text:
    No. 104.
    William Enders vs. John A. Skannal.
    "Where, under a written contract, and for a valuable consideration, plaintiff acquired the . privilege of erecting a sawmill on defendant’s land and cutting and sawing timber therefrom, and before the expiration of the time allowed by the contract, his son in charge and his employees are driven from the place by violence, and plaintiff compelled to remove the mill, the jury, in estimating the damages, are not limited to the actual pecuniary loss resulting from-a breach of the contract, but may treat the mode of its violation as an offense, and award damages therefor.
    The wrong to the plaintiff was not leas personal because the violence was used upon his employees, than if directed against himself. In such cases much discretion is left to the jury in assessing the damages..
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Wise & Herndon and Land & Land for Plaintiff and Appellee:
    1. In a doubtful case the agreement is interpreted against him who has contracted the obligation, and also against him, whether obligor or obligee, when the doubt or obscurity arises from a want of necessary explanation which he should have given. C. C. 1957-8.
    2. Damages due to the creditor are the amount of loss he has sustained, and the profit of which he has been deprived; when debtor is in bad faith he is responsible for such dam- ■ ages as are the immediate and direct consequence of the breach of the contract, whether they could have been foreseen or not; the jury is bound to give such damages as will fully indemnify the creditor; and in cases of offenses and quasi offenses, much discretion must be left to the jury. C. C. 1934.
    3. On the mere quantum of damages, the Court will not disturb the judgment of the court below, or the verdict of the jury, unless the amount is manifestly excessive, or clearly unsupported by the evidence. 33 An. 26, 1053.
    4. The law abhors all attempts to seek redress through violence and force, by persons who fancy themselves injured or are really so. Such transgressors will be mulcted in punitive damages—proportionate to the offense and the standing of the parties. 1 R. 141; 5 An. 337; 29 An. 223; 34 An. 1158.
    ' Alexander & Blanchard, for Defendant and Appellant:
    1. The plaintiff himself first violated the contract, and the injuries of which he complains were superinduced by his own wrongful acts.
    “ A party can recover no damages for an injury to which he has himself contributed.” Vo- ■ •lenti non fit injuria. 17 L. 361; 18 L. 339; 7 An. 321; 8 An. 71; 28 An. 710.
    2. “Plaintiff cannot take advantage of a sudden ebullition of passion, when no great injury is inflicted, to enrich himself at the offender’s expense.” 13 An. 116.
    “ Where both parties have reciprocally violated the law, no damages will be awarded to either.” 15 An. 681; 34 An. 935.
    3. Our law nowhere authorizes exemplary or punitory damages for a breach of contract. Such damages are only allowed in cases of offenses, quasi offenses, and quasi contracts. In all others, the law expressly forbids them.
    Our Code provides two modes, and only two, for measuring damages for a violation or breach of contract:
    One, where the debtor has been guilty of no fraud or bad faith, when he isjliable for the actual damages suffered by the other party. The other, where the debtor has been guilty of bad faith—that is to say, has violated the contract through “ motives of interest or ill-will,” ■when consequential damages, or rather, such as are the immediate and direct consequence of the breach of contract, are allowed.
    The compilers of the Code, to further emphasize these rulés, added the words that, “ even where there is fraud, the damages cannot exceed this;” and again, in giving to the Judge , or jury much discretion in the assessment.of damages for offenses and quasi offenses, are careful to add that, “ in other cases they have none.” O. C. 1934.
    In requiring a strict adherence to these rules, for the measurement of damages for a breach of contract, our Court has gone so far as to declare that, “Beyond this, juries have no ' more right to exact a larger sum from a debtor than they have to increase the amount due by a promissory note.” 3 An. 149, also same volume, pp. 110, 140.
    4. “Damages for breach of contract are those which, incidental to and caused by it, may reasonably be supposed to have been contemplated by the parties at the time of the contract. Damages for supposed profits, based on the speculative opinions of witnesses, cannot ho given.” 11 An. 300; 3 An. 105,140, 149 ; 6 An. 365,491; 17 An. 239; 18 An. 646 25 An. 419; 28 An. 777 ; 29 An. 286 ; 30 An. 264.
    5. An employer is not entitled to recover any damages for personal violence to his employees. The light to claim damages for such violence is a personal one, which belongs to the employees alone, and cannot ho exercised by their employer.
    All “illegal acts, done wickedly, and with intent to injure,” are classed as “offenses” under our law. They constitute one of the sources of obligations, for out of them arises an obligation in favor of the person injured, against the person who commits the act of violence, for the damages suffered by him. This right of action is a strictly personal one to the injured person, and can be exercised by no one else, save in the one exceptional case provided by the Code, viz: If death ensues, the right of action survives in favor of the minor children and widow of deceased. C. C. 2315; 10 An. 33; Sedgwick on Damages, p. 549.
   The opinion of the Court was delivered by

Todd, J.

This is an action to recover damages for an alleged violation of a contract and eviction from certain lands by means of violence and threats. ■

The defense is substantially the general issue and the contention that it was the plaintiff who had first violated the contract and had misconstrued it throughout.

The case was tried by a jury, which gave a verdict against the de-' fendant for four thousand dollars, and he has appealed.

The plaintiff is engaged in the manufacture of furniture, sash, doors, blinds, etc., in the City of Shreveport; lie had gone to considerable expense in establishing the factory and had quite a number of opera-' tives employed, some of them, as the evidence shows, brought from distant States.

Finding it difficult, if not impossible, to procure lumber from the sawmills in the vicinity of the kind needed in his business, which was principally cotton-wood, gum, ash, etc., it became necessary to establish a mill of his own, in order to have a constant supply of the lumber required.

The defendant was the owner of a plantation on Red River, consisting of about 1,000 acres, 250 in cultivation and the balance heavily timbered. He wanted more of his land cleared and needed lumber to improve his plantation. Plaintiff required timber for his mill of the kinds designated, with which the land abounded, and moved by these considerations, the defendant drew up and plaintiff signed the following writing:

“ I obligate myself, for the privilege of cutting timber off that portion of J. A. Skannal’s Chalk Level place which he intends clearing, and for putting a sawmill on the place, to furnish him, free of cost, twenty-five hundred feet of lumber during the month of August, and seventy-five thousand feet additional as he may order during the remaining twelve months.

I further obligate myself to burn and move off the ground, all logs and brush left from timber cut in a reasonable length of time, and to burn all sawdust made by the mill, and to interfere with no hands on the place, by hiring or other means, without consent of J. A. Skannal. The lumber I furnish him is to be good cotton-wood lumber.

Wm. Enders.”

The twenty-five hundred feet in first part of this contract should be twenty-five thousand.

Wm. Enders.”

The defendant did not sign, but when this was suggested to him by plaintiff, he replied, u that he was a gentleman and was good for what he said.” It is not questioned that, though the contract was in this form, it was essentially commutative in its character.

The subsequent difficulties of the parties grew out of the constructions placed by them respectively on this agreement.

The evidence shows that, shortly after its execution, the plaintiff erected the sawmill on the land in a locality which he deemed most convenient to the timber, with the approval, as to the.choice of location, of the defendant—the original cost of the mill and of its transportation and construction entailing an expense of several thousand dollars. He employed a considerable number of hands in felling and cutting the timber, and commenced sawing large quantities of lumber. He supplied the defendant with lumber from time to time in such quantities as he needed or called for, in compliance with the stipulations of the contract. There is, at least, no complaint that he failed in this respect. He did not deliver the entire quantity mentioned in the contract, being prevented from doing so by events which we will proceed to relate.

The undertaking of the plaintiff had proceeded apparently to the satisfaction of both parties until January, 1882.

In that month, the overseer of the defendant ordered the laborers, who were colored, and then under the charge of the plaintiff’s son, to leave the premises, and threatened to have them arrested for trespass if they did not. When this was reported to the plaintiff, lie dispatched to the place a number of white laborers, who were put to work felling the trees. What then occurred is best told by one of the witnesses. Young Enders, son of the plaintiff, states :

“ Mr. Skannal rode up and told them that the next man that put an axe in a tree he would kill him on the spot; and he then came to the mill and told me that if I allowed any more trees to be cut, he would kill me; he was not armed, but said he would go up and get his gun.” At this the laborers ceased work and returned to Shreveport.

The plaintiff thereupon sent down another set of bands in charge of a Mr. Chaffin. We leave the same witness again to say what followed. He states:

“The men had not made more than four or five strikes with their axes, before Mr. Skannal rode up with his gun. He rode to the hands aud told them, that the first man who struck another axe in a tree, he would kill him on the spot. He had a Winchester rifle. He met Chaffin and me in the road, when he was coming toward the house, and he said: ‘ Chaffin! by God! are you at the head of this business'? ’ Chaffin replied that he had come down there for Mr. Enders to cut timber. Skannal then said : ‘Chaffin, I will give you fifteen minutes to leave my place; if you don’t, I will kill you on the spot.’

“Chaffin then said: ‘ Skannal, that is noway to do business; there is law in this country, and there are other ways for you to stop us from cutting without bringing your gun down on us.’ Skannal then said : ‘ Damn the law 1 I own this land and I am going to have things here my way, and if I can’t do it any other way, I will do it with my gun.’ “In the meantime the hands returned to the house, when Skannal rode up and said; ‘ Gentlemen, I will give you five minutes to leave my place, and if you don’t, I will be forced to use my gun on you.’

“ All of the hands left but two. One of these asked for a little more time to get ready. Skannal then got down from his horse and said: ‘ I’ll be God damned if you don’t leave now.’

“Skannal then commenced abusing plaintiff, saying that if the old man had come there himself, things would have been settled long ago.

“ Skannal then told us that he did not propose to have any one cut on his land, that he intended to clear every damn foot that was under fence and he did not propose to have another tree cut there.”

The statement of this witness is fully corroborated and, in fact, its correctness on this point is not questioned.

- In consequence of this violence the engagement between the parties was abruptly terminated, and the plaintiff left the premises and removed his mill therefrom.

