text:
    No. 4466.
    Daniel Mulligan vs. Louis Vallee et al.
    The insertion of a clause in a bond for the release of sequestered property to tho effect “ that the sureties shall satisfy such judgment as may be rendered in the pending ease,” is not authorized by law, and therefore is not binding on the sureties.
    Where the sequestered property of a defendant has been released on bond, and it appears that whatever part of such property afterwards sold, or destroyed by use was replaced by the defendant by other property of greater value which was subsequently subjected by the sequestering creditor to the satisfaction of his judgment, tho sureties on the defendant’s release bond can not be held liable for any balance of the plaintiff’s judgment that may remain unsatisfied.
    ^PPEAL from the Eifth District Court, parish of Orleans. Leaumont,

      W. B. Lancaster for plaintiff and appellant.

      Ogden & Hill for succession of Bell, defendant and appellee.
   The opinion of the court was delivered by

DeBlanc, J.

During the war — in 1864 — Daniel Mulligan sued Philip Lynch before a federal court, and caused to be sequestered, according to the marshal’s return — twelve horses, five carriages, one buggy, and other movables being at the stables, at No. 99 St. Charles street, in the city of New Orleans.

The property thus sequestered was released and left in the possession of Lynch, who — to obtain its release — gave bond for six thousand dollars, with Louis Yallee and Wm. R. Bell — the defendants — as his sureties. That bond, made payable to the marshal, or his assigns, was — by the marshal — transferred to Mulligan, and the condition therein inserted is “ that, if the said Philip Lynch shall not send the above described property out of the jurisdiction of this court, thát he will not make an improper use of it, and that he will faithfully present the same, in case he should be decreed to restore the same to the said Isaac Edward Clarke, or shall satisfy such judgment as may be rendered in the suit pending, as above mentioned, then this obligation to be void, or else to remain in full force.”

Judgment was rendered against Lynch in the federal court, and— under an execution issued on that judgment — the marshal seized and sold thirteen horses, eight carriages, one buggy and harness, one spring wagon, one cow, two hearses and over one hundred coffins, cases and caskets.

The marshal seized and'sold, under the execution, more than he had sequestered ; but this — Mulligan contends — cannot avail the sureties on the release bond, because only a small fraction of the sequestered property was sold, and the sureties’ obligation was that, unless the whole of said property was returned, they would pay his judgment.

All of Lynch’s property was sold to satisfy the execution under which it was seized, and there remains due — on said judgment — a balance of $1774 39c. The present suit was brought to recover that balance and some costs from the sureties of Lynch. Their defence is :

1. That their obligation was, under the law — not to pay the judgment obtained by Mulligan — but merely to return the property which was released on bond, and

2. That such of that property which was not returned, was exclusively the horses which died and the effects which were destroyed by wear and tear, but that those horses a^d effects were replaced by others of a like value.

The Code of Practice expressly provides that “ a defendant against whom a mandate of sequestration has been obtained — except in cases of failure — may have the same set aside by executing his obligation, for whatever amount the judge may determine, as being equal to the value of the property to be left in his possession.”

C. P. 279.

“ The security thus given by defendant, when the property sequestered consists in movables, shall be responsible that he shall not send away the same 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.”

In Carroll & Co. vs. Hamilton, we said: that it is the value of the property, and not the amount of the judgment alone which regulates the obligations and responsibilities of the bondsmen. The judgment may be for more or less than the amount of the bond or the value of the property. If so, no more can be recovered than the amount of the bond or value of the property in the former ease, and no more than the amount of the judgment, though less than either, in the latter case.

30 A. 523.

The condition inserted, by the marshal’s deputy, in the bond, which is the basis of Mulligan’s action, to wit: “ that the sureties shall satisfy such, judgment as may be rendered in the pending suit,” is not a condition that he could, legally, have inserted in a bond furnished to release sequestered property ; and it is now settled that — in matters of this kind —the sureties’ obligations must be construed by the law under which they are contracted.

2 L. 399. 9 R. 537. 6 A. 277.

As the amount of the bond is to be fixed with reference to the value of the property, and at an amount equal to its value, it is true — as a general rule, that, prima facie at least, the value of the property may be measured by the amount of the bond ; but — in this instance — a part of the sequestered effects were returned, and — in as much as the value of that part has not been established — we could not, if we were to hold that the sureties are liable, fix the extent of their liability.

Did Lynch violate the condition of his bond ? Did he send the sequestered effects out of the jurisdiction of the court, under whose mandate they were sequestered ? Did he make an improper use of them ? If he did, that was not shown. He sold, for $150, the buggy mentioned in the marshal’s sequestration, and — to replace it — bought a carriage for which he paid $1200 ; and — after the release — though be could have disposed, not only of the property which had been returned to him, and of that which he thereafter acquired, when the marshal came with the writ of fieri facias, he gave all he had, and more than — over three years before — the officer of the federal court had at first taken under the writ of sequestration.

The evidence leaves no doubt that Lynch replaced, by as valuable articles of property, those which he lost by the wear and tear, or otherwise. He delivered to the marshal, and the latter sold, under plaintiff’s execution, whatever was left of the sequestered effects, when the last writ was executed, and — besides—many others which he would have had no difficulty in placing out of the reach of that writ. Under these circumstances, we consider — as did the district judge — that Lynch has not violated the condition of his bond, and that his sureties have incurred no responsibility.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.

Rehearing refused.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 7365.
    The State vs. Louis O’Grady et al.
    A continuance can not be demanded in a criminal ease on the ground that the court was not properly organized because the acting sheriff had been elected to and was serving in another office, when it appears that the successor oí the acting sheriff qualified the day the motion ior the continuance was made, and acted as sheriff on the trial of the case.
    Where one of two men indicted for murder is acquitted, and the other convicted, the one convicted can not obtain a new trial on the allegation that he could prove by his co-defendant that the deceased threatened to kill him, and actually attempted to carry the threat into execution, when it iippears by the terms of his own allegations that the attempts of the deceased to carry the threats into execution were not made until after the accused had inflicted the mortal wound.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

      H. N. Ogden, Attorney General, for the State.

      Belden & Duvigneaud for defendant.
   The opinion of the court was delivered by

Spencer, J.

The defendants were indicted and tried for murder. O’Grady was convicted without capital punishment, Gainnie was acquitted. The former appeals.

No brief has been filed by his counsel; but an examination of the record discloses—

First — A motion filed on sixth December, 1878, for continuance, on the ground that the court was not properly constituted, in that James D. Houston, who was acting as sheriff, had been elected Administrator of Improvements of the city of New Orleans, and had qualified as such on the fifteenth of November, 1878, and had since been acting as such administrator ; that thereby he ceased to be sheriff.

The court refused the continuance on this ground, but granted it until the thirteenth of December, on account of necessary absence of counsel for one of the accused. On same day, December 6, John Fitzpatrick, the newly elected sheriff, presented his commission and was recognized. The trial commenced on the thirteenth December, at which time the court was undoubtedly properly constituted. We do not desire to be understood, however, as intimating that a party charged with crime can be heard to raise as an issue that the ministerial and other officers of the court, actually and defacto acting as such, have no legal right to be such officers. We should never get a criminal tried at that rate. He would commence with a kind of collateral quo warranto as to the judge and then go on down through the official roster of the court.

Second — After conviction O’Grady moved for a new trial in order that he might have the benefit of the testimony of his co-defendant Gainnie, by whom he alleged he could prove that the deceased a short time before the killing had threatened him and followed him for some time that night with intention to kill him, the accused; that accused acted in self-defense in killing the deceased, because “ when deeeased was shot he arose to slay accused, and actually attempted to carry his threat into execution, and would have done so had not defendant in self-defense shot and killed him.”

The showing for new trial is defective in form and insufficient in substance. If the evidence sought would have been, as stated in the affidavit, it would not have tended to reduce the crime to any degree below murder, since the attempt to carry the alleged threats into execution was only made after accused had done his deadly work.

The judgment and sentence appealed from are affirmed.


text:
    No. 6868.
    The State vs. Lee Watson.
    It need not appear in the record of a criminal ease that the grand jury who found the indictment were sworn. Until the contrary be affirmatively shown, it will be presumed that the grand jury were properly organized.
    Objections to the manner of organizing a grand jury can not be made after a plea, and trial. They should be made before pleading.
    The verdict in a murder case will not be disturbed on the ground that the judge refused to charge that if the jury believed that when the accused did the killing he was insane from the use of intoxicating liauors or other poisons sold and administered to him by the deceased. Drunkenness does not excuse crime.
    APPEAL from the Second Judicial District Court, parish of Plaque-mines. Pardee, J.

      H. N. Ogden, Attorney General, for the State.

      IS. Howard Me Caleb for defendant.
   The opinion of the court was delivered by

Spencer, J.

The defendant was indicted for and convicted without capital punishment of murder. He appeals, and assigns as error apparent on the face of the record that it does not appear by the record that the grand jury was sworn.

