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does not show that a cabin for which $150 is allowed was erected by the de fendants, that item must be rejected. The allowance of $305.80 for the construction of a levee was properly made, but all the other items of improve ments, consisting of ditching, of rails furnished, of cemented cisterns shown to have become useless, are only ordinary repairs necessary to defendants' cultivation, and to meet usual wear and tear, and cannot be classed as improvements, within the contemplation of law. Daquin v. Coiron, 3 La. 398; Haynes v. Harbour, 14 La. Ann. 237. The amount of $695.28 allowed for lanes is correct. We therefore cast the account between the parties as follows:
Plaintiffs are entitled to the following rents: For the year 1880, 157 acres at 84.00,
628 00 Interest at 5 per cent. from December 31, 1880, to December 31, 1888,
251 20 For the year 1881,
628 00 Interest of 5 per cent. from December 31, 1831,
219 20 For the year 1882,
628 00 Interest of 5 per cent. from December 31, 1852,
186 40 For the year 1883,
628 00 Interest from December 31, 1883,
157 00 For the year 1884,
628 00 Interest from December 31, 1884,
125 60 For the year 1885,
628 00 Interest from December 31, 1885,
94 20 For the year 1886,
628 00 Interest from December 31, 1886,
62 80 For the year 1887,
628 00 Interest from December 31, 1887,
31 40 For the year 1888, 15 acres at $7.00, and balance at $1.00, 673 00
Total rents, Less one-fifth,
$6,825 40 1,304 23
Net amount of rents and interest,
$5,520 12 Defendants are entitled to the following amounts for improvements: For work on clearing lands,
$ 920 00 For costs of seven cotton-houses,
84 00 For costs of a levee,
305 80 For lanes,
Total, Less one-fifth,
Net amount of improvements,
$1,604 07 It is therefore ordered that the judgment appealed from be annulled, avoided, reversed, and it is now ordered that the demand of plaintiffs for rents be allowed up to the sum of $5,520.12, subject to a deduction of the sum of $1,604.07, allowed to the defendants for value of their improvements; and it is therefore ordered, adjudged, and decreed that plaintiffs do have and recover judgment against the defendants John Chaffe & Sons in the sum of $3,916.05, with 5 per cent. per annum interest thereon from December 31, 1888, until paid, and costs of suit in both courts.
WATKINS, J., having been of counsel, recuses himself.
MAHONY 0. MAHONY et al
(Supreme Court of Louisiana. January 21, 1889.) 1. GUARDIAN AND WARD-ACCOUNTING.
While a tutor is liable for the revenues yielded by the property of his wards, under his control and administration, and which he has collected, he is entitled to be credited, in a statement with them, with all disbursements for insurance, repairs, taxes,
board and lodging, etc., made by him in his official capacity. 2. SAME-AUTHORITY OF GUARDIAN.
He has no authority in making such disbursements, however necessary, to spend more than the revenues, and thus encroach on their capital, without the assent of
a family meeting, approved by the court. 3. SAME-MALADMINISTRATION.
A tutor who has in good faith taken charge of his wards, and administered their property as well as could have been done under straightened circumstances, cannot be charged with maladministration simply because, in the course of time, the buildings have become more or less dilapidated.
ON APPLICATION FOR REHEARING. 4. JUDGMENT-CORRECTION OF ERROR-REJEARING,
A clerical error in the computation of the amount of an indebtedness, though formulated in the decretal part of a judgment of the supreme court, may be rectified, and the correct amount specified, in passing on an application to review, with.
out granting a rehearing. (Syllabus by the Court.)
Appeal from civil district court, parish of Orleans; MONROE, Judge.
BERMUDEZ, C. J. This is a suit by the children of Luke and Honora Mahony against the succession of their tutor and uncle, for the revenues of property inherited by them from their authors, and which was under the administration of their said tutor, Francis Mahony, during five years and several months. They collectively claim $2,600, to be afterwards apportioned among themselves, the sum being the aggregate of rents received, averaged at about $40 per month. To the demand the succession answers substantially that the average rent was $20 per inonth, and that, after deduction of disbursements for insurance premiums, repairs, support of the minors, tutor's advances and commissions, the balance remaining is $98.15, which are tendered. From a judgment allowing the sum claimed in full, apportioning it among the heirs, the administratrix of the succession of the late tutor presents this appeal.
It is difficult, not to say impossible, to conceive how, under averments which for the best could, if proved, hold the tutor liable for the largest amount which the property could have yielded while in his administration, this otficial can be sought to be made to pay that sum, without crediting him with disbursements which be necessarily must have made. It appears that the only property owned by the plaintiff consists in a piece of real estate, with buildings, etc., thereon, which was appraised at the time of the appointment of the tutor, in 1879, at $1,000, although true it be that eight years previous the same had heen purchased for four times as much, part cash and part on time, and was assessed at $2,000. Much testimony was adduced to prove the condition of the buildings and the rentals yielded. It establishes clearly that they were in bad condition at the time of the death of Mrs. Mahony, the plaintiffs' mother and tutrix, who had had them in her charge and custody during the four years which intervened between her husband's death, in August, 1874, and her own, in December, 1878, and that they continued such, with the dif. ference that their condition grew worse as time rolled by for want of better keeping and repairing.