The defendant’s counsel, while they do not approve of his conduct, undertake to justify the defendant’s asserted construction of the contract which led to his violent proceedings.

According to' defendant’s construction and that of his counsel, the main, if not the sole object of the contract was to procure the clearing of the defendant’s land, and that all the operations and movements of the plaintiff should be conducted mainly to that end. The plaintiff, his laborers and his mill were not to be in the defendant’s way; they must get out of his way when his (defendant’s) part of the work of clearing was going on. Everything must subserve this purpose. We do not so read the contract, and do not so construe it intrinsically, or when viewed in the light of the attending circumstances. The very letter of the writing shows that the business of the mill was to continue at least one year. And when we consider the object plaintiff had in view, and what preceded the execution of the writing, in both parties going over the entire tract and examining the timber, and also the character and dimensions of plaintiff’s business at that time and prospectively, and moreover consider the very liberal price he paid for the privilege of disincumbtíring the land of worthless timber—at least, comparatively worthless to the defendant—and other circumstances we need not detail, we are satified that it could hardly have entered into the contemplation of either party that plaintiff was not to have ample time to accomplish the purposes and ends he had in view, prompted and to be measured by the requirements of his business, the character of which, must have been known to the defendant—that is, time enough to cut down and saw up all the timber he wanted, if it took years to do it. He made no objection to the size or capacity of the mill; he consented to its being placed w’here it was; he could have formed some idea of the time it would probably take to saw,up all the timber on the land ; and if this arrangement did not suit him, he should have so informed the plaintiff.

We have attentively read the evidence, and we think it but the shallowest pretense, that plaintiff was the first violator of the agreement, and justified the conduct of the defendant. It can hardly be seriously urged.

In regard to the damages allowed, we are not satisfied that they are excessive. The defendant’s counsel earnestly contend, that the damages should be confined to the actual pecuniary loss resulting from the breach of the contract, which they proceed to estimate at a very low figure. Even if that were the limit in this case, it would sum up- to no insignificant amount. The expenses incurred in transporting the machinery and constructing the mill, and then taking it down and removing it; the loss to plaintiff’s business in being deprived of the means of supplying himself with the kind of lumber needed for ,his factory, made at his own mill at an expense, as proved, of $4 less per thousand than if he bought it at other mills, even if it could he pror cured at all, all these and more were legitimate matters for the computation of the actual pecuniary loss.

They were not mere speculative opinions of future profits. Bat we do not agree with the counsel that it was to be thus limited. There was not only' a breach of the contract, hut it was a breach made in such a way and accompanied by such acts as to constitute an offense under the laws.

We have held, that the plaintiff had a legal right to stay on defendíante land; he was driven therefrom by threats and violence. The outrage to his feelings for such wanton and unjustifiable conduct should rightfully be weighed aud considered. Nor was it any less,,a personal wrong to the plaintiff because the violence and threats which evicted him from the land, were made against his son and employees than if directed against him in person. There exists no sucji legal distinction as the counsel aunounee. This feature of the case is one, in the determination of which, much .discretion is allowed the jury. C. C. 1934; 29 An. 223; 34 An. 1158. We cannot say that it has been abused in this instance. ' If the verdict but serves to teach the defendant that there is still some potency in the law he so much despises, and that its ways and methods, if somewhat slower, are surer, and even less expensive than those he so much affebts, it may prove that in this instance the jury exercised a wise discretion and conveyed a wholesome lesson.

Judgment affirmed.


source: Caselaw Access Project

author: Manning, J.

license: Public Domain

text:
    No. 105.
    Henry Bodenheimer et al. vs. Executors of Lazarus Bodenheimer.
    Stale claims, long withheld from prosecution or presentation, are regarded with disfavor.
    Extra-judicial admissions of a dead man are the weakest of all evidence, since they cannot be contradicted, and no fear of detection in ftilse swearing impends over the witness.
    The evidence of a claim that has long been delayed in its prosecution, when no hindrance was in the way, must be more conclusive than in ordinary circumstances. It must be established with more than reasonable certainty.
    APPEAL from the First District Court, Parish of Caddo.- Taylor, J.

      T. F. Bell and J. 8. Young for Plaintiffs and Appellants.

      Alexander dé Blanchard and Land dé Land for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The plaintiffs, children of Jacob Bodenheimer, who died in J864, sue for the value of one hundred and two bales of cotton, alleged to be $13,770, which their mother and tutrix “ delivered to Lazarus Bodenheimer in the summer of 1865 with the agreement and promise on his part that he would take it and pay the value of it.” Prescription is pleaded, and the general issue.

The suit was filed in September, 1882. The inventory of Jacob Bodenheimer’s estate taken July 15,1864, has no mention of cotton, but the omission of that article of property at that particular juncture from the inventory is not prejudicial to theclaim. It was a time when eager eyes were searching for it, and wary owners cautiously concealed the places of its concealment. The sum total of the inventory was $765.76 in Confederate currency.

Lazarus Bodenheimer was a nephew of Jacob, and Was in the quartermaster or commissary departments of the Confederate Army, and was stationed at Shreveport during the last two years of the war. The house in which Jacob and his family lived at Bellevue belonged to Lazarus.' The theory of the defendants is that Lazarus availed himself of his opportunities to buy cotton, stored it at Bellevue or his premises under the eye of his uncle, where it was preserved, and at the close of the war had it hauled to Shreveport where he sold it. The facts proved are that it was thus stored, and was hauled to Shreveport by the direction of Lazarus ih July, 1865, and that he sold it as his own, and no one gainsayed his exclusive ownership of it.

About that time the widow and her children came also to Shreveport, and lived there where Lazarus likewise lived, in active prosperous business until his death in December, 1881. During these sixteen and a half years no claim was preferred against Lazarus by the widow, or any child when it attained majority, or anyone for them, on account of this cotton. Apparently they had nothing. Lazarus died with a fortune of one hundred and sixty thousand dollars. The oldest child married, lived fourteen years thereafter, died, and made no sign of ■ reclamation against her kinsman. Nor is she represented in this suit. The oldest of three plaintiffs is a man of thirty years, the youngest has attained majority. Seventeen years elapsed between the close of the war and the sale of the cotton, and the filing of this suit.

All these circumstances are suspicious. The claim has the appearitrice of being- vamped for the occasion. It has been withheld from the light until he, who alone could have told the true story of it, has gone down into the dark valley, from whose shadow no voice can come in contradiction. Stale claims are regarded with disfavor. Davenport vs. Labauve, 5 Ann. 141; Simpson vs. Powell, 7 Ann. 555; Suc. Rice, 14 Ann. 317, not in syllabus; 2 Story’s Equity, § 1520.

Besides the unexplained delay of the widow, who must have needed money, and of the children who became majors before Lazarus died, the testimony of the widow is unsatisfactory in the last degree, and often self-contradictory. The other witness is the man whom Lazarus hired to haul the cotton to Shreveport in 1865, and who affects, to, remember his conversations at that time. He details the pretended statements and admissions of Lazarus of the ownership of the cotton by Jacob’s family.

Extra-judicial admissions of a dead man are the weakest of all evidence. They cannot be contradicted. No fear of detection in false swearing impends over the witness. In most instances such testimony is scarcely worthy of consideration. Suc. Fox, 2 Rob. 299: Wilder vs. Franklin, 10 Ann. 279; Bringier vs. Gordon, 14 Ann. 274. In the present case it does not command our confidence in its truth. The lower Judge disregarded it, and so shall we.

Plaintiffs must establish their claims with reasonable certainty under any circumstances. A stale claim, pertinaciously and long withheld from presentation or prosecution until be, against whom it is to be preferred, has died must be established with more than reasonable certainty. An unfavorable presumption is created by the delay. It can be removed only by peculiarly strong and exceptionally conclusive testimony. The testimony here is of the weakest and most inconclusive kind.

Judgment' affirmed.


author: Bermudez, C. J.

text:
    No. 130.
    The State of Louisiana ex rel. Hardenburgh vs. The Judges of the First District Court, Parish of Caddo.
    A mandamus does not lie to compel a District Judge to appoint an attorney-at-law to try a case in whicli be bas recused himself as having been of counsel, when the Court, of which he is an officer, is represented by another Judge clothed with concurrent powers, and who is not himself recused.
    The Act of 1880, No. 40, is inoperative in such a case.
    Under Act of 1882, No. 71, the Judges of the District} Court for the First Judicial District are authorized to adopt rules for the classification and distribution of causes before that Court, and to provide for the trial of recused cases.
    A Prohibition does not lie to prevent the other Judge, not recused, from, trying such cases in which his fellow Judge is recused as of counsel.
    APPLICATION for Mandamus and Prohibition.

      Land <& Land for the Relator.
    Respondents inpropriispersonis.

   ' The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus and for a prohibition.

The prayer for a mandamus is levelled at one of the defendant Judges, (Taylor) who, having recused himself as counsel in a suit before him, declines to appoint a lawyer to sit and try the'case in his place.

The demand for a prohibition is formed against the other defendant Judge, (Jones) to prevent him from taking cognizance of and determining the identical litigation.

The District Judges return, arguing that their respective course is justified by law.

The Constitution in force does not contain general provisions for the trial of cases in which District Judges may be recused.

It first directs that the legislature shall provide for the trial of such cases in the District Courts, by the selection of licensed attorneys-at-. law, by an interchange of Judges, or otherwise. Art. 112.

It next declares, concerning the Civil District Court for the Parish of Orleans, which is composed of five Judges, who sit separately and llave a concurrent jurisdiction, that, in case of the recusation of any Judge thereof in any case, such cause shall be reassigned to some other Judge of the same court. Art. 130.

So that the powers delegated to the legislature were to be exercised solely as to District Courts outside of the Parish of Orleans.

The Constitution also provides, that the general assembly shall have power to increase the number of District Judges in any district, whenever the public business may require. Art. 110.

In furtherance of Article 112, the legislature passed Act 40 of 1880, the second section of which is to the effect, that, where a District Judge is recused in a case, except for cause of interest, he shall for the trial thereof appoint a lawyer having the qualifications of a Judge of the District Court, etc.