The record shows that sixteen persons named “ were this day empanneled to serve as grand jurors that one of them was appointed foreman, and the charge of the court given ; that the grand jurors appeared in open court, and through their foreman presented the indictment in this case, duly attested as “a true bill” by the foreman. The indictment recites that it was found by the grand jury, “ duly empanneled and sworn.” The accused was arraigned and plead “ not guilty,” was tried and convicted.

It has been held by this court that it must appear by the record that the petit jury trying the case has been sworn. State vs. Gates, 9 An. 94 ; State vs. King, 28 An. 425 ; State vs. Douglass, 28 An. 425.

In the case of State vs. Tazwell, 30 An. 885, in reference to the objection that the record did not show “that a grand jury was ever empanneled for the November term, nor that the person signing the finding as foreman was ever selected as such, or had authority so to sign,” we said, “ we do not consider it sacramental that these preliminary proceedings for the organization of the grand jury should be copied in the record. We will in the absence of specific objection and affirmative proof to the contrary, presume that it was properly organized. The cases cited by defendant have reference to the petit jury organized to try the case ; that jury is specially organized with reference to the particular case to be tried, and it might well be that its organization, etc., should appear by the record ; but the same reason does not exist as to the grand jury’s organization.”

We will only add that the grand jury is organized for the term and with reference to no particular case, while the petit jury is for particular cases. The former is to inquire into all crimes, the latter into some particular crime.

Objections to the manner of organizing the grand jury can not, we think, be urged after plea and trial. They are in the nature of objections to those “ formal defects apparent on the face of the indictment” which must be urged before pleading. R. S. 1064.

The_ defendant also reserved a bill to the refusal of the judge to charge that, “if from the evidence the jury believe that the accused, at the time of inflicting the mortal stroke, was insane, and net capable of self-control, from the use of intoxicating liquors or other poison, administered and sold to him by the deceased, the jury should not find him guilty.”

We think the judge properly refused this charge. It is too broad, and would have manifestly misled the jury into the belief that the frenzy of drunkenness was an excuse for homicide.

We think that the. correct rule is stated in United States vs. Clarke, 2 Cranch. C. C. R. 158, that it must appear, in order to excuse the act, “ that the prisoner, at the time of committing it was in such a state of mental insanity, not produced bij the immediate effects of intoxicating drinks, as not to have been conscious of the moral turpitude of the act.” Under this rule it is settled that insanity produced by delirium tremens affects the responsibility in the same way as insanity produced by any other cause. Amer. Crim. Law, § 32, vol. 1; U. S. vs. Drew, 5 Mason U. S. Reports, 28.

In other words, where drunkenness is the remote cause of the insanity, where the latter proceeds from causes which are themselves the effect of antecedent excesses, the party is not responsible. The law looks to the proximate cause of the insanity, and if that be drunkenness it is no excuse for crime.

The judgment and sentence are affirmed.


author:
Spencer, J.
     White, J.

text:
    No. 7141.
    Frederick Wintz vs. C. E. Girardey et al. Board of Administrators of Charity Hospital, Intervenors.
    The duty imposed by section 146 of the Revised Statutes of 1870 oil goods sold at public outcry by licensed auctioneers, and which duty is to be paidbythe vendors of the goods, is not a tax on property, and hence does not fall within the prohibition of the constitutional amendment of 1874 limiting taxation to 11% mills. Nor is such a duty in violation of article 118 of the constitution requiring taxation to be equal and uniform, etc.
    Section 146 of the Revised Statutes of 1870 has not been repealed by any subsequent general laws on the subject of taxation.
    A PPEAL from the Third District J. Court, parish of Orleans. Monroe,

      E. Howard McCaleb and T. Wharton Collens for plaintiff and appellee.

      E. Hoioard Earrar and Frank C. Zacharie for intervenors and appellants.

      H. N. Ogden, Attorney General, for the State.
    The opinion of the court on the original hearing was delivered by Spencer, J., and on the rehearing by White, J.

   Spencer, J.

The legal questions contested in this case are identical with those presented in “ Boye vs. Girardey, et al.,” reported in 28 A. p. 717.

The case has been argued with much ability on both sides, and the discussion has taken a wide range; but under the view we have taken it will not be necessary to enter upon many of the interesting questions presented for consideration in argument.

We agree with our predecessors that the “ duty ” imposed by sec. 145, R. S., upon auction sales is not a lax on property, and does not fall within the prohibition of the amendment of 1874 limiting taxation to 12¿ mills.

The sale of property at public auction is not a matter of common and natural right, beyond the control or even prohibition of the legislative power. This State, in common with all others, has constantly exercised the most absolute and complete control of the matter from its very organization. The “duty” in question has been levied upon auction sales without challenge, since the act of January 15,1805. The Legislature has at all times prescribed the qualifications of auctioneers, and by acts of March 20, 1809, and March 10,1813, limited their number, and even authorized the appointment of a special auctioneer for horses and cattle, and prohibited under severe penalties all persons not duly authorized from selling at auction. Many of these provisions find themselves in the Revised Statutes of 1870. By the existing law it is not every body who can be an auctioneer. The law requires him to be a “registered voter” in the parish where he exercises his calling, and he must obtain a license from the Auditor ; that he must not be “ a defaulter; ” must “give bond” in favor of the Governor, and take the oath prescribed, “to secure the faithful performance of all the duties required bylaw toward all persons who may employ him,” and toward the State. It prescribes the time and manner of accounting to the State, and enacts special rules for selling certain kinds of property, such as jewelry, and even prescribes the time of day and plans of sale, and the per centum of their compensation. For seventy years these acts have stood upon our statute books, and no one ever entertained the idea their enforcement infringed upon any of the natural and inalienable rights of man. We think that we may accept the interpretation resulting from this undisputed and long exercise of power, as conclusive that the State may place such restrictions and impose such conditions as it pleases upon this mode of selling, and even forbid it altogether. It may, therefore, impose ,a oharge or duty on goods so sold, to be paid by the vendors availing themselves of the manifest advantages of that mode of sale which the State has organized and, in some sort, guaranteed through the bonds and oaths which it exacts for the security of the public.

Selling at auction through a licensed auctioneer is a privilege which the State may grant or withhold, and for the exercise of which, and as equivalent for the advantages of which, it may exact a “ duty ” or impose a charge, either in the form of a commission paid to the auctioneer, or to itself directly, just as it might impose a duty or toll on goods transported over a turnpike or bridge established by the State for the safety and convenience of the public. We find no prohibition in the Constitution, express or implied., against this exercise of power; and not being forbidden, under a well-recognized rule of interpretation as to the powers of the States, it is permitted. Cooley, Cons. Limitations, chapter five, pages 85 — 92, and chapter sixteen of same work.

A tax carries with it the idea of imposition and compulsion. In the matter under consideration, selling at public outcry through a licensed, bonded, and sworn auctioneer, there is no such ingredient. It is purely optional with the seller whether he will or not avail himself of the advantages offered by the State upon the terms it proposes. If he do avail himself thereof he thereby agrees to pay the charges imposed. “ Volenti non fit injuria.”

We see nothing in this which resembles a property tax, beyond the fact that the charge or duty imposed and exacted is calculated on the price of the property sold. It has none of the legal effects of a property tax. Its imposition is voluntary. It does not affect the property with lien or privilege, and is not a charge upon the property in the hands of any body.

Holding, therefore, that section 145 of the Revised Statutes does not impose a tax on property, it is unnecessary to consider the arguments based upon article 118 of the Constitution, and the amendments of 1874, prescribing equality and uniformity of such taxes, and limiting their amount. Eor the same reasons we hold that the said section has not been repealed by subsequent general laws on the subject of taxation. Not being a tax, the subject matter is not the same, and there is no conflict or inconsistency. It is not pretended that the section has ever been expressly repealed.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed; and it is now ordered that plaintiff’s demands, as well as those of Hafner and others in their petition of intervention filed July 3,1877, be rejected definitively, and that plaintiff’s injunction sued out herein be dissolved and set aside. That said intervenors pay the costs of their intervention in both courts, and that plaintiff pay all other costs thereof.

On Rehearing.

White, J.

When a law imposing taxation is attacked on the ground of unconstitutionality, the tribunal to whom the issue is submitted for decision is apparently placed in the dilemma of violating one of two elementary rules of construction; the first, that every rule of reasonable construction by which a law is saved from constitutional inhibition is to be sought after and adopted; the second, that laws imposing revenue are to be interpreted in favor of the tax-payer. Because of this ostensible clashing of those rules, we were led to grant a rehearing; and although thereon we have had the assistance of elaborate written and oral argument, we see no reason to modify the views we have already expressed.

The objections pressed upon our attention are of a two-fold nature: First, as to the intrinsic power to impose the tax complained of ; second, as to the invalidity of the tax' in consequence of the manner of its imposition, or its mode of operation when imposed.

The want of power is founded on the three following grounds: First, that article 118 of the Constitution contains an enumeration of the powers of taxation lodged in the law-making department of the Government; and that any exercise of the taxing power not therein specially included and delegated is ultra vires. Second, that the tax in controversy is an excise, and, therefore, beyond the scope of the general power of taxation, even'if such power exist. Third, that the imposition, in whatever light considered, is a tax, and, therefore, beyond the limitation of 12£ mills, as fixed in the constitutional amendment of 1874.

