized to compel the plaintiff to prove the truth-of the facts alleged by him, in a summary manner. It is not needful for the suit to be at issue, or fixed for trial, or called, before the rule on the plaintiff to-prove his alleged facts can be tried.
    When a debtor enjoins the execution of a judgment for any of the causes mentioned-in article 739 of the Code of Practice, he is not permitted, on the summary trial of the rule on him, to prove the facts alleged by him, to introduce evidence of' any thing but the particular cause in article 739 on which he has based hia injunction.
    No copy of the petition for the order of seizure and sale need be served on the debtor,, but only the notice of the order.
    The judge may grant an order of seizure and sale on a note which is prescribed on its face.
    Damages will not be granted on the dissolution of an injunction when it is not certain that the plaintiff wilfully used the writ for delay, or merely to harass the-creditor.
    APPEAL from the Fourteenth Judicial District Court, parish off Ouachita. Parsons, J.

      Cobb & Gunbij for plaintiff and appellant.

      R. W. & R. Richardson for defendants and appellees.
   The opinion of the court was delivered by

Manning, C. J.

The executors of J. P. Crosley obtained an order off ■seizure and sale of certain property of the plaintiff, for the payment off his note for over four thousand dollars, and upon service being made off the usual notice, he arrested farther proceedings by this injunction* which, was granted without bond. The allegations are that a boy of ■«bout fifteen years, the son of the sheriff, delivered to the plaintiff a paper purporting to be a copy of the order of seizure and sale, and notice, but that such service is illegal, not having been made by a person •qualified to act as a deputy of the sheriff; — that no copy of the petition of the executors has been served on him, and that the note, upon which "the order issued, is prescribed.

At the ensuing term of court, the defendants in injunction moved ••and obtained a rule upon the plaintiff to prove in a summary manner the truth of the facts alleged in his petition of injunction, and the rule was made returnable two days thereafter. Whereupon the plaintiff excepted to this rule, and the order of court thereon, for four reasons ; — 1. that the proceeding by rule was not authorized by law; 2, the delay for answering should have been ten days; 3, that the rule is so vague and indefinite that the plaintiff can not answer it intelligibly; 4, that the suit is not at issue, and has not been fixed for trial, nor reached in the call of the docket.

The law expressly authorizes a party injoined to compel the party injoining to prove the truth of the facts alleged by him, in a summary manner. Code of Practice, art. 741. No delay is specified for the party injoined in such rule. The trial must be summary. The rule is not vague. The language used is the same as that of the Code. It was not needful for the suit to be at issue, nor to have been fixed for trial, nor called. It would defeat the purposes of the rule, if instead of trying it in a summary manner, its trial should be deferred until the suit was at issue, or should be reached in its regular order on the docket. The plaintiff was correctly compelled to try the preliminary issue on "the rule summarily.

It is also objected that the trial thus ordered was a violation of the •rules of the court, because it was had during the ' motion hour.’ That was the proper time, according to those rules, to try the summary proceeding.

The plaintiff, having been thus compelled to prove summarily the truth of the facts alleged by him, offered evidence to shew that his allegation touching the minority of the person who made the service on him was true. The defendants objected on the ground that when a debtor arrests a sale for any of the causes mentioned in art. 739 of the Code of Practice, (and this sale was arrested for the 8th. reason in that article, viz prescription) the debtor must, on the summary trial of such a rule as this, be confined to the proof of the particular cause, or causes, in that article, upon which he has based his proceedings in arrest. This objection is good. The purpose of these articles of the Code of Practice as, first to enable the debtor to arrest a sale of his property for certain specified reasons, and to afford him the most complete facility to do-that, directs the judge not to require any surety from him. art. 740. And the second purpose is to enable the creditor, who has been met in the execution of his process by these eight objections, or any of them, to avoid farther delay by compelling the debtor to prove them, and he can prove nothing else.

The second ground of injunction is, that no copy of the petition for the order of seizure and sale was served on the debtor. A copy of a petition is served when a citation to answer it is served. They go together. No citation is necessary in executory process, but only the notice of the order to the debtor. Dupuy v. Bemiss, 2 Annual, 509. Broughton v. King, Ibid. 569. Neither is service of a copy of the petition necessary.

The third ground is prescription, and upon this the ruling of the-lower court is not in accordance with the early authorities. A question of prime importance is here presented, Can a judge grant an order of seizure and sale upon a note which is prescribed on its face?

In Union Bank v. Dosson, 7 Annual, 548 an order upon such a note was held to have been improperly granted. The court said, “ as the obligation is prima facie prescribed, there must be authentic evidence of the interruption of prescription before the party can proceed via executiva,” and this is mentioned approvingly in Fowler v. Beatty, 10 Annual, 275. The later practice has been to grant .the order, leaving to the debtor to interpose the plea of prescription. We shall consider the right to issue the order in such a case as an original proposition.