In the exercise of the powers conferred by Art. 110, the general assembly passed Act 71 of 1882, increasing to two the number of District Judges for the First Judicial District, authorizing them to adopt rules for the division into classes, and the assignment to each Judge, of the business thus classified, of the court.

Under the authority of that legislation, the additional Judge had been elected, qualified and had entered upon the discharge of his duties when the previous Judge was recused and retired from the case.

The trial of “ recused cases ” has, for quite a long period, been a subject of embarrassment for both conventions and legislatures, and has proved a fruitful occasion for mystifying, protracted and injurious litigation, which the wisdom of law givers would seem to have proved incompetent effectually to suppress.

The framers of the Constitution have nevertheless assumed to remedy the crying evil, and, to all appearances, have practically well prescribed on the subject. ■'

Contemplating both the actual and eventual condition of things, they have directed specially in what manner cases of that class were to be decided in a particular section of the State, and have imposed upon the legislature the duty of providing for the trial of such cases, by selected attorneys-at-law, in the other parts of the State.

At the time the Act of 1880 was passed, the District Courts throughout the State, save in the Parish of Orleans, were presided over by one Judge only. The legislation which it contains was designed to apply to the state of facts then in existence.

The motives which induced the framers of the Constitution to direct legislation for the determination of such cases by selected attorneys-at-law, no doubt were the avoiding of the injurious delays so frequently suffered before procuring the attendance of a neighboring Judge, and the securing of a speedy trial and decision of the case by a competent member of the legal profession.

It is true that they foresaw the probability, if not the certainty, of an increase of the number of District Judges in one or more Districts; but it cannot be legitimately inferred from that circumstance, that they designed that the legislation required by Article 112 should apply to cases of recusation, when the powers of the same District Court could be exercised by another Judge of the same court, for they had specially provided otherwise by Article 130 for the trial of similar cases in the Parish of Orleans.

If they did so expressly provide for that parish, it is simply because they had also provided that all cases before the District Court there should be allotted and assigned, and that the Judge to whom the cases would thus go, should retain exclusive control over it until its final determination.

They did not require the legislature to provide for such allotment and assignment in case of an increase of the Judges of any one District Court, and the legislature did not do so, but authorized the Judges to adopt rules on that subject. This they did in the present instance, referring to the newly elected Judge all criminal and civil jury cases, and to the previous Judge, all other eases, provision being made at the same time for the trial of recused cases in the mode which is complained of in the present instance.

The legislature was competent to delegate the power to adopt such rules. The Judges having exercised the right, and the trial of recused cases having been covered thereby, their action is warranted and legal.

It, therefore, follows that the Act of 1880 became inoperative when the legislature prescribed for the addition of a Judge for the District Court for the First Judicial District, clothed with concurrent powers and when the office thus created was filled and the elected Judge entered upon the discharge of his functions, provided such Judge was not himself recused for some legal cause. In such a case the Act of 1880 would continue in force, and the necessity of the appointment of an attorney would still exist.

On the happening of such an event, namely: the legal recusation of one Judge and the absence of any valid recusation of the other Judge, the requirement of calling upon an attorney-at-law determines and the occasion arises for the assistance of the other member of the same court clothed with identical powers.

- This construction of the Act of 1880 is in accord and harmonizes with the mode prescribed by the Constitution itself, for the trial of recused cases in the Parish of Orleans. It is legitimate, conservative, and is the result of much deliberation.

The course pursued by the defendant Judges being justified by law, it is ordered that the application herein be refused with costs.


text:
    No. 124.
    City of Shreveport vs. Fanny Roos.
    Municipal corporations may adopt ordinances for the good order of the community, and where the power to suppress bawdy houses is conferred, the power to adopt means for that suppression follows by necessary implication.
    An ordinance which prohibits bawdy houses being kept in an indecent manner need not specify the various acts of indecency which will render its keeper liable to punishment.
    A PPEAL from the Mayor’s Court of Shreveport.

      Wm. A. Seay, City Attorney, for Plaintiff and Appellee.

      Ricks (& Ricks for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was tried before the mayor of Shreveport on a charge of keeping a disorderly house of ill fame in an indecent manner, and thereby causing and maintaining a nuisance, and upon conviction was fined fifty dollars, and ordered out of the premises.

The ordinances of the corporation require that houses of ill fame within the town, which shall be conducted in an indecent manner, or so conducted as to be nuisances, shall be abated by compelling the parties to abandon the premises, and power is given the mayor to close them and fine the occupant. The charter gives full authority to the council to pass the ordinances, and to the mayor to enforce them.

Copies of the ordinances are in the transcript and objection is made here that they are not signed by the mayor. It was not raised below so that the plaintiff might have been put on guard, and exhibited the signed ordinances in full. Sections only of ordinances were offered in evidence—those which related to the matter in hand—and each section was of course not signed. '

The ordinances are attacked as unconstitutional, but it is not now: disputed that municipal corporations may adopt laws and regulations touching the good order of the community, and where the power to suppress bawdy houses is conferred, the corporation has by implication and of necessity the power to adopt proper means to accomplish it. Dillon Munic. Oorp. §§ 93 and 310.

A more serious objection is that the ordinance does not create any specific offenee, and that the phrase conduct a house of ill fame in an indecent manner ” is uncertain and vague. It could scarcely be expected that an ordinance affecting houses of this kind should specify the particular act of indecency which will render its inmates obnoxious to the law’s denunciation. These acts may be so various in kind and so differing in degree, and withal so numerous, as to defy specification. The experience of the city fathers in that domain is doubtless so limited that in drafting an ordinance which should comprehend all the indecent convolutions of lascivious Cyprians, they would be forced to put fancy on the wing, and imagine postures they never beheld. This would be dangerous occupation. Neither the law, nor the right of accused parties to be informed of the nature of the accusation against them, imposes such particularization upon the coporation authorities.

The prohibition is of keeping a bawdy house in a disorderly and indecent manner. The offence of keeping a disorderly house is a well recognized misdemeanor in many States, and the statute denouncing it does not undertake to specify what particular acts shall be deemed disorderly within the meaning of the statute, nor was it ever supposed essential. In like manner this ordinance prohibiting a bawdy house being kept in an indecent manner clothes the magistrate necessarily with the discretion to determine whether the particular acts proved are indecent. We have not a doubt the mayor decided correctly in the present instance.

Judgment affirmed.


author: Poems, J.

text:
    No. 103.
    R. J. Looney vs. S. Levy, Jr., Liquidator, etc.

      A now trial will not be granted to a party who judicially admits his indebtedness on an. account set up against him, on the ground that he had not seen the detailed account before rendition of judgment in the case, and that the items and dates of said account are newly discovered evidence.
    His admission of the indebtedness estops him from subsequently denying knowledge of the account.
    Prescription and compensation are not inconsistent pleas. Hence, the previous plea of prescription is not waived by a subsequent plea of compensation.
    An attorney’s fees are due on the termination of the litigation, and prescription runs from that date. A continuity of services by an attorney, in other matters, from year to year, cannot interrupt that prescription.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      T. F. Fell for Plaiufciff and Appellant:
    The plea of compensation to plaintiff’s claim in globo waives general denial, and admits the claim m globo. Durnford vs. Agrae, 3 H. S. 270; Jones vs. Bishop, 12 La. 397; Rost vs. Byrne, 14 La. 372; Diggs vs. Parish, 18 La. 6; 14 An. 54; 22 An. 442; 23 An. 142; 25 An. 182.
    He who pleads compensation must do so specifically aud prove it. 11 M, 639 ; 1 H. S. 127-412 ’ 3 H. S. 75, 373 • 6 N. S. 226-250; 14 An. 54; IT La. 259.
    The debt once admitted is presumed to be still due. 12 La 397; 18 La. 6 ; 17 An. 97.
    Plea of part payment is inconsistent with prescription. Elmore vs. Robinson, 18 An. 651 has a retroactive effect; 17 An. 246.
    The cases 11 An. 514 ; 32 An. 962; 7 An. 222; 11 An. 212, do not militate against the general rule.
    The case of Colley vs. Latourette is specially put on the fact that plaintiff was a clerk, employed by the month at $35 per month, and the cases referred to there were coutracts expiring as to times fixed. 7 An. 222; 5 La. 15; 6 H. S. 226; 14 An. 581, and in 11 An. 30 there was no point of prescription, and 12 An. 588; 14 An. 137, are not in point.

      Quae temporaliasunt cannot apply. 1 Pothier Obligations, 495; Riddell vs. G-onnly, 4 An. 140; Crow vs Watkins, 12 An. 845; Dickason vs. Bell, 13 An. 249; 9 An. 169; 1 An. 35; Toullier 388, 389.
    The item of $500 is not founded on the assumption of the debt of a third person, and R. C- O. 2278; 11 An. 213; 10 An. 342; 2 Hen. Dig., p. 1096, Ho. 6, are not applicable.

      Land é Land and Alexander & Blanchard for Defendant and Appellee:
    1. Attorney fees are prescribed by three years from date of rendition of judgment in the case, and continuity of services does not interrupt prescription. O. C. 3538; 11 An. 30 14 An. 137; 12 An. 159, 558; 7 An. 222.
    2. A plea of prescription is not inconsistent with a plea of payment or compensation. 7 An* 222. Nor with the general issue. 7L. 85; 17 L. 459; 7 E. 467. In 18 An. 651, partial payment was pleaded.
    3. Plaintiff having waived proof, and judicially admitted his indebtedness in open court, in the amount of the balance of account-, pleaded in compensation, cannot obtain a new trial on tbe ground of newly discovered evidence, i. e., that the account shows that it is prescribed in part. Hennen’s Digest, p. 989, Nos. 4 and 6; 19 An. 491; C. 0. 2291,
   The opinion of the Court was delivered by

Poems, J.

Plaintiff claims of tbe commercial firm of Levy and Bodenheimer tbe sum of $6,030, for professional services rendered by him as an attorney and counsellor at law.

