text:
    No. 8402.
    The State ex rel. B. G. Bloss vs. The Judges of the Court of Appeals, for the Parish of Orleans.
    The Court of Appeals has no jurisdiction in a proceeding of -which the object is to have the inscription of a mortgage for more than $1000 cancelled and erased from the boohs of the Mortgage Office, on the ground that said mortgage is simulated.
    ApPLICATION for a writ of Mandamus.

      T. Gilmore & Sons for the Relator:
    In a rule to erase mortgages, the amount of plaintiff’s claim determines the jurisdiction..
   The opinion of the Court was delivered by

Poché, J.

Relator seeks by mandamus to compel the Court of Appeals to entertain jurisdiction of an appeal which he has taken from a judgment of the District Court, discharging a rule which relator had' taken against Mrs. Henrietta Davidson, the holder of a mortgage of §12,000, on the immovable property of hie debtor, the defendant in the suit of Bloss vs. Lindop, the object of the rule being to have said mortgage canceled, on the ground that it was simulated and unreal.

The record shows that relator, having obtained a judgment against the defendant for five hundred dollars, with interests and costs, issued execution on his judgment, under which certain real estate of the defendant was seized. This property being encumbered with the mortgage above recited, relator took a rule for the cancellation of the same on the mortgagee, Mrs. Davidson, who answered by a general denial, and in whose favor judgment was rendered by the District Judge.

On his motion, plaintiff’s appeal was made returnable to the court of respondents who, ex propria motu, refused to entertain jurisdiction of the same, on the ground that the matter in dispute, under the rule, exceeded one thousand dollars and was beyond their jurisdiction.

Relator contends that the amount of his judgment in execution, and not the amount of the mortgage sought to be canceled, is the test of the jurisdiction of the Appellate Court.

We have carefully examined the numerous authorities which his counsel has quoted in support of this position, but we find that they are not applicable to the only point at issue, and that he is not borne out in his conclusion.

The object of relator in his rule is not to cancel the mortgage in so far as it affects .his judgment, .or his mortgage rights on Lindop’s property, or to obtain a decree removing such mortgage as an obstacle in the way of his execution, but to have the whole mortgage declared a simulation, entirely canceled.

The only issue presented by relator in the rule is confined to himself and to the mortgagee, and embraces exclusively the validity or binding force of a mortgage exceeding one thousand dollars.

Under the issue thus presented, the only judgment which the District Court could render and which the Appellate Court could revise, would have for effect the maintenance and recognition or the cancellation of a mortgage in the sum of twelve thousand dollars’.

This is not a contest between plaintiff as a judgment creditor and the holder of a conventional mortgage for priority over the proceeds of the property of the debtor, defendant in execution, which was the issue presented in the case of Picard & Weil vs. S. S. Wade, 30 A. 623, quoted by relator, and in which our immediate predecessors correctly held that the amount of the judgment in execution, and not the value of the property seized and sold, nor the amount of the third opponent’s claim, was the true test of the jurisdiction of the appellate tribunal, because the issue was a contest over the proceeds of the debtor’s property.

In the case of Loeb & Bloom vs. Arent et al., 33 A. 1086, in which plaintiffs, in execution of their judgment, sought to have a transfer of their debtor declared a nullity as “ to its effect ” on their claim, and in which the property transferred exceeded in value one thousand dollars, we held that the real matter in dispute was the amount claimed by plaintiffs, because they did not seek to annul or do away in toto with the transfer complained of, and because they had restricted their demand to annul the contract only in so far as it affected their claim.

In the case at bar, plaintiff demands the cancellation in toto of a mortgage exceeding one thousand dollars, and respondents correctly held that the matter in dispute exceeded the amount or limit of their jurisdiction.

It is, therefore, ordered, adjudged and decreed that the order granting an alternative writ of mandamus in this case be rescinded, and that the writ herein prayed for by relator be refused at his costs.


source: Caselaw Access Project

author: Levy, J.

license: Public Domain

text:
    No. 7250.
    Wm. Hartwell, Agent, etc., vs. The Alabama Gold Life Insurance Company.
    A policy of life insurance will be annulled when the insured made misrepresentations to the insurer as to his habits of intemperance, although he may himself, in making the declaration, have been in good faith and not have intended to commit a deception.
    A PPEAL from the Eifth District Court for the parish of Orleans. Sogers, J.

      Bayne <& Denegre for Plaintiff and Appellee:
    The defence is special and the burden of proof is upon the defendant. Terry vs. Insurance Company, 1 Dillon Rep., 403; 31 Missouri Rep., 725; Piedmont Life Insurance Company vs. Ewing, 2 Otto Rep., 379; Swick vs. Home Insurance Company, 2 Dillon Rep., 164.
    In order to avoid the policy of insurance, it is necessary for the defendant to prove that the declarations that the applicant was sober and temperate, and that if he should become so far intemperate in the use of opiates or ardent spirits as to seriously impair his health and to shorten the term'of his life, were fraudulent and untrue as urged in the answer. Pitch vs. American Popular Life Ins. Co., 59 New York, 570; New York Life Ins, Co. vs. La Bouteanx, Central Law Journal, vol. 2, p. 806; May on Insurance, p. 323; Pox vs. Penn. Mutual Life Ins. Co., 4 Bigelow Life and Accident Insurance Report, p. 462 ; 3 Bigelow, 702; 4 Bigelow, 69.
    All of the representations and statements made in the application and the doctors’ certificate accompanying the application, are to be taken and construed together as the language is ordinarily understood. 2 Dillon, 164; Worcester’s Dictionary, verbis sober — temperate.

      Thos. J. Semmes for Defendant and Appellant:
    This case involves questions of fact only, and the ODly point of law to sustain which authority is cited, is that the knowledge of the condition of the insured by the agent of a life insurance company, is immaterial as to the question of warranty or misrepresentation or concealment. Eagle Ins. Co. vs. Yose, 6 Cushing, 42.
   The opinion of the Court was delivered by

Levy, J.

This appeal is taken from a judgment of the Fifth District Court for the parish of Orleans, based on the verdict of a jury for the sum of five thousaud dollars, with legal interest thereon from February 5th, 1877, being the amount of a policy of insurance on the life of Thomas O. Hartwell for said sum of $5000. The policy is dated on the 30th of March, 1874, in favor of his children, the plaintiffs in this action.

Hartwell, the Insured, died on the 7th of November, 1877. Due proof of his death was made and submitted to the company and acknowledged, as to its receipt, on the 11th of December, 1877. Under the terms of the policy, if not forfeited and avoided for the causes therein set forth, it was .payable within ninety days after proof of death of the insured.

On demand, within the delay fixed for payment of the amount of the policy, the defendant company refused to pay the same, alleging as reason for such refusal, that the policy had become void, and all the rights of the insured therein and thereunder forfeited, by reason of misrepresentations and false statements made by the deceased in his application for insurance, which application and the statements made therein, were the basis and consideration of the issuance of the policy, and that the deceased had warranted the truth of the statements and declarations therein contained, and their falsity operated the annulment of the contract, as also the forfeiture of all premiums paid by the insured. • The misrepresentations and false statements relied upon by defendant, are those made by the deceased in his application, touching the use by him of intoxicating liquors and his habits as to sobriety, anterior to and at the time of making the application, as well as to his subsequent habits of drink.

There is no dispute as to the law governing the case, and it presents a naked question of fact for our review and decision.

Question 7 in the application is as follows : “ Are the habits of the party, at the present time and have they always been, sober and températe ? ” To which the applicant responded “ Yes.” In the application there is a further declaration by the applicant, to wit: “ If the party proposed to be insured on this application for insurance, shall become so far intemperate in the use of opiates, or ardent spirits or intoxicating beverages as to seriously impair his health and shorten the term of his life, then all monies which shall have been paid on account of such insurance shall be forfeited to the said company, and the policy void.” Question 32, .propounded this inquiry: “ Is the party aware that any untrue or fraudulent answers to the above questions or any suppression of the facts in regard to the party’s health will vitiate the policy and forfeit all payments made thereon ? ” to which we find the response “ Yes.” The application also contains the following “This declaration and the above proposed shall be the basis of the contract between us and the said company,”

Here, then, is a plain, clearly expressed contract, entered into with a full and explicit declaration of the intentions of the parties, a clear understanding of the basis of the contract, a distinct acknowledgment of the liabilities incurred on both sides, and an unmistakable announcement of the penalties attaching to the untruthfulness of the statements and declarations on which the contract is based.

