author: Mare, J.

text:
    No. 758.
    Mary C. Flournoy and Husband vs. Alonzo Flournoy, Executor, and Others.
    The heirs oí a succession which has not been opened, and which is composed entirely of claims against another succession under administration in a parish court, sue the executor and heirs of the latter succession, (of which they are coheirs,) for a partition and settlement of both successions, and to compel each heir of the latter succession to collate $5000.
    Held — That the claim for collation is virtually a demand for a money judgment, and being for more than $500, the parish court has not jurisdiction.
    If the surviving husband did not open his wife’s succession, of which he enjoyed the usufruct, the assets of her succession may be distributed by the probate court, in the administration of the husband’s succession, when his heirs are her heirs, and the heirs of the one, set up no demand against the heirs of the other succession, involving more than S500.
    An exception to the jurisdiction of a court should not be referred to the merits, but passed on at once. ■ ■ ' '
    ^PPEAL from the Parish Court of Caddo parish. OrressioeU, J.

      Land <& Taylor, for plaintiff and appellant.

      Duncan & Moncure, for executor and appellee.

      A. W. O. Mieles, for J. C. Yerger, defendant and appellant.
   The opinion of the court was delivered by

Mare, J.

Dr. Alfred Flournoy, residing in the State of Tennessee, married Martha Moore, who died, leaving six children, of whom three, Alonzo, James, and Alfred are living, and William, Rachel, and Martha are dead. William and Rachel left a number of children, some of them minors; and Martha, who married Cain, left one child that survived her but a few months.

In 1836 Dr. Flournoy contracted a second marriage with Maria, widow of Yerger, who had one child, John C. Yerger, who is still living.

At the time of the marriage Dr. Flournoy owned frpm thirty to thirty-five slaves, and was considered a wealthy farmer in Tennessee; and Maria Yerger owned some slaves, nine or ten, as some of the witnesses say, twelve or fourteen according to others; and other personal property of no great value; all of which Dr. Flournoy reduced into possession.

In 1837 Dr. Flournoy visited Louisiana in search of a new home, “ prospecting,” as the witnesses say. He found lands that suited him in Caddo parish, government lands occupied by settlers, or “ squatters,” to whom he paid $2500, for their improvements and claims.

Early in 1838, with two of his sons, he left Tennessee, for Louisiana, leaving the remainder of the family in Tennessee. He brought with him the greater part of his slaves, as well those which belonged to him before as those which belonged to Maria Yerger at the time of the marriage; also, a supply of corn and meat, mules, horses, and farming implements; laden on flatboats, which, at an expense of $1400, he had towed) to Shreveport. Proceeding thence, he reached his destination on the-thirteenth of, March, 1838; and established himself on the lands for which he had paid the occupants when he visited Louisiana in 1837.

In the fall of 1838, the family moved from Tennessee, and continued to live on this property. In 1839 Dr. Flournoy entered the lands, at, government price, $1 25 per acre.

Mrs. Flournoy died in February, 1848, leaving four children, issue of her marriage with Dr. Flournoy, Mary Camp, Pattie, David’ and Charles; Flournoy. David died several years after his mother; and Mary Camp, now wife of S. EL Sibley, Pattie, wife of S. B. Surrat, and Charles Flournoy are still living.

When Dr. Flournoy removed to Louisiana, the law of Louisiana began to operate upon him, his rights, and his property within the limits of the State; and a community of acquets and gains between him and his wife ensued by mere effect of law, dating from the removal to Louisiana. As Mrs. Flournoy died intestate, her share of the community was inherited by her children, in equal parts, that is, by the four Flournoy children and by John C. Yerger.

By the act of 1844, in force at the death of Mrs. Flournoy, and now, Dr. Flournoy was entitled to the usufruct, for life or during widowhood, of that portion of the community which was inherited by the issue of the marriage. That is, four fifths; the' other fifth'being inherited by John C. Yerger, whose title and right of possession and enjoyment accrued and took effect immediately upon the death of his mother.

Dr. Flournoy took no steps to administer the succession of his wife. He assumed and acted upon the hypothesis that his four children were the only heirs of their mother; and these children have acted upon that assumption, and have claimed and held adversely, and without regard to any right or title of Yerger.

To avoid errors in future, with regard to this property, it may be well to state here what were the rights of Dr. Flournoy and his wife Maria, at the moment the laws of Louisiana began to operate on them. It has been suggested in argument that we must presume that the law of Tennessee was like our own, in 1836, when the marriage between these parties took place. But we know that it was not; and, while we can not be expected to know, and do not profess to know the details and particulars, of the special statutes of any other State than our own, we can not pretend to be ignorant of the general laws of the several States, regulating-marriage, descent, and the transmission or acquisition of property. As a. matter of legal history, we know that, in 1836, slaves were personal property in Tennessee; that community did not exist between husband and wife; and that the slaves and other personal property belonging to a woman became the absolute property of her husband when- reduced, into possession by him after the marriage.

When Dr. Flournoy arrived in Louisiana with these slaves, they fell! under the dominion of the laws of Louisiana, in the exact condition iín which they were on arriving here; and being then the property of Dr:. Flournoy they continued to be his property. They never entered into the community. Mrs. Flournoy had no property in them;: and the results of their labor alone belonged to the community.. The community consisted of the profits, gains, realized from the removal to Louisiana, in 1888, up to the time of the death of Mrs. Flournoy, in February, 1818;, and nothing is counted as profits or gains except such property or effects as remain at the dissolution of the community.

With respect to the land, it may as well be stated that the $2500, paid! by Dr. Flournoy to the occupants, and the price paid the government,, should properly be charged to the community, and refunded to the succession of Dr. Flournoy, as so much advanced by him out of his own. separate means, for account and benefit of the community.

In 1852 Dr. Flournoy qualified as natural tutor of his four minor children, Mary Gamp, Pattie, Charles, and David, to whom their maternal grandmother had bequeathed some money and slaves. As tutor,, he received this bequest from the executor in Tennessee; and brought' the property to Louisiana.

David died a minor, without issue; and Mary Camp and her husband,. Sibley, provoked a partition of the slaves and money in the hands of her father and tutor, Dr. Flournoy. She proceeded, and the partition was1, made, on the hypothesis that she, Pattie, and Charles were alone entitled. The partition was made in December, 1860; and the whole bequest, valued at $8351 50, wag divided among the three just named',, each receiving one third.

This was wrong. When David died • his father was his heir for one fourth; and his brother and sisters of the whole blood, and his brothers and sisters of the half blood, including John C: Yerger, the son of his mother, were his heirs, in unequal portions, according to the dispositions of the Civil Code.

In September, 1858, Dr. Flournoy sold the homestead, the-community lands, to Ogilvie for $8100. In 1861 he desired to settle-the community; and for that purpose he filed his petition, stating that he had advanced the money with which the lands sold to Ogilvie were purchased and paid for; and he made the necessary prayer to have effected the partition- and settlement. But the condition of affairs then existing, and the civil war which ensued, no doubt, prevented further proceedings on this* petition.

In August, 1865, the heirs of Maria Flournoy being all of age, Mary Camp Sibley and her husband, Pattie Surrat and her husband, and Charles Flournoy, by notarial act, ratified the sale made by their father to Ogilvie in 1858, and received their shares of the price, $8400, on the hypothesis that they were sole heirs of their mother and entitled to her entire interest in the community; and that her share of the price of the lands was one half, or $4200.

This was wrong again. Eavid and John C. Yerger were equal heirs of their mother with them. Er. Flournoy was entitled to have refunded to him the $2500 he had paid for the improvements and claims of the squatters; and he was entitled to one fourth of Eavid’s share. The remaining three fourths should have been divideij between the full brother and sisters of Eavid and bis half brothers and sisters, including John C. Yerger, as fixed by the Civil Code.

Er. Flournoy died in 1873; and his succession consisted of movable effects estimated at $9600 12, and real estate valued at $5700; in all $15,300 12.

In Eecember, 1874, Mary Camp Flournoy and her husband, Samuel H. Sibley, brought this suit in the parish court of Caddo against Alonzo Flournoy, executor of the last will and testament of his father, and the •other children and descendants of Er. Flournoy, as well by his first as by his second marriage, and against John C. Yerger, as one of the heirs •of Maria Flournoy. In the petition it is alleged that Er. Flournoy advanced to each of his children by the first marriage and to Charles five thousand dollars in excess of their portions; and that they are bound to collate. The prayer is for a settlement and partition of the successions •of Maria Flournoy and Er. Alfred Flournoy; and that all the children •of the first marriage and Charles Flournoy be ordered to collate the •advances made to them by the deceased.

