author: Poché, J.

text:
    No. 10,253.
    The State of Louisiana vs. Tom Broussard.
    While it is a rale in criminal jurisprudence that tlie verdict of a jury will not "be vitiated by the fact that during the trial 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 t-liat the verdict was reached.
    Such a glaring abuse of a dangerous privilege cannot be sanctioned or tolerated, but must be rebuked.
    APPEAL from the Twelfth District- Court, Parish of Rapides. Blackman, J.

      Walter H. Itoyers, Attorney General, and James Andrews, District Attorney, for the State, Appellee:

      H. G. Hunter and John G. By an for Defendant and Apx>ellant.
   The opinion of the Court was delivered by •

Poché, J.

Appealing from a sentence resting on a conviction of horse stealing, the accused presents numerous comjilaints, 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 indulge in an excessive use of intoxicating liquors.

It appears from the record that the case was given to tlie jury at about 6 o’clock in the evening, and that a verdict was reached the next morniug at about 11. 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 members 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 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 upon 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 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 which the law expects of every juror in deliberating over a cause involving the life or liberty 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 vs. Caulfield, 23 Ann. 148; State vs. Dorsey, 40 Ann. —

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 tlie worst case of its kind, thus far, to be found in the books. Proffatt on Jury Trials, pages 459, 460, 461, 462, 463.

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.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,244.
    The State of Louisiana vs. Jérome Aleck.
    1. Tli© District Attorney is the legal adviser of tli© Grand Jury, aud may be present at, mid assist them in, their examinations of cases, provided he does not take part in their deliberations as to their conclusions and findings.
    2. Under section 792, Revised Statutes, defining and punishing the offense of “assaulting another by willfully shooting at him,” no other malice is made an ingredient of the offense except that legal malice which the law implies and. presumes from the doing of an unlawful and injurious act without legal gratification. It was, therefore, no error for the judges on advising the jury of the necessity of finding that the assault and shooting were unlawful and willful, to charge them that the law presumed such malice as the statute contemplated.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Mowton, J.

      Walter II. Rogers, Attorney General,' for the State, Appellee.

      Dan. Voorhies and Felix Voorhies for Defendant and Appellant.
   Fenner, J.

The defense rests on five exceptions, viz:

1. The overruling of a motion to quash the indictment on the grounds of improper participation of the District Attorney in the deliberations of the Grand Jury..

The record satisfies us that the District Attorney took no part in the deliberations, not fully sanctioned by our recent decision in the case of State vs. Adam, 40 Ann. —.

2. The second mid third bills are founded respectively on the permission of the following questions:

First, ‘'Were you able to see, where ho stood, how the parties were-placed when the shot was fired 9 ”

Second, “ Whore you stood, were you close enough to see how the parties were placed, when the shot was fired 9 ”

The sole ground of objection was that the questions sought to elicit opinions from the witness instead of faets. The objection is utterly without merit.

3. The fourth bill was taken to the admission of a statement by a witness to the effect that “immediately after the shot was fired and whilst accused and Beslin were clinched together, they caught hold of the accused to wn-est from his hand the pistol which he held, succeeding in doing so only after a sharp scuffle with him.” The offense charged was “unlawffully shooting at,” and the judge states that the shooting referred to in the evidence was the one charged and that the intervention of the witnesses and their scuffle were parts of the same transaction without the slightest interval of time between them. On this statement his ruling that the incidents were part of the res gestae, is evidently correct.

4. The final exception is taken to the following portion of the charge of the judge:

“In cases of assault by wilfully shooting at, there is no necessity for the State to prove that it was maliciously done, because if the shooting at is proven, the law presumes that it was done with malice, for no one will shoot at another with any benevolent design.”

We recently held under this very statute (R. S. § 792), that to “assault another by wilfully shooting at him ” was, under the express terms of the statute, constituted a distinct and separate offense, and that it was sufficiently charged in the words of the statute without any allegation of malice or other intent. State vs. Brady, 39 Ann. 689.

Malice is not, by the statute, made an ingredient of the offense, except that legal malice which the law presumes from the doing of an unlawful act, and which is imported into the statute by the use of the word “ assault,” which, in its legal definition means “ any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of an immediate physical injury.”

The coru’t did not exempt the State from the necessity of proving an unlawful assault and wilful shooting. On the contrary, in his written charge, the judge carefully advised the jury that “ it is not in all cases that shooting at another is violative of law. In certain cases, as in self-defense, a person has a right to shoot at another,” etc., proceeding to give illustrations.

The meaning of the charge is, therefore, nothing more than that the State was only bound to prove an unlawful assault and shooting, and that from such unlawful and injurious act, committed without legal justification, the law implied and presumed that intent which constitutes legal malice.