For the present case and its decision we deem it necessary only to direct our inquiries to the question : Were the declarations of the insured, as contained in his application, true ?

Numerous witnesses have testified as to the habits of the deceased in the use of intoxicating liquors, prior to and at the time of his effecting the insurance upon his life, and subsequent thereto. Habits of intemperance generally grow upon the victim gradually and to him insensibly, and he is aroused to an appreciation of his true condition, if at all, long after the habit' has become fixed and has attracted, if not public attention, at least that of those who are thrown into daily or constant social or business intercourse with him, and with self-sufficiency and egotistical faith in himself, he denies and resents, as inapplicable to him, what is apparent to others. But this denial on his part, or disbelief as to his condition, does not affect its real existence;‘and while, from misconception of the truth growing out of a perverted or distorted view taken by himself, he may be acquitted of any dishonest attempt at deception or misrepresentation, his solemn declaration, although made without fraudulent or untruthful intent, which induces another to bind himself in a manner which he would not have done, in the absence of such declaration, cannot be invoked to the detriment of that other who binds himself on the faith of its correctness.

We do not deem it necessary to enter into a detail of the testimony found in the record, which on the one hand goes to establish, if not the temperance and sobriety' of the deceased, the absence of excessive indulgence in the use of ardent spirits or intoxicating liquors, and, on the other hand, the existence of such excessive use or indulgence. We have read all the evidence carefully, have considered the character and good reputation of all the witnesses, the relations which they bore to the deceased, their business and social intercourse with him, their means of knowledge and of observation, their general and special and intimate acquaintance, and we can arrive at no other conclusion, as the result of a critical examination, in which we have sought to give its due weight to the testimony of all the witnesses, than that the representations made by the deceased, Thomas C. Hartwell, in his application for insurance and which formed the basis and a material consideration for the policy, in so far as they relate to his habits of sobriety and temperance, prior to and at the time of the application, are not in accordance with his real condition, and not in themselves truthful in the sense in which the insurance company accepted and acted upon them.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed ; and it is now ordered, adjudged and decreed that there be judgment in.favor of the defendant rejecting the demands of plaintiffs at their costs in both courts.

Rehearing refused.


author: Bermudez, C. J. Poché, J.

text:
    No. 8327.
    The State of Louisiana ex rel. J. A. Dardenne, President Police Jury, et al. vs. James L. Cole, Judge of the Twenty-third Judicial District Court.
    The District Judge has the power to determine whether witnesses have been heard as experts and what compensation they should receive as such. C. 3?. 462.
    Having so determined, ho has power by Mandamus to order payment of suoh compensation by the Parish treasurer. C. P.130.
    Such compensation may be fixed by the Judge ex parte.

    The petition for a Mandamus needs not be in the name of the State. It is only the "Writ that must be issued in the name of the State. And the prayer of such Petition being for an Order commanding, etc., is equiyalent to a prayer for a Mandamus. The word is not sacramental.
    This Court will not issue the writs of Prohibition and Certiorari to inferior judges in cases in which they have exercised their legal authority and discretion. Previous Decisions affirmed.
    ApPLICATION for Writs of Prohibition and Certiorari.

      E. B. Talbot, District Attorney, for the Relators..

      Chas. O. Lauve for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

The object of this proceeding, which is for a certiorari and prohibition, is to have it judicially.declared, that a District Judge has no power, in a criminal proceeding before him, to determine: that certain witnesses, who testified in the case, did so as experts; that they are entitled to compensation as such; that such compensation is chargeable ex parte among the costs; that the parish in which the case was prosecuted is bound for such costs, and that payment of the allowance can be enforced by mandamus in his court.

The District Judge has made an elaborate, learned and scientific return to justify his conduct.

In the case of the State vs. Baker, indicted for an attempt to commit murder, by attempting to administer broken glass in small quantities to one Shiff, it is stated that all the witnesses, who knew of the facts of the case were summoned by both parties, and that on the day of trial, Drs. Postell, Hiriart and Schwing, who had been subpoenaed, were sworn and testified. It is claimed that they knew nothing of the facts, and were heard as witnesses to express an opinion on a scientific question, which was, whether broken glass, administered to a person in his food, was poisonous or not.

The court considered them as experts and, for their services as such, allowed each of them ten dollars as compensation, to be included among the taxed costs in the case.

On refusal of the parish treasurer to pay these items, a mandamus was asked to coerce payment, but the question presented was not decided.

The present proceedings propose to prevent such payment and to have the preceding orders of the District Judge avoided and set aside.

The District Court for the Twenty-third Judicial District had jurisdiction over the criminal case and, necessarily, of all matters incidental to or growing out of it, particularly of the question of costs, which no other court could assume to determine for it. The accessary always follows the principal.

Under the provisions of article C. P. 462, the court was specially empowered to determine in a civil matter growing out of the criminal proceeding, whether the witnesses had been heard as experts and what compensation they were entitled to receive.

The complaint that the compensation was fixed and allowed in an ex parte proceeding, is not well founded. Had an account of the same been made and certified by the clerk and by the judge (which could have been, and is usually, done ex parte), it would have been the duty of the parish treasurer, under the terms of Sec. 2776 of the R. S., to have paid the same had he been in a condition financially to do so. Because the claim is not presented in that, but is established in a different and better form, a decree of court, it does seem that there should be no cause of complaint. On failure by the parish treasurer to pay, without sufficient cause shown, the proper remedy to enforce payment would be by mandamus. C. P. 834; 6 An. 68; 14 An. 225, 249, 289; 18 An. 196; 21 An. 352; 27 An. 168; 30 An. 517.

. If the District Judge had a right, which we recognize, of deciding the question of remuneration, and, in his discretion, has allowed the compensation, he certainly had authority to entertain the mandamus proceeding, as judges possess the powers necessary for the exercise of their respective jurisdictions, even though the same be not expressly given by law. C. P. 130.

In the case of State ex rel. Houston vs. New Orleans, 30 An. 82 in which the judge of the Criminal Court had issued a mandamus on the city to pay sheriff’s fees, the question of jurisdiction raised by the corporation was not even noticed by the Court. The Court reversed the judgment of the District Court making the mandamus peremptory, because of the special legislation found in Act No. 5 of 1870, prohibitive of mandamus proceedings against the city for the purpose of drawing money from the municipal treasury and, no doubt, also of other special recent legislation (Act 1877, No. 55, p. 86,) making the approval of the bill of costs in such cases only prima facie from conclusive, which it previously was. 14 A. R. 249, 225; 27 An. 168.

A right to that process was distinctly recognized also in 30 An. 517, where the District Judge had approved bills for expenses in criminal cases due the sheriff.

We consider that the proceeding before the District Judge is for a mandamus, although the petition be not in the name of the State on the relation, etc., and the name of the writ is not mentioned in the prayer, which is simply that an order be made commanding the payment, etc. It was not necessary that the petition be made in the name of the State. It is the writ that issues in the name of the State. The petitioner was not bound in his prayer to ask for a mandamus. He prayed for an order commanding. Those words cover the word mandamus, and determine the character of the action. The District Judge had authority to entertain the application and has jurisdiction over the demand so as to allow or disallow it, a thing which he does not appear to have done. 33 An. 498; C. P. 829, 834.

Whether the District Judge has erred or not, in the exercise of the judicial discretion with which the 'law has vested him, is a question which in an application for a prohibition and certiorari in an unappealable case, we cannot consider. We have nothing to do in such case with the correctness of the rulings of inferior tribunals. Our judgment can be sought and obtained only in cases in which it is distinctly charged that there has been an usurpation of jurisdiction or that the forms of law have been disregarded and its requirements violated. 33 An. 257, and cases there decided.

It may be that the District Judge has grossly erred in finding that the witnesses who were heard, acted as experts, not having been previously legally appointed for the purpose of serving as such, and that he was wrong in allowing them a compensation for their services. It is possible, in the abstract, that he intentionally acted in utter disregard of the facts and of the law, but we cannot presume here that he did. If such were the case, he, nevertheless, would have acted within the scope of his judicial authority. He may have abused his discretion; but for such wrongful use he is not now answerable to this Court. He may be amenable for it at the proper time and before the proper authority; but under no circumstance can we review, in this proceeding, the correctness of his findings and rulings.