The executor and the heirs thus called upon to collate excepted to the jurisdiction of the court on the grounds substantially:

First — That the succession of Maria Flournoy has not been opened, •and is not pending in the parish court of Caddo.

Second — That this suit is, in point of fact, a proceeding to render the •succession and heirs of Er. Alfred Flournoy liable to the succession and heirs of Maria Flournoy for a pecuniary demand.

It is obvious that after the lapse of more than twenty-six years since the death of Mrs^ Flournoy, that is from February, 1848, to Eecember, 1874, none of the movable effects or slaves, if there were any, belonging to the community would remain. The usufructuary could not be liable to his children, the heirs and owners, for such of these effects as perished by age, natural decay, or otherwise, without fault on his part. The maxim res perit domino applies as well to the property and effects of the heirs in the hands of the legal usufructuary as to that in the possession of the owner. Time and use would have left no trace of horses- and mules or plows and farming implements; and the law with its potent voice struck down slavery and destroyed property in slaves. If' there were slaves belonging to the community, that is slaves acquired after the removal of the family to Louisiana, they ceased to exist as property; the usufructuary lost the use and enjoyment; the owners lost the property. Dr. Flournoy would not have been liable, or rather his succession would not have been liable, to his children, heirs of Maria Flournoy, for such effects of the community as perished in the using or ceased to be property by the effect of the law during his usufruct; and as it is manifest that none of these effects remained in kind in his possession at the time of his death, if there is any liability to the heirs of his wife it resolves itself, necessarily, into an obligation to pay money;, and the demand of the heirs of the wife is a demand against the succession and heirs of the husband, for a sum of money due the succession of the wife.

The succession of Maria Yerger consists wholly of claims against the succession and heirs of the husband; and the amount of that indebtedness, as alleged in' the petition, is far beyond any possible value of the property and effects of the succession of the husband.

Before there can be any tangible succession of Maria Flournoy, any thing to be divided among her heirs, a judgment must be obtained against the executor and heirs of the husband, not merely the’ children of the first marriage, fixing the amount; because it is not admitted by the executor nor by the heirs that any such indebtedness exists. That-only could be recovered which might be proved to be the amount due by the succession and heirs of the husband to the succession and heirs of the wife; and the amount demanded in the petition is far beyond the limited jurisdiction of the parish court.

Where the husband, survivor of the community, dies without having administered the succession of the wife, of which he had the usufruct, his heirs being also the heirs of his wife, the two successions may be settled and distributed among the heirs in his succession alone in the parish court, as was decided in Peniston’s case, 22 An. But where one succession, or the heirs of one succession, seek to recover of another succession, or the heirs of another succession, money or property, the suit must be brought in the court having jurisdiction of the amount in controversy, and it can not be in the parish court where the amount or value exceeds five hundred dollars, as was decided in Bynum’s case, 24 An.

In this case we have a complication of heirship:

First — The children of the first marriage, entitled to a share in the succession of Maria Flournoy only in virtue of their inheritance from their half-brother David.

Second — The children of the second marriage, entitled to a share in both successions, as heirs of their father and their mother.

Third — John O. Yerger, entitled to a share in the succession of his mother as one of her heirs, and to a share in both successions as one of the heirs of his half-brother David.

These conflicting rights and interests can not be settled in the parish court, nor in any single proceeding in the matter o'f the succession of Dr. Alfred Flournoy; and the parish judge properly declined to entertain jurisdiction.

We observe in this case that the exceptions to the jurisdiction were referred to the merits. We consider this bad practice. When a plea to ‘the jurisdiction is filed, tho question should be passed upon and determined by the court at once. It is to be regretted that the parties in ‘this case have incurred the expense and delay of this protracted litigation, to bo told at last that the court is without jurisdiction. We should be glad if it were in our power to put an end, by final decree, to this ••controversy; but we can only affirm the judgment of the court below.

We think it proper to say that all the rights of the parties, whatever they may have been, at the inception of this suit, remain as they were •then, wholly unaffected by this decree.

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

' Mr. Justice Egan, having been of counsel, takes no part in this decision.

Rehearing refused.

      This is manifestly a mistake, since David died before his father. The paragraph should have been written thus:
      “John C. Yerger, entitled to a share in his mother’s succession, as one of her heirs, and to a share as one of the heirs of his half-brother David.”
      The statement was made arguendo to show the complication of the heirship, not ■to determine tho respective rights of tho heirs; and this correction, which the context reauires, can not affect tho conclusion and decree. — R. H, Mabb.


source: Caselaw Access Project

author: Egan, J.

license: Public Domain

text:
    No. 716.
    Succession of John M. Harris. Opposition of J. F. Pargoud.
    An administrator who sells succession property, without an order of court, for less than its appraised value, is responsible for the difference.
    An administrator is liable for any loss of, or damage to succession property, caused by the fault of his agent, or by any want of prudent administration.
    Public administrators are authorized to employ lawyers in behalf of the successions they administer.
    In a small succession, five per cent on the amount of the inventory is a reasonable allowance for attorney’s fees.
    Until it be shown that there are absent heirs, not represented, no attorney should be appointed to represent them.
    'The fees of attorneys for absent heirs, unless their services are proved to have been valuable to the succession, must be paid out of the shares of the heirs they rep-re sent.
    The charges of notaries, and other officials, in succession matters, are fixed by law, and must be rigidly adhered to.
    REPEAL from the Parish Court, parish of Ouachita. Black, J.

      W. W Farmer and Robert J. Caldwell, for administrator and appellant.

      Cobb & Quribxj, for opponent.
   The opinion of the court was delivered by

Egan, J.

James S. Bay, public administrator of Ouachita, was appointed, by virtue of his office, dative testamenty executor of the will •of the decedent in January, 1874, J. E. Pargoud, the executor named in the will, having refused to accept.

The dative executor provoked the sale of both real and personal prop•erty and filed the account, the items of which are opposed generally and ¡specially by Pargoud as a creditor of the succession. The accountant excepted that he was not a creditor and not entitled to oppose. A tableau of debts in the record shows a large accepted claim in his favor, which had been transferred to Meyer as collateral security for a debt of ¡smaller amount due him by Pargoud, which was subsequently paid. 'Three thousand dollars of the Pargoud debt was used by Meyer in paying for real estate of the Harris succession purchased by him, and the remainder is still due and belongs to Pargaud as shown by the evidence.

It is the fact and not the amount of indebtedness to him which gives him the right to oppose. It is therefore immaterial to inquire further ■or to prove specific amount. The exception was properly overruled.

We shall consider the opposition in the same order as the parish .-judge.

Eirst — That the accountant has credited himself with the difference tbetween the proceeds of sale of property and the amount of inventory improperly for several reasons: First — That he has not accounted for a mule, Julie, appraised at $175. ' This is admitted, but it is claimed that this mule was bid off at the sale, and the purchaser not complying-with the terms of sale, the mule was subsequently sold privately by the executor for $110 cash, instead of on a credit of twelve months as ordered by the court. The accountant has failed to show at what price ■ the mule was bid off, or that its real value was less than the appraisement, and, if so, how much less. He was therefore properly charged with the appraised price, $175.

The next item charged to be improperly credited and not accounted, for is nineteen hundred pounds of meat. The quantity inventoried was • twenty-ñve hundred pounds and that sold only six hundred pounds. The parish j udge allowed the executor a credit of 280 pounds of meat consumed by the colored family of deceased, according to the best estimate of the witnesses. This allowance is not complained of by the opponent, and we think was proper. The executor was, however, charged with the difference between 880 pounds, the quantity sold and thus used,. and that inventoried, making 1620 pounds, at ten cents, equal to $162. Of this the executor complains on the ground that he has shown by witnesses that something over five hundred pounds was stolen from the • smoke-house at night in the1 absence of Hanna, a keeper appointed and paid by him to care for the property; and for the further reason that the meat was not weighed, but only estimated at the time of the inventory. With regard to the latter reason, it may be remarked that the mode of estimation adopted is a not uncommon one where, as in this instance, the meat was hanging on sticks; that is, the quantity on one-stick was weighed, and then the number of sticks and of pieces upon each counted and the total quantity thus calculated. This may not have been exactly accurate, but was, no doubt, approximately so. At all events, at this distance of time, we have no better guide, and if there is any uncertainty it is attributable to the executor, who provoked the • inventory and permitted it to be taken in this manner. It was his duty to have had an accurate inventory, and if he did not do so he can claim no advantage of that fact now. There may, however, have been some shrinkage or loss in weight in the short time between inventory and sale, and we -will reduce this item of charge against accountant to five hundred pounds, at ten cents, equal to one hundred and fifty dollars on that account. We do not think that the executor is entitled to the credit for the meat shown to have been stolen. His keeper boarded and slept two ■ or three miles from the place, and, as properly remarked by the parish judge, his presence and care were more needed at night than at any other time. No prudent man would have left his own property exposed to such risk, and the executor must be held responsible for the fault or ■ neglect of his servant, the keeper, appointed by him, and whose keepership appears to have been of little if any service to the succession.