First: The general and elementary rule of construction is that all powers not denied exist; and that courts will not lightly or inferentially deduce from a State constitution a restriction on the sovereign rights of the people, as vested in the law-making department of the Government. Seen by this familiar principle, can an enumeration, and hence a limitation of the objects of taxation, be possibly drawn from article 118 of the constitution ?

That article reads:

“Taxation shall be equal and uniform throughout the State. All property shall be taxed in proportion to its value, to be ascertained as directed by law. The General Assembly shall have power to exempt from taxation property actually used for church, school, or charitable purposes. The General Assembly may levy an income tax upon all persons pursuing any occupation, trade, or calling, and all such persons shall obtain a license as provided by law. All tax on income shall be piro rata on the amount of income, or business done. And all deeds of sale made, or that may be made by collections of taxes, shall be received by courts in evidence as prima facie valid sales. The General Assembly shall levy a poll tax on all male inhabitants of this State, over twenty-one years old, for school and charitable purposes, which tax shall never exceed one dollar and fifty cents per annum.”

In what words of the article is an enumeration to be found ? In the provision that taxation shall be equal and uniform — .which, simply points .out a mode of taxation, or rather throws safeguards around the rnethods of exercising the taxing power? In the provisions as to license and income, which are mentioned not as objects of taxation but simply for the purpose of defining the rule by which these taxes are or may be levied? If not then in these provisions, certainly not in that which in mandatory terms directs the levy of a poll tax. In fact, were the provision statutory the utmost latitude of construction could not torture its words so as to evoke from them an enumeration ; and how much more is such the case when it is considered that the provision is a constitutional one, and, hence, to be examined with reference to the rule which teaches that every legitimate power not expressly and in terms denied is to be considered as existing.

Second: If the general power of taxation exists, as it undoubtedly does, we can not see how if the tax in question be an excise its validity would be impaired. If an excise tax, it is none the less a tax. If a tax, it is included in the general power of all taxation, unless we were to enunciate and enforce the illogical doctrine that the greater power of all and every taxation did not include the lesser power of excise taxation. Excise we are told is odious and not in harmony with free institutions. Courts can not look to the odiousness of a law for the purpose of defeating the legislative will. C. C. 20. The founders of the Republic certainly did not consider excise as dangerous to those institutions which they created and sought to transmit through the Constitution (Constitution of the United States, article one, section eight). Nor could the fathers of our State government have been greatly alarmed at the tax now before us, or looked upon it as either very tyrannical or odious, for it has been upon our statute books for more than seventy years.

Third: We consider the limitation adopted by the amendment of 1874 as one on the general annual tax for the support of the government, and, therefore, inapplicable to the provision now before us. Such conclusion was recently expressed as to a similar but statutory limitation on the taxing power of the city of New Orleans. City vs. Metropolitan Loan Bank, 31 Annual, 310. In fact, this meaning is the only one fairly to be deduced from the amendment itself. The General Assembly enacting it must have so intended; otherwise, we would be obliged to conclude that they intended to so limit the taxation as to make its total product inadequate for the payment of the constitutional expenses of the government. If the license tax had not been in contemplated continuance such would have been the inevitable result, and such tax is stricken with nullity if the construction claimed by plaintiff be correct.

The objections as to the mode are equally unfounded. It is insisted that the tax on the auction sale is a tax on the property sold. We held that it was what it purports to be, a tax on the auction sale made by a licensed auctioneer, and not a tax on the property. Our conclusion was and is that such was the case, because the right to sell by a licensed auctioneer was not a necessary result of perfect ownership. Of course, if the mode of sale taxed was a mode resulting from and visceraliy connected with the property, the tax on the mode would be a tax oh the property. But the right to sell by a licensed auctioneer is not in any way an emanation of owh'ership. Such auctioneers are the creatures of the law, and whether in the proper sense of the words officers, they at least are the depositaries of a given quantum of power, the result of legal regulation, and that which is given could be taken away. We are referred to a recent case in which it is said the Supreme Court of the United States have held that a tax on auction sales is a tax on the property sold. Cook vs. the Commonwealth of Penn., not yet reported. But the true issue therein decided was that a tax on auction sales of foreign goods, different from that levied on domestic goods, was a tax on the goods imported, and hence violated the Constitution of the United States. Instead of contradicting, this case supports the opinion we have formed. Necessarily the importation gave the right to dispose at the same rate of tax of the imported property as that charged domestic, and, therefore, the charge was on the property. So in Brown vs. Maryland a license to sell imported property was held to be a charge on the property, because the right to sell such property free from license was inseparably connected with the ownership. In that case, however, Chief Justice Marshall expressly drew the line of demarkation by saying:

“ So if he sells by auction. Auctioneers are persons licensed by the State, and if the importer chooses to employ them, he can as little object to paying for this service as for any other for which he may apply to an officer of the State. The right of sale may very well be annexed to importation without annexing to it, also, the privilege of using the officers licensed by the State to make sales in a peculiar way.”

These views dispose of the case, except in so far as it is contended that the tax or charge is unequal and not uniform, but it is clearly both within the classes defined by law, and the power to classify it is as necessary as the power of taxation itself.

It is therefore ordered that our former decree remain undisturbed.


author: Manning, C. J.

text:
    No. 7302.
    The State vs. Henry Revells.
    "Where the record in a murder case fails to show that the prisoner was present at anytime during the trial, or fails to show that any plea was filed by, or in behalf of the defendant, the verdict in the ease will be set aside and the judgment annulled.
    An amendment of the minutes of the criminal court in any particular case, in order to show that the defendant was actually in court during the trial, may be made even after the record of appeal has been lodged in this court, provided the amendment is made contradictorily with the defendant. It can not be made ex parte, with no notice to the defendant.
    'The clerk of the court need only take the oath of jury commissioner once during his term of office. He need not take it at every drawing of a jury.
    The testimony of tho cl«rk of the court is not admissible to show that he was absent from the drawing of a venire, when theproees verdal of the drawing, signed by himself, recites his presence.
    .After the judge has annulled and set-aside, in one ease, a whole venire drawn for that term, he oan not aftorward during that term, in another ease, hold such a venire to be good.
    APPEAL from the Thirteenth Judicial District Court, parish of East Oarroll. Hough, J.

      H. N. Ogden, Attorney General, for the State, submitted the case.

      Gluts. W. Pilcher for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The defendant was indicted for, and convicted of, ■murder, and was sentenced to be hung.

The trial was at the last December term of East Oarroll, and the reoord fails to shew that the prisoner was present in court at any time during the trial. It does not shew any arraignment whatever. ■ The record opens with the appearance in court of the grand jury, then follows the indictment, and the service of a copy of it and of the venire on the prisoner, and then the trial, conviction, and sentence.

The appeal was lodged here December 27, 1878. On Feb. 17, 1879 the district judge who tried the case made an order in chambers, directing the clerk to ‘ amend, correct, or supply the minutes of the court for the December term 1878,’ so as to shew that the prisoner was present in court during the whole of the trial, and the clerk has done it.

It is impossible for us to sanction this mode of correcting the ■minutes, ex parte, and without notice to the prisoner. The minutes of •court may be corrected in a criminal, as well as in a civil cause. The correction may be made out of term, or at a subsequent term, and although a different judge is on the bench. State v. Folke, 2 Annual, 744 There is no doubt that when the minutes fail to state the presence of a defendant in court on a criminal trial, and the fact is that he was .present, the minutes may be corrected so as to shew the truth. It may be done, either before the lower court has lost jurisdiction by granting-an appeal, or if done after appeal, the corrected record will be brought, up under a writ of certiorari from this court. State v. Gates, 9 Annual, 94. State v. Carroll, not yet reported.

But even if the minutes had been properly corrected, the failure to arraign the prisoner is a fatal defect. The absence of a plea is of itself fatal, Ford’s case, 30 Annual, 311, and the arraignment precedes the plea,, and in felonies is indispensable. State v. Lartigue, 6 Annual, 404 Epps’ case, 27 Annual, 227. 3 Wharton Crim. Law, § 3153 et seq.

It is further urged that the drawing of the venire for the term was irregular — that the clerk did not take the oath of jury commissioner before the drawing, and was not in fact present thereat, and for other causes.

The clerk had before, and during his present term of office, taken-the oath as jury commissioner. It is not necessary that he should renew it at every drawing during his term. The clerk was offered as a witness to prove his absence from the drawing. Objection was made that the procés verbal recited his presence, and he with the other commissioners had signed it. The objection was good. He will not be permitted to stultify himself by swearing that to be false which he had in a formal official Act asserted to be true.

The other causes are that only two of the jury commissioners acted in the drawing, that the general list had not been examined and names stricken therefrom, etc. It was urged that none of these objections could be heard, because the defendant did not make them on the first day of the term. It is true, no indictment had been found against the-prisoner on the first day of the term, but we are not prepared to say that, when a man is charged with crime and is in prison under that charge, although not yet indicted, he will not be held bound to take-notice of the meeting of court, and to make his objections to the venirethen. But however this may be, there was a motion made to set aside-the venire and annuli the drawing by other persons on the first day of the term, and after hearing testimony, the drawing was adjudged null' for vital irregularities, and the venire was set aside.