It may well be, also, on the other hand, when the mandamus proceeding shall come .up for trial, if the correctness of his previous orders is contested for patent errors, that he will permit the relators to establish their defense, acknowledge a mistake, if any was committed, and refuse the relief asked, but, with what he may do, or .will have done, we cannot presently deal. We merely decide, that he has jurisdiction over the proceeding brought to enforce payment of his previous allowance, and that we cannot now pass upon anything but the extrinsic correctness of the rulings complained of, and which, we find, were made in the forms pointed out by law.

It is, therefore, ordered that the preliminary orders herein made be revoked, and that the petition for a prohibition and certiorari be refused at the cost of relators.

Mr. Justice Poohé dissents.

Dissenting Opinion.

Poché, J.

I cannot concur with the opinion of the majority in this case.

The writ of mandamus is not a writ of right, and must not issue in doubtful cases.

It cannot issue against political corporations, such as police juries, when the duty required of them implies the exercise of judgment and discretion, hence, it cannot issue to a police jury to compel the payment of a specific sum of money not judicially ascertained, and finally adjudicated upon contradictorily with the corporation. In the case of the State ex rel. J. D. Houston vs. City of New Orleans, where relator was asking for a writ of mandamus to compel the payment of fees due him in criminal cases, our immediate predecessors held that the approval of such bills by the clerk and the judge of the court was not conclusive of their correctness against the city, and recognized the power of the latter to protect itself- against the illegality or error of such approval, and the opinion concluded that, in a case where the relator’s claim had not been acknowledged by a final decree of a competent court, it cannot be enforced by mandamus.

This rule is so well established that it is not gainsayed by the majority of the Court in this case.

But it is held that under section 2776 of the Devised Statutes, providing' for the mode of paying expenses in criminal prosecutions, the claim of Dr. Postell, as expert in the case of the State vs. Baker et al. having been approved and ordered to be paid by the judge, the objection of the parish authorities to pay such claim, under an approval which is conclusive and equivalent to a decree of a competent court, becomes merely a ministerial duty, which can be enforced by mandamus.

It is in this conclusion that I humbly differ with my learned brothers. I hold that such an approval is binding upon the parish in so far only as it does not appear upon its face to be made without authority of law, or in direct violation of law.

In this conclusion I am borne out by numerous decisions of this Court, as well as by reason. If the bill on its face showed that it was to reimburse jthe ¡accused for the expenses incurred by him in his defence, such as the employment of counsel, or for the bribery of witnesses, no one would claim that such a bill, duly approved by'the clerk and by the judge, would be conclusive against or binding upon the parish authorities, and no couft of justice would enforce the payment of such a bill of eosts by mandamus or otherwise.

As stated by this Court in the case of Parker vs. Robertson, 14 An. 246, “ As the certificate is the evidence of the exercise of a special and limited jurisdiction, it must show upon its face a case within that jurisdiction.

“ If, for example, the certificate of the olerk and judge show upon its ‘ face that it was for fees in civil suits,’ payment might be refused * * ‘because there is no law empowering the judge and clerk to certify them in order to have them paid by the State.’”

The same doctrine was recognized in the case of Fitzpatrick vs. City of New Orleans, 27 An. 457, and in State ex rel. Barrow vs. Fisher, 30 An. 517. Now, in the case at bar, the record fails to show that Dr. Postell was summoned or testified as an expert; the only, reference to him as an expert, being in the ex parte order of the judge, fixing his compensation as such.

But be that as it may, I am aware of no law in this State authorizing the judge of a court to fix the compensation for services rendered by witnesses as experts in criminal prosecutions, and I, therefore, maintain that the act of the judge fixing such compensation, being unauthorized by law, is not binding upon the parish.

The law regulating the payment of expenses incurred in criminal'. prosecutions is to be found in the Revised Statutes of 1870, sections 1042 and 2776, which are identical, and both provide that such expenses, including specifically the pay of witnesses, shall be paid by the respective parishes in which the offence charged may have been committed, the same to be paid by the parish treasurer after an account thereof shall be duly certified to be correct by the clerk and the presiding j udge thereof; and section 3946, which provides that “ witnesses in all criminal prosecutions shall be paid one dollar for each day they may be detained on the trial of such cause,” etc. As the law thus fixes and restricts to one dollar a day the compensation of all witnesses in all criminal prosecutions, the question presented is, therefore, where did the District Judge find any law authorizing him to fix the compensation of the witness, Dr. Postell, at ten dollars a day, because he testified as an expert ? If, without warrant or authority of law, he can increase the compensation of a witness in a criminal prosecution from one dollar to ten dollars a day, what can prevent him from increasing such compensation to one hundred dollars or more ? And yet we are told that his action in such a ■case is final and conclusive and that the treasurer must be coerced by mandamus to pay such claim, without the right or power to contest the legality of the approval. I have sought in vain for, and I undertake to assert that there is no law in this State which makes a difference for the purpose of compensation, between ordinary witnesses and experts in ■criminal prosecutions.

Art. 462 of the Code of Practice authorizing the court to fix the compensation of experts, etc., refers manifestly and exclusively to civil suits, and not to criminal prosecutions, in which the payment of costs is regulated by other special and distinct provisions of law.

I therefore conclude that the certificate of the judge and clerk, allowing to Dr. Postell, a witness in a criminal prosecution, a compensation of ten dollars a day, is unwarranted by law, is therefore not conclusive on the parish, has not the force of a decree emanating from a competent court, is open to legal resistance on the part of the parish treasurer, and that therefore such a claim cannot be enforced by mandamus. One of the principal objects which prompted the Constitutional Convention to frame Art. 90, under which we have a supervisory control over all inferior courts, was to confer on this tribunal the means of shielding and protecting the people against the very abuses of power illustrated by the conduct of the District Judge.in this case, the repetition of which has greatly contributed to entail .on the parishes of this State the immense debt which weighs them down, and has created high taxation. A proper case is now presented and we should have applied the remedy.

Por these reasons I dissent from the opinion and decree in this case:


author: Fenner, J.

text:
    No. 8274.
    The State of Louisiana vs. Joe Dozier alias Lobster.
    When a venire has been regularly drawn, the failure to summon a juror, resulting from mere mistake or error on the part of the officer, without iraud or collusion, and without mate rial injury to the accused, is no sufficient cause to quash the panel.
    APPEAL Jr.om .the Twenty-fourth,. Judicial-District Court, parish of Plaquemines. Livaudais, J.

      J. C. Egan, Attorney General, for the State, Appellee:
    First — A challenge to the array comes too late after the first day of the term. Sec. 12, Act Hoy 94 of 1873, p. 169; 5 An. 342.
    Second — Where it does not appear that some great fraud has been practiced, or some great wrong committed in the drawing or summoning of the jury that would work a great and irreparable injury, there is not sufficient cause to challenge the array or set aside the venire. Sec. 9, Act Ho. 94 of 1873, p. 168; 26 An. 580.
    Third — The application for a change of venue on account of prejudice involves a question of fact which is not reviewable by this Court. 30 An. 364.

      F. G. Zacharie and L. O’Donnell for Defendant and Appellant:
    First — It is not necessary that a challenge to the array of a jury should be made on the first day of the term, where the circumstances are such that it is impossible so to do, and such a challenge is in time when made immediately on the facts being developed by a juryman on his voir dire. 19 A. 436; 8 E. 514, 618.
    Second — The non-summoning of a juryman, where only the minimum allowed by law has been drawn, is a good ground for challenge to thearray. Proffat on Jury Trials, Secs. 130, 137; 14 Iowa, 221; Hilliard on New Trials, p. 136, Sec. 26, and authorities there cited; 12 M. 683 ; 2 H. S. 192, 626 ; 3 H. S. 159.
    Third — Where one party has been summoned as a juryman instead of the right person who was drawn, and the substitute appears and answers, it is a radical and base defect in the material of jury panel, and not such an “irregularity,” “defect” or “informality” in construction as tO'be disregarded under the jury statute. 8 E, 514, 618, Proffat, Sec#. 130,137; Hilliard, p. 136, Sec. 26; Graham on New Trials.
    Fourth — The accused is entitled to have his twelve jurors selected from the number required by law, excepting those absent sick, removed from the parish, or excused by tbe judge.. 12 M. 683; 2 H. S. 192, 626; 3 H. S. 159.
   The opinion of the Court was delivered by

Fenner, J.