The next item was corn inventoried and not accounted £or. The evidence in regard to this is not very satisfactory, but taken in connection with the inventory might have justified some charge against the executor on this account; as it renders it probable that some part of the corn was stolen, and it certainly was left as liable to be stolen as the meat. It is shown, however, to have been in great part inferior to that which was on the top when inventoried, and was not so accurately measured or estimated. We think the parish judge was liberal in not charging any thing to the executor on this account, but as the evidence does not enable us to ascertain with how much he should be charged we shall not disturb the judgment in this respect.

The next item of $25 3£> money embraced in the inventory, not charged in the account, is admitted to be correctly charged in the judgment of the parish court.

The matter of two or-three barrels of spoiled meat was properly not charged against the executor.

The item of twenty dollars for a rifle gun stolen was properly charged for the same reason as the meat; i. e., the fault of the keeper.

The next item opposed is the attorney’s fees in the succession, charged at $581 62, or ten per cent on the amount of the inventory. It is objected that this is not only excessive, but that the public administrator is a public officer with a compensation fixed by law at double that allowed ordinary administrators, and that he is presumed to have been appointed by reason of his qualification to discharge the duties in person without the aid of an attorney, and if he requires one that he must himself pay for it as was no doubt contemplated by the Legislature in allowing so large fees of office. In view of the history of this and other recent legislation in Louisiana, and of the class of persons usually chosen to act as public administrators, and of the fact that no special qualifications were required by the law, it would be a violent presumption that any such economic or prudent considerations entered into the legislative mind. This was properly characterized in argument as only one of the many more than useless officers with which our people have been burdened in the recent past, but for the future happily no longer under the new order of things. Nevertheless, the office was created by statute of the body acting as a Legislature. No man could properly or safely perform its duties without the aid of an attorney, and the law itself permitted the judge of probates to allow, besides the regular commissions, other reasonable and proper expenses. We think attorney’s fees was one, and that the parish judge properly allowed the amount of five per cent on the inventory, or one half of that charged in the account, which, considering the size of the estate and the value of the services required for its proper management, we consider a usual and proper allowance. The attorney may be entitled, to more and even to the full amount charged as against the executor personally for services rendered for his protection. The amount allowed is, however, all that the succession should pay. In this connection we will say that the whole amount of twenty-ñve dollars, charged as a fee for attorney of absent heirs, should have been 'disallowed instead of being reduced to ten dollars as was done by the parish' judge. The appointment of an attorney for absent heirs in this case was not only unnecessary, but was an abuse and a burden improperly sought to be imposed upon the estate. There is no evidence of the existence of any absent heirs, but- on the contrary the instituted heirs resided in the State and parish, and the executor claimed and was allowed credit for amounts expended for the benefit of the family of the deceased, who resided in the place where he died. The appointment of attorney for absent heirs is not authorized without proof of the fact which renders it proper. 12 L. 73. It is proper only when the heirs or part of them are absent from and unrepresented in the State. 15 L. 527. When no absent heirs are shown to exist the appointment of an attorney to them will be revoked as illegal. 3 An. 226. We have felt it proper to announce the law on this subject because this has been a fruitful source of illegal charge upon estates in Louisiana, and the sooner it ceases to be the better.

It may not be amiss to remark that the fee of attorney for absent heirs, when such appointment is necessary, is properly chargeable to the portions of the absent heirs and not to the body of the succession; where, however, the services of that officer have proved valuable to the succession and for that reason a fee has been sometimes -allowed the attorney for absent heirs "out of the succession funds generally. The law, however, does not contemplate this, and it is exceptional.

The executor credits himself with $178 50 as having been paid to his brother-in-law, Hanna, as keeper. This was properly disallowed by the parish judge. The evidence of Hanna himself proves that no such amount was paid him, and it is also apparent that the succession was not benefited by such keepership as it received at his hands. To allow it would be to give a bonus for neglect and carelessness. The executor seems to have put himself to but little trouble personally about this succession. When he did do so he has charged for it liberally outside of his commissions, in the item of $46 50 for expenses. We will allow him -ten dollars on this item as a compensation to hands for assisting in collecting and delivering personal property sold. The parish judge rejected the whole of this item, and except as to the sum named, to wit: ten dollars, we affirm his judgment in this respect.

We do not think that a stranger to a succession who assumes its administration for profit is entitled to charge against it the small amounts expended for buggy-hire and ferriage in attending to the ordinary duties of the offiee he has assumed.

There are two other minor items which have attracted our attention ie examining the record, and which were overlooked by the parish judge. The first is the account of J. J. Butler, J. P., for affixing the seals to the effects of decedent, the sole service rendered by him, and whose account Includes horse-hire, per diem, and mileage to the residence and then to Monroe to return the proces verbal and the sum of six dollars for affixing the seals. We know of no warrant of law for the payment of such am account by the executor, and there appears to have been nothing in the small succession of an illiterate man to make the affixing of the seals indispensable. The law fixes the charge for this duty at two dollars, and we allow this amount. If the officer chose to amuse himself by riding to Monroe to return the proces verbal, he could not charge the succession with it.

The second of the items is an account for thirty dollars paid the recorder for raising the seals and taking inventory. By the latest fee-bill. no allowance is made for removing the seals, but by the Bevised Statutes of 1870 the sum of one dollar is allowed for that service and for writing the proces verbal, and this amount we will allow instead of four dollars as charged in the account. The law makes no provision for the payment of buggy-hire and ferriage, for which six dollars is charged in the notary’s account, and we can make none. The law allows fifty cents per. hour, not exceeding twelve hours per day, for taking inventories out of the notary’s office and twenty-five cents per hundred words for the proces verbal, with twenty-five cents for the seal and certificate thereon, and twenty-five cents for swearing each appraiser. „ The time consumed necessarily in taking this inventory could not have exceeded one day, which would be six dollars; swearing two appraisers and seal and certificate seventy-five cents; there are not so many, but we will allow eight hundred words for the proces verbal of inventory, which would be one dollar and sixty cents more; making a total of eight dollars and thirty-five .cents, or say nine dollars, for inventory, to which add one dollar for -raising seals, the cost fixed by law, making a total of ten dollars, which -we allow on this item of credit claimed by the executor instead of thirty dollars as charged by him. A charge of a round sum in a notary’s account •for taking inventory is illegal and should be disallowed by the court. 12 L. 73. It may be said and doubtless will be that this amount is too small, and that the services of officers can not be procured at these rates. To this it may be answered that the law has so fixed them and has made it penal to receive any other or higher rates or ebarges for Stioh services, and that the Legislature, though often applied to, has as often refused, to increase them. It, .is not for us to do so, and it may be that, our notions have been heretofore too .extravagant and officers too exacting.. Perhaps, if the effort is made, officers may be able to live here as elsewhere upon the fees allowed them by law.

Unlawful and extravagant charges and expenses in all the details of the management of successions have grown to be an abuse and a reproach in Louisiana. We think it is time that the courts should put a. stop to this state of things, so far at least as the law permits, and that-the attention of inferior tribunals should be called to this matter,’ which was always burdensome and unjust, and is especially so now in the impoverished condition of the State and people.

In regard to these particular services the facility with which the appointment of notaries may be procured in every neighborhood would largely diminish any fancied inconvenience resulting from a reduction of fees to the legal standard.

The only remaining matter to be considered on this opposition is the commissions claimed by the public administrator as dative testamentary executor, which were disallowed by the court. There is much in this-record of careless administration and consequent loss to the succession to justify the judgment of the parish court in this respect, and we are not prepared to say that on the evidence before us we should disturb it if this were a final account.