This was an end of that jury. The moment that decree was rendered, the men composing that venire were discharged from jury duty for that term under that drawing. The inevitable effect of setting aside-a venire is to disperse the jury for the term, and until the General Assembly shall give to the courts the power to have another jury drawn immediately, and, thus save the jury causes from going over, or the-term from lapsing, it must produce that sometimes disastrous effect.

The judge appears to have ruled that a motion made by a defendant on the first day of the term, in anticipation of a trial he was to-undergo, could not inure to the benefit of other defendants. That is true in a measure, but in applying it here, he is confounding a motion to quash a particular indictment with a motion to set aside the whole venire. If the venire is bad and illegally drawn, the jurors composing it are no longer jurors, and the judge should have discharged them.

The conviction under such proceedings cannot stand for a moment. Therefore

It is ordered, adjudged, and decreed that the verdict of the jury is set aside, the judgment thereon is annulled and reversed, and the prisoner is ordered to be held in close custody to await a new indictment and a trial thereunder.


author: Marr, J.

text:
    No. 7409.
    James A. Metcalfe vs. Charles E. Alter.
    A confession of judgment made by a mother, in her capacity as tutrix of her minor child, is not binding on the minor or his property.
    A written agreement between the undivided owners of certain real estate to make 'a partition of the same by dividing it in certain described lots does not become an actual partition and vest any separate part of the property in any one of them until the formation of the lots in accordanoo with the agreement.
    A partition of property being an alienation by each of the co-proprietors, it follows that one agent or legal representative can not represent five or six co-proprietors in the agreement fixing the terms of the partition.
    APPEAL from the Thirteenth Judicial District Court, parish of Concordia. Hough, J.

      Wade B. Young for plaintiff and appellant.

      0. Mayo for defendant and appellee.
   The opinion of the court was delivered by

Marr, J.

Dr. Yolney Metcalfe, who resided at Natchez, in the State of Mississippi, owned a plantation, in the parish of Concordia, called ■“Rota Quinta.” He died in 1852, intestate, leaving a widow and six minor children. Mrs. Metcalfe qualified as natural tutrix of these children ; and one of them died shortly after. She kept the property in indivisión ; cultivated the plantation for the common benefit; and paid the debts of the succession out of the proceeds of the crops.

In 1867 Mrs. Metcalfe and her children, all of whom had either •attained their majority or had been emancipated, except James A. Metcalfe, executed a mortgage in favor of M. Gillis & Co., on the Rota Quinta plantation, to secure three promissory notes, two of them representing pre-existing indebtedness, the third being for a new loan. Mrs. Metcalfe acted in her own behalf, and as natural tutrix of James A. Metcalfe, in granting this mortgage; and the notes were indorsed by the oldest son, Andrew W. Metcalfe, who about this time had the control and management of the plantation.

Two of these notes belonged to Charles E. Alter, who advanced the-money loaned in 1867. One of them was for $2500, the amount of the-new loan, payable in February, 1868 ; the other represented a previous loan of $2500, due in 1862, to which was added interest for five years at four per cent, making $3000, payable in February, 1869. On the 6th of' January, 1872, these two notes and interest remaining unpaid, Alter obtained judgment, by confession, against Mrs. Metcalfe and her children, with recognition of his mortgage rights, and a stay of execution to-February, 1873, on condition of the payment of the note for $2500 in February, 1872. A payment of $2119 67 was made in March, 1873 ; and on the 28th February, 1877, execution issued for the remainder of the-judgment. The sheriff seized the Rota Quinta plantation on the 2d of March, and advertised it for sale on the 7th of April. On the 6th April further proceedings were arrested by two injunctions, one at the suit of James A. Metcalfe, the other at the suit of Andrew W. Metcalfe, both filed on the same day.

These two suits must be considered separately ; but it may as well be stated here that community did not exist between Mrs. Metcalfe and her husband with respect to this plantation, because the matrimonial domicile was in the State of Mississippi; and all the land was acquired by Dr. Metcalfe before the passage of the act of 1852, which subjected future acquisitions of non-residents to the law of community. As six children survived their father, each child inherited from him one sixth ; and when one of them, John L. Metcalfe, died, his mother inherited from him one fourth of his undivided sixth, that is, one twenty-fourth of the-whole; and his three brothers and two sisters inherited, in equal portions, the remaining twenty-three twenty-fourths. This made Mrs. Metcalfe’s share five one hundred and twentieths, and the share of each one of her children twenty-thr.ee one hundred and twentieths of the-entire property and succession.

James A. Metcalfe alleges in his petition that he inherited from his father one undivided fifth ; that he was a minor at the time the notes-, and mortgage were given, and when the judgment was rendered ; that-the judgment was a nullity as to him ; and that, by a partition between-, all the heirs on the 23th February, 1877, the land described in the petition, part of the Rota Quinta plantation, became his separate property.. He prays that the judgment in favor of Alter be declared to be null and void so far as it relates to him : that an injunction begranted forbidding-the sale by the sheriff, and that Alter be condemned to pay him $250-damages.

The judgment of the district court decreed the judgment in favor-of Alter to be null and void, as against plaintiff; and that the injunction be maintained to the extent of hip undivided fifth interest in the Rota Quinta plantation, “the court being of the opinion that the partition set up as between the heirs is void and without effect as to the defendant, Charles E. Alter.” Plaintiff appealed.

The formalities requisite, in order to bind the minor or his property were not observed by Mrs. Metcalfe; and the court correctly decreed the nullity of the judgment as to him. We think the court erred in maintaining the injunction to the extent of one fifth, because plaintiff really owned only twenty-three one hundred and twentieths. The difference is small; and defendant has not asked for an amendment, for that reason we presume.

The act of partition is a private writing. After stating the purpose to effect an amicable partition of the property of the succession of Yolney Metcalfe, deceased, consisting of the Rota Quinta plantation, a description of which by sections and subdivisions of sections is given, this writing proceeds:

“ The following agreement or act of partition is this day made and entered into by and between Andrew W. Metcalfe, here present and acting for himself, Amelia S. Metcalfe, Yolney Metcalfe, Matilda A. Metcalfe, and James A. Metcalfe, of the State of Texas, herein represented by their special agent, attorney in fact, and attorney at law, Wade R. Young, of the parish of Concordia, heirs of the deceased, and Mrs. Matilda Ann Metcalfe, of said State of Texas, herein represente 1 by her special agent and attorney in fact and attorney at law, the said Wade R. Young, the said Mrs. M. A. Metcalfe being the widow of the deceased : 1st. That said Mrs. M. A. Metcalfe specially renounces in favor of her children herein named, the heirs of the deceased, all right, title, and interest in and to any part, parcel, or portion of said plantation, and consents that there be a partition in kind amongst the five heirs, all of age, and herein present or represented: 2d. The parties heiein agree :
“ First. That sections 30 and 25 be divided into five parts or portions, by lines running from the north fine of said sections due south to the south boundary of the same, said parts or portions to be so laid off that each shall contain one hundred acres of clear or arable land, more or less, as may result from the division of the whole number of acres of arable into five parts, said parts or portions to begin at the northeast corner of section 30, and to be numbered from right to left, 1, 2, 3, 4, 5.
“ Second. That all the swamp or wild lands of said plantation lying south of said sections 30 and 25 shall be annexed to and form part of lot 1. '
“ Third. That the west half of the northwest quarter, and the west half of the southwest quarter of section 9 shall be annexed to and form part of lot No. 2.
“Fourth. That section 24 shall be equally divided between lots 3, 4, 5, by lines run from the south line of said section due north, beginning at the southeast corner of said section, lot 1 of same to be annexed to lot 3, lot 2 to lot 4, and lot 3 to lot 5.
“ The foregoiDg tracts of land having been so subdivided into five parts, it is agreed,
“1st. That Yolney Metcalfe shall take lot 1.
“2d. That James A. Metcalfe shall take lot No. 2.
“3d. That Andrew W. Metcalfe shall take lot No. 3, if the dwelling-house be on said lot, and if not, then that one of the heirs to whom may be assigned the lot on which said dwelling-house stands shall exchange with the said Andrew W. Metcalfe.
“4th. That Amelia S. Metcalfe shall take lot No. 4.
“ 5th. • That Matilda A. Metcalfe shall take lot No. 5.
“ 6th. That the cabins or quarters, except those in the yard, shall be equally divided.
“ 7th. That the gin and cotton-house, with four acres of land adjacent thereto, shall remain undivided, and that the owners of each one of said lots shall have a right to use the same for the purposes for which they are intended, under the direction of Andrew W. Metcalfe, who will retain charge and control of same.
“8th. That the stable and corn-crib shall be taken down, and the lumber and material equally divided, to be used for the construction of other and smaller stables.
“ And the allotments having been so made and accepted, the said Mrs. Metcalfe conveys, and the said heirs mutually convey to each other, the parts so designated, with mutual covenants of warranty, to have and to hold the same for the use of them, their heirs, and assigns.
“Done and signed at Yidalia, parish of Concordia, State of Louisiana, February 28th, 1877.”