We think in this the judge did not err. Bishop Cr. Law, §429.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,249.
    The State of Louisiana vs. Borée Peterson.
    1. In case tlie record shows that the prisoner was brought to the bar of the court when tin*, trial commenced and that the trial was concluded at the same continuous sitting of the court, and without there having been any intervening adjournment held, the presence of the prisoner throughout the entire proceedings mustbe presumed.
    2. During the progress of the trial of the accused for murder, it is permissible for the State’s'counsel to so amend the indictment as to alter the given name of the deceased, or his initials, and conform it to the proven facts in the case. This was a matter of form, and not of the essence of the crime charged.
    3. The counsel for the accused requested the judge to charge the jury that “in order to “ excuse a homicide on the ground of self-defense, it is not necessary that there should be ‘ actual and impending danger; that the true test is whether the defendant, at the time of “ the act, honestly believed, etc. — had reasonable grounds to believe that lie was in inime- “ diate danger of loss of life, or of the infliction of great bodily harm, and that he had “ no other apparent means of escape."
    The judge declined to thus charge the jury, on the ground that, under the law, an actual assault or demonstration must be shown; but that, in other respects, the requested charge was correct, substantially. Held: there is no substantial difference between the charge requested and the one that was given; and that the opinion of this Court in State vs. Chandler. 5 Ann. 487, contains the law of self-defense as administer'd in the courts of this State.
    APPEAL from tlie Thirteenth District Court, Parish of St. Landry. Lewis, J.
    TTWter if. Sogers Attorney General, for the State, Appellee.

      Henri/ L. Garlmid, W. G. Perrault and JS. P. Veaeie for Defendant and Appellant:
    1. Indictment, charging accused with murder of one B. C. Miller, cannot be amended so as to read Harry R. Miller, without proof of identity of person. The amendment is one of substance. This case is assimilated to a case of rape, where it must be proved that one actually raped was one mentioned in indictment. Accused has the right to be informed of nature and cause of accusation. Wharton on Homicide, par. 749; Wharton’s Crim. Evidence, 9th Ed., §94; Wharton Grim. Practice and Pleading, 8th Ed., §116; Yoorhies Crim. Jm\, p. 382; State vs. Morgan, 35 Ann. 1139.
    2. Under our law, actual asssultnot necessary to justify killing in self-defence. True test is, whether defendant, at time of killing, honestly believed and had ground to believe, that he was in imminent danger of loss of life or infliction of great bodily harm. Knob-loch’s .Criminal Digest, p. 142, and cases cited; 14 Ann. 557, Mullen’s case; State vs. St. Gome, 31 Ann.; 5 Ann. 489; 35 Ann. 970.
    ASSIGNMENT OE ERROR.
    Record must show aftimatively that the prisoner was present in open court when verdict was rendered. State vs. Eord, 300 Ann. 311; State vs. Outs, 30 Ann. 1156; State vs. Byrd, Manning’s Unrep’d Cases, 303; State vs. Davenport, 33 Ann. 231; State vs. Johuson. 35 Ann. 208; Wharton’s Crim. Practice and Pleading, 8th ed., §§ 549, 741 and 871; Bishop's * Grim. Practice, § 272; Proffat’s Jury Trial, § 454.
   The opinion of the Court was delivered by

Watkins, J.

Prom an unqualified conviction of murder, the defendant appeals, and, for relief at our hands, lie relies upon an assignment of error, and two bills of exception.

J.

Pretermitting any expression of opinion with regard to the timeliness of the filing of the assignment of error, we think the point of objection urged is fairly met and answered by our ruling in State vs. May Ford, 38 Ann. 797, in which we said:

“ All of these proceedings were had upon one and the same day, and without any adjourment of the court. The prisoner was present in ojien court when the trial commenced, and miist have been at the close, when the verdict wa;s rendered. The rejiitition of that recital in the minutes would have been unneccessary. Had there been an adjournment of the court after the jury had retired, or had the verdict been rendered on a subsequent day, that recital in the minutes would have been necessary, and its omission fatal.”

The error assignedis that the minutes do not show that the prisoner was jiresent when the verdict was rendered. The record shows that the prisoner was jiresent when the trial began, and that the trial was concluded at one sitting of the court, and without there being any intervening adjournment. His presence, throughout the proceedings must be presumed.

This objection was not well taken.

II.

During the progress of the trial, the District Attorney offered to amend the indictment by changing the Christian name of the deceased from R. C. Miller to Harry O. Miller, and the defendant’s counsel objected and excejited on the ground that said amendment could not he thus made without proof of the identity of the person. The Judge correctly overruled the objection, for the reason, lie assigned, “that it was shown to the satisfaction of the court that R. O. Miller and Harry C. Miller were one and the same jierson.”

The jiurpose of the amendment was not to substitute the name of another person, but to correct the Christian name of the jierson killed. This was admissible under R. S. 1047; 35 Ann. 1139; State vs. Morgan, 39 Ann. 224, 234.