We can not pass without rebuke the fact that the administrator has charged, at least in one instance, an amount shown by his own witness and brother-in-law not to have been paid by him; the fact which appears in the record, and though not directly connected with any other item of the present account than the allowance of commissions to the executor — which can not. escape remark — that he discounted for cash shortly before maturity paper taken at the sale of succession property, and has shown no order of court or other excuse or necessity for doing so; the fact that after an order of court to sell on twelve-months time he sold for cash for $110, at private sale, a mule appraised at $175, and has not shown any sufficient reason for not selling this as other property on time according to the order of the judge, in which way it is to-be presumed it would have brought much more, and has also not shown that the mule sold for its full value, although for less than the appraisement. These things were certainly not the acts of a prudent man or faithful administrator; and, indeed, the record discloses such manner of dealing with the succession as might well justify the judgment of the court below in rejecting the executor’s commissions absolutely. As, however, there is another reason why he would not now be entitled to-charge full commissions, that is that the administration is unfinished, even if he shall ever be entitled to them, and as we do not wish to do this officer any injustice we will amend the judgment as to this item so as to make it one of nonsuit only. The executor may thus be afforded an opportunity to show some better reason than is disclosed in this record why he shall be entitled to charge in his own favor commissions for administration in the final account which he has been ordered to file.

Eor the reasons-assigned, it is therefore ordered, adjudged, and decreed that the judgment of the parish court be amended so as to conform to the views expressed in this opinion; that there be judgment of nonsuit only as to the item of executor’s commissions for administration; that the executor be charged with one hundred and fifty dollars for meat not accounted for instead of one hundred and sixty-two dollars as fixed by the parish court; that the executor be credited with ten dollars on account of the item for expenses of forty-six dollars and fifty cents, which was wholly disallowed by the parish court; that the sum of two dollars be allowed the executor for the account paid J. J. Butler, J. P., for affixing seals instead of twenty-one dollars and thirty cents, as allowed by the parish judge; that the sum of ten dollars be allowed the executor on account paid M. M. Grady, recorder, for raising seals, taking inventory, and swearing appraisers, instead of thirty dollars, as allowed by the parish court; that the item of twenty-five dollárs for attorney for absent heirs be altogether rejected instead of being reduced to ten dollars, as was done by the parish court; and that, as thus amended, the judgment of the parish court be in all respects affirmed. It is further ordered that the succession pay the costs of this appeal.


text:
    No. 663.
    T. B. Jordan & Co. vs. M. & A. Anderson.
    Wlien husband and wife are co-defendants in a suit they may be legally served by a citation to each, or to the husband alone.
    When husband and wife are co-defendants he sufficiently authorizes her, by appearing in the suit, and aiding her in her defense.
    A debt contracted by the wife, or by her husband with her consent, which inures to the benefit of her separate property, is binding on her.
    A mere change in the form of a debt does not work a novation.
    A party can not introduce evidence inconsistent with his pleadings.
    A surety can not benefit by an exception personal to the principal.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. ■Looney, J.

      J. W. Jones and Land &■ Taylor, for plaintiffs and appellees.

      A. W. O. Hides, for defendants.
   The opinion of the court was delivered by

Egan, J.

The plaintiffs sue upon promissory notes given for the price of- materials and workmanship used in constructing a brick building upon the property of the wife, one of the defendants, and also claim the privilege accorded by law upon the building. The defendants excepted that they were not properly-cited. They were sued solidarity, and citation served upon each personalty as it was addressed to each separately. This was good citation and service had they not been husband-and wife (C. P. 178,190), or had the wife been separated from bed and board. C. P. 193.

Code Practice, article 182, provides that if the defendants are husband and wife a single citation and copy of petition are sufficient, and article 192 that if the petition and citation are directed against a married woman not separated from bed and board from her husband the service may be made by delivering to either husband or wife, or at the domicile in the usual way.

The fact that plaintiff did not avail himself of the privilege accorded him by law of giving and serving but one citation to both husband and wife does not make it bad as to her. In this instance the issuance of two'citations was proper. The husband was cited, not in that capacity only, but as a co-obligor. The defendant, B. Anderson, was not separated from bed and board from her husband. Had she been, however,, the citation and service in this case would have been good, and not-having been, it is equally good. Both she and her husband were cited. It was sufficient. They subsequently answered, whereby, it is claimed, defects of citation or service were waived.

It is unnecessary to pass upon the effect of answer in this case “ under protest,” as the parties were legally cited. The wife answered separately, denying all the allegations of plaintiff not specialty admitted. She admitted her signature, but set up that she was then and at the time of signing the obligation sued on, the wife of her co-defendant, and that-her signatures were obtained without the authority of her husband and without consideration. The husband filed a separate answer, denying-all allegations not admitted, admitted his signature as surety for his wife, set up her want of capacity to contract the obligations sued on for the reasons stated in her answer which he adopted in this respect as his answer. He further averred that he had received no consideration for the contract, and prayed that plaintiffs’ demand be rejected. The answers also claim the payment of fifty dollars on the contracts.

It is objected that the wife was not property authorized to defend the suit and stand in judgment, because the judge had no power to authorize her unless the husband had refused. His appearance and adoption of her answer and assistance in the defense is sufficient authorization, if the judge had made no order of authorization.

The husband claims that his wife is not bound, and that he being sued as her surety is not bound unless his principal is. The law is that. suretyship can only be given for the performance of valid contracts. A man may, however, become surety for an obligation from which the principal debtor might be discharged by reason of an exception merely personal to him; such as being a minor or a married woman. C. C. 3036; 16 An. 445.

It is urged that, although the plaintiffs’ debt is for workmanship and materials for the improvement of the separate property of the wife, the husband had the administration of her property, and the debt is one of the community and not hers. It is true that the presumption of the law both as to debts and acquisitions made during the marriage is that they belong to the community, and hence it is well settled that to recover against a married woman it is necessary to show affirmatively that the consideration inured to her benefit. 15 An. 352; 20 An. 229; 24 An. 95. We know of no law, however, and have been referred to none, which exonerates the wife from the obligation to pay for what does inure to her separate benefit or that of her separate property. The law of Louisiana treats marriage as a kind of partnership, from which, however, is specially reserved the separate property of the spouses. It also permits the wife to retain or at any time to resume the administration of her own separate estate, and she retains as fully as if unmarried the jus dominii of it. From this it follows that she is clothed with all the incidental powers necessary or advantageous to the enjoyment of her separate property, among which is the right to erect buildings or make other improvements upon her separate lands. If these are paid for out of the community funds the only result is that at the termination of the community she or - her separate estate owes to the community the amount so expended. The improvements, however, are none the less her property, and if, as in this instance, they are unpaid for, that price is due directly from the wife to the person making them. That the husband chose to bind himself individually also by no moans diminishes or changes the wife’s obligations.

It is well settled that buildings and other improvements made during the marriage upon the separate lands of the wife belong to her as to any other owner of the soil, and not to the husband or to the community. The doctrine “ cujus est solum ejus est usque ad caelum” applies to her equally with any other proprietor. The disabilities under which the wife rests under our law are that she can not contract without the authorization of her husband or of the judge, and that she can not bind herself as security or otherwise for a debt of her husband or of the community, and can not alienate her dotal property. Aside from those disabilities, as we have said, she may lawfully contract, as for the benefit and improvement of her own separate property.

In the case at bar she and her husband, who, it seems from the evidence, she permitted to administer her property, and who, therefore, aside from his marital duty, had a personal interest in the development and improvement of valuable unimproved real estate of the wife in the city of Shreveport, that it might become a source of revenue, besides being enhanced in value otherwise, contracted with the plaintiffs, builders and material men, to erect a brick building upon this property at an agreed price, which was subsequently enhanced to the extent of two hundred dollars for additions to the work.' There was a written notarial contract signed by all the parties, the husband signing with the wife. This was sufficient authorization, 17 An. 204; 19 An. 48; 21 An. 396, even were it not otherwise abundantly shown by the evidence in the record that the contract was made and the work done with the express authorization of the husband, who- himself superintended the work in the exercise of his administrative power as such. The husband had nothing to serve as a basis of credit, and he was not credited; all the property in their possession belonged to the wife or to her and her minor -child by a former marriage with Gilflllan. It is not pretended that the work was not needed or of advantage to her separate estate, and the pretense that she did not authorize it or was not herself authorized is wholly unsupported by the evidence. After the completion of the work the husband and wife signed another instrument which is in evidence in which they acknowledged the completion of the work in compliance with the contract of plaintiffs, and recited the fact that they had the same day given the notes sued on for the unpaid balance of price. This with the other written and parol evidence in the record disposes of the argument that there was a novation of the debt. Novation is never presumed; and so far from having been proved, the evidence in this case shows nothing more than a change in the form of the evidence of the debt. The original debtor contracted no new debt, nor extinguished the old one. No new debtor was substituted for the old one, who was not discharged, and the creditor was the same. C. C. 2189, 2187; 8 M. 431; 9 M. 187; 6 N. S. 568; 16 La. 140; same, 487; 11 An. 547; 14 An. 54; same, 93.