Signed by A. W. Metcalfe, and each of the other parties by Wade R. Young, attorney.

At the time of makiDg and signing this paper, Wade R. Young had not received the powers of attorney; but he says he knew they had been executed ; and they were delivered to him a few days after. There were two powers, duplicates, one by Miss Matilda A. Metcalfe, dated, Mason county, Kentucky, February 12,1877. There is no witness to either instrument ; and their respective dates are not otherwise shown than by the dates they bear.

The other power is as follows :

State of Texas 1
“ Falls County j We hereby constitute and appoint, and by these presents do constitute and appoint, Wade R. Young, of the Parish of Concordia, and State of Louisiana, our special agent and attorney-in-fact, to represent us and our interest in the matter of the partition of a certain tract of land or cotton plantation, with all the buildings and improvements thereon and thereunto belonging,- known as the Rota Quinta plantation, being, lying, and situate in the said parish of Concordia, and State of Louisiana, on the east bank of the Tensas river, about six miles below the mouth of the Little Tensas, or Bayou L’Argent, and about twenty-two miles from the town of Yidalia. And we specially authorize and empower the said Wade R. Young to do for us and in our name all acts necessary to effect a partition of said plantation among the several persons having undivided interests therein. And we hereby ratify and confirm all the acts of our attorney done in the premises, as fully and completely as if done by ourselves present and in person.
“Done and signed this 15th day of February, 1877.
“(Signed) ■ M. A. METCALFE, Tutrix.
YALERY METCALFE.
A. S. METCALFE.
J. A.'METCALFE.”

Recurring now to the act of partition, it is manifest that the actual partition was not completed on the 28th February. Five lines were to be run through sections 25 and 30, not so as to divide them into five equal parts, but so as to give to each part one fifth of the whole number of acres of clear or arable land. Section 24 was to be divided into three equal parts ; and then it was to be ascertained on which of the lots the dwelling-house stands. The surveyor was absent; and after his return he subdivided the land, and made a map of it, which he filed in the recorder’s office. This map is dated March, 1877, without any mention of the day of the month; and there is nothing to show the precise date at which it was filed in the recorder’s office. It shows that the dwelling is not on lot 3, but on lot 2 ; and there is no proof of any exchange between James A. Metcalfe and Andrew W. Metcalfe. The act of partition, as it is called, is nothing more than an agreement as to how the partition should be made ; and before an actual partition could have been made, the formation of the lots in accordance with the agreement was indispensable.

It will be observed that Mrs. Metcalfe, who signed the power as tutrix, although her functions as such had terminated, gave no authority to her agent to renounce her rights and interest in the property. No such intention is expressed in the power ; nor can it be deduced from the power, which was copied from a’form prepared by the agent, as he testified. Whatever the object may have been, whatever the effect may be, this renunciation was purely voluntary on the part of the agent; and was wholly unauthorized by the power.

It was not possible for one attorney or agent to represent five of the six proprietors in an act of partition, or in an agreement fixing the terms of the partition. A partition is an alienation, by each one of the co-proprietors, of his undivided share and interest in all the common property except that part which is allotted to him in the partition. Each one cedes, transfers, and conveys, to each and all the others, his right and interest in and to the parts and shares allotted to them, respectively, for and in consideration of the like cession, transfer, and conveyance, by each and all of them, to him, of their respective rights and interests in and to the part and share allotted to him. This operation constitutes as many distinct alienations and acquisitions, and requires as many concurring wills, as there are co proprietors, although the whole is embodied in a single act or writing ; and one person can no more represent the several co-proprietors in a partition than could one agent represent the vendor and vendee in a contract of sale.

Where a judicial partition is to be made among minors, their tutor, certainly presumed to be without prejudice or partiality, can not represent them. In such cases it is necessary to appoint a special tutor for each minor, to represent him alone. Succession of Aguillard, 13 An. 97; Hagan vs. Grimshaw, 15 An. 394. See, also, Beal vs. McKiernan, 6 La. 407.

Where the object of the partition is merely to ascertain and -set apart to all the minors the entire share and portion coming to them, without assigning and allotting to each his separate share, their tutor may well act for and represent them all; but where the shares of the minors are to be partitioned, so as to allot to each his separate share, each must be represented by a tutor, for the obvious reason that the interest of each necessarily conflicts with that of each and all the others: and this is equally true in every partition in kind.

Of course, where all the co-proprietors are sui juris they may make a voluntary partition; but the distinct consent of each to alienate in favor of, and to acquire from each and all the others, must be given; and this can not be done by an agent representing more than one of them. As Judge Martin said in Beal vs. McKiernan, 6 La. 415 :

“An agreement, aggregaiio mentium, one person bound to another, are of the essence of every contract, and, consequently, of every sale. Where there is but one person, there can be no agreement, no obligation; for there is not the concurrence of two minds, no one person bound to another.”

The writing styled an act of partition, in this case, is a mere nullity on its face. It did not vest in any one of the co-proprietors a separate interest in the common property : it did not make any one of them the owner of any special or distinct part of the property : it is without effect or obligation as an agreement for any purpose ; the property remained in its entirety, in indivisión, at the time of the seizure ; and the right of Alter is perfect to have the interests of all the defendants in execution, except James A. Metcalfe, in and to the undivided property, the Rota Quinta plantation, sold in satisfaction of his judgment, subject to the-right of James A. Metcalfe, and the purchaser at that sale, to have their respective shares and portions ascertained and set apart by partition.

Where all the owners, or part of them, holding in indivisión, unite in a mortgage of the common property, a voluntary partition can not impair the rights of the mortgagee. If, therefore, there had been a complete and valid partition in this case, it would not have prevented the seizure and sale of the rights and interests of all the mortgagors in and to the entire Rota Quinta plantation, under the mortgage and judgment in favor of Alter. See Erwin vs. Orillion, 6 La. 214

We can not correct the slight error of the district judge, in favor of appellant, because the appellee has not asked for an amendment; and we do not think this a proper case for the infliction of damages as for a frivolous appeal.

The judgment appealed from is therefore affirmed at the costs of appellant.

Mr. Justice Spencer being recused takes no part in this decision.


author: Marr, J. Spencer, J.

text:
    No. 7183.
    Mrs. Esther Chapman, Executrix, vs. Citizens’ Bank of Louisiana.
    As against the purchaser o£ mortgaged property sold by an assignee in bankruptcy, the hypothecary action oí the mortgage creditor is prescribed by the lapse oí ten years from the purchase of the property from the assignee.
    A judgment will be prescribed by the lapse of ten years from its date unless revived.
    The judicial mortgage arising in virtue of a judgment, and the hypothecary action authorized by the mortgage both perish by the prescription of the judgment. Service of citation in the hypothecary action will not interrupt prescription of the judgment.
    APPEAL from the Fourth District Court, parish of Orleans. Houstoni J.

      Geo. L. Bright and Barroiu & Pope for plaintiff and appellee.

      Armand Pitot and B. F. Jonas for defendant and appellant.
   The opinion of the court was delivered by

Marr, J.

This is an hypothecary action, by which plaintiff seeks to enforce against the Citizens’ Bank, third possessor, the judicial mortgage resulting from the recording of the judgment which she obtained on the 25th March, signed on the 29th March, 1867, in the Third District Court of New Orleans, against Stephen O. Nelson.

The Bank acquired the property against which plaintiff proceeds by sale made on the 18th July, 1868, by the assignee of Nelson, bankrupt, by order of the court in bankruptcy; which sale was afterwards confirmed by the court.

• The hypothecary action is prescribed by the lapse of ten years from, the date at which it accrued. This action accrued against the Bank, if it ever existed, at the date of the acquisition of the property by the Bank. R. C. C. 3528, 3529; Lanusse vs. Minturn, 11 La. 259, 260.

In Chapman vs. Nelson and others, just decided, we reversed the .judgment of the Fourth District Court in the suit to revive the judgment set up and relied upon in this case; and that judgment not having been revived in the manner provided by law, before the lapse of ten years from the time it was rendered, is now prescribed, and was prescribed on the 30th March, 1877. Act of 1853, R. C. C. art. 3547.

This hypothecary action was brought on the 16th March, 1877, in the same court, on the same day on which the suit to revive the judgment was brought; and in the petition it is alleged that the judgment was duly revived by the citation. This is a mistake in point of fact; the j udgment has not been revived.

The mortgage, whether conventional or judicial, is but an accessory right, which can not exist without the principal right or obligation which it secures ; and it is elementary in our law that the mortgage falls with the principal obligation to which it is accessory. R. C. C. 3285 ; Calderwood vs. Jacobs, 4 An. 509 ; Le Beau vs. Glaze, 8 An., and authorities cited p. 477; Troplong Prescription, 2, No. 659; Troplong, Hypothèques, 4, 878 bis.