This case comes up on a bill of exceptions taken by the defence to the decision of the judge a quo overruling a challenge to the array made under the following'circumstances:

A venire of fifty jurors had been regularly drawn, in compliance with the statute, which included the name of Maurice Domingue, who appeared, by the return of the sheriff, to have been duly summoned. A person had attended with the jury and had, at all roll calls, answered to the name of Maurice Domingue; but when this person was put on his voir dire as a juror in this cause, it transpired from his answers that his name was Joseph Domingue; that he was the son of Maurice and lived in the same house; that, though his name was Joseph and he always so called himself, he was called Maurice by many persons In the parish; that the sheriff served the summons upon him; and that he had thought it his duty to attend and answer to the name in which he was summoned, although his father, the true Maurice, was present in the parish at the time of the summons.

The defense presented a challenge to the array as well as to the poll. The latter was sustained and the person did not serve as juror in the cause; but the challenge to the array was overruled for the following reasons assigned by the judge, viz:

1st. Because the challenge to the array came too late, after the first day of the term.

2nd. Because the grounds alleged are such as relate to the poll and not to the array.

3rd. Because the irregularities and error complained of do not relate to the manner of drawing of the jury, but are simply confined to the non-summoning or erroneous summoning of one of the jurors; that no fraud was alleged or proved, the statement of Joseph Domingue that he was sometimes called Maurice Domingue rebutting all presumption of fraud, if any such could be otherwise inferred.

It is not necessary to consider the validity of the first of the above grounds, because, conceding that, under the circumstances of this case, the challenge was timely, the remaining grounds sufficiently sustain the action of the judge.

We have attentively considered the various authorities relied on by the learned counsel for accused, and do not find them to support his position, that where a venire has been regularly drawn, the failure to summon a juror, resulting from mere mistake or error on the part of the officer, without fraud and without “ great wrong committed,” that " would work irreparable injury,” is a sufficient ground for quashing the venire.

The cases quoted from 12 O. S. 683; 2 N. S. 626; 3 N. S. 159, and 14 Iowa, 221, all refer to the failure to draw the number of jurors required by law. Their supposed applicability to the question now in hand, results from the careless use by the courts of the word “ summoning,” ■ as the equivalent of “ drawing;” and although we have not had- access to Proffat on Jury Trial, we think it probable the quotations from that work are susceptible of the same explanation.

The quotations from Hilliard on New Trials, and 4 Eng. L. and Eq. 246, apply to mistakes in the name or other disqualifications of a member of .the jury by whom the cause was actually tried. • .

The general current of authority and of statutory provisions seems to be, that mistakes or errors of officers charged with the summoning of jurors will not affect the panel unless there has been fraud or collusion or material injury to defendant. 3 Whart. Cr. L., g 3378; Graham New Trials, p. 35.

Our statute on the subject is very emphatic, “ that it shall not be sufficient cause to challenge the venire * * because some of the jurors are not qualified, or because the list may contain the names of some persons not qualified to act, nor because of any other defect or irregularity than in the manner of drawing the juries,” etc.

In one of the very cases cited for defendant, it was held, at a time when the statute was much less peremptory, that the failure to summon some of the jurors drawn was not necessarily ground of challenge. Cox vs. Wells, 3 N. S. 158.

Counsel is mistaken in the theory that “ the constitution and laws of the State gives to every citizen the right to select a jury to try him from the thirty-four of the fifty drawn, left after taking out the grand jury.”

On the contrary, it has been held that the defendant is not even entitled to attachments for absent jurors, when there are enough present to complete the panel. State vs. Ballerie, 11 An. 81.

So that, the non-attendance of some of the jurors, even though summoned and not excused, is not good cause for a refusal to go to trial. State vs. Johnston, 11 An. 422; State vs. Kennedy, 11 An. 479.

The law does not guarantee that the prisoner shall be presented with thirty-four jurors from which to select his jury. It provides for the drawing and summoning of that number exclusive of the grand jury, but it fully recognizes that various causes, such as disqualifications, absence, errors or mistakes of officers charged with executing process and the like, may prevent the actual attendance of all of them, and it provides that, in absence of fraud and wrong, such “ defects ” shall not invalidate the venire. If they had such effect, the administration of justice would be embarrassed if not entirely stopped.

Judgment affirmed.


author: Poché, J.

text:
    No. 7136.
    John Rocchi vs. Schwabacher & Hirsch.
    The purchasing broker in this case was the agent of Plaintiff and not that of both parties.
    Tm the sale of goods by merchants, who were not the manufacturers thereof, where there has been no deceit practiced, and where the means of knowledge were at hand and. equally available to both parties, and the subject of purchase was alike open to their inspection, if the purchaser did not avail himself of these means and opportunities, he will-not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s misrepresentations.

      APPEAL from the Sixth District Court for the parish of Orleans. Bightor, J -

      J. Ad. Bozier for Plaintiff and Appellant:
    First — Plaintiff never bad any view of the article sold. Defendants knew that the lard was not merchantable.
    Second — Article 2501, K. C. C., does not comprise such defects as are concealed by reason of the thing purchased being in a box, barrel or package. 7 An. 243; 5 Kob. 217; 3 An. 445; 10 Kob. 5.
    Third — As to provisions, vendor represents them as sound and wholesome. Addison Contracts, vol 2, p. 211, § 616. Warranty of kind and quality, as far as it goes. 6 Taunton, 446; 2 Marsh, 141 S. C.; 9 Metcalf, 83 ; 2 Pick. 214; 3 Kawle, 23; 2 Kent, 489. In the sale of provisions for domestic use, vendor at his peril bound to know that they are sound. John K. (2L T.) 11 Pick. 484.
    Fourth — The vendor who knows the vice of a thing, bound to declare it. 18 Illinois, 23. Warranty that the article is reasonably flt for the use for which it was purchased by plaintiff. 1 Mark, 504.
    Fifth — By Art. 2445, K. C. C., defendants are answerable to the buyer, besides repayment of expenses, also damages. 1K. S. 312. There was fraud.

      W. S. Benedict and Jos. P. Hornor for Defendants and Appellees:
    A sale without, warranty of quality, where no representations were made, no facts concealed, no fraud existed, and the vendor was not a manufacturer, but dealer in the property so purchased, below the market price, estops the purchaser from any action to annul the sale.
    The Common Law and the Civil! Law authorities on this subject are quoted in detail in the brief.
    In the case of Slaughter's Administrator vs. Gerson, 13 Wall, 379, the Supreme Court of the United States very concisely states the doctrines to govern this case.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff seeks to recover $10,129 68, as damages alleged to have been occasioned to him by the defendants, in the following transaction :

That in January and February, 1875, plaintiff bought from defendants some 539 tierces of lard, at various prices, which lard he shipped for sale, to the city of Hamburg, in Germany, where 512 tierces of said lard were, on inspection, found of so inferior a quality as to be unmerchantable for cooking purposes, and were sold at public auction for much less than the purchase price thereof, the whole resulting in a loss to him of the amount which he herein claims-as damages.

Plaintiff alleges, in substance:

1st. That the lard was offered to him through F. Schexnaider, a broker, by the defendants, who represented the lard thus purchased by him at the highest prices asked on the market for refined lard, as sound and of good quality. -

2d. That the lard, which had not been examined or inspected by him, proved, on inspection, at Hamburg, to be an almost worthless commodity, mixed with tallow, grease and water.

3d. That the defects of this lard, which were not discoverable without chemical analysis, were well known to the defendants, who fraudulently concealed such defects to plaintiff.

In addition to a general denial, defendants, after admitting to have sold the lard to plaintiff at the prices alleged by him, denied that they had made any representations or as'sumed any warranty touching the quality of said lard, and that they were aware of the defects alleged to have existed in said lard, which they allege to have sold, not as manufacturers or owners thereof, but as commission merchants for the house of E. Humbert & Co., of Louisville, Kentucky, all of which was well known to plaintiff, who purchased the said lard through the broker, Schexnaider, who was, in said transaction, acting for and representing plaintiff and was not the agent or employee of defendants, and who purchased said goods after a thorough examination and inspection of the same.