The testimony is vague, disconnected, unsubstantial, unsatisfactory, and surely does not establish that the property yielded $40 monthly during the
time that it was in the charge of Francis Mahony, the deceased tutor. Patiently and as attentively considered as it can be, it leaves the impression on the mind, however, that the property has rented for more than the $20 monthly admitted by the defendant during that period, and that, considering the fluctuations in the rental of property, the non-rental of the same, the nonpayment of rents, and the other incidental and unavoidable dis:ppointments in the same, an allowance of $30 per month during the course of the tutorship is a liberal one. This would give a total for the five years and eight months constituting that period of $2,010.
On the other hand, the heirs cannot be permitted to claim the whole gross rent received, and to ignore the counter-demands of the tutor. It would be idle work to enumerate specifically here the numerous items of disbursements for insurance, taxes, repairs, support of at least two of the minors, advances by the tutor, and his commissions on sums collected. It is enough to say that, in addition to the presumption attaching for such disbursements, the proof in the record establishes that the tutor is entitled for the same to a credit of $1,535, which would leave a balance in favor of all the children, four in number, of $505, or thereabout. The evidence shows, however, that no expense was. incurred for the minor Mary, who was cared for by a friend, and that since 1883 John has been self-supporting. The item for board, lodging, etc., during the tutorship must be borne by two of the children, and, to some extent, difficult to determine with exact precision, by John, but which may be set. down at $50. The share accruing in the residue to those two minors can not, nevertheless, be charged with the item for board, etc., for the reason that the tutor was not authorized by a family meeting and the court to encroach upon their capital. He ought to have restricted the expenses to the revenues. This entitles the minors to be relieved of the difference. It is proper to say that the charges of maladninistration against the tutor are groundless. It appears to his justification that, in the straightened circumstances under which he labored, he acted honestly and in good faith, and that his devotion to his nephews and nieces had involved him pecuniarily.
it is therefore ordered and decreed that the judgment appealed from be amended so as to reduce the amount allowed by it against the succession of Francis Mahony to $503, whereof $70.50 shall accrue to John Malony individually, $126.40 to Mary Mahony, represented by her tutor, and nothing to the other two minors, Cornelius and Francis, with legal interest froin judicial demand, and costs of the lower court, and that, thus amended, said judgment be atfirmed at appellees' cost.
ON APPLICATION FOR REHEARING. BERMUDEZ, C. J. A re-examination of the record establishes the fact that the succession of the tutor ought not to have been credited with the amount of city taxes since 1882 on the property of the minors, ils these were not paid. The amount must therefore be debited to the succession, leaving it therefore in debt for $780. By this operation the share of each child would be in. creased by $68.75, one-fourth of the amount improperly credited, practically benefiting John and Mary Mahony only.
A review of the record satisfies is that, as is admitted by the brief in support of the application for a rehearing, the deceased tutor is entitled to a credit of $1,280.62, exclusive of the taxes considered to have been paid, but which were not so. The amount due being $780, each child would be entitled to $195.25; John's share to be charged with the $50 mentioned in the opinion, that of Mary to go to her free from all counter-claim, and those of Cornelius and Francis to be burdened, as far as they go, with the claims of the tutor against them, which absorb those two shares, so that the minors receive nothing. The corrections can be made without granting a rehearing.
It is therefore ordered that the previous decree be amended so as to entitle
John and Mary (the latter through her tutor) to recover from the succession of Francis Mabony $340.50, whereof $140.25 to accrue to John Mahony and $195.25 to accrue to Mary Mahony, and that, thus amended, said decree become final and executory.
STATE v. BROUSSARD.
(Supreme Court of Louisiana. January 21, 1889.) CRIMINAL LAW-MISCONDUCT OF JURY.
While it is a rule in criminal jurisprudence that the verdict of a jury will not be vitiated by the fact that during the tria! the jury were allowed a moderate use of spirituous liquors, as a stimulant or refreshments, the doctrine will not be extended to cases where it is shown that at least two members of the jury consumed an inordinate amount of whisky, or other intoxicating liquor, within a few hours, from which they felt sick at the time that the verdict was reached. Such a glaring abuse of a dangerous privilege cannot be sanctioned or tolerated, but must be re
buked. (Syllabus by the Court.)
Appeal from Twelfth judicial district court; W. F. BLACKMAN, Julge.
Walter H. Rogers, Atty. Gen., for the State. E. J. Hunter and juin C. Ryan, for defendant.