The accessory, the judicial 'mortgage, was not prescribed, and the hypothecary action was not prescribed, at the time this suit was brought; but the judgment, on which alone the hypothecary rights of plaintiff depended, was rapidly approaching its extinction ; and it perished at the end of the ten years from the 29th March, 1867, the date at which it was signed and became final. Citation in a suit to revive the judgment would not have interrupted the prescription of the hypothecary action; nor did the citation in the hypothecary action interrupt the .prescription of the judgment.

“L’interruption do la prescription de l’hypothéque n’interrompt pas la prescription de 1’action personelle.” Troplong, Hypothèques, 4, 878 bis.

“Lorsque l’immeuble hypotbéqué est passe dans les mains d’untiers détenteur, les actes ¿¡’interruption de l’action personelle contre le debiteur n’interrompent pas la prescription a l’égard du tiers détenteur; réciproquement, Tinterruption de Taction hypothecate n’interrompt pas la prescription de Taction principale.” Troplong, Prèscription, 2, No. 659.

When the judgment was prescribed the judicial mortgage ceased to exist; and by the peremption of the judgment and the judicial mortgage the hypothecary action was extinguished.

“Si la préseription a éteint Tobligation personelle et Taction qui en déroule, l’aotnn hypothécaire sera éteinte par contre-coup. L’hypothéque étant l’accessoire de Tobligation personelle, doit nécessairement tomber avee celle-ci. * * * * n faudrait se teñir &, cette décision, quand méme Ton aurait conservó par des actes interruptifs Taction hypothócaire.” Troplong, Hypothequos, 4, 878 bis.

An ordinary action will not be affected by the lapse of time while it is pending; but if, during the pendency of the suit, the right asserted and sought to be enforced should bo extinguished, the action could no longer be maintained.

We do not think it necessary to consider the other questions raised in this case, and discussed with so much earnestness and research by the learned counsel, because the right of action no longer exists.

The judgment of the district court was in favor of plaintiff; and it is erroneous.

It is therefore ordered, adjudged, and decreed that the judgment of the district court appealed from be annulled, avoided, and reversed ; that the petition and demand of plaintiff be rejected and dismissed; and that plaintiff, appellee, pay the costs in this court and in the district, court.

Concurring Opinion.

Spencer, J.

I concur in the decree in this cause. The suit to revive was not brought in the court that rendered the judgment, nor in a court to which had been transferred that jurisdiction.

In my opinion, under the articles 2278 and 3547 of the Revised Civil Code, the prescription of a judgment, that is, of the judicial fiat making a debt executory, can only be interrupted or prevented by a suit to revive in the same court that rendered it, or by a ivritten acknowledgment signed by the debtor or his agent. Suit in any other court might keep alive the debt evidenced by that judgment, but the judgment itself, the judicial recognition which had made that debt executory, would become inoperative and ineffective, unless the court which gave it renewed or revived it. The judicial mortgage being a mere consequence of thejudg merit, necessarily perishes with the judgment. If the creditor be permitted, without objection, to obtain another judgment for the same debt in another tribunal, it will be a new and different judgment, and not a continuation of the old one, and will carry with it none of the consequences or accessories of the old one.

Rehearing refused.


author: Mare, J. Manning, C. J.

text:
    No. 7311.
    The State vs. William Vance.
    The term of a criminal court does not lapse on account of setting aside a first venire, and ordering the drawing of a second one, when the court remains in session until the second venire is drawn, transacting such business as does not require a jury.
    Section eleveirof the act No. 44 of the year 1877 which requires all objections to the manner of drawing venires to be made on the first day of the term of court, doos not apply to juries drawn after the first day of the term, or to persons indicted during the term for an offense committed after the first day of the term.
    The clerk of the court can not legally act as a jury commissioner until he has taken the required oath as such; and any venire he is actively instrumental in drawing before taking that oath, must be set aside.
    A PPEAL from the Seventh Judicial District Court, parish of Pointe L.L Coupée. Toist, J.

      H. N. Ogden, Attorney General, for the State.

      A. D. M. Haralson, Chas. DuBoy for defendant and appellant.
   The opinion of the court was delivered by

Mare, J.

The accused was convicted of murder ; and he appealed from the judgment sentencing him to death.

The homicide took place on the twelfth ; the indictment was found on the sixteenth ; copy was served on the accused in person on the nineteenth ; and he was put upon his trial on the twenty-first December, 1878.

The regular term of the district court for the parish of Pointe Coupee commenced on Monday, December 2, 1878. On the first clay of the term the entire venire was set aside on motion, on the ground that the clerk of the court was not sworn as a commissioner at the time of the drawing of the jury ; and the court ordered the jury commissioners forthwith to draw fifty jurors for the week commencing on the ninth ; thirty for the week commencing on the sixteenth ; and fifteen for the week commencing on the twenty-third December. The names of the jurors first drawn, the venire that had been set aside, were returned to the venire box ; and the new venire was drawn from that box.

From the fifty names drawn for the week commencing on the ninth December, the grand jurors were selected; and they found the bill against the accused.

On the eighteenth December the accused by his counsel formally objected to being required to plead to the indictment, and to the fixing o£ the case for trial on the ground that the term had lapsed by reason of the setting aside of the first venirle. It seems the court continued in session, transacting such business as did not require a jury. We think this was proper, and that, the term had not lapsed.

This objection having been overruled, the accused on the same day presented his exceptions and objection to the grand and petit jurors and moved that the venire be quashed, on the ground that it was illegal and drawn without warrant of law, and summoned without authority of law; and that it was not empanneled on the first day of the term of the court.

That the general venire list from which the jury was drawn was made by Hebert, a clerk of the court and a jury commissioner, prior to his having taken the oath required by law as jury commissioner. The court refused to allow the exceptions and motion to be filed because they were not made on the first day of the term, as the bill of exceptions states.

Section 11 of the act No. 44, of 1877, regular session, the present jury law, does require exceptions to the array or venire to be made on the first day of the term ; but obviously this must be understood with certain restrictions. No objection could be made to the venire before it was drawn ; nor could a person indicted for an offense c jrmnitted during- the term and put upon his trial at the same term have objected to the venire on the first day of the term.

The venire objected to in this case was not drawn until after the first day of the term ; and it was summoned for the second week, the ninth December. If that could be considered the first day of the term, the accused had no occasion, no right, to appear in court to challenge the venire until the indictment was found against him, which was on the sixteenth, the third week of the term, the second week of the jury term. Two days after the indictment was found, and the day before the copy was served on him, he presented in due form his exceptions and objection to the venire. We think that section 11 of the act of 1877 must be held not to apply to juries drawn after the first day of the term ; nor to persons who had no interest and no right to object to the venire until after the juries had been empanneled. It would be to the last degree unjust to apply it to a person who is indicted during the term for an offense committed after the first day of the term, and who is put upon his trial at the same term.

The clerk, as one of the jury commissioners, had taken an active part in the selection of the three hundred names to be put in the venire box and in the selection from time to time of other names to supplement the list and keep up the requisite number, three hundred. This is a far more important duty than that of merely drawing from the venire box the slips of paper on which the names are written. Confessedly, Hebert was not qualified as jury commissioner when this most important duty was performed. When the first venire was set aside Hebert took the oath as required ; and then, assisted by two other jury commissioners, he drew the venire from the box after returning to it the names of the first venire.

The words of the statute, section 3, act of 1877, are : “ Before entering upon the discharge of their duty each member of the commission shall take an oath faithfully to discharge the duties imposed upon them by this act ” The oath taken by Hebert on the third December, 1878, made him, for the first time, a qualified jury commissioner. That oath necessarily had reference and was limited to his future acts as such commissioner ; and it could not validate that most important previous duty, the selection of. the names to be put in the venire box.

The necessity for taking this oath was fully and carefully considered in State vs. Williams, 30 An. 1028; and we decided that the clerk was not qualified to act as a jury commissioner until he had taken the specific oath prescribed by the statute. In this case, as we said in that case, p. 1031, “the selection of the jurors was not legal; and the inevitable result of that illegal selection was to affect the composition of the grand and petit juries, the validity of the indictment, the verdict and sentence.”

It is therefore ordered, adjudged, and decreed that the verdict rendered in this case be set aside; that the judgment and sentence be avoided and annulled ; that the indictment be quashed; and that the-accused, William Vance, be detained in custody to await the further action of the district attorney and the grand j ury of the parish of Pointe Coupee, and until discharged in due course of law.

Concurring Opinion.

Manning, C. J.

I did not assent to the ruling in Williams’ case, 30-Annual, 1028, touching the need of the clerk’s taking the oath of jury commissioner, because I thought that in placing him upon that c immission, the statute was designating him, not as an individual, but an already-sworn officer, to perform that duty, and no additional oath was necessary to qualify him. But the conduct of the lower courts is now regulated by that decision, and to avoid uncertainty and change, I think it. should be adhered to.


author: White, J.

text:
    No. 5946.
    Henrietta S. Noland, Executrix, vs. Clifford G. Wayne.
    The publication of the notices required by the bankrupt law of the United States on the part of the bankrupt, will, in the absence of fraudulent omission of the name of a creditor from his schedule, bar any claim of that creditor provable-under the bankrupt act.
    Where the liability of a surety on a sequestration bond is fixed by a judgment at the date of the principal’s adjudication in bankruptcy, the claim of the surety against the principal is provable under the bankrupt act, and hence is extinguished by the principal’s discharge in bankruptcy; even though it appear that at the time of the adjudication in bankruptcy, the surety had paid nothing on account of his liability.
    ^PPEAL from the Fourth District Court, parish of Orleans. Lynch,

      M. M. Cohen for plaintiff and appellee.

      Kennard, Ilowe & Prentiss for defendant and appellant.
   The opinion of the court was-delivered by

White, J.