Plaintiff has taken this appeal from the judgment of the District Court, rejecting his demand.

As usual, in cases turning mainly on questions of fact, the record in this cause is swollen by an immense amount of testimony, some of which is conflicting, and all of which has been diligently scanned and analyzed, with a view to do justice between the parties.

1st. As the capacity or status of the broker, Schexnaider, is an important factor in the case, and as his testimony has not been taken by either party, we have taken peculiar pains to scrutinize the evidence which bears upon this, which we consider as the pivotal point in the controversy, and the record shows conclusively to our minds that in these purchases he was the duly accredited broker or agent of plaintiff, who is, therefore, bound by the acts of Schexnaider in the premises. Plaintiff, while denying the agency ol Schexnaider, both in his pleadings and in his testimony, admits in evidence that the latter’s commission was paid by him ; and he states that, having received an order for a large quantity of lard for shipment to Europe, at as tipulated and limited price, he negotiated with several brokers in Western produce, whose prices did not suit him, and that Schexnaider’s prices being lower than all the others, he concluded to deal with him, and that Schexnaider filled the whole order, shipping by one vessel alone some 1304 tierces ; 539 of which were bought from the defendants, and the balance, in sundry lots, from five or six other and different merchants. The evidence further shows that all the bills of such purchases were made by defendants and by the other merchants, in the name of “ E. Schexnaider, broker,” who approved the bills, On whose approval such bills were at once and regularly.paid by plaintiff. That, in one case, a dealer who had but a small lot of such lard, was requested by Schexnaider to turn over such lot to defendants, who were instructed by him to include the same in the Rocchi purchase, and to charge the same accordingly. That all the lard purchased from defendants was shipped by Schexnaider, who employed, the draymen and other help necessary thereto, whose bills for such services were approved by him, and which bills, when presented, thus approved, were paid by plaintiff.

The uncontradicted testimony of several brokers and other merchants, shows that Schexnaider was at that time, and had been for several years previous, a purchasing broker in Western produce; that he was able and competent to examine, inspect and classify different qualities of such produce, particularly lard, and that he had been employed as such by some of the witnesses themselves and by plaintiff for several years. It also appears that defendants did not offer any lard for sale to plaintiff or his agent, but that the latter called on them, and inquired if they had any lard for sale, and receiving an affirmative answer, he would inspect the goods which were shown him, and purchase the same when the price suited him. *

The evidence utterly fails to show that defendants ever made any representations touching the quality of the. lard which'the agent bought from them, or warranted any lot of such commodity to be of any particular quality or market value.

It appears from the testimony of produce brokers and other experts, that three qualities of lard are generally found and handled on the New Orleans market, the kettle rendered, the steam, rendered, and the refined, and that the former is the pure article, and commands the highest prices; that the refined is the next in order, and that the steam rendered is inferior to the two others ; and the evidence shows that thelard purchased from defendants in this case was branded “ refined lard.”

It also appears that refined lard contains, to the knowledge of all dealers, foreign ingredients besides pure lard, principally tallow, and the grade or quality of refined lard depends upon the quantity or proportion of foreign ingredients which it contains. It is also shown that the presence of tallow as an ingredient in lard is detected mainly by the smell; but also by inspection, which is made by means of an instrument known in the trade as a “ lard tryer,” which is introduced in the tierce through the bung-hole, and is long enough to reach across to the other side of the tierce, and to either end, by which means lard is drawn from various parts of the tierce, and is thus subjected'to inspection ; and that this mode of inspection is the only one practiced in the trade.

2d. In this case, it is shown beyond a doubt that all the lard sold to plaintiff, by defendants was examined by the broker, Schexnaider, in the mode above indicated, some of it at defendants’ store, other tierces at their warehouse, others at . the railroad depot, or at the steamboat landing, while it was being received by defendants on consignment from F. Humbert & Co., the manufacturers, at Louisville, Ky. That this inspection was sometimes made in the presence of one or both of the defendants, or of their clerks or employees, but oftener out of the presence and without the knowledge of either defendants or of any of their clerks. In the latter case, Schexnaider, after examining, at the steamboat landing or elsewhere, any lot of lard which he concluded to purchase, would notify the defendants of the same, on that day or the next. . .

A careful analysis of the testimony abundantly proves that defendants, who were not the manufacturers of. the goods thus sold by them, were perfectly and honestly ignorant of the defects of such goods, of which they had no more occasion, or better means of judging than plaintiff or his broker had ; that the quality of the lard was as well known to.the vendee’s agent as to the vendors, that the latter made no misrepresentations, and practiced no concealments, fraudulent or otherwise, touching the commodity which they wei% thus selling. And hence, we conclude that they are not responsible in law for the damages which plaintiff has suffered in this unfortunate speculation, brought about by the error of his own agent, who was not deceived by defendants, but was led astray by his own judgment. The rule which governs such a case is laid down in clear language by the Supreme Court of the United States, in 13 Wallace, 379, as follows :

“The misrepresentations which will vitiate the contract of sale, and prevent a court of equity from-aiding its enforcement, must relate to a material matter, constituting an inducement to the contract, and respecting which the complaining party did not possess at hand the means of knowledge ; and it must be a misrepresentation, upon which he relied, and by which he was actually misled to his injury.
“ Where the.means of .knowledge are at hand, and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s misrepresentations."

These considerations have also shaped our own jurisprudence on this subject, and have guided our Supreme Court in the conclusions reached in many cases involving similar issues, which cases we have carefully examined, and by which we have been led to the disposition which we make of this controversy. Decuir vs. Packwood, 5 Martin, 306; Clark vs. Lockhart, 10 R. 5; Huntington vs. Lowe, 3 An. 379; Shymanski vs. Urquhart, 5 An. 491; Holland vs. Toole, 6 An. 426; Mure vs. Donnell, 12 An. 369.

The judgment of the lower court is' correct, [and is, therefore, affirmed with costs.

Rehearing refused.


author: Todd, J.

text:
    No. 8071.
    Charles T. Bourg vs. Charles H. Gerding et al.
    A judgment simply dismissing the demand of an intervenor, on the ground that he was not present or represented at the trial of the cause, cannot support the plea of res judicata. The terms oí the judgment itself should govern, and not the statement of the judge made in relation to it in some other proceeding, that there was a clerical error in said terms.
    A PPEAL from the Fourth District Court for the parish of Orleans. Houston, J.

      Joseph P. Hornor and Francis W. Baker, for Plaintiff and Appellant:
    First — An intervention not at issue cannot be tried.
    Second — The dismissal of an intervention in the absence of the intervenor and his counsel, has only the effect of a judgment oí nonsuit.
    Third — The decree of the court can alone be looked to to determine the plea of res judicata.

    Fourth — Where the decree of the court dismisses an intervention without passing upon the issues raised in it, and which were not at issue, it cannot support the plea of res judicata as against those issues.

      Merrick, Pace & Foster for Defendants and Appellees :
    The intervenor must be always ready to plead, or to exhibit his testimony, because he has always his remedy by a separate action to vindicate his rights. C. P. 389.
    The intervenor cannot, by absenting himself from court, or by abandoning his cause to its fate, prevent the trial of the case, and action upon his intervention.
    A judgment, dismissing an intervention, when all the parties are present or represented therein, is a final judgment, and forms res judicata.

    The test as to the effect of a decree as res judicata, is its finality and conformity to the terms of the Civil Code, 2265; Revised Code 2286. Keilam vs. Rippey, 3 An. 202.
    In an application for a writ of injunction, the facts important and vital to the issuance of the writ or not, cannot be ignored, they are essential to the petition, and must be set forth.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff, claiming to be owner of the property described in his petition, seized and advertised for sale to pay a judgment against one John Dawson, took out an injunction restraining the sale of the property, and asked that it be decreed to belong to him.

He was met in the lower court by the plea of res judicata, which was sustained, and his suit dismissed and injunction dissolved with damages, from which judgment he has appealed.