The services are alleged to have been rendered to tbe firm by plaintiff as their counsel in a large number of suits, in which the defendants were parties, and for general services rendered during the years 1877, 1878, 1879, 1880 and 1881, at the rate of $350 per annum.

The defense was: first, a general denial and the plea of prescription of three years, and subsequently a plea of compensation based on a promissory note of plaintiff’s of $1,128, and on an aceount alleged to he due by him to the firm amounting to $1,482.33.

From a judgment of $796.67 in favor of plaintiff, lie has appealed for the purpose of recovering more, and the defendants move for an amendment, with a view to a reduction of the amount allowed.

We will in the first place direct our attention to a motion for a new trial urged by plaintiff on the ground of newly discovered evidence, based on the following circumstances:

During the trial plaintiff admitted that he was indebted to the defendant firm, in December, 1881, in the sum of $1,482.33. This was the amount pleaded in compensation on the score of the aceount due by plaintiff.

In view of that admission, the aceount was not introduced in evidence. The Judge, having concluded to sustain the plea of prescription of three years as to all items of plaintiff’s account, which dated three years hack, he compensated the balance of the amount found in favor of plaintiff by the aceount of $1,482.33 pro tanto. Plaintiff contended that the account should he imputed in compensation to the prescribed items of Ms claim jiro tanto, which the Judge declined to do, for lack of any evidence to show that said aceount, or any portion thereof, was concurrent or contemporaneous in dates with his prescribed claims.

After trial, plaintiff procured the detailed account of the defendant firm, which ran from 1873 to 1881, both inclusively, and urged that he had discovered the details of the account since the trial, and that he was thereby entitled to a new trial.

In making the admission of his indebtedness to the defendant firm, in the precise amount of the account which he subsequently annexed to his motion for a new trial, plainiiff must have known whereof he spoke, especially as he had added in his admission the statement, that this admitted indebtedness appeared by open accounts on their books,” referring to the defendants. This admission is an effective estoppel of any denial on his part of previous knowledge of the account. The new trial was properly refused.

The main contention on the merits of the cause turns upon the effect of the subsequent plea of compensation, on the previous plea of general denial, and of prescription.

Plaintiff’s contention is, that the two pleas are incompatible, and that the plea of compensation made in globo to his account, amounts to a formal waiver of the plea of prescription, and admits the existence of the debt.

In their plea of compensation the defendants used the following restrictive language: “ That the said late firm is not indebted to said plaintiff in a larger sum than the principal of said account and note and interest, which respondent now pleads in compensation, without, however, admitting that said firm is indebted unto said plaintiff in a larger aggregate sum than the amounts of said account and note.”

The Judge correctly ruled that the two pleas were not inconsistent, and that the plea of compensation admitted no part of plaintiff’s account, but the amounts equal to the account and note pleaded in compensation, as shown by the cautious and guarded language used by respondent in his plea of compensation.

This ruling is in harmony and in keeping with our jurisprudence on this subject. Colley vs. Latourette, 7 An. 222; Durham vs. Williams, 32 An. 962.

In the last mentioned case, we made an extended review of our jurisprudence on the subject of apparently incompatible pleas, and of the effect of such pleas when made in the alternative, as in the instant case. It would be useless to repeat here the reasoning which we used in that case.

We find also, that the District Judge correctly held that the continuity of an attorney’s account for services from year to year could not be invoked as a means of interrupting prescription, as his fees are due and exigible at the termination of each litigation. Hiestand vs. Labatt, 11 An. 30; Morgan vs. Brown, 12 An. 159.

The evidence satisfies us that the services, the payment of which is not prescribed, were reasonably worth the charges made therefor. The Judge correctly held that, the note pleaded in compensation by defendants, which was due on January 4th, 1882, was presented, and that, as prescription had accrued at the time that plaintiff’s account began, the rule quae temporalia sunt, etc., did not apply.

After an exhaustive examination of the case, and much reflection and ripe deliberation, we find no error in the judgment appealed from, except in the following particulars:

The District Judge found that the item for general services for the year 1879 was prescribed.

That, item was not due before the 31st December, 1879, and the suit was filed on the 18th of December, 1882 ; hence, three years had not elapsed between the maturity of the item and the date of the judicial demand.

It is, therefore, ordered and decreed that the judgment of the District Court be amended by increasing the sum from $796.67 to $1,146.67 (eleven hundred and forty-six 67-100 dollars) and that, as thus amended, said judgment he affirmed at defendants’ costs in both Courts.


author: Poché, J.

text:
    No. 114.
    The State of Louisiana vs. Richmond Stuart.
    If it appears in a criminal case, from the indictment or other portions of the record, that the grand jury had been duly empannelled and sworn, and otherwise legally organized, it is sufficient. The minutes of the court are not the exclusive mode of proving such facts.
    The fact that one witness is not allowed to prove a confession made to him by an accused, because inducements had been held out by that witness, will not be good ground to exclude a confession made by the same accused a short time thereafter, to another witness, who had made no threats or held out no inducements in order to draw out the confession.
    In cross-examining a witness for the defense, the State will be allowed to propound questions growing out of facts and circumstances stated in his direct examination by the witness, even when it appears that tho witness had been introduced for a different and exclusive purpose.
    ^ PPEAL from the First District Court, Parish of Caddo. Taylor ',

      M. 8. Crain, District Attorney, for the State, Appellee.
    1. A confession will not be excluded where there is amere adjuration to tell the truth, unaccompanied with a threat. 2 Buss. 286 ; 34 An. 18.

      2. Though confessions ate unduly obtained, subsequent confessions as to the same fact, if the court believe, from the circumstances, that the influences have been roraoved, etc. State vo. Hosh, 12 An. 895.
    3. In criminal matters the competency of a witness depends upon his intelligence, reason, judgment, capacity, and understanding, which are all matters left to the discretion of the Judge and jury. S. vs. K., 18 An. 340-2; 19 An. 119.

      JE. R. Randolph and R. R. Childers for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Appealing from a conviction of murder and a sentence of death, the defendant relies on alleged irregularities, which he presents in an assignment of errors and two bills of exception.

1. In his assignment of errors, he charges that the record fails to show that the grand jury, which presented the indictment against him, had been duly empannelled and sworn as the law directs-.

The minutes of the court show that the grand jury was empanelled and charged, but are silent on the question of the oath prescribed by law. The minutes contain the names of all the grand jurors and of the foreman, and mention the fact of the latter’s appointment by the court.

The indictment which is endorsed, a “ true bill,” by the foreman of the grand jury, contains the distinct statement that the members had been “ duly empannelled and sworn.”

Hence, the record does show that the grand jury had been sworn. But defendant’s contention is, that this fact must be shown by the minutes only. He is in error. The proof of that fact may be gathered from any other part of the record.

This is no longer an open question. In the case of the State vs. Tag-well, 30 An. 884, this Court, passing on a similar objection, said : we do not consider it sacramental, that these preliminary proceedings for •the organization of the, grand jury should be copied in the record.” This ruling was reaffirmed in the case of the State vs. Watson, 31 An. 380.

The reliance placed by defendant’s counsel on the ruling in the case of the State vs. Folke, 2 An. 744, cannot avail him. In that, as in the instant case, the minutes failed to show that the grand jurors had been sworn, and this Court sustained the action of the District Judge, who had allowed an amendment of the minutes of his court, with a view to supply the omission of the clerk in that particular. And this Court further said : In the present instance, it appears upon the face of the indictment that the jurors by whom it was found were duly empannelled and sworn, and the oath of the clerk further confirms the fact.”

This ruling is far from supporting the construction that the minutes of the court are the exclusive mode of showing that the grand jury had been regularly organized.

2. The. first bill complains of the Judge’s ruling in admitting proof of a confession of the accused, for which purpose the State offered the testimony of two witnesses.

The testimony of the first witness was excluded on defendant’s objection, that the confession made to him was not voluntary, but that the same had been drawn out by inducements.

In another part of the bill the Judge states, that he rejected that witness for the reason that he was too intoxicated to testify in the cause.

Defendant’s counsel seriously complains of this discrepancy in the statement of the Judge’s reasons for the exclusion of that witness. It is very apparent that the two reasons are somewhat inconsistent, and exclusive of each other. The Judge seems to rest his ruling on the state of intoxication of the witness.

However, be that as it may, we find no ground of complaint for the accused of a ruling which silenced a witness who had been introduced by the State with the avowed purpose of proving a confession calculated to operate Ms conviction of murder.

Defendant’s counsel objected to the proof of the confession by the second witness introduced for the purpose, on the ground that the confession was made a short time after the excluded statement, and under the same pressure. The bill shows that the second confession was made to a different person some forty minutes later, and nothing shows that any threats are made, or inducements held out to the accused by this second witness. Hence, the District Judge correctly held that the confession was voluntary, and that proof of the same was admissible. Should it even appear that the second confession was a continuance of the first, or was made under the same state of mind of the accused, we are not satisfied from any fact in the record that the first confession was not free and voluntary, and that it should have been excluded. The record does not inform us as to the nature of the inducements held out to the accused. State vs. Alphonse, 34 An. 18.

3. The defendant finally complains of the ruling of the Judge in allowing the District Attorney to cross-examine one of the witnesses for the defense, on matters alleged not to grow out of facts and circumstances stated in his direct examination.

It appears that the defense had questioned the witness concerning the state of excitement and indignation prevailing among an assemblage of persons who had gathered on the banks of a stream into which the body of the murdered person was supposed to have been thrown. And it further appears that, in the course of his examination in chief, the witness had stated that the body had been found in the stream, and liad been dragged out by the witness himself. On cross-examination, the witness was asked by the State whether he had examined the body; whether he had identified it, and whether he had found any evidence of violence on the body. These are in substance the questions objected to by the defense, on the grounds hereinabove stated.

Admitting that the witness had been introduced, as contended for by the defendant’s counsel, for the exclusive purpose of showing public excitement and indiguation, it appears nevertheless that the witness, in his examination in chief, had made statements concerning the search for the body in the water, the finding of the same therein, and the dragging of it therefrom by the witness himself.