In suit No. 17,720 of the docket of the Fourth District Court, entitled Peter Markey vs. Cris Meyers & C. G. Wayne, a writ of sequestration issued, and the sheriff thereunder took into his possession one hundred and twenty-four thousand shingles, more or less. On the 5th of October, 1866, Wayne bonded the sequestered shingles, giving bond in the sum of twelve hundred dollars, with Frank W. Seymour as security. On the 17th November, 1868, judgment was rendered against Wayne, condemning him to restore the property bonded, or pay in default the sum of seven hundred and forty-four dollars, with legal interest from judicial demand until paid. On the 15th March, 1869, ft. fa. issued under this judgment and was duly returned on April 7th, 1869, no property found. On the 19th May, 1870, in suit of Peter Markey vs. Frank W. Seymour, he was condemned to pay the sum of seven hundred and forty-four dollars, with legal interest from October 4th, 1866, till paid, with costs of the original suit, in which the forthcoming bond had been given. Seymour appealed from this judgment, which was affirmed by this court, with fifty dollars damages for frivolous appeal, on the 19th January, 1874. On 10th February, 1874, Seymour, through his legal representatives, paid the amount of the judgment rendered against him as security on the forthcoming bond. In the period intervening between the rendition of the judgment in the lower court against Seymour, the security, Wayne, the principal, on the 11th January, 1872, was adjudicated a bankrupt, and on the 7th May, 1872, finally discharged. The present suit is an effo.rt on the'part of the executrix of Seymour’s succession to recover from Wayne the amount paid as surety. Wayne pleads as a bar his adjudication and discharge in bankruptcy ; the lower court gave plaintiff a judgment; defendant appeals.

That the defendant was duly adjudged a bankrupt and finally discharged, before the present suit was filed, is beyond question.

It is contended that the discharge does not bar the present claim:

First — Because it was not placed by Wayne on his schedule, and consequently made the bankruptcy proceedings res inter alios.

Second — Because at the date of the adj udication and discharge of Wayne, this court had not finally passed on the surety’s liability, hence the claim of the surety, which it is said only resulted from the payment and consequent subrogation, was not provable at the date of the adjudication or discharge.

We think neither of these propositions tenable.

1. The claim was put on the schedule, which contained the following :

Thus the very claim due by Wayne to Markey, and for which plaintiff was surety, was explicitly and fully described in the schedule. The debt due by Wayne to Markey was the debt for which Seymour was liable as security, and to which he would have been by operation of law subrogated. We consider, however, the provability of the debt the crucial test.

The provision of the bankrupt act makes the discharge operative against all debts which “were or might have been” proved against the bankrupt’s estate. The language of the law is: “A discharge in bankruptcy duly granted, shall, subject to the limitations imposed in the two preceding sections, release the bankrupt from all debts, claims, liabilities, and demands, which were or might have been proved against his estate in bankruptcy.” * * * U. S. Rev. Stat. 5119. Even if putting the claim on the schedule in the manner stated, did not amount to a placing thereon that of plaintiff, publication of the required notices, in the absence of fraudulent omission of the name of the creditor, will bar the claim of the creditor whose name has been omitted. Bump’s Bankruptcy, 8th edition, p. 730, and authorities there cited.

2. The liability of Seymour was fixed by judgment at the date of the adjudication in bankruptcy. He could at that time and before payment have sued the principal on the bond. A surety may even before making any payment bring suit against the debtor, to be indemnified by him, first, when there exists a lawsuit against him for payment; second, when the debtor has become a bankrupt or is in a state of insolvency. 0. 0. 3057. At the date of the adjudication in bankruptcy the surety, irrespective of payment, had a subsisting cause of action given him by law, as taught by an unbroken current from the Roman law to the writers on the Code Napoleon, to enable the surety to protect himself in advance of payment, the right being, as stated by Justinian, founded on the equitable maxim, Melius est intacta jura servari quampost causam vulneratum remed'mm qucerere. L. 5 b. In quib. causes. Pothier du Oautionnement no. 441. Oode Nap. 2032. Paul Post des Petits Contrats, vol. 2, p. 146. Troplong du Oautionnement, p. 343.

We can not, then, when the liability of the surety was actually determined by judgment, at the date of the bankruptcy, say that the mere non-payment by the surety, although he had before payment a cause of action, rendered his claim not exigible from the bankrupt’s estate. Apart, however, from the rights of the surety as defined in our law, we think that the bankrupt act itself provided ample means for proving claims like the present before payment. Under the act of 1841, not so comprehensive in this regard as the act of 1867, the right to prove a contingent liability was it seems by the greater weight of authority determined. Mace vs. Wells, 7 Howard 272 ; Crafts vs. Mott, 4 Comstock (N. Y.) 603; Morse vs. Hovey, 1 Sandford, Ch. (N. Y.) 187; Kyle vs. Bostwick, 10 Ala. 589 ; Fulwood vs. Bushfield, 14 Pa. St. 90 ; Tubbs vs. Williams, 9 Iredell, Law, (N. C.); Shelton vs. Pease, 10 Mo. 473; Jamison vs. Blower, 5 Barb. 686 ; Butcher vs. Forman, 6 Hill (N. Y.) 584.

The provisions of the act of 1867 seem to have been in terms intended to cover a case like the present. The language is :

■ “In all cases of contingent debts and contingent liabilities, contracted by the bankrupt, and not herein otherwise provided for, the creditor may make claim therefor, and have his claim allowed, with the right to share in the dividends, if the contingency happens before the order for the final dividend ; or he may at any time apply to the court to have the present value of the debt or liability ascertained and liquidated, which shall then be done in such manner as the courtshall order; and he shall be allowed to prove for the amount so ascertained.” U. S. Rev. Stat. 5068.
“Seo. 5070. Any person liable as bail, surety, guarantor, or otherwise for the bankrupt, who shall have paid the debt, or any part thereof, in discharge of the whole, shall be entitled to prove such debt, or to stand in the place of the creditor, if the creditor has proved the same ; although such payments shall have been made after the proceedings in bankruptcy were commenced; and a^iy person so liable- for the bankrupt, and who has not paid the whole of such debt, but is still liable for the same, or any part thereof, may, if the creditor fails or omits to pay such debt, prove the same either in the name of the creditor, or otherwise, as may be provided by the general orders ; and subject to such regulations and limitations as may be established by such general orders.”

Under these sections, in Lipscomb vs. Grace, 26 Ark. 231, it was held “that it is competent for a surety before he has made payment to prove up his contingent, liability on an application for discharge in bankruptcy ; and if he does not so prove up he is barred by the certificate of discharge from further proceeding against the bankrupt.” The same conclusion was arrived at by the Supreme Court of Rhode Island in Fisher vs. Tifft, 12 R. I.

We conclu.de, then, that the claim was provable, and is hence barred by the discharge, and that therefore there is error in the judgment below ; and it is consequently reversed, and judgment be and the saméis hereby rendered in favor of defendant and against the plaintiff, rejecting plaintiff's demand, with costs in both courts.

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


text:
    No. 5871.
    Darcy & Wheeler vs. J. S. Labennes and Wife.
    The action of a husband’s creditor to annul a judgment of separation of property obtained by the wife, on the ground of its being in fraud of the husband’s creditors, is only prescribed by one year from the date of the judgment of the creditor against the husband.
    The record of the wife’s suit for a separation of property may be introduced in evidence in the suit subseauently brought by the husband’s creditor to annul the judgment of separation merely to show that suoli a j udgment was rendered_ but the parol evidence on which the judgment was obtained is not admissible in the suit to annul. The burden of proof in such a suit is on the wife, to prove aliunde, that her judgment was fairly obtained.
    Where it does not appear by an authentic act that the wiEe’s rights and claims under her judgment of separation of property have been paid, and where the evidence shows that the first writ of U. fa. in execution of her judgment was issued four years after the judgihent was rendered, tho judgment will, on proper application, be set aside as null and void.'
    ^PPEAL from the Fifth. District Court, parish of Orleans. Cullom,

      Charlen Louque for plaintiffs and appellants.
    Defendant unrepresented.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiffs .obtained judgment against J. S. Labennes in February 1874 for merchandise sold to him in February 1867 In November of this last year, Mrs. Labennes had instituted suit against her husband for a separation of property, and had judgment therefor in the following month. When Darcy & Wheeler issued execution on their judgment against Mr. Labennes, they were confronted by this judgment of separation, and immediately brought this suit to annuli it.