Pocuk, J. Appealing from a sentence resting on a conviction of horsestealing, the accused presents numerous complaints, involving mainly the alleged misconduct of the jury who served on his trial. Our review of the case has led us to the conclusion that one of the acts of alleged misconduct of the jury is of itself fatal to the validity of the proceedings. That is the charge that during their deliberations the members of the jury were allowed to in. dulge in an excessive use of intoxicating liquors. It appears from the record that the case was given to the jury at about 6 o'clock in the evening, and that a verdict was reached the next morning at about 11 o'clock. It is in proof that during that space of time the jury were served with two pint bottles, and about four six-ounce bottles, of whisky, the greater part of which was actually consumed by only two members of the body. The evidence does not show by whom the liquor was furnished or supplied, or that it was done under the orders, or with the consent and approval, of the trial judge, and it is not shown that any of the members were or became intoxicated from the use of the liquor thus consumed; but it is in proof that in the morning, between daylight and 11 o'clock, two meinbers of the jury together drank and consumed a pint and a half of whisky, after which they became sick, and were unable to partake of any breakfast, and that they were in that condition at the very moment that the verdict was agreed upon.
We are constrained to believe that the absorption of so much intoxicating liquor on empty stomachs, after a night of discomfort, by these two jurors, must have had an injurious effect on their minds, and that it was the immediate cause of the sickness which they then felt. Under the facts in the record, and in view of the amount of the intoxicating liquor imbibed by these two jurors, we have no hesitation in holding that they, at least, were not in a condition to exercise the cool and dispassionate judgment wbich the law expects of every juror in deliberating over a cause involving the life or the lib
Mere drinking of liquor by a juror during the progress of a trial, without proof that he became intoxicated thereby, is not sufficient ground for new trial. Burgess v. Territory, (Mont.) 19 Pac. Rep. 558; Rider v. State, (Tex.) 9 S. W. Rep. 688. Contrit, People v. Lee Chuck, (Cal.) 20 Pac. Rep. 719. See, also, State v. Kennedy, (Iowa,) 41 N. W. Rep. 609. In general, as to when a new trial should be granted for misconduct of a juror, see Com. v. White, (Mass.) 19 N. E. Rep. 222, 16 N. E. Rep. 707, and note.
erty of a fellow-being, and that, as a consequence, the accused has not had a trial by twelve men, “good and true," as the law contemplates. We feel very confident that in thus ruling we make no departure from the line of jurisprudence under which it is settled that the verdict of a jury in a criminal cause is not to be vitiated by the mere fact that during their deliberations in a protracted trial the jury were allowed a moderate use of spirituous liquors as refreshments or as a stimulant. State v. Caulfield, 23 La. Ann. 148; State v. Dorsey, 40 La. Ann.-, ante, 26. It would be difficult to formulate any affirmative rule, or to prescribe an inflexible limit to the practice, and courts can do no more than to guard against excesses in determining such questions. But the circumstances of this case disclose an outrageous abuse of the privilege which no court will sanction or tolerate, and which loudly calls for rebuke from any one who believes in a proper administration of justice, or in the solemnity of trials, in criminal causes.
We have been at great pains to examine all the cases within our reach in which the point was raised, with varying results, depending upon the gravity of the charge, and we feel mortified to see that our reports will contain the worst case of its kind thus far to be found in the books. Proff. Jury, SS 459463. It is therefore ordered that the sentence appealed from be avoided; that the verdict of the jury be set aside; and that the cause be remanded to the lower court for further proceedings according to law.
STATE ex rel. REID, Sheriff, v. DISTRICT JUDGE.
(Supreme Court of Louisiana. January 21, 1889.) MANDAMUS-To DISTRICT Court-APPOINTMENT OF OFFICER-CONFIRMATION.
Mandamus does not lie to compel a district judge to give his approbation to the appointment of a deputy-sheriff whose name is submitted for contirmation by the sheriff, where he has refused to sanction it. His action is final, and cannot be re
vised by this court. (Syllabus by the Court.)
Appeal from Fourteenth judicial district court.
White & Saunders and Mr. Wells, for relator. Zacharie & Armstrong, for respondent.
BERMUDEZ, C. J. This is an application for a mandamus to compel the district judge to approve the appointment of a deputy, whose name was submitted to him, by the sheriff, for confirmation. In justification of his conduct, the district judge has made a lengthy return, which it is unnecessary to set forth. It appears that the sheriff has submitted to the judge for his approbation the name of one Dees as a deputy, and that the judge has refused to ratify the appointment. The sanction of the judge is required by law. Code Prac. art. 764. He is vested with a legal discretion in such matter, and, after he has exercised it, he cannot be required to undo what he has done, and act to the very reverse. In the instant case he has exercised that discretion, and his action is not revisable by this court. It is useless to determine whether the application of the sheriff for the confirination of the appointment made by him is a judicial proceeding or not; for, admitting that it is such, the relator discloses on the face of his petition no cause which can induce this court to subvert the conclusions of the district judge. Mandamus issues, in proper cases, to proceed, but is never allowed to recede. Id. art. 829. In instances of usurpation of authority or of transgression of the bounds of jurisdiction this remedy can be resorted to, but it cannot be asked and granted in the present case. This court has no power to go behind the reasons of the judge, and ascertain whether they are or not sufficient. The court