The plea of res judicata is based on the following facts : A suit had been instituted in the Fourth District Court of. the parish of Orleans by Gerding, defendant in the present suit, against one John Dawson, to enforce a privilege or mechanics’ lien against the same property how in controversy. In that suit, the plaintiff intervened an.d set up title to the property. The following judgment was rendered in the case, which we copy:

“This case came on this day for trial, Merrick, Bace and Foster, attorneys for plaintiff; C. G. Ogden, for defendant. C. T. Bourg, intervenor, absent and not represented :
“ When, after hearing pleading and evidence, and the court considering the law and the evidence to be in favor of plaintiff, Christian H. Gerding, and against-defendant, John Dawson, for the sum of one hundred and forty dollars, with interest from judicial demand and all costs, with privilege upon the property sequestered herein. It is further ordered and decreed that the intervention of O. T. Bourg herein, be dismissed with costs.”

This judgment is strictly one of. nonsuit, rendered in the absence of the intervenor and his counsel, and it is clear that it could not support a plea of res judicata. C. P. 535, 536; 3 An. 660; 4 An. 176, 240; 5 An. 166.

• It is true that in the written opinion of the judge a quo in this case, found in the record, he says that the statement found in the judgment quoted above, touching the absence of the intervenor and his counsel, was a clerical error. This judgment was offered to support the plea of res judicata, and we must be governed by the terms of the judgment itself, and not by what the judge may state in relation to it long after its rendition and in the trial of another case, in which the judgment in question was offered in evidence. Besides, the record shows that no issue had been joined on the intervention, nor even service made of the same.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, the plea of res judicata overruled, and the case remanded to be proceeded with according to law.


text:
    No. 8408.
    Victoria H. Dickson and Husband vs. Hannah P. Dickson et als.
    A lease of property granted by the usufructuary expires when the usufruct ceases, whether such termination is caused by the death of the usufructuary, or by a judgment of court decreeing the loss of the usufruct for abuse.
    The interest of the widow in community is residuary and can only be ascertained and defined after a settlement of the community. It follows, therefore, that mortgages granted by her before the liquidation of the community, cannot affect her obligation, upon the ex tinguishment of her usufruct, to account to her co-proprietors, and cannot prejudice the rights of the latter upon the entire mass of the community.

      A judgment cannot be disturbed on appeal betweeu the Appellees and, therefore, as to them, remains res judicata independently of the action of this Court.
    The judicial averments of a married woman, in her suit against her husbnnd, of the sums received by him from her father for her account, estop her from afterwards disputing such sums in a partition suit between her c.o-heirs.
    The donation made by the father to the common child, out of the community property, will be considered as made by both husband and wife when, after the father’s death, the mother accepts the community. Previous Decisions affirmed.
    In a partition suit, the heirs of age have an absolute right to demand a sale for cash for 'their shares of the common property.
    APPEAL from the Second Judicial District Court, parish of Bossier. Brew, J.

    Transferred to New Orleans by consent of parties. The original opinion was delivered at Shreveport, and the opinion on the Rehearing at New Orleans.

      Looney & Elstner for Plaintiffs and Appellants.

      Biohard W. Turner for Mrs. Hannah P. Dickson, Defendant and Appellant:
    Pirst — The widow in community is the owner of one-half of the community property at the moment of the opening of the succession, subject only to the payment of the succession debts. C. C. Art. 2046; 3 An. 362, 489 ; 4 An. 389 ; 1 E. 149; 10 E. 13; 33 An, 584. ■
    Second — Donations inter vivos or causa mortis cannot exceed two-thirds of the property of the disposer, having no children, leaving a father or mother. C. C. Art. 1494.
    Third — A donation of community property by the husband to one of the children must be collated, one-half to the father’s succession and one-half to the mother's. 5 3ST. S. 230, Baillio vs. Baillio.
    Pourth — When a debt of a co-heir, co-proprietor or co-partner, if not due to the succession, the community, nor the partnership, its payment cannot be demanded in a partition of the succession. C. P. Art. 3.
    Pifth — The heirs have no legal mortgage or privilege on the property of the administratrix the heirs are but ordinary creditors. C. P. 294; 12 R. 172.

      J. B. Watkins for other Defendants and Appellants.

      Lowry & Vanee for Palmer Dickson, Defendant and Appellant:
    Pirst — Where the widow and heirs live upon succession property and enjoy it in indivisión their possession is apparent, even though an administrator has been appointed. In such a case the administrator is simply the agent of the widow and heirs. His possession is that of the heirs.' 12 An. 868, concurring opinion of Merrick, C. J.
    Second — Where the widow and heirs agree that the family and property shall remain as the father left them, the property does not pass into the exclusive possession and become absolutely, that of the widow as usufructuary. 31 An. 741.
    Third — Under such an understanding, if the heirs of age take and are allowed what they wish of the succession funds, the amounts so taken must be deducted from their shares on final partition. 31 An. 741; 32 An. 1150.
    Pourth — And if, under such a state of circumstances, an heir takes and is allowed of the succession funds, an amount equal to an entire share of the estate, he is excluded from participation in a division of the remaining property on final partition.
    Pifth — A divestiture of the usufruct annuls and cancels all leases and special mortgages imposed upon the usufruct property by the usufructuary. C. C.

      Sixtb — The usufructuary owes to tbe heirs a support and educational advantages befitting their station in life.
    Seventh — The gift of a draft upon a merchant for money is a manual gift, and is subject to no otlier formality than a real delivery. C. C. 1539; 22 An. 97.
    Eighth — A judgment in favor of an heir, on opposition to an account filed by the administratrix, •who' is widow in community, operates as a judicial mortgage against her interest in the community real property, and, also, against the interest inherited by her, in the succession half, from one of her deceased children. 12 An. 864.
    Ninth — Such a judgment enures only to the benefit of the heirs who oppose. 20 An. 360.
   The opinion of the Court was delivered by

Fenner, J.

This is a suit for partition to which the surviving widow and partner- in community of Michael Dickson, deceased, and all the heirs of Michael Dickson, are parties.

Michael Dickson died in March, 1865, leaving a large succession of real and personal property, the -whole of which was acquired during his marriage with Hannah P. Dickson, and, therefore, belonged to the community of acquests and gains subsisting between them.

Michael Dickson died intestate, and his widow opened his succession and was appointed administratrix of his estate, and also became the legal usufructuary of the entire estate.

Michael Dickson left the following heirs:

1st. Victoria H. Dickson, now Mrs. Thomas, the present plaintiff.

2nd. Michael A. Dickson, now dead, and represented here by Mattie L. Dickson, natural tutrix of his children.

3rd. Lizzie Dickson.

4th. Mary E. Dickson, now Mrs. Pillow.

5th. Emma Dickson, now dead, and here represented by Henry Onarnock, Executor.

6th. M. Hugh Dickson, now dead, and represented by W. L. Dickson, executor.

7th. Palmer Dickson.

Numerous claims and counter-claims are presented by the several parties for themselves and against each other; from the' judgment rendered by the District Court every party has appealed, and an infinite number of perplexing legal questions have been raised and argued by the numerous counsel.

We shall endeavor, with clearness and brevity, to simplify the case as much as possible by settling the contested questions and laying down the principles which, in our opinion, should govern the partition.

I.

The first question to be settled is the termination of the widow’s usufruct, which is a necessary condition precedent to the partition.

The legal usufruct expires on the death of the usufructuary. C. C. 606. Or it may be judicially extinguished, in consequence of the abuse of the enjoyment thereof by the usufructuary. C. C. 621.

The record exhibits the proceedings and judgment rendered, in a suit for destitution of this usufruct, to which all parties to this suit were originally parties. That judgment was rendered on January 11th, 1881, and decrees "that the usufruct of the defendant, Hannah P. Dickson, heretofore held and enjoyed by her on the community property of the succession of her late husband, Michael Dickson, do terminate, and all her rights as usufructuary are hereby annulled and cancelled.”

The suit was based on alleged abuse of the usufruct. Although Mrs. Dickson consented to the judgment, yet evidence was taken in the case, and the judgment is based not only on the consent but also “ by reason of the law and evidence being in favor of the plaintiff.”

The only one of the present .parties having the slightest ground for disputing the binding force of this judgment’ is Henry Charnock, executor of Emma Dickson, deceased. Emma Dickson had herself been a party, but died in the interval between the bringing of the suit. and the rendition of the judgment; and there seems to have been no revival of the suit as to him. Charnock appears simply as executor of the will of Emma Dickson. By that will Lizzie Dickson, who is unquestionably bound by the judgment, is made sole legatee of all rights in and to the Dickson estate. Further, Charnock, executor, in his answer in the present case, joins in the demand for partition, which is, in ,itself, an acknowledgment of the termination of the usufruct. For these reasons, we shall treat him as bound by the judgment.