If the wife were incapacitated to make the contract in question, she would not be benefited. Under such circumstances, she could not retain and enjoy the benefit of plaintiffs’ labor and materials without paying for them. C. C. 1793; 13 An. 14; 16 An. 217; 23 An. 409. These principles were reviewed and recognized in the unreported case of Wolfe. & Cerf vs. Harvin, recently decided by us in New Orleans. Her incapacity, if it existed, would not enable her to commit a fraud. 6 An. 56. That incapacity, as we have seen, is not universal and absolute. In the cases to which it does not extend, the capacity of women is not affected by marriage. 2 An. 1, 10, 433. Her husband’s authorization is not required to the acts necessary for the administration of her paraphernal property. Her right of administration would be a vain thing if she could not without her husband’s authority pay debts incurred for her separate property. Eor such debts she may sign notes or drafts without her husband’s authority; a fortiori then, with it. 14 An. 676. Had there been any want of original authority, as we have seen there was not, the subsequent execution by the wife and husband of the receipt or instrument reciting the contract and acknowledging its completion and the execution of the notes used ór given for its price is sufficient ratification of it to bind her. 4 An. 163; 5 An. 369.

The fact that the lot of ground upon which the building in question was erected belonged in indivisión to the wife and her minor child of a former marriage, does not affect the question. One of two joint proprietors may make and enjoy improvements on the common property, and that fact is only important when it comes to a settlement between the joint proprietors, the one making the improvements being in any event entitled to reimbursement, without which the other can not share-the resulting benefit. 6 N. S. 616; 10 An. 255. Eor the purposes of this case it is therefore the same as if the whole property belonged to the wife. The improvements made by the plaintiffs having inured to her separate benefit, and that of property which she held separate from her husband, the court below did not err in refusing to receive the evidence of the wife that she was coerced by her husband into signing the contract with plaintiffs. No such issue w'as made, and such evidence would have been inconsistent'with her allegation that her husband did not authorize the contract.

The husband’s defense is, to say the least, a singular one. It is substantially that his wife is not bound because this is a debt of the community and not her own; and that ho is not bound because his obligation is simply that of surety for his wife, who not being bound, he is not. His. argument proves too much. If the debt be that of the community, and the wife be not bound, he is as its head and master; and if it be not that: of the community (as we have seen it is not), then by his own admission;, and acts ho is bound as surety.

According to the argument urged for the defense, the plaintiffs, after furnishing the materials and doing the work, and after its acceptance by the defendants, would be still held suspended in the anomalous condition of having contracted with no one and having no one bound to them for the price. This is neither just nor legal. The privilege was preserved by registry. It was not lost by novation, because, as we have seen, there was no novation. There was judgment in the court below against the defendants in solido for the amount of the plaintiffs’ demand, with recognition of their privilege, as claimed, upon the building erected by them. It was correct, and is therefore affirmed with costs of both courts.


author: Marr, J.

text:
    No. 6699.
    The State ex rel. J. J. Daniel vs. Rufus E. Rose
    This court, or any member of the court, is competent to issue the writ of habeas corpus in any ease that might bo brought here on appeal. It is not necessary the appeal should be pending.
    The Governor’s commutation of a sentence to imprisonment at hard labor, which remits the punishment imposed, and substitutes a much milder punishment, is not executory, and heneo can not entitle the condemned party to release from custody, until the commutation has been consented to by the Senate.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      B. King Cutler, for petitioner.

      John J. Finney, for respondent.
   The opinion of the court was delivered by

Marr, J.

Daniel was convicted of murder, without capital punishment, in the Second Judicial District Court for the parish of Jefferson, and was sentenced to the penitentiary for life. On appeal-the verdict and judgment were set aside for illegality in the composition of the grand and petty juries; and the case was remanded for further proceedings. 28 An. 38. He was again indicted for the same offense, convicted without capital punishment, and sentenced to “imprisonment with hard labor for life in the State penitentiary;” and he once more sought relief by suspensive appeal.

Pending this appeal, on the sixth of January, 1877, the Governor, Kellogg, commuted this sentence by an instrument in writing, signed by himself, countersigned by the Secretary of State, and bearing the great seal of the State, the material part of which is as follows:

“To the Sheriff of the parish of Jefferson:

“ Whereas, J. J. Daniel was tried and convicted, before the Second Judicial District Court, parish of Jefferson, of the crime of ‘ murder/' and sentenced to the penitentiary at hard labor for life;

“ Whereas, for good and sufficient reasons I have seen fit to grant a commutation of said sentence to the said J. J. Daniel to three years imprisonment in the parish prison, from date of first commitment in December, 1873;

“Now, therefore, you will take notice of the said commutation and act accordingly, and for so doing this shall be your sufficient warrant- and authority.”

The term of imprisonment in the parish prison having expired in December, 1876) the prisoner was released by the sheriff and set at liberty;, and on the second of April his counsel filed .in the Supreme Court the following motion, in the case of the State vs. Daniel, which was entered on the minutes the same day:

“ On motion of R. King Cutler, of counsel for defendant, and .on suggesting that defendant, J. J. Daniel, was sentenced to hard labor in the State Penitentiary for life, and that thereafter W. P. Kellogg, then Governor of the State of Louisiana, commuted the punishment of said J. J. Daniel to imprisonment in the Parish Prison, and that said Daniel long ago served out his term of imprisonment in the parish, and that he, said Daniel, has been at liberty since about the first of January, 1877, it is ordered that the appeal herein taken by said J. J. Daniel be dismissed.”

At the foot of this motion is the following:

“ I consent to the appeal taken in the above-entitled cause being dismissed.

“ (Signed) H. N. OGDEN, Attorney General.”

In June, the judge of the Second Judicial District Court, treating Daniel as a fugitive from justice, inasmuch as he had not satisfied the sentence pronounced, and had not been pardoned by the Governor with the consent of the Senate, nor reprieved; and the sentence had gone into effect and had not been commuted in any legal sense or form, issued a writ for his arrest, and detention in prison until discharged in due course of law. Having been arrested under this writ, and being detained in actual custody under the sentence of the court, the prisoner applied to me for the writ of habeas corpus. The facts as stated appear of record, and by the petition and the return; and there is no controversy about them.

The representative of the State excepted that neither the Supreme Court, “nor any of the judges thereof, has any authority to issue the writ of habeas corpus herein, the court having no longer any appellate jurisdiction over the case of the State of Louisiana vs. J. J. Daniel.”

This exception was withdrawn at the hearing; but as every judicial tribunal must either assume jurisdiction without question, or determine whether it has jurisdiction when it is questioned or questionable, I am not relieved of the necessity of inquiring whether I have authority to •grant and to proceed 'upon this writ.

The constitution, article seventy-seven, declares that:' “ The Supreme Court, and each of the judges thereof, shall have power to issue writs of habeas corpus, at the instance of persons in actual custody, when they may have appellate jurisdiction;” and article seventy-four confers upon the Supreme Court jurisdiction in criminal cases, on questions of law only, whenever the punishment of death, or imprisonment at hard labor, •or a fine exceeding three hundred dollars, is actually imposed.”

The court of which I am a member has not now jurisdiction in the •case of the State vs. Daniel in which the appeal was dismissed in April last. The language of article seventy-seven does not require that the •court should have jurisdiction by an appeal actually pending; the requisite is that the matter shall be such that the court may have appellate jurisdiction ultimately, in the event that the proceedings in the court •of first instance reach a point at which an appeal would be admissible.