It is therefore clear to our minds, that the matters embraced in the questions on cross-examination were intimately connected with, and naturally grew out of, the facts and circumstances stated by the witness in his direct examination.

The legality of the cross-examination in this particular, must be tested by the matters stated by the witness in his examination in chief, and not by the consideration of the purpose for which he had been introduced. State vs. Swayze, 30 An. 1327.

A close and careful examination of the case has failed to disclose any errors in the proceeding prejudicial to the accused, and we can therefore grant him no relief.

Judgment affirmed.


text:
    No. 112.
    Dempsey Eatman vs. New Orleans Pacific Railway Company.
    A railway company is responsible for tbe damages occasioned by its failure to make road crossings.
    ■When tbe right of way is granted on tbe expressed condition of making sucb crossings, and • with tbe stipulation to that effect, the company will be held to tbe performance of its contract, and mulcted for its violation.
    Attorney’s fees are not recoverable in an action for damages when tbe act complained of is not tainted by fraud or malice.
    APPEAL from the Tenth District Court, Parish of DeSoto. Logan, J.

      JE. W. Sufherlm and J. L. Seales for Plaintiff and Appellee:
    1. Interrogatories to absent witnesses must be signed by tbe party or bis counsel. Depositions are not admissible when tbe witnesses are not named in tbe petition, or order for commission. The order for commission is premature, if rendered before the expiration of three days after the interrogatories have been submitted or notified to the adverse party. C. P. 425, 426.
    2. The measure of damages, in case of failure to comply with a long continuing agreement, is the value of the obligation. Sedgwick Vol. 1, p 200, note; p. 202; 4Peters, 172; 11 An. 39; Sedgwick Vol. 1, pp. 192-3; 35 An. 202.
    3. The rule is well settled, that a party cannot prove what he has not alleged. A plea of the general issues is absorbed and overshadowed by, and subordinate to, the special defences with which it may be joined. Evidence of tender is not admissible under the general issue, or under special defences, joined thereto, with which it is inconsistent. 9 An. 119 and cases there cited; 20 An. 306; 21 An. 377; 18 An. 660; 19 An. 43; 28 An. 917; 31 An. 81; 12 An. 739; 14 An. 868; 29 An. 134; 9 An. 528.
    4. In case of long continuing agreements, covering a long space of time, if the failure to comply with the original contract is such, that the plaintiff, at all events, is entitled to nominal damages, the plaintiff can recover damages for the consequences of the failure, and immediately traceable to it, although the damages may have accrued since the institution of the suit. 4 Peters, 172; Greenleaf Vol. II, p. 268; Sedgwick Vol. I, p. 199; 2 Greenleaf, 257.
    5. "When the debtor may be charged with fraud, or when the debtor fails to comply with his obligation, or delays its performance, ‘ ‘ by fraud and on affected contumacy, ” or when the circumstances are wanton, wilful, vexatious, and aggravating, the damages are to be estimated rigorously, and extended to every kind of damage, of which the acts complained of are “ efficient cause,” including the plaintiff’s expenses for loss of time, extra trouble, and counsel fees for prosecuting suit in order to ascertain the damages. Legal fiction should never be permitted to work injustice. C. C. 2315; C. 0.1928, Secs. 2, 3; 24 An. 1; 2 Greenleaf, 268; Pothier, Vol. 1, c. 2, Art. 3; 13 An. 193; 12 An. 714; C. C. 2482 ; 19 L. 357; 13 An. 449; 14 An. 311, 757, 826; G. R. 1630; 2 An. 868; 24 An. 251; 10 An. 10 ; 33 An. 392; Sedgwick, Vol. I, pp. 177, 182, 183.
    6. It is neither the province nor the prerogative of the Judge to give to the jury, in charge, abstract propositions of law, foreign and extraneous to the issues and facts presented on the trial. Thompson on Charging the Jury, pp. 88-89, 91-2-3.
    7. “ The deed of a corporation, executed by its officers in its behalf, is presumed to he its deed." The power of the corporation may be conferred by previous authority or by subsequent ratification. il The ratification may be express, or implied from the acceptance of the benefit of the transaction.” Pierce on Railroads, pp. 33, 34, 521.
    8. In actions, sounding in damages for breach of contract, or failure to comply therewith, or for torts, the verdict of the jury, estimating the damages, will not be disturbed unless palpably erroneous. 18 An. 26; 19 An. 362; C. C. 1928.

      Moss, Andrews & Foster for Defendant and Appellant:
    A contract which binds a party to do or perform ascertain thing, and he neglects or fails to carry out and do the thing contracted for, he is guilty only of a passive breach. R. C. C. 1930. "When the breach is passive only, damages are due from the time the debtor is put in default, in the manner directed bylaw. R. C. C. 1933.
    In an action for damages for the non-compliance with a contract, plaintiff must prove that he put defendant in default in one of the modes pointed out by R. C. C. 1911, Ros. 1, 2, 3; 1 L.98; 5L.414; 14L.80; 9 R. 495; 16 An. 389; 17 An. 32; 30 An. 1126; 31 An. 164.
    The putting of defendant in default is an indispensable prerequisite to a recovery of damages on a passive breach of contract. 5 R. 83; 10 R. 524; 11 An. 300.
    The debtor can only be put in default:
    1. "When it is agreed that the party failing to comply shall be so by that mere act.
    2. "When a specific performance- is demanded, either by commencement of a suit (for that purpose) by a demand in writing, by protest made by a Rotary Public, or by verbal request made in the presence of two witnesses.

      3. By operation of law. R. C. C 1911, Nos. 1, 2, 3; 9 R. 495; 30 An. 1126.
    The want of default need not be pleaded in limine, but maybe taken advantage of at any stage of the proceedings. R. C. C. 1912; 3 R. 400.
    Tlie rule of damages provided in cases of quasi contracts, and offences, and quasi offences, is not applicable to this case, and the Judge and jury were limited in assessing damages to the provisions of Civil Code, Art. 1934, and §§ 1 and 2. Damages arising from the passive breach of a contract, are measured by the loss sustained, and the profits of which one is deprived. C. C. Art. 1934; 17 An.239; llAn.300; 29 An.288.
    Only aotual and direct loss can be considered in suits of this kind, and not remote and speculative damages. The damages to be considered must directly result from the violated contract, and be actually sustained in consequence of its violation. Evidence of a vaguo and conjectural character is not proof of damages. 1 Howard, p. 35 ; 1 A.n. 375.
    Damages must not only be direot and immediate, but they must be proved and established with precision and certainty. It is not sufficient to make them probable. H. D. p. 524, ■ (a) Nos. 1 and 2 j 16 An. 121; 21 An. 185.
    Remote, consequential, and speculative damages, such as inoonvenienoe and loss of time, are not actionable, and are not to be considered in a suit, for recovery of actual damages. 13 An. 564; 8 An. 477.
    No party oan recover when he is in fault, and contributed to the damage and loss by his own acts. If one oan avoid any damages it is his duty to do so, and if he fails to do so, it is his fault and ho cannot recover. 30 An. 1359.
    Attorneys’ fees are not allowable in an action of this kind. Sedgwick Yol. 1, 7th ed. p. 45, 179, 181; Mrs. S. O. Day and Husband vs. N. O. P. Ry. Co., 35 An.
    Plaintiff, not suing for the specific performance of the contract, nor for the value of the crossings, cannot reoover for passive breach, unless it is shown and established that he sus* tained damages by the breach.
   The opinion of the Court was delivered by

Manning, J.

The suit is for the recovery of $750 as damages resulting from the failure of the defendant to construct road crossings and cattle guards—$75 for crops destroyed—$50 for wages to men hired to guard the premises—two small sums for other damages, and $150 as attorney’s fees—$1037.50 in total.

The defence is a general denial with the special pleas of contributory negligence, and want of authority in the defendant’s agent to make the contract, the breach of which is complained of. This last plea has been abandoned.

In 1881 the Railway Company applied to the plaintiff for the right of way through his plantation. It was granted for the consideration of one dollar and the performance of certain agreements by the defendant, of which the one now claimed to have been violated is that the Company in accepting this sale of the right of way agrees and promises to construct all necessary road crossings and cattle guards.”

The line of the railway passes directly through the plaintiff ’s plantation, which contains one thousand acres, a distance of a mile and a half and entirely through the enclosed part of it. It divides the land in two nearly equal parts. There are three hundred and fifty acres of land cleared and cultivated, and the road so divides the cleared land that on one side are about one hundred and twenty acres with dwelling and the out houses, stables, ginhouse, a steam saw and grist mill, and seven cabins, and on the other side two hundred and thirty acres and three cabins, pastures for stock, springs and water courses. The land is rolling so that the road-bed is for the most part either on an embankment or over an excavation. Its construction destroyed five plantation roads. The Company made no crossings but dug ditches' in some places along the line of the bed, so that road crossings could not be made whore the old established plantation roads had been. Wagons could not be driven from one side to the other without taking circuitous routes, and laborers with their teams and plows or vehicles could not pass across unless over the crops in cultivation, or between the piers of trestles and in the bottom of the branches which they spanned.

The plaintiff was not slow in bringing this grievance to the knowledge of the defendant. He repeated his complaints frequently, and importuned the Company to comply with its obligation to make the road crossings. He went over the line with one of the engineers and pointed out the places where the crossings were needed. None were made. His complaints were unheeded, and his demands for the performance of the contract were evaded. He could obtain neither redress nor promise of redress. An engineer went to the plaintiff’s residence once on Sunday to confer with him about his complaints, but it seems that he is a Sabbatarian and would not talk on business on that day. Afterwards the engineer offered to build three crossings which the plaintiff deemed insufficient, but even these 'were never constructed. He would have made the crossings himself, but on signifying his purpose to do so to the engineer he was told that he would infringe the rights of the Railway Company. He had no other recourse than to bring suit.