II.

During the pendency of her usufruct, Mrs. H. P. Dickson had executed sundry leases of community real estate in favor of certain of the heirs, the terms of which have not yet expired, and which the other heirs demand should be decreed extinguished.

Art. 555 C. C. seems conclusive on this question. It provides that “the usufructuary may enjoy by himself, or lease to another, or even sell or give away his right, but all the contracts or agreements which he makes in this respect, whatever duration he may have intended to give them, cease of right at the expiration of the usufruct.”

No distinction is suggested in the law between the cases of expiration by death and of expiration by judicial extinguishment for abuse; and the language of Art. 621 seems to leave no doubt that in the latter case, “the owner shall re-enter into the enjoyment of the property.” We .agree, therefore, with the District Judge that the leases terminated at the date of the judgment extinguishing the usufruct, viz., January 11th, 1881. .

hi.

Much learning and ingenuity are expended in the discussion of the validity and effect of certain conventional and judicial mortgages which were created by or against Mrs. H. P. Dickson, upon her interest in the community property. In the view we take of this case, these questions are of no importance. They are sufficiently disposed of by the following considerations:

The interest of the widow in community is residuary only, resembling the interest of an individual partner in the partnership property. It can only be ascertained and defined after a settlement of the marital partnership.

From the date of Michael Dichson’s death, this entire estate, movable and immovable, has belonged to Mrs. Dickson and the heirs of Michael Dickson as partners in community. As legal usufructuary as well as administratrix, she has had the use and administration of the entire property, entitled under the law to all the revenues for herself, but under the obligation, at the termination of her usufruct, to produce, in such condition as the law requires, the property susceptible of perfect usufruct, and to account for that used or consumed by her in the exercise of the imperfect usufruct. All the property or its equivalent held by her in indivisión, and administered and used by her, must enter into, and form the basis of, the settlement and partition; the debts due by the partnership must be paid; the accounts of the partners must be settled, and their respective interests ascertained, and according to these interests the partition must be made.

The residuary interest of the widow, thus finally ascertained and settled, is the only source to which her individual creditors, whether secured by mortgage or not, can look for satisfaction of their claims.

Inasmuch as, under these circumstances,, the mortgages referred cannot affect the obligation of the administratrix and usufructuary to account to her co-partners, and cannot prejudice the rights of the heirs to have the interest coming to them under such accounting satisfied out of the entire mass of the community, it follows that the validity or invalidity of said mortgages are matters exclusively between Mrs. Dickson individually and the mortgagees, and do not figure as factors in this partition.

IV.

As to the amount for which the widow is responsible on account of the cotton and other movable effects of the community used and consumed by her, we find that matter fully settled by a judgment of the late parish court of Bossier parish, rendered in the proceeding entitled Olympe Boisse and Husband vs. H. P. Dickson, Administratrix, and others. In that suit an accounting was had, to which all the parties .to the present suit were parties, and a final judgment was rendered decreeing that the widow was responsible for the whole of said personal property; fixing the gross value thereof at $146,690; adjusting the credits to which she was entitled on account of eommnnity debts and charges at $10,934 32; leaving a net residue of $136,055 68 of community funds, for one-half of which she was adjudged to be accountable to the heirs at the termination of her usufruct, viz: the sum of $68,027 84. The only person who ever appealed from this judgment was Olympe Boisse, and although in the opinion rendered by this Court on said appeal, certain expressions are found hostile to the correctness of the judgment of the parish court, that judgment was not, and could not have'been, disturbed as between the widow and heirs, who were all appellees only. It has, therefore, acquired the force of the thing adjudged, and cannot be disturbed by us.

V.

The judgment just referred to also settled that the $68,027 84, for which the widow was responsible to the heirs, was to be divided primarily between the seven heirs, giving to each one $9718 55; and upon further issues properly joined, it was also determined that M. Hugh Dickson and Palmer Dickson had each received from their mother, on account of his share, the sum of fifteen hundred dollars; and that Michael A. Dickson had received from her, on account of his share; the sum of four thousand dollars. On these questions, also, that judgment is final; and the widow will be entitled to reimbursement of these advances out of the shares coming to these heirs.

VI.

As to the share of Mary E. Dickson, now Mrs. Pillow, we consider that the judgment of this Court upon the appeal taken by Olympe Boisse in the above ease, settles conclusively that the widow had advanced to her a sum greater than her share in the entire succession, thereby extinguishing her claim. The effect of this is to entitle the widow to receive the entire share which would have come to Mrs. Pillow in satisfaction of the advances made to her as aforesaid.

VII.

As to the remaining heirs, Mrs. Thomas, Lizzie, and Emma Dickson, the judgment left open the question as to what, if any, advances had been made to them by their mother on account of their shares. Whatever may be the real truth of the matter, we find no sufficient evidence in this record to establish advances made to either of -them with sufficient certainty to form the basis of a judicial allowance. No useful purpose would be served by stating and discussing the particular testimony on the subject. It is sufficient to say that we have carefully weighed the evidence and find it too vague, contradictory-and uncertain to overcome the positive statement of the widow herself that she made no such advances.

VIII.

As to the revenues of the property which had been leased to Lizzie Dickson, Mattie L. Dickson, tutrix, Palmer Dickson and M.. Hugh Dickson, which have been retained, by them since the termination of their leases by the extinguishment of the widow’s usufruct, it is clear that they must account to the community for the rents and revenues thereof, to be ascertained under proper proceedings for that purpose.

IX.

As to the collations to be made by the several heirs on account of advances received from their deceased father, we have carefully considered the testimony, and content ourselves with saying that it does not establish the fact of such advances with sufficient certainty to enable us to decree the collation thereof, except in the case of Mrs. Thomas. Her judicial allegations in the suit against her husband for separation of property, which she is conclusively estopped from disputing, establish that she received from her father the sum of eight thousand dollars. If injustice be done in requiring her to collate, while exempting other heirs, it is attributable to the fact that she has herself furnished the conclusive proof of the advance to her; while the charges sought to be enforced against her co-heirs are sustained only by uncertain and contradictory evidence of ancient transactions between persons now defunct» whose relations in business affairs were such as to leave the true character of the transactions inextricably veiled in doubt and uncertainty. To the judicial mind things not proved must be treated as things which do not exist.

We consider it sufficiently proved, however, that all the property of Michael Dickson was community property, and that the advance made by him to Mrs. Thomas was. made out of that community. Mrs. Dickson having accepted the community, we consider the doctrine well settled that such a donation “ is esteemed a donation of both parties, and must be collated, one-half to the father’s, and one-half to the mother’s succession.” Succession of Montegut, 2 An. 634; Baillio vs. Baillio, 5 N. S. 228.

She is, therefore, now called on to collate only one-half the donation, and will collate the other half only to the succession of her mother.

X.

M. Hugh Dickson and Emma Dickson having left no descendants, there can be no doubt that their mother is a forced heir to one-third of their respective estates. Inasmuch, however, as their successions have been opened, and are under administration by duly qualified executors, and as the forced portion is only ascertainable after settlement of the successions, we cannot make a partition thereof in this case, but will award their entire shares to their respective representatives, reserving the widow’s rights to assert her claims as forced heir in said successions.

XI.

The evidence satisfies us that the partition of the immovables can only be satisfactorily effected by sale ; and we see no reason to disturb the terms and conditions, prescribed by the District Judge.

XII.

We think the sums allowed to L. M. Nutt, Esq., for professional services to the administratrix, and to B. E. Eort, Esq., as curator ad hoo, are proper charges against the active mass of the succession.

XIII.

We think the widow is entitled to her commissions of §4292 42, which will lessen by that amount the sum of $136,055 68, for which she is indebted to the community, leaving so due $131,763 26.

XIV.

Before proceeding to frame our decree, after having thus settled the . various questions raised by the parties, we will now make a general résumé of operations by which this partition should be effected.

Inasmuch as it involves a partition of the whole community, between the widow and the heirs, as well as between the heirs inter se, the active mass should be composed of the entire community estate, which consists of:

1st. • The amount for which Mrs. Dickson is responsible on account of cotton and other movables, as heretofore determined, viz: $131 ,- 763 26.