Since the sentence was pronounced in the case of the State vs. Daniel, an event has occurred which, as he claims, has relieved him of that sentence; that is, he relies upon the commutation, and the completion of the term in the parish prison as a perpetual bar to further proceedings against him. The only question is whether the commutation has this effect; and this is purely a question of law, and it arises in a criminal •case in which the punishment is hard labor. If the Governor had the power thus to commute the sentence, the prisoner is not subject to detention; and he should be discharged. If the Governor had not this power, the prisoner should not have been released from prison; and he must bo remanded into custody to be dealt with according to law.

The case now presented, is, therefore, a new one, in which none of the issues involved in the original proceeding in the district court, and 'brought up to the Supreme Court for review on the appeal, can arise. Perhaps the better practice would have been to have applied to the judge-of the district court for the writ of habeas corpus; and to have exhibited the commutation in support of the application. If the judge had decided that this did not entitle the prisoner to be discharged, he might have appealed to the Supreme Court. I am not prepared to say, and I shall not so decide now, that it was not equally at the option of the prisoner to make his application to one of the judges of the Supreme Court, as he has done. The question to be solved by me is precisely that which would have been submitted to tho Supreme Court, on appeal, if the proceeding had been taken in the district court in the first instance; and the-case seems, therefore, to come within the letter of article seventy-seven of the constitution. In favorem libertatis, I should be inclined to grant the writ in every case where there was not manifest want of authority;- and I proceed, therefore, to consider the merits.

The constitution, article fifty-eight, declares that: “ Tho Governor shall have power to grant reprieves for all offenses against the State, and, except in cases of impeachment, shall, with the consent oe the-Senate, have power to grant pardons,.(and) remit fines and forfeitures, after conviction. In cases of treason he may grant reprieves until the end of the next session of the General Assembly, in which the power of pardoning shall be vested. In cases when the punishment is not hard labor, the party, uponbeing reprieved by the Governor, shall be released, if in actual custody, until final action by the Senate.”

This article, except the last clause, italicized, which is new, is copied-from antecedent constitutions: 1864, article fifty-two; 1852, article forty-four; 1845, article forty-seven. Section eleven of article three of the constitution of 1812 differs in that it seems not to have made the power to remit fines and forfeitures dependent upon the consent of the Senate;that it uses the words “ approbation of the Senate,” instead of “ consent of the Senate;” and that it omits the words, “ after conviction.”

This recurrence to the several successive constitutions of the State-shows that the people of Louisiana have never seen fit to confer upon-the Governor absolute power to grant pardons. Erom the organization of the government, under the first constitution, uniformly, this delicate- and most important power has been subject to and dependent upon the-consent of the Senate. The power to grant reprieves is absolute and unlimited, except in cases of treason; but under the existing constitution, as under those which preceded it, the Governor can not otherwise extend" clemency to convicts without the consent of the Senate.

I have searched in vain for any express grant of power to the Governor to commute the punishment prescribed by law, or to interfere with the sentences pronounced by the judicial tribunals otherwise than by reprieve, or, with the consent of the Senate, by pardon. The reprieve is^ merely a respite, a postponement of the execution of the sentence of the law, as pronounced by the judge; and it is usually granted in order that time and opportunity may be obtained for the final action of the Governor and the Senate on an application for pardon.

Manifestly, in this case, the Governor did not intend to grant a reprieve. The reprieve leaves the sentence in full force, except that the execution is temporarily suspended; whereas, in this case, the act of clemency purports to have set aside, abrogated the sentence, by substituting a new and wholly different punishment. The statutory alternative for death, where the verdict of “ guilty ” is qualified by the addition of the words, “ without capital punishment,” is hard labor for life in the penitentiary; and that alternative was the necessary legal consequence of the verdict in this case. The object of the Governor was to relieve the convict of this, the only statutory alternative and penalty; and to substitute imprisonment for three years in the parish prison. The detention of the accused in prison, from the time of his first commitment to the execution of the sentence, is merely for safe-keeping, and it is not in legal intendment, punishment for the offense. In this ease the term of imprisonment in the parish prison had actually expired when the commutation was granted; so that the convict was discharged immediately and without punishment.

The Governor could not have understood that he was granting a pardon in the usual sense of the term; because he must have known that he had no power to do this without the consent of the Senate. Obviously he intended to intervene between the convict and the punishment prescribed by law; and, by commutation of the sentence, which it seems to have been assumed did not require the consent of the Senate, to afford all the relief and benefit of an absolute formal pardon without the delay and uncertainty of the final action and consent of the Senate.

In the case of Wells, convicted of murder and sentenced to death in the District of Columbia, the President granted him “ a pardon of the offense of which he was convicted, upon condition that he be imprisoned during his natural life; that is, the sentence of death is hereby commuted to imprisonment for life in the penitentiary of Washington;” and on the same day Wells accepted the terms offered in these words: “I hereby accept the above and within pardon with condition annexed.”

Some three years after, Wells applied to the judge of the Circuit Court of the District of Columbia for a writ of habeas corpus, upon the ground that the President had no power to attach the condition, and that the pardon was absolute. The Circuit Court held that the President had power to commute the punishment, and remanded the convict to the penitentiary. The case was taken to the Supreme Court of the United States; and it is reported in 18 Howard. Two of the judges thought the court was without jurisdiction; another maintained that the President had no power to attach the condition; that the pardon was absolute; and that the prisoner should be discharged. The majority of the court decided that the power conferred upon the President by article two, section two of the constitution, “ to grant reprieves and pardons lor offenses against the United States, except in cases of impeachment,” necessarily includes every form and species of pardon; that the commutation of the scnten.ce was a conditional pardon, which, when accepted, became obligatory upon the convict; and that he was lawfully detained in the penitentiary. See also a discussion of the power of the President to grant pardon in Garland’s case, 4 Wallace.

In some of the States — for example, Pennsylvania, Illinois, Texas— the Governor has power, by express constitutional grant, to commute sentences and punishment; but where there is' no express law authorizing it, the commutation can be maintained only in virtue of the pardoning power, and as a modification, a condition of the pardon.

In Louisiana there is really no occasion for the exercise of this power. Certain crimes are punished with death. If in any such case the jury prefer, for any reason whatever, that the accused, although guilty of the crime as charged, should not suffer death, the addition of the words “ without capital punishment” to the word “guilty” consigns the convict to hard labor in the penitentiary; and this is the only mitigation of the death penalty which the Legislature has chosen to allow; and it has intrusted this mitigation to the jury, whose solemn duty it is to consider, with all possible care, all the facts and circumstances and from 'them to determine the guilt or innocence of the accused. Pardon can 'be granted only after conviction. Conviction and sentence vindicate public justice and the offended majesty of the law; and if the executive and the Senate, calmly reviewing the facts and circumstances, conclude that the accused should not have been convicted and ought not to suffer the penalty, the organic law has wisely conferred upon them, not upon one or the other of them, the power to grant him a pardon; to open his prison door; and to relieve him of the disabilities and disfranchisement Consequent upon conviction.

In certain crimes, characterized as detestable, comparatively of rare occurrence, the punishment is fixed and absolute, hard labor for life. In other cases there is a wide range in the. duration of the punishment. There are no degrees of murder; but the accused may be convicted of a lower grade of crime, manslaughter, and be sentenced to hard labor for any term no't exceeding twenty years.

In most cases the maximum and minimum of punishment are fixed; and the judge presiding at the trial will appreciate the facts, and graduate the punishment accordingly. 'Juries usually give all due weight to every extenuating circumstance; and when thejr convict, in cases in which the penalty is not fixed and absolute, there is ample opportunity for the judge, in the exercise of his legal discretion, so to temper justice with mercy as to make any commutation, or interference with the sentence, short of an absolute pardon, not only unnecessary, but, in most cases, improper.

The organic law of Louisiana, like that of the other States, has separated the powers of the government into three distinct departments; and it is the peculiar province of the judiciary to ascertain the guilt of the accused, and to declaré and impose the appropriate punishment; and interference by either of the other departments would, inevitably, tend to obstruct the proper administration of justice. If a convict merits any punishment, that which the law prescribes and the sentence imposes should be inflicted; if he does not deserve to be punished, he should be pardoned. The power to pardon is indispensable, because cases will occur in which this power alone can prevent wrong and injustice; but it will prove a curse to society instead of a blessing where it is not exercised with prudence, and in strict conformity to the grant.