The evidence abundantly establishes the quantum of damage claimed, and the right of the plaintiff to recover is well recognized. Mill’s Eminent Domain, 214. Indeed, three witnesses who personally knew the land and its altered condition, and who speak intelligently, concur in saying that the estimate is low. The servants of the defendant took possession of the plaintiff’s stock pasture, tore the curbing from the spring, burned or otherwise destroyed his fence rails, and permitted their own cattle to run at large upon the fields and depredate the crops. Remonstrances were vain. He hired a man to guard the premises who daily rode up and down the line of work remonstrating with the ■ defendant’s laborers, but who found it impossible to guard the whole line. While at one end of the line, stock would be depredating at the other, and once he caught some of them and confined them in the plaintiff’s enclosure, and a fiery encounter nearly ensued.. The damages allowed are not excessive except in the matter of attorney’s fees which are not recoverable in a suit of this character, where the act complained of is not tainted by fraud or malice. 1 Sedgwick’s Damages, pp. 45, 179, 181; Stewart vs. Sowles, 3 Ann. 464; Williams vs. Barton, 13 La. 406.

There are several bills taken to the introduction of certain evidence, and objections to the regularity of execution of commissions to take testimony, which we do not notice because outside of this testimony taken under commission, and considering only that heard without objection, the plaintiff lias established his claim to our entire satisfaction.

There was error in giving judgment for $150 for attorney’s fees, and it must be amended in that respect.

It is therefore ordered and decreed that the judgment of the lower court is amended by reducing the sum named therein to eight hundred and eighty-seven dollars and fifty cents, aud as thus amended that it is affirmed, the plaintiff paying costs of this appeal.


text:
    No. 108.
    Mrs. Anna M. Beall vs. Succession of David J. Elder.
    As long as executors have not been discharged} they are amenable to a suit to revive a judg« ment obtained against the deceased testator.
    The cancellation in part of the judicial mortgage, securing the judgment as to stated real estate, does not amount to tile extinguishment of the judgment sought to be revived. The oecurity may be abandoned or lost, but the debt continues to exist until extinguished. Such defenses can only be urged in ah hypothecary action,
    ín a suit to revive, the only questions are, was a judgment rendered; was it extinguished, and if not, is the suit to revive in time 1

    PPEAL from the First District Court, Parish of Caddo. Taylor, J.

      T. F. Felt for Plaintiff and Appellee.

      Land (ft Land for Defendants and Appellants.
   The opinion of the Conrt was delivered by

Bermudez, C. J.

This is an action to revive a judgment.

The defendants, White & Tomkins, on whom citation had been served as executors of D. J. Elder, excepted on the ground that they were no longer such functionaries; that the succession entrusted to them had been finally wound up, and that they had ceased to be its representatives prior to the institution of this suit.

Upon the overruling of that preliminary defense, the defendants'pleaded the prescription of ten years, and that the judgment sought to be revived, and the judicial mortgage resulting therefrom, were can-celled and erased.

From an adverse judgment the defendants and a third person, not originally a party, have appealed.

On Exceptions.

The defendants have not shown that, at the time of service of citations on them, they had been discharged as executors of Elder.

The record shows that they filed a provisional account, which was never followed by a final account and tableau.

Nothing shows that the universal legatees, or heirs of Elder, have been put in possession of his estate.

Is is true, that his succession appears to have been thoroughly insolvent ; that its- assets were realized and distributed; that there was no necessity for the filing of a final account, and no occasion for the putting in possession of the heirs; but it does not follow, from these circumstances, that the executors, whose term does not, as formerly, expire with the year after appointment, became fwncti officio, and were consequently discharged, and ceased to be no more amenable to the Court as the legal representatives of the succession.

They could have been ruled to inventory newly discovered property; ■or to Ténder a final account; or to produce vouchers to show how far the funds realized had been distributed, or like purposes.

They surely could be sued to revive a judgment obtained against Elder.

The exceptions were properly overruled.

On the Merits.

The only questions to be decided were:

Was a judgment originally rendered against Elder?

Was that judgment in existence, in whole, or in part, at the institution of this suit to revive? 29 An. 69; 30 An. 692, 1330; 31 An. 326, 341; 33 An. 341.

The evidence shows that the judgment declared in the petition had been legally rendered, and that the suit to revive was brought, and the citations served, within ten years following the rendition of the judgment. *

The defendants have failed to show its extinction in any of the modes prescribed by law.

It may be true, as is claimed by them, and by the third party appellant, that the judicial mortgage which resulted from the registry of the judgment was cancelled, as to certain lands acquired by the third party appellant after the averred cancellation had taken place, and that an action to rescind the cancellation may be prescribed by ten years j but it does not follow that the cancellation of the mortgage has extinguished the judgment. An abandonment or loss of the security of a debt is not equivalent to a remission of the debt itself.

Such questions can arise only in the hypothecary action brought to enforce the judicial mortgage, by which payment of the judgment is, it is claimed, still secured.

They find no place in the present controversy.

The theory of the defense, and the line of argument of the distinguished counsel of the appellants, is practically levelled, more against the uselessness of reviving a judgment which has little or no prospect of ever being satisfied, than against the right of the creditor of having it revived, which cannot successfully be resisted. The judgment may well be revived, and the mortgage which once secured it may long since have terminated, so that the property of the debtor, then affected, may have passed unencumbered to a third person.

We have read with interest the elaborate opinions of our learned brother of the District Court, overruling the exceptions and the defense on the merits, and find them substantially consonant with law and jurisprudence.

The judgment of revival however contains an error, no doubt clerical, which should be corrected. It allows eight per cent interest, instead of the legal interest specified in the original judgment.

It is, therefore, ordered and decreed, that the judgment appealed from be amended by striking therefrom the word eight, and substituting thereto the word five, and that thus amended it be affirmed at the cost of the plaintiff and appellee.


author: Bermudez, C. J. Poché, J.

text:
    No. 122.
    Succession of Emma McDowell.
    This Court has no jurisdiction over an opposition to an executor’s account, when the amount claimed is less than one thousand dollars, and there is no other fund to be distributed. Succession of Duran, 34 An. 585, affirmed.
    ^PPEAL from the First District Court, Parish of Caddo. Taylor,

      J. L. Hargrove for Opponent and Appellant.

      Land & Land for the Executor, Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The executor moves to dismiss the appeal of the Wheeler & Wilson Manuf’g Co., taken from a judgment rejecting their demand to be placed on the account presented by him.

It is insisted that the amount claimed by the opponents being $75, and constituting the fund to be distributed, this Court is without jurisdiction ratione material over the controversy.

The account proposed a distribution of quite a large sum. That distribution was opposed by the Company, with a demand to be placed on it for the sum stated : $75.

The court rendered a first judgment homologating the account and directing a distribution of the funds on hand. By the same judgment, the executor was instructed to retain a sufficient sum of money to pay the claim of the opponent, should the same be thereafter allowed, and the opposition was reserved for future adjudication. There were abundant funds to pay all subsequently 5 the opposition was taken up, tried and rejected with costs.

The opponent then appealed from this last judgment, the previous one remaining unquestioned.

It is evident that the only fund which can be ordered to be distributed is that reserved to meet the claim of opponent, which is $75.

The case cannot be distinguished from that of the succession of Duran, 34 An. 585, in which we held, that where there was a judgment homologating an account of administration, as far as not opposed, which has become final, and where the only opposition thereto was a claim for less than one thousand dollars, $1000, this • Court had no jurisdiction to determine the merits of the controversy.

The subsequent ruling of this Court in the Renshaw case, 34 An. 1140, cannot avail the opponent. The Court there held, that, although the claim of the third opponent was for one thousand dollars, to be paid out of the proceeds of sale, $12,500, the controversy involved a distribution of that last amount, -which had not previously been ordered to be distributed.

The motion must prevail.

It is, therefore, ordered that the appeal herein be dismissed with costs.

Poché, J., dissents, adhering to his opinion in the Duran case.

Dissenting Opinion.

Poché, J.

Forthereasons given in my dissenting opinion, in the case of the succession of J. M. Duran, I dissent from the opinion and decree of the majority of the Court in this case.


author: Todd, J.

text:
    No. 111.
    R. T. Cole vs. Wm. H. Thompson et als.
    The State of Louisiana, during the late war between the States, preserved her autonomy, and possessed a fully organized government.
    She did not forfeit her title to the swamp lands previously acquired, by becoming a member of a Confederacy at war with the United States. During the pendency of the war she had the power to sell her lands, and her officers, charged with such duties, to mate the sales, and the purchasers acquired valid titles, if the State laws relating to such sales were complied with.
    There is a legal presumption, that all swamp lands were surveyed before their selection was approved hy the general government. The law required them to be surveyed before presented for approval, and the officers charged with approving them are presumed to have done their duty.
    The same presumption exists in case of entries, under the State preemption laws, that the conditions have been complied with, and it is only the conclusive evidence that can overthrow such presumptions.
    Where plaintiff and defendant both hold title from the State, the first purchase must prevail, if not successfully impeached.
    ^PPEAL from tlie First District Court, Parish of Caddo. Taylor,

    TPIse & Herndon for Plaintiff and Appellee:
    1. The Act of March 3d, 1857, confhmed to the several States theip selections of swamp lands, which had then been reported to the commissioner of the general land office, so far as the lands were then “vacant and unappropriated, and not interfered with by an actual settlement ” under existing laws. U. S. R. S. 2484.
    2. The selections so confirmed could not be set aside, nor could titles to any of the land which they embraced, unless it came within the exceptions mentioned in that act, be thereafter conveyed by the United States to parties claiming adversely to the swamp land grant. 7 Otto, 97; U. S. R. S. 345.
    3. By the confirmation by Congress, on the 3d of March, 3857, of the selection made by the State of Louisiana, granted to her by the Act of Congress, approved March 2d, 1849, and the Aot approved September 28th, 1850, and hy the Act of the State Ko. 104, on page 245 of the Acts of 1871, confirming all sales and collections of public lands made by the State, from the 1st of January, 1861, to the 14th day of October, 1864, the land in controversy, in this instance, was severed from the public domain, and the subsequent grant thereof by the United States in no manner impaired or defeated the title previously acquired by the State and transferred to Williams in due form of law. at that time in full force, and afterwards confirmed. See Acts of 1861, No. 267; 1871, Act No. 104, p. 243; Marks vs. Martin, 27 An. 527.
    4.Both plaintiff and defendant claim title from a common author, the State of Louisiana. The plaintiff’s title being the oldest and of equal dignity with defendant’s must prevail. 3 Bob. 293; Scott vs. Prudenkomme et al., 10 An. 515; Bell vs. Hearne, 1 An. 249; 4 An. 267; 5 An. 677; 6 An. 773; 7 An. 445.