The prescription of one year is pleaded, along with a general denial. This suit was commenced Feb. 25,1874, a few days after the plaintiffs’ judgment against Labennes was obtained, and therefore the prescription pleaded is not good. Civil Code, art. 1989 new no. 1994. Van Wickle v. Garrett, 14 Annual, 106. Powell v. O’Neil, 24 Annual, 522. The text of the Opinion in the 14th Annual must be consulted, as the digest of it by the Reporter is erroneous.

The judgment of separation is attacked for fraud, as having been obtained expressly to defeat the plaintiffs’ claim; and because the wife did not bring into the marriage any money or property as falsely alleged; and the husband’s affairs were not in disorder; and he was not in a condition of insolvency; and the judgment was by consent; and had never been executed.

The record of Mrs. Labennes’ suit was offered in evidence, which contains the testimony therein. The plaintiffs opposed the reception of the evidence in that suit as testimony in this. No other testimony was offered by the defendants.

A record may be introduced in evidence to shew that a judgment was rendered, or for other purposes, but it does not follow that the parole testimony upon which it was obtained can be admitted as proof in another suit, simply because it forms part of the record. If such evidence is admissible in this other suit, it is so on other grounds than that it is a part of the record offered, and independent of that fact. Baptiste v. Soulie, 13 La. 268. Florance v. Bachemin, 3 Annual, 174. Erwin v. Banks, 6 Annual, 1.

All transactions between the husband and the wife relative to the property of the former must be regarded with suspicion, when the object of such transactions is to create a preference over other creditors in favour of the wife, and when such preference comes in competition with the actual claims of such other creditors. In such eases, when these transactions are attacked for fraud and collusion, it is incumbent on the wife to shew the truth and genuineness of the claim upon which her judgment against her husband is founded. The burthen of proof is upon her to shew that her judgment was fairly obtained. Deblanc v. Deblanc, 4 La. 19. Malone v. Kitching, 10 Annual, 85. Phelps v. Rightor, 15 Annual, 33. She has neither done that, nor attempted to do it in the present case.

The judgment of separation must be executed on pain of nullity, and this execution must be by the payment of the rights and claims of the wife, evidenced by an authentic Act, or an uninterrupted suit to obtain payment. Bostwick v. Gasquet, XI Annual, 534. The judgment of Mrs. Labennes against her husband was obtained Deo. 7, 1867. There was no payment through a notarial act. A writ of fieri facias issued January 25,1872, and was returned nulla bona April 4th. following. An interval of four years between the judgment and the first attempt to execute it is not the uninterrupted suit to obtain payment contemplated by the Code.

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be now judgment in favour of the plaintiffs, annulling the judgment of Erangoise E. Labennes against Joseph S. Labennes, her husband, signed Dec. 7, 1867, and that the plaintiffs recover of the defendants the costs of both courts.


text:
    No. 7305.
    The State vs. Ralph Smith.
    Where the record in a ease where the defendant was prosecuted for murder fails to-show that the prisoner was present at any time during the trial, the verdict in the ease will be set aside, and the judgment annulled.
    An amendment of the minutes of the criminal court in any particular ease-, in order to show that the defendant was actually in court during the trial, may be made even after the record of appeal has been lodged in this court, provided the amendment is made contradictorily with the defendant. But it can not be made exparte, with no notice to the defendant.
    The jury commissioners have no authority to draw a grand jury at any period less than fifty days before the regular time for the opening of the court term.
    After the judge has annulled and set aside, in one case, a whole aerare drawn for that term, he can not afterward during that term in another case, hold such a venire to bo good.
    APPEAL from the Thirteenth Judicial District Court, parish of East Carroll. Hough, J.

      H. H. Ogden, Attorney General, submitted the case on behalf of the State.

      J. M. Kennedy for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The defendant, convicted of murder and sentenced to death, appeals, and prays a reversal of the judgment on sundry grounds which are set forth in his bills of exception, motions for continuance and for a new trial, and assignment of errors. We regret that,in the examination of these numerous questions in this and the Revells case, we have been unassisted by brief or oral argument on the part of the State.

This record, like that of Revells’ case, contains no mention of the prisoner’s presence in court at any time during the trial, and of course none of any arraignment. The requirement of these things, and of their mention in the record, is not new.

It has ever been held, in trials for felonies, that the prisoner must be present at every important or vital stage of the proceedings. 3 Wharton Grim. Law ¿2991, 1 Bishop Crim. Proc. ¿273, and that the record must shew his presence, 3 Whart. Grim. Law ¿2999. When he can waive his presence, amhwhen he need not be present without waiver, have been pointed out. Ibid. ¿2992-3000. The indispensability of arraignment, of the record shewing it, in felonies, and in what classes of cases it can be waived has long been familiar law. Ibid. ¿3153 et seq. Yet we have had occasion several times recently to set aside verdicts and annuli judgments for errors in these matters.

The minutes were corrected in the same way as in State v. Revells, just decided, and the ruling there applies here, ante 387.

The prisoner moved to quash the indictment for irregularities in forming the venire from which the Grand Jury was drawn. The commissioners had drawn the jury on May 2d. The court met on June 3d, and this indictment was found and presented in open court on the 10th. of same month, and the motion to quash was made on the 11th. There are two grounds ; — 1. That the jury was not drawn within the time directed by the statute ; 2. that the same venire had already been quashed on June 4th., at the instance of other parties indicted at the same time.

1. The statute requires the jury shall be drawn in not less than fifty days prior to the meeting of the court. Sess. Acts 1877, p. 56. This jury was drawn thirty-two days before the court met. If the jury commission can abridge the statute time at all, it can abridge it to as short a time as may suit the convenience or caprice of its members. It cannot abridge the time at all. More than fifty days may elapse between the drawing of the jury and the regular time for the opening of the term, but not less.

2. It appears that a motion to set aside this venire was made in another case, and sustained, and such being the case, we are unable to conceive a good reason why the prosecuting officer persisted in proceeding with the trial, or how, after the judge had annulled and set aside the whole venire drawn for that term he could hold it good for any case.

There are numerous other causes of error set forth, which we will not examine, because it is needless. The record teems with objections— bristles with points — made with indefatigable zeal and pertinacity by the defendant’s counsel; and when it is remembered that the trial was for tire gravest of crimes, to be legally expiated by the gravest of penalties, we cannot forbear the admonition that neither the law nor the public weal require that any man shall suffer even for crime, save according to those forms, and with due observance of those safeguards against error, which the wisdom of the learned, and the experience of many years and many countries, have found fitting and necessary to prescribe for the conduct of criminal trials.

It is ordered, adjudged, and decreed that the verdict of the jury is set aside, and the judgment of the lower court is avoided and reversed, and the indictment herein be quashed, and that the defendant be held in custody to await a new indictment, and for trial under the same.


text:
    No. 7442.
    The State vs. James A. Finn.
    The continuance of a case on the ground of the absence of a material witness is a matter in the sound discretion of the court, and the exercise of that discretion will not be interfered with when there is nothing to show it was unsound.
    Where an accused is on trial under an information for shooting with a dangerous weapon, to wit with a pistol, the information may be amended by substituting the word "gun” for the word “ pistol.”
    The fact that while the jury in a criminal ease were deliberating they informed the deputy sheriff in charge that they desired further instructions from the judge, his reply that the district attorney was absent and no further instructions could be had until his return, the consequent finding of the jury without any further instructions will not justify the granting of a new trial, when it appears that the judge as well as the district attorney was absent, when the jury’s request for further instructions was made, and that the j ury did not repeat the request.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

      H. N. Ogden, Attorney General, for the State.

      John N, Healey for defendant and appellant.
   The opinion of the court was delivered by

White, J.

The defendant having been informed against for shooting with a dangerous weapon with intent to commit murder, convicted, and sentenced to ten years hard labor in the Penitentiary, appeals. Before going to trial he asked a continuance on the ground of the absence of witnesses material to his defense, which was refused. The matter was within the sound discretion of the lower court, and there is nothing in the motion itself or in the record showing that the limits of sound discretion were transcended. The information charged that the accused “ with a certain dangerous weapon, to wit, a pistol, did shoot one W. N. Rogers with the intent of so doing, feloniously, wilfully, and of his malice aforethought, to commit murder, contrary,” etc. After the commencement of the trial, the jury having been impanneled, two ■witnesses for the State having been heard, the testimony developing that a gun and not a pistol was the weapon with which the shooting was done, the State asked to be allowed to amend the information by substituting the word gun for pistol. The court allowed the amendment, and the trial proceeded. The court did not err. R. S. 1047. While the jury were deliberating, the court having taken a recess, they informed the deputy sheriff that they desired further instructions, to which he replied that the prosecuting attorney being absent, no further, instructions could be given until his return. This was made the. basis of an application for a new trial, which was refused, the court giving as reasons therefor that both the judge and district attorney were absent when the request was made; that had he been present he would have instructed the jury to await the return of the district attorney; that the jury did not repeat their request, which they had full opportunity to do. We can not say under this state of facts that the new trial was improperly refused.

Judgment affirmed.