If the power to commute the sentence of a judicial tribunal exists under the constitution of Louisiana, it is simply as a form of pardon, an incident to the power to grant pardons; and as the power of the Governor to grant pardon, in any case, is dependent upon the consent of the Senate, that form of pardon which consists in the commutation of the sentence, like every other pardon, whether absolute or qualified, equally requires the consent of the Senate.

I have gone thus at length into this discussion, because I have understood that the practice has prevailed to a considerable extent, of late years, of extending executive clemency to convicts by way of. commutation, by the act of the Governor alone, without the consent of the Senate. There is no warrant for this in theorgaeie law of Louisiana; and it can receive no countenance, it is entitled to no respect in the judicial tribunals.

The fact that the Attorney General consented to the dismissing of the appeal, on motion of the counsel of Daniel, is without significance. The appeal could not have been dismissed without this consent; but the State was the appellee and was asking for nothing; and the dismissing of the appeal left the verdict and judgment appealed from in full force, except so far as the sentence might be affected by the commutation.

It is evident that the prisoner would not have dismissed his appeal, would not have abandoned his last hope of escape from imprisonment at hard labor for life in the penitentiary, if he had not relied confidently upon the commutation as an effectual and unquestionable bar to further proceedings against him. I am inclined to think that the court would listen favorably to an application to rescind the order dismissing the appeal,, and to reinstate the appeal; but that is a matter which I can not entertain, and about which I can not undertake to say what might be the-action of the court.

It was suggested in argument that I might, in the event of my refusal to discharge the prisoner, make some order by which the execution of the sentence would be suspended until he could have an opportunity to move the court, at its meeting in November, to reinstate his appeal; but this would be simply a respite, a reprieve, which I have not the power to grant. The extent of my authority, under this proceeding, is to inquire whether tho prisoner is lawfully deprived of his liberty; to discharge him if he is unlawfully held in custody, or to remand him into custody, if his imprisonment is lawful. The power to grant a reprieve in such a case belongs absolutely and exclusively to the Governor; and I think this is a proper case for an application to the Governor for a reprieve, in order that the prisoner may have the benefit of his appeal, which was suspensive, and which was evidently dismissed under a misapprehension and in error, in the event that the court should see fit to reinstate it on his motion. I am not to be understood as offering any advice, or making any suggestion to the Governor, as to what his action should be in the event of such an application to him by the prisoner.

It only remains for me to say that the commutation relied upon by the prisoner is a mere nullity; that the dismissing of the appeal removed the only obstacle to the execution of the sentence under which he is held in custody; and that his detention is lawful.

The writ is therefore dismissed; and the prisoner is remanded into custody, to be dealt with according to law.


author: Manning, C. J.

text:
    No. 6341.
    Josephine Johnson, Tutrix, vs. Clark & Meader.
    Tho dismissal of a suspensive appeal, for want of the proper bond will not prevent the appellant from taking a devolutive appeal, within tho legal delay.
    The payment of fieri facias, under tho threat of the sheriff to seize and sell defendants’ goods, is not of itself conclusive of his acquiescence in the execution of judgment against him.
    REPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Gibson & Gibson, for plaintiff and appellee.

      Kennard, Hoioe db Prentiss, for defendants.
   On Motion to Dismiss.

The opinion of the court was delivered by

Manning, C. J.

Final judgment having been rendered against defendants for §859, a devolutive appeal was prayed and granted, which the plaintiff moves to dismiss on the following grounds:

First — That the- suspensive appeal heretofore taken by the defendants having been dismissed for want of a legal bond, they are not entitled to another appeal.

Second — -That the judgment of the lower court has been voluntarily executed by the appellants, the writ of fieri facias having been satisfied by them by payment before seizure.

Third — That the defendants can have no standing before this court, by reason of their fraudulent and criminal conduct in the suspensive appeal hereinbefore taken and dismissed.

The appellee has a right to demand the dismissal of the appeal if the appellant has neglected to give a sufficient bond, or omitted any other legal formality; but a judgment of dismissal pronounced on such demand does not preclude the appellant from having the judgment of the lower court reviewed, if he claims his second appeal within the year. The present appeal is within time. The right of appeal is constitutional, and it is neither our duty nor inclination to impede or obstruct it. Smith vs. Vanhille. 11 La. 380; Dugas vs. Truxillo, 15 Annual, 116.

The defendants did not voluntarily execute the judgment of the lower court. They disregarded the sheriffs first notice, requiring payment of the fieri facias, whereupon he informed them that if payment was not made by a given hour he should seize, advertise for sale, and sell their stock in trade, and to that end the officer proceeded to prepare in form his notices of seizure. To avert this the defendants paid, and took immediate legal proceedings to stay the fund in the sheriff’s hands. • The consequences of a seizure of their stock, and its advertisement for sale, would have been far-reaching and most injurious to them. Their payment, to avert such consequences, can not be held in any other light than compulsory. The act should be unequivocal to authorize a presumption of the abandonment of so important a right. Leggett vs. Peet, 1 La. 296; Yale vs. Howard, 24 Annual, 458.

We should be very loth to adopt the third ground of dismissal, and thereby charge the defendants with complicity in the criminal practices of others, of which we had occasion to speak with just severity in our opinion read on the former application for dismissal. We have no reason to know or believe, from the record or in any other way, that the defendants were cognizant of, or privy to the alteration of the records, the discovery of which provoked our animadversion, and we can not punish them for that fault, or deny them a legal right because one formerly representing them has done a flagrant wrong.

The motion to dismiss can not prevail.


author: Manning, O. J.

text:
    No. 5160.
    Josephine Breard vs. the Mechanics' and Traders' Insurance Company.
    The testimony oí witnesses will have no weight with this court, if intrinsically improbable, and suggestive of collusion, and conspiracy.
    The defense that plaintiff has violated, in some particular, the policy of insurance sued on, must be proved by the defendant.
    A wife holding property in her own name, donated to her by her father, during marriage, has an insurable interest in it.
    APPEAL from the Fourth District Court, parish of. Orleans. Lynch, . J.

      Cotton & Levy, for plaintiff and appellant.

      JS. K Ogden, for defendants.
   The opinion of the court was delivered by

Manning, O. J.

The object of this suit is the recovery of three thousand seven hundred and fifty dollars, the loss alleged to have been caused by the burning of plaintiff’s residence, and the further sum of five hundred dollars for loss occasioned by the burning of her furniture, the former being insured by the defendant for forty-five hundred dollars, and the latter for five hundred. The defense is that plaintiff Mlfully caused the burning with intent to defraud the company — that she did not comply with the requirements of the eighth condition of the policy— that the affidavits of loss contain an overstatement of the value of, the property injured by fire with the view of deceiving the company — and that she had no insurable interest in the property.

The case hinged on the charge of arson in the lower court, and the judge sustained the defense in that particular, and rendered a decree in favor of the defendant. We differ toto coelo with his conclusions.

The fire occurred on the night of 27th. of September 1870. Two or three weeks before, the plaintiff went to Mississippi on a visit 'to her father, taking her children with her, and leaving her house and its contents in charge of a woman who lived next door, and who was her laundress. This woman is the wife of Edward Johns, of whom we shall hear more anon. The husband of plaintiff is a steamboat-man, sometimes captain, at others clerk, always part owner. He was in the Ouachita trade then, and at the time of the fire was on the river en route to New Orleans. He was absent when his wife left on the visit to her father, and she had suggested to him in a note to give Johns written authority to look after the house. Accordingly on his return from that trip, he sent for Johns, wrote the authorization, gave him a dollar and a dram, and left port for the Ouachita. Arriving at New Orleans on next return trip, he heard of the conflagration, and of some suspicious circumstances of Johns’ conduct, presently to be noticed, whereupon he made affidavit charging Johns with arson and had him arrested and imprisoned.

Here are events in a natural order with an air of vraisemblance enveloping them. And now begins the series of judicial investigations, and disclosures preceding and accompanying them, which have entailed serious consequences upon many of the parties to them.

Edward Johns, thus imprisoned on the charge of arson, discloses to Edgeworth, captain of the police at Algiers and Gretna, that he did burn the house, but it was at the instigation of Captain Breard, and under a promise of reward — that when Breard gave him the written authorization to take charge of the house, he also employed him for the incendiarism for which he was to receive one hundred dollars, and paid him one dollar thereof on the spot, perhaps to bind the bargain. Breard was in his turn arrested, and carried before the parish judge for preliminary examination, when Johns being produced as a witness swore that he had never told Edgeworth that Breard had employed him to burn the house. Breard was discharged. Johns remained in prison, and at the next term of the district court, not he, but Breard was indicted for complicity in the burning. Breard was again arrested, was admitted to bail, gave bond, and when called for trial did not answer, and his bond was forfeited. He had fled.