      Land <& Land for Defendants and Appellants:
    1. The patent from the State held by the defendant is the legal title and must prevail, unless plaintiff shows a prior equitable title, good in law and indefeasable by any action of the land department. 14 An. 772; 15 An. 237.
    2. The Beceiver’s receipt, issued to plaintiff’s author in March, 1862, by the alleged Confederate Begister, at Natohitoches, under the State preemption act of 1861, was null and void, because the land entered had not been surveyed into legal subdivisions, and was not so surveyed until 1871, nor had the land been offered for sale by the State Government, or by the United States, as expressly required by law, State and Pederal.
    There is no legal proof of the official capacity and authority of the alleged Confederate Begister to sell the land ; and the Court cannot notice the fact of his appointment and qualification without proof. Buford vs. Johnson, 10 B. 456 ; Succession of Grant, 14 An. 795.
    Payment of the price did not vest any equitable title in the purchaser. 4 An. 458.
    3. As a patent is superior in dignity to a Beceiver’s receipt, the maxim of prior in témpora potior in jure does not apply, ft. D. 1271-2. Plaintiff, having failed to show any facts beyond the bare payment of tbe price to support his claim, the patent must prevail. 4 B. 79; 20 An. 439.
    4. The pretended preemptor was never in possession of the land in dispute, never resided thereon, and on the very day of entry sold to a third person at a profit of 250 per cent. The onus prolandi was on plaintiff to show a legal entry, and title good against the world, or such a state of facts as would give him a good title in equity against the patent. The legal presumption is iu favor of the patent.
    5. Act 104, of 1871, did not confirm all sales and locations made during the late war—but only those of record in the State Land Office at New Orleans.
    Plaintiff was bound to show such record affirmatively, to entitle him to the benefits of the act. .See sec. 12, of Act 104 of 1871.
    6. In Marks vs. Martin, 27 An. 527, there was no conflict of titles derived from the State of Louisiana, no question of surveys and offerings for sale by the government, no dispute as to the confirmation and registry of title under the Act of 1871, no contest, in fact, as to the derivation of the plaintiff’s title from the State—but the ownership of the State under the Act of 1849, was the sole point at issue aud only question decided. The land was in a different section, township and range.
   The opinion of the Court was delivered by

Todd, J.

This case presents a controversy between plaintiff and defendant respecting the land described in the petition as the N. E. J Section 1, T. 20, K. 15, situated in the Parish of Caddo.

Both parties claim to have acquired it from the State, it being swamp land and embraced in the donations of swamp lands made to the State by the United States under sundry Acts of Congress.

The plaintiff claims under an entry made on the 17th of March, 1862, by Chesley C. D. Williams, and several mesne conveyances from him.

The defendant claims under an entry made in 1878 and a patent issued the same year.

The plaintiff’s title being the oldest, must prevail, unless successfully impeached. It is assailed on several grounds, which are thus stated in the brief of defendant’s counsel:

1. In 1861 the land in dispute was nnsnrveyed, and belonged to the* public domain of the United States, and the State government, organized, in Louisiana at that time, had no power or authority to sell said land.

2. Because the pretended Receiver, who issued the receipt sued on, had no authority or power to sell said land, either as-the property of the United States or of the State of Louisiana.

3. Because said pretended sale was never recorded on the maps of the State Land Office, as expressly required by law.

4. Because, in 1861, the said land was not subject to sale or entry, and the said Williams entered said land not for himself, but for R. T. Noel, in fraud of the laws of the United States and of the State.

These several grounds we will proceed to consider:

Mrst. If the land in 1861 belonged to the United States, then neither party has a title to it, as both claim from the State, and the only title ever acquired by the State .was under the swamp land acts of 1849 and 1850, and approvals of the selections made thereunder, either by the Secretary of the Treasury or other proper officer, or by Act of Congress.

Approvals of the selections were made in 1852 by the Secretary of the Treasury, and subsequently, in 1857, by Act of Congress, and embraced the land now in dispute. These approvals covered all lands donated to the State, selected up to those dates, whether surveyed or unsurveyed, although, as will hereafter appear, the Acts contemplated that the lands would be surveyed before selected, and the approvals created a presumption that they were so surveyed.

If the lands in question belonged to the State at that time, and there was no legal obstacle in the way of the sale, by reason of some provision of the State law, the State had the power to make the sale, under-its government as then organized. It is true that, at the time, the State was a member of a Confederacy then at war with the United States, but that fact worked no forfeiture of title to her lands or any other property within her limits. The State had preserved her autonomy complete, possessing a government fully organized, each department thereof in the full exercise of all its powers and functions, and whose existence was in no manner affected by the state of war then existing.

Therefore, the State had the power to sell its lands.

Second. As to the authority of the Receiver to allow the entry and issue the certificate, it depended upon the provisions of the State law regulating the sales of the public lands. His capacity was sufficient, as an officer of the State government in charge of the land department, and the only question is, whether, in thus disposing of it by entry, he violated any law of the State.

It is irrged that this land was not subject to sale by private entry or under the right of preemption at that time, because, as alleged, it was then unsurveyed. This seems to be the main point in the controversy.

The Act 267 of 1861 forbade the sale of any public land, unless it had been offered for sale at public auction, by legal subdivisions, by the State, or had been so offered by the U. S. Government, and by same Act entries by preemption right could not be made before the lands were surveyed. This implied that no title could be acquired of the unsurveyed lands.

As stated before, the approval of these swamp lands to the State created the presumption that they had been surveyed.

The 2d section of the Act of 1849 authorized the Secretary of the Treasury to approve certified lists of swamp lands which had been surveyed by the State. The survey being a prerequisite to such approval, the legal presumption arises that it had been complied with, the approval having been made.

The counsel for the defendant, however, urges that this presumption is not conclusive, and that they have shown by proofs in the record, that the surveys were not then made. They point us to the survey made in 1872, called Parson’s Survey, as establishing this fact. This only proves that a survey of the Township embracing this Section was then made, but that is not conclusive against a prior survey having been made. That a survey of the whole Township, or of part of it, must have previously been made in 1840, appears from an abstract of the records of the U. S. Laud Office, which shows that, on the 27th of January of that year, the whole Township purports to have been offered at public sale, which, of course, pre-supposes that the whole of it had, even at that time, been surveyed. We refer to this in this connection, as establishing that more than one survey of the same lands may have been made, but not as conclusive evidence that tbe land in dispute was at that time surveyed.

Tbe counsel of tbe defendant contend that the whole Township could not then have been offered, for a map or plat of the lands accompanying the abstract referred to shows that the Section embracing this laud could not have been offered and had not then been surveyed, because the area or number of acres of the Section is left blank. On the other-hand, we are pointed to another abstract in the transcript, showing that partial surveys of this Section were made as far back as 1837 and 1839.

Under this state of facts, we are not satisfied that the evidence submitted conclusively establishes that no survey of the lands had been made at the date of the plaintiff’s entry, or, in other words, that the legal presumption, arising from the approval of the lands on the part of the general government, has been rebutted. Giving full effect to the apposing proof, the several abstracts offered, non constat that there might not have been a survey of the land between 1849 and 1871, admitting that none was made previous to the year first mentioned, though no evidence of the samé may appear in the record, the abstracts from the land office records, found in the transcript, do not purport to comprise all the entries relating to the land in controversy.

Third. It appears that the entry of Williams, under which the plaintiff claims, was recorded in the office where it was made. If it was a valid entry, and the title to the land passed thereby, this title could not be divested by a failure to record in the office subsequently established} such failure could only raise the question whether the entry was ratified by the effect of Act 104, Sec. 12, confirming sales of land made by the State from the 1st January, 1861 to the 14th October, 1864.

Fourth. As to the land being entered by Williams for the benefit of another person, and in fraud of the laws of the State, it is-sufficient to say that the evidence does not establish this. In the absence of such proof, the presumption must prevail that the officer did his duty, and issued the certificate, upon being satisfied that all the conditions for the entry had been complied with by the party in whose favor it was issued.

In addition to the above, we would state that, although the plaintiff claims title from the State upon the certificate of entry, an extract from the records of the land office where the entry was made, found in the transcript, shows that a patent for the land was subsequently received at that office. We think it was competent to establish this fact by the extract referred to, and without the production of the patent itself.

In regard to the matter of improvements, we have carefully examined the evidence relating thereto, and think the Judge below did substantial justice between the parties.

Judgment affirmed.


text:
    No. 106.
    The State of Louisiana vs. Jacques and Laurent Chrétien
    Testimony offered to show that a co-defendant, in a case of larceny, and a fugitive from justice, called upon and induced tbe prisoner to assist bim to go alter tbe property stolen, is not hearsay, but oiiginal evidence. The facts sought to be proved form part of the re* gestee, and were susceptible of legal proof.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Fontdieu, J.

      O. N. Mouton, District Attorney, for the State, Appellee.

      Fdward Simon for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant, Laurent Chrétien, was prosecuted for the larceny of a beef, convicted and sentenced to four months’ imprisonment, at hard labor, in the State penitentiary, and one dollar fine and costs.

From the judgment and sentence he appeals to this Court.

Record contains bills of exception, a motion in arrest of judgment, and a rule for a new trial.

The first bill relates to the refusal of the Judge to permit the defendant to prove that his co-defendant, Jacques Chrétien, then a fugitive from justice, had called on and induced him to assist him to go after the beef.