2nd. The notes and cash received from the sale of the immovables.

3rd. The revenues due by Lizzie Dickson, Mattie L. Dickson, tutrix, Palmer Dickson, and W. L. Dickson, executor, for rents and revenues of property formerly leased by them, and used and occupied by them since January 11th, 1881; but these items. being as yet undetermined, they will be provided for in the decree without figuring in the present partition.

This active mass should first be equally divided between the widow for one-half and the heirs for the other half.

The half due the heirs should then be divided into seven equal parts, and one-seventh'assigned to each heir.

The seventh thus falling to Mrs. Pillow should then be transferred and added to the share of the widow as owner thereof.

From the seventh falling to Palmer Dickson, should then be deducted the sum of $1500; from that falling to M. Hugh Dickson should be deducted the sum of $1500, and from that falling to Mattie L. Dickson, tutrix, should be deducted the sum of four thousand dollars; and these several sums should be transferred and added to the share of the widow in reimbursement of the sums advanced by her to these several heirs.

From the share of Mrs. Thomas should be deducted six-sevenths of four thousand dollars, and one-seventh should be carried and added to the share of each one of the other six heirs.

These operations will constitute the shares coming to the widow and the several heirs respectively, exclusive of the unsettled rents and revenues above referred to.

• It is, therefore, ordered, ad j udged and decreed that, in so far as the j udgment appealed from declares the leasés named therein to be extinguished and avoided after the 11th day of January, 1881, and condemns the lessees therein named to pay and return to the succession the rents and revenues of the lands and property from that date; and in so far as the said judgment orders the sale of the property therein described and fixes the terms and conditions thereof, and appoints and defines the powers of experts to aid in effecting said sale; and in so far as the said judgment orders a partition of the entire mass of the succession of Michael Dickson and names the notary and the experts who are to make such partition; the judgment appealed from be now affirmed; and that, in all other respects, the said judgment be annulled and set aside; and, proceeding to render such further judgment as should have been rendered by the lower court, it is now ordered, adjudged and decreed that Hannah P. Dickson, administratrix and widow in community, be recognized and declared to be a debtor of the community subsisting between herself and the heirs of Michael Dickson in the sum of one hundred and thirty-one thousand seven hundred and sixty-three dollars and twenty-six cents. That the notary public, in making the partition, shall proceed as follows : He shall form the active mass of the community, to be composed 1st, of the $131,763 26, due as aforesaid by Hannah P. Dickson, and 2d, of the'total amount of cash and notes resulting from the,sales of property herein ordered; from said mass he shall first deduct the sum of fifteen hundred dollars to be paid to L. M. Nutt, Esq., for attorney’s fees herein allowed, and the sum of fifty dollars to be paid to B. F. Fort, Esq., as curator ad hoc, and the sum of two hundred and fifty dollars to be retained for payment of all costs of this proceeding; he shall then divide the remaining mass into two equal shares, one to be assigned to Hannah P. Dickson, as partner in community, the other to be assigned to the heirs of Michael Dickson, the deceased partner; he shall then divide the last named share or half, into seven equal portions to be assigned respectively to the said heirs, viz : to Victoria H. Dickson, now Mrs. Thomas, one-seventh; to Lizzie Dickson, one-seventh; to Henry Charnock, executor of Emma Dickson, one-seventh; to Mattie L. Dickson, tutrix of M. A. Dickson’s heirs, one-seventh; to W. L. Dickson, executor of M. Hugh Dickson, one-seventh; to Palmer Dickson, one-seventh; to Mary E. Dickson, now Mrs. Pillow, one-seventh; he shall then transfer and add to the original share of Mrs. H. P. Dickson, the one-seventh share assigned as above to Mary E. Dickson, now Mrs. Pillow, thus extinguishing her interest; he shall then subtract from the shares of Palmer Dickson and M. Hugh Dickson respectively, the sums of fifteen hundred dollars each and add the said sums to the share of Mrs. H. P. Dickson; he shall then subtract from the share of Mattie L. Dickson, tutrix of M. A. Dickson’s heirs, the sum of four thousand dollars, and will transfer and add the same to the share of Mrs. H. P. Dickson; he shall then deduct from the share of Mrs. Victoria H. Thomas, six-sevenths of four thousand dollars (which sum she is hereby condemned to collate to the heirs of Michael Dickson), and of said six-sevenths, he shall transfer and add one-seventh to the share of each of the other heirs of Michael Dickson, except Mrs. Mary E. Dickson Pillow, whose seventh shall be added to thé share of Mrs. Hannah P. Dickson. The shares resulting to each party from the above operations will constitute the ultimate interest of each under this partition. It is further decreed that in case Mrs. H. P. Dickson shall fail or refuse to pay or deliver for actual partition the sum of $131,763 26 adjudged to be due by her to the active mass of the community, her ultimate share as above ascertained shall be compensated and extinguished pro tanto, by said sum and amount, and she shall take so much less.

It is further ordered, adjudged and decreed that Lizzie Dickson, Mattie L. Dickson, tutrix, W. L. Dickson, executor, and Palmer Dickson, owe to the active mass of the community the rents and revenues of lands formerly leased by them respectively, and used and cultivated by them subsequent to the 11th of January, 1881; that this cause be remanded to the lower court for the purpose of further proceedings in order to ascertain and liquidate the sums so due by them respectively without, however, delaying the execution of this judgment, and the-partition in other respects; and said sums when ascertained shall form part of the active mass of the community, and shall be distributed in the same manner and subject to the same principles herein prescribed for the partition of the other parts of said active mass, and should the said amounts not be ascertained prior to the completion of the partition herein ordered, the judge of the District Court, before allowing the said parties to take the several shares allotted to them in the said partition, shall require them either to leave in the hands of the court a sufficient ■amount of said several shares to secure the payment of their said indebtedness when ascertained, or otherwise to secure the same to the satisfaction of the court, and that the costs of the lower court and of this appeal be paid out of the common fund of the succession.

On Application eor Rehearing.

The only complaints made of our decree are the following :

1. Mrs. H. P. Dickson complains that there is a seeming ambiguity in our decree as to the effect given by us to the judgment of the Bossier District Court of 11th January, 1881, destituting her of her usufruct.

The only occasion we had for referring to that judgment, in this case, arose from the fact that the destitution of the usufruct decreed thereby was a necessary condition precedent to the maintenance of this suit for partition. Therefore, our allusions were confined to this element of that judgment. It should be needless to say that we neither made or intended any discrimination against, or reflection upon, the validity of that judgment in any other respect.

2. We are asked by several of the parties to amend the decree so far as it affirms that portion of the judgment of the District Court, directing the sale, to be made for cash to the extent of the interests of some of the heirs and on terms of partial credit as to the interests of the. remaining heirs.

The right of heirs of age and present to require the sale to be made for cash “ for a sufficient sum to cover the interests coming to them,” seems to be quite absolute and unqualified under the terms of C. C. 1342. In absence of any complaint by those heirs themselves, we must presume that they made the demand and that the judge acted upon it.

3. In view of the fact that a part of the property is situated in the parish of Caddo, and part in the parish of Bossier, we are asked to modify that part of the decree which- orders the whole of the property to be sold, at the same time, by the sheriff or an auctioneer of the parish of Bossier. It is reasonably urged that the property should be sold in the parish where it is situated and on different days. We acquiesce, in the propriety of this prayer and shall amend our decree accordingly ; and would have so ordered in our first decree, had the point been urged.

It is, therefore, ordered that so much o'f our decree as affirms that portion of the judgment appealed from which orders that “the entire property, real and personal, belonging to the succession of Michael Dickson, be sold by the sheriff of Bossier or any auctioneer in Bossier parish,” be now annulled and set aside ; and it is now ordered and decreed that the above cited portion of the judgment appealed from be amended so as to order that the property situated in the parish of Bossier be sold by the sheriff or any auctioneer of said parish, and that the property situated in the parish oí Caddo be sold by the sheriff or any auctioneer oí said parish, and that the sales in said respective parishes be made upon different days and with sufficient interval between them to enable bidders to attend both sales.

And it is ordered that, in all other respects, our former decree remain undisturbed.

The Chief Justice takes no part in this decision, not having participated in the original opinion.