Johns shall be permitted to tell his own story. He is speaking on 22 of December 1870 under oath. He is a laborer cutting wood on the levee, and lives in Freetown, Jefferson parish — is acquainted with plaintiff and her husband, but slightly with the latter — became acquainted with them the previous March. On the Friday previous to the Are received a message from Capt. Breard that he wanted to see him, and he went to the steamer on which Breard was employed where he found him. Breard took him up stairs in the office-, and thus addressed him, “ Edward, do you want to make some money?” The response was what might have been expected, and then Breard added — “that house of mine I have got pretty well insured. If you will set it on fire in the course of threo or four days I will give you one hundred dollars for so doing.” Johns took time for reflection. He received a dollar, went his way, returned the next day, agreed to execute the commission, and received the same sum as before. “ On Tuesday the 27th. of September,” we will now quote literally, I made up my mind to accept Oapt. Breard’s proposition, and on that night between the hours of 11 and 12 o’c I procured a gallon pot with some coal oil and pitch pine and repaired to the premises, went up stairs, placed the pot and pitch pine on the southeast corner of the house under the rafters, and applied the match to the coal oil and pine and left the premises, and in about half an hour after I left the house, the fire made its appearance and the buildings were burned down.”

. The testimony of one Bradley at one of the criminal investigations is in evidence on this trial. He is a friend of Johns, and was told by him that the house of Breard was to “ go up.” Bradley communicated this to his brother who informed the President of the Insurance Company and two officers were sent over whom he secreted near the premises, but Johns told him he could not burn that night “ as all the furniture he wanted to save was not out of the house.” Witness informed “the specials ” of this change of the progammo and they went away. The .next Tuesday witness’ wife told him Johns had been to see him and left word the house was to be burned that night, whereupon witness went to bed and to sleep, and heard about eleven or twelve o’clock the noise of people hurrying to the fire. The two special officers were not there that night. “ I believe, says this witness, the man (meaning Johns) is too honest to do this thing of himself. I believe he was hired to do it.”

Edgeworth’s testimony follows. He was captain of police and was the officer who arrested Breard and Johns, and to whom the latter made his confession. We hear now of confessions by Breard also. Breard told him he had a note to pay for a new boat that was building for him. He don’t recollect its amount, but Breard told him he had to raise money, and that this man Johns was aware of it, and probably that was the cause of the fire. Johns told him the place or part of the building where he had applied the combustible materials, and on the day after the fire he found some of the pine there and also the pot in which had been the oil. He also found some of the furniture concealed in the grass, and some in the attic of Johns’ house. Mrs. Breard told him that Johns had been left in charge of the house, and she hoped things would not go hard with Charley (meaning her husband.) He was acquainted with Breard. in Caldwell parish where they both formerly lived. Breard had never put him off the boat while coming down the river for not paying his passage.

This is the testimony upon which the judgment of the lower court is founded, sustaining the defense that the burning of plaintiff’s house was procured by her husband. The perjury is transparent. Edward Johns, whose sole occupation is occasional wood cutting on the levee, and who knew Breard but slightly, is sent for by the latter and in the clerk’s office, of a steamboat is employed to commit the crime of arson. So little privacy was observed that Blanks, one of the witnesses, went into the office while Breard was writing the note authorizing Johns to look after the house and protect it, and the interview between these two comparative strangers, in which the bargain was consummated, lasted says Blanks about ten minutes. Johns communicates his purpose to his friend Bradley, through whose instrumentality two special officers are detailed to watch the progress of the conspiracy and who attend once, but are not summoned by Bradley to witness the final catastrophe, although he was apprised through his wile of the appointed time for its completion. Bradley takes no steps to defeat the perpetration of this villainy, but goes to sleep in the immediate vicinity, complacently assuring himself that his honest friend was too good to commit such an act unless he was paid for it. And this too after he had heard from Johns’own lips the reason for not burning on the first night appointed was that he had not time to remove all the furniture he wished to appropriate.' When the boat arrives which brought Breard to the city a day or two after the fire, Edgeworth, an officer of police, goes on board with a warrant of arrest for him, informs Breard of it, and is immediately told by 'him that he had to raise money to pay for a new boat he was building, which Blanks in another place says was to cost a hundred thousand dollars, and that this negro Edward Johns whom he scarcely knew was 'aware of his necessity, and probably that, Breard is supposed to say, was the cause of the fire. Mrs. Breard expresses to Edgeworth her hope that matters will not go hard with her husband, the proof being that Mrs. Breard was at the time of the fire in Mississippi, and did not return until six weeks afterwards, when the charge against her husband had been investigated by the parish judge, and he had been discharged. Her return was in November, and the second arrest of Captain Breard was not made until December after the finding the bill against him by the grand jury on the testimony of Johns and Edgeworth.

Edgeworth found the morning after the fire furniture, supposed to have been in the burned house, in the possession of Johns. Rhodes, another witness, states that some of it was in the garden of Johns concealed in the grass, and other articles up stairs in his house, and a carpet was found in a barrel on his premises covered up with wood. It was not surprising that Johns was arrested. A day in prison-made him communicative, and Edgeworth is promptly at hand to hear from him the disclosure that Breard was the real criminal, a statement he declares to be untrue when testifying before the committing magistrate in Breard’s presence a few days afterwards. The final result is that Breard is indicted and flies, and Johns, who by his own confession to Edgeworth, repeated twice afterward in separate judicial proceedings, was the active and avowed perpetrator of the act of arson, is at large unpunished.

The impression made on our minds by the examination of this record is that Breard is the victim of a1 foul and hideous conspiracy, the instigators of which were prompted by conscious guilt and the need of a shield to protect from its penalty on the one hand, and the gratification either of personal vindictiveness or cupidity on the other.

Thirteen witnesses were sworn at great length, all of whom unite in according to Breard a reputation for integrity, honorable dealing, and a blameless life. Some of them had known him from his infancy, all had at some time had business affairs with him, and speak from their own knowledge. No gentleman, says one, has a better reputation. I don’t think, says another, there is a blemish on his character. I always found him correct, says a third, who had credited him to the amount of $11,000. Yet another says he had credited him for $12,000 and he could have more if he wanted it, and at the time of these events Blanks and he were under contract for a new and costly boat.

The testimony of Breard himself is also taken. His answers are prompt, concise, responsive to the interrogatories, outspoken, and entirely devoid of evasion or any semblance of shuffling. There are no hesitations, no labored or confused explanations, no parrying of uncomfortable inquiries, or partial statements of occurrences. We have scanned it closely, and we -do not find there the efforts of a criminal to disguise his guilt, but rather the plain and unvarnished recital of events as they transpired. The reprehensible, and nearly fatal cowardice, which impelled him to flight rather than stand at bay and break the toils of his snarers, implies a consciousness of guilt when considered by itself, but in the light thrown upon it by the developments of all his surroundings, it can be explained but not- justified. It may not be unimportant to add that the first ground of defense does not attempt to include the plaintiff in the charge of complicity in procuring the burning, but only her husband, and our opinion is that it is not sustained as to him.

We shall briefly dispose of the others. The second ground does not-specify in what particular the plaintiff has not complied with the eighth condition of the policy, and we find that application was made in due time to the defendant by notice, accompanied by an account of the loss- and damage sustained. The third, relative to the overstatement of value,, is not substantiated by proof. Three witnesses for the defendant state the value of the burned property to be thirty-five hundred dollars. Five witnesses for the plaintiff, not including her husband, estimate the value at sums ranging from forty-five hundred to sixty-five hundred dollars. The fourth objection to recovery is the want of an insurable interest in the plaintiff. The title to the property is in her name. The conveyance is to her father by sale, who in the same act donates it to his daughter. He paid two thousand dollars for the purchase. At first Breard and Blanks bought together. Breard subsequently purchased the interest of Blanks and made considerable repairs, the sum total of cost being more than the áum for which it was insured. The donation of the father was-direct to the daughter, and the payment by the husband was for the provision of the wife.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that plaintiff have and recover of defendant the sum of three thousand seven hundred and fifty dollars with five per cent per annum interest thereon from the 29th. day of October 1870, and costs of both courts.

Rehearing refused.