The Judge ruled out the evidence on the ground that the same was hearsay.

The accused claims that it is not such; that he had a right to have said facts proved as part of the res gestee, and the declarations of his co-defendant ascertained, so as to place him in the real attitude he occupied in the matter.

The term hearsay is frequently applied to that which is really not so, in the sense in which that term is generally used. Thus, where the inquiry is into the nature and character of a certain transaction, not only what was done, but also what was said by those present during the continuance of the transaction, is admissible. But this is not hearsay evidence. It is original evidence of the most important and unexceptionable kind. In this case, it is not a second hand relation of facts which is received, but the declarations of the parties to the facts themselves, or of others connected with them in the transaction, which are admitted for the purpose of illustrating its peculiar character and circumstances.

The declarations of third persons are not admissible as part of the res gestee, unless they in some way elucidate or tend to give a character to the act which they accompany, or may derive a degree of credit from the fact itself. If they can have no effect upon the act done, and derive no credit from it, but depend for their effect on the credit of the party who makes them, they are not admissible, merely because they have some connection with the act or relate to it. Roscoe Cr. Ev. 24, 190, 302; 14 N. H. 101; 11 Ga. 615; 5 Md. 450; 36 Miss. 190; Greenleaf, Vol. I, 100, 101, et seq. See also State vs. Duncan, 8 R. 562; 16 An. 377

To make declarations a part of the res gestos, they must be contemporaneous with the main fact, not, however, precisely concurrent in point of time. If they spring out of the same transaction, elucidate, are voluntary and spontaneous, and made at a time so near to it as reasonably to preclude the idea of deliberate design, they are then to he regarded as contemporaneous. 5 Md. 450.

Applying those rules to the present instance, it does appear that th e facts sought to be proved form part of the res gestee, and that the accused should have been permitted to offer the testimony offered in support, to show his motive.

The second bill refers to the refusal of the Judge to receive the evidence of two jurors, to impeach the verdict of the jury. The ruling was a proper one and cannot be questioned.

The other complaints are to the refusal of the Judge to grant a new trial, on the ground of newly discovered evidence, to the illegality of the term at which the prisoner was tried, and to the illegality of the fine imposed.

The view taken of this case renders unnecessary the decision of those questions, which may never arise herein.

It is, therefore, ordered and decreed that the verdict of the jury herein be annulled and quashed, and that thejudgment and sentence based thereon be avoided and reversed, and it is further ordered and decreed that this case be remanded to the lower court for a new trial, with instructions to receive the rejected testimony and to proceed therein further according to law.


author: Poci-ié, J.

text:
    No. 109.
    Succession of L. Bodenheimer.
    An order refusing the removal of a cause from a State to a Federal Court, is an interlocutory decree, which cannot work irreparable injury and is, therefore, not appealable.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Alexander & Blanchard for Plaintiffs and Appellees.

      Land (& Land for Defendants and Appellants.
   The opinion of the Court was delivered by

Poci-ié, J.

This appeal is taken by S. Levy, Jr., liquidator of the commercial partnership of Levy & Bodenlieimer, from a decree of the District Court refusing his application for the removal of the cause to the Circuit Court of the United States, Western District of Louisiana.

The motion to dismiss is based on the ground, that the judgment appealed from is an interlocutory decree, which cannot work irreparable injury to appellant, and is therefore not appealable. The motion is well taken and must prevail.

The judgment complained of is not a final disposition of the cause, but its effect is merely to retain the case in the court in which it was presented. If the Judge erred in his ruling, his error can be corrected on appeal from the final judgment which he will render in the premises, and the injury is, therefore, not irreparable.

As the law abhors a multiplicity of suits, so will courts discountenance unnecessarily numerous appeals, when the evil complained of can be remedied in a single appeal.

■ Few points of practice are more clearly and more firmly settled in our jurisprudence than that which denies the right of appeal from an order of court refusing an application for removal of a cause to a Fed'eral Court. Ralph vs. Claiborne, 2 M. 176; Higgins vs. McMicken, 6 N. S. 712; Baron vs. Kingsland, 5 La. 378; New Orleans vs. Shepherd, 9 An. 241; Chapman vs. Judge, 15 An. 336.

A wide distinction exists, and must be made, between an order refusing the removal and a decree which grants such an application.

In the former case it does not finally dispose of the suit, and in the latter it operates a final disposition of the cause quoad the court in ■ which it had been instituted.

■- In the latter case an appeal lies, and has been frequently entertained .in similar circumstances. Rosenfield vs. Express Company, 21 An. 233.

The appeal herein taken is, therefore, dismissed at appellants’ costs.


text:
    No. 110.
    Succession of L. Bodenheimer. On Opposition to Final Account.
    An executor residing out of the State, and who, ooming here, represents himself as a real-dent and is recognized by the court as executor aud as entitled to act as suoli, cannot olaim that lie was recognized a3 a domiciled executor and is exempt from bond, wliere he does not clearly establish that at the time he had changed his domicile.
    ^Non-resident executors are not requested to take an oath, having already been sworn. The taking of an oath as executor here is a superfluity, and docs not qualify them. The giving of the bond alone does.
    Where there are two executors, and one qualifies and the other does not, the entire commission accrues to the one who has qualified. 25 An. 320, affirmed.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Zand & Zand for the Executor, Appellant.

      Alexander & Blanchard for Opponent and Appellee.
   Tiie opinion of the Court was delivered by

Bermudez, C. J.

The residuary legatee of the deceased opposes the account presented in this succession, in so far as it allows to S. Levy, Jr., as executor, the sum of $1,541.83, as his commission at 2$ per cent, on the amount of the inventory.

The opponent claims that the pretensions of Levy cannot extend to more than one-half of that commission, for the reason that his co-executor, Filer, having qualified as such, became entitled to the second half, but having subsequently been removed, forfeited his right thereto, the forfeiture enuring to the benefit, not of the co-executor who had qualified, but of the succession. ,.

The item had also been opposed by Filer, who claimed half of it.

The District Court held that Filer was not entitled to that half, that Levy had no right to it and consequently that it accrued to the succession.

The facts are: that L. Bodenheimer, who was domiciled in Shreveport, died in New York, leaving a wilL made there, whereby he ap- ' points as his executors, Levy, his partner, who was domiciled in Shreveport, and Filer, his nephew, who was domiciled in New York.

Filer came to Shreveport aud there presented a petition to tlfe District Court, representing himself as a resident of Caddo Parish, and, after proper allegations, touching the death and domicile of L. Bodeuheirner, the property belonging to him, the will probated in New York, his appointment as executor, aud after submission, as part of his petition, of all the proceedings had in New York on the subject, he prayed for the registry and execution of the will and for his recognition as executor thereof.

The court made an order, part of which is to the effect that Filer be recognized as executor and entitled to act as such.

Filer then took an oath for the discharge of the duties imposed on executors.

On discovery of those proceedings, Levy, the co-executor, charged that the order had been produced by fraudulent representations, that Filer was a non-resident, and that the order should be annulled, and that if not rescinded, Filer should be required to give bond.

Filer answered by a general denial, specially averring that at the date of his petition he was a bona fide resident of Caddo Parish, and that he was duly qualified, as executor.

After hearing considerable testimony on the question of residence, and other evidence, the District Judge reached the conclusion that, at the date of the petition, Filer had not ceased to have his domicile in New York, that the order should not however be annulled, but required Filer to furnish bond as a non-resident executor, within thirty (JO) days. This judgment was never appealed from and must be taken as ■ correctly rendered. Filer failed to furnish the bond.

It is admitted in opponent’s brief that hence, at the end of the delay given him, April 10th, 1883, he ceased to be executor.”

There can be no doubt that the order which recognized him as executor, and entitled him to act as such, was proper and valid, even on the face of the petition, in which he declared himself to be a resident of Shreveport. That petition was accompanied by proceedings from which it appears that he was domiciled in New York. The fact of a residence does not imply that of a domicile. 34 An. 911.

Therefore, when the District Judge made the order, he recognized Filer as a non-resident executor and authorized him to act as such, but only on complying with legal exigencies.

What were those legal exigencies?

In such cases’the law does not require that a non-resident executor should take an oath, because already sworn. 1 E. 263, Succession of Wedderburg; also, 12 An. 329. It merely subjects him to the giving of a bond. 7 An. 742; 12 An. 399.

Hence, the oath which Filer took was a superfluity, and did not qualify him. The giving of the bond was what would have qualified him. In that essential compliance he failed.

The judgment of the Court in the suit of Levy, to annul the order of appointment, or require a bond of Filer, is merely explanatory of the order, and is one and the same with it.

It therefore follows, that Filer never qualified as executor and that he never was entitled to a commission.

The remaining question is, simply, whether the half of the commission to which Filer would have been entitled (over and above the legacy made to him by the testator, with mention that it was to he in super) accrues to the co-executor, Levy, or to the succession.

The question admits of no doubt. It is correctly settled by the ruling in Hall vs. Salter, 25 An. 320, in which the Court distinctly held, that when there are two executors to a will, and one qualifies, while the other does not, the latter is presumed to have renounced the trust, and the former is entitled to the entire commissions.

In the Succession of Edwards, 34 An. 222, this Court held, that as one of the executors was a legatee, without express title to the commission, over and above, the other executor was not entitled to more than half of the commission. The reason for that conclusion is obvious : that the executor, who was a legatee, was considered as paid by the bequest, in the absence of option on his part between the same and the commission, before qualifying. Where, then, a co-executor has been paid his commission, how could bis co-official claim title to a full commission of 24 per cent, on the amount of the inventory ? We fail to perceive.

It is, therefore, ordered and decreed that the judgment of the lower court he avoided and reversed, and it is now ordered and decreed that the opposition of Isaac Bodenlieimer to the whole commission of S. Levy, Jr., as executor of the will of the deceased, as stated in the account, $1,541.83, be rejected, and that said Levy he recognized as entitled to the whole of said commission, opponent to pay costs in both Courts.