The rule of the Code is, that courts can not supply the plea of prescription. art. 3426 new no. 3463. Non constat that every person, who can avail himself of it, will use it. It is a weapon that the courts can not furnish. It is rather a shield that the litigant must hold up for his own protection. When a judge refuses an order of seizure and sale upon a paraphed note, and a corresponding authentic act of mortgage, for the reason that five years have elapsed since the maturity of the note, by the terms of that refusal, he interposes the plea of prescription, for if the plea is never interposed, the note will always be collectable. If therefore it is beyond the judge’s power to supply the plea, the order must be granted if the authentic evidence before him conforms to the requirements of the Code of Practice.

This case practically illustrates the propriety of this ruling, and the complete protection it affords to the debtor. He can oppose the plea to-the creditor’s demand by an injunction suspending the sale, (art. 738) and that all hindrance to his exercise of this right may be'removed, he is dispensed from giving bond. The plaintiff has thus obtained his injunction, but when he claimed on the trial of this rule that the note was prescribed, the defendant proved by an endorsement upon it that ‘the debtor had waived prescription nine days before the full term of live years from its maturity. It was not prescribed therefore when the •order was granted for executory process to issue, and the judge properly made the order. The fact that our law has expressly mentioned prescription as one of the eight causes for which the debtor can arrest the process by injunction without bond, shews that its intention was to leave ‘to him the use of that plea, and not to allow the judge to interpose it.

We are asked to inflict damages upon the plaintiff in injunction for •■an abuse of the writ. It is not certain — it is not even probable — that he knowingly and wilfully used the writ for delay, or merely to harass the •creditor. On the contrary the unsettled jurisprudence upon this particular question left him in doubt whether he was not pursuing the course which might receive the ultimate approbation of the court of the last resort.

We disappoint his expectations, but we shall not punish him 'because ihe cherished them.

The lower court dissolved the injunction without damages.

The judgment is correct, and is affirmed.


author: Egan, J.

text:
    No. 776.
    The State vs. S. W. Curtis.
    .A criminal prosecution and conviction, based on a fatally defective information, or indictment, will not interrupt prescription of the crime charged.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

      W. N. Potts, District Attorney of the Fourteenth Judicial District, ■for the State.

      P. P. Carroll and John N. Heakj for defendant.
   The opinion of the court was delivered by

Egan, J.

This is an information for breaking and entering a storehouse in the night time, with intent to steal.

The only question which we deem it necessary to consider is the plea ■of prescription, which is alleged to have been improperly overruled. This information was filed on the twentieth of April, 1878, while the offense is charged to have been committed on the twenty-seventh of September, 1876. It was, therefore, clearly prescribed, unless some legal cause to the contrary is shown. The cause shown and alleged in the information is the institution of a former prosecution against the same defendant for the same offense within less than one year from the time of its commission. It appears that the accused was tried and found guilty under the former prosecution, and on appeal to this court that the conviction, was set aside and the prosecution dismissed for defects in the information ; whereupon, the present prosecution was instituted.

We recently reviewed the authorities, and especially the State vs. Cason, 28 A. 40, relied upon by the district attorney, in which it was held by our immediate predecessors that although a nolle prosequi had been entered in a former prosecution for the same offense, the existence of the prosecution was sufficient to interrupt prescription. Such would certainly not have been the effect of the institution and voluntary abandonment of a civil suit; and we held in the case referred to, which is yet unreported, that no more did it interrupt prescription in a criminal case.

It has often and uniformly been held both in this State and elseT where that in order to make a former conviction or acquittal available to the accused in a subsequent prosecution for the same offense the former proceedings and indictment must have been lawful. See 7 A. 256; State vs. Foster, 8 A. 290; 16 A. 400; Waterman’s Crim. Digest, p. 227, sec. 45, et seq., and cases cited. If such be the rule against the accused in a criminal proceeding where the courts and the law always lean “ in favorem libertatis ” it is difficult to perceive any good reason why the contrary should be held in favor of the State or the matter of prescription. It would seem hardly to be even-handed justice. None of the authorities relied on by the counsel for the accused bear upon the precise question in the present ease, except Wharton’s Am. Crim. Law, sec. 436 (a), under which in note (d) we find a reference to the ease of the United States vs. Slocum, 1 Cr. C. C. 485, in which it was held that the finding of an informal presentment is not sufficient to take the case out of the statute; nor will a former indictment on which a nolle prosequi was entered; United States vs. Bellard, 3 McLean, 469. Such, too, we ■think has been the general practice and interpretation of the law in this State, and we think it correct. An illegal or void prosecution is equivalent to no prosecution, and under it the accused, on the one hand, is con■si4ered as having never been in jeopardy, while, on the other, it is without legal effect in favor of the State to interrupt prescription. We should have been better pleased had the question arisen when we had large access to authorities, but in view of the humanity of the law, and liberty of the citizen, and of the absence of any statutory provision similar to that in civil eases, and of any reference to authority to the contrary on behalf of the State, we are unwilling to sanction a practice liable to so great abuse and possible injury to the citizen,

It is therefore ordered and decreed that the verdict and sentence ■appealed from be and they are avoided and set aside; that the defendant’s plea of prescription be maintained, and that he go hence without •day.