III.

The defendant excepted to the refusal of the, Judge to charge the jury that “in order to excuse a homicide on the ground of self-defense, it is not necessary that there should he actual and impending danger. The true test is whether the defendant, at the time of the act, honestly believed, etc. — had reasonable grounds to believe that he was in immediate danger of loss of life, or of the infliction of great bodily harm, and that he had no other apparent and safe means of escape.” The Judge declined to give this charge on the ground that under our law an actual assault or demonstration must he shown; hut he stated to the jury that the charge, as requested, was, in other respects, correct.

It occurs to us that there is hut little difference between the charge requested and the opinion entertained by the Judge; for it is difficult to perceive how au accused could have “reasonable grounds to believe that he was in immediate danger of loss of life, or of the infliction of great bodily harm,” if no actual assault had been made upon him, and no demonstration of hostility had been exhibited.

In Chandler’s ease, our predecessors said: “If there be an actual, physical attack of such a nature as to afford reasonable ground to believe that the design is to destroy life, or commit a felony upon the person assaulted, the killing of the assailant will he excusable homicide in self-defense.” State vs. Chandler, 5 Ann. 489.

This is the doctrine of the Selffidge case, as applied in this State, and that doctrine has been followed, substantially, in numerous cases since. State vs. Berkley, 6 Ann. 554; State vs. Jackson, 33 Ann. 1087; State vs. Labuzan, 37 Ann. 489; State vs. Chopin, 10 Ann. 458; State vs. King, 22 Ann. 454.

Evidently the charge, as requested, was somewhat misleading, and the instructions given to the jury were in substantial conformity to law, and the Judge committed no error.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,221.
    Succession of Joseph Llula.
    The legal acknowledgment of an illegitimate child in accordance with Act 203, and the legitimation of a natural child in accordance with Act 200 G. C., can be made in one act, exe cuted before a notary public, in presence of two witnesses.
    Such an acknowledgment and legitimation carries out the object of the law, which is to discourage eoncubinago by compelling the parent, under penalty of tlie legal disinherison of illegitimate offspring, to publicly avow his shame before a notary public and witnesses.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Henry P. Part and A. L. Tissot for the Universal Legatee and Appellee:

      3.* This controversy is between the collateral relatives oC the decedent and his legitimated child, who was also named his universal legatee.— The attack is on the testament. We contend that it cannot be set aside until the act of legitimation is properly contested and .set aside.
    An act of legitimation, drawn according to Article 200 C. C., is not controverted by pleading wherein it is vaguely alleged that the * ‘ child has never been legally acknowledged,— acknowledgment being one thing and legitimation another. A plea which affirms one's status as a natural child, precludes plaintiffs from asserting the contrary.
    2. Evidence was improperly received, to maintain the cause of action thus set forth— as the act of legitimation must be attacked by a direct action.
    3. Article 198 et seq. C. C. provide for distinct classes of‘legitimation under C. C. 200, is not subject to the rules established for same act in C. C. 198. See Talbot vs. Porter, 28 Ann. 3, and succession of Colwell, 32 Ann. 265.
    4. One of the natural parents may legitimate their issue, under the very terms of Article C. C.; more especially should this be so when the other parent is dead.
    5. Legitimation, under C. C. 200, needs not be preceded by the formal act of acknowledgment provided for in Article 203. The articles cover two distinct purposes. To acknowledge an illegitimate child so as to give him a status as such, there must be a compliance with latter article. To legitimate under Article 200, it is sufficient to declare the paternity in same act, — this is evident, because it is not otherwise provided in Article 200, and to decide otherwise would provide a penalty to a statute which contains none. 6 L. 570; 33 Ann. 1103; 43 Ann. 209.
    O. Natural children maybe classified into (1) those who maybe acknowled; (2) those who cannot be acknowledged; and the first class may be again subdivided into those who have been recognized by the parent, and those who have been legally acknowledged, — the doing of this last act does not make the child a natural child, but attaches to him- a status as an acknowledged natural child.
    7. The statutes concerning legitimation constitute a body of law applicable to that subject. They must be construed together, and acts made pursuant to these laws are not to be read by the articles C. O. and jurisprudence regulating acknowledged or unacknowledged natural children. See Colwell» succession, 34 Ann. 265.

      W. S. Benedict for the Opponents and Appellants.
   The opinion of the Court was delivered by

McEnery, J.

Joseph Llula, who was never married, was the father of a daughter, Louisa, issue of Lena Neiss. Louisa is now the wife of Manuel Suarez Miranda. On the 4th day of May, 1882, in order to acknowledge and legitimate his daughter, Louisa, Joseph Llula appeared before a notary public and executed the following act:

“ Be it known, that on this fourth day of May, in the year of onr Lord one thousand eight hundred and eighty-two, and of the Independence of tiie United States of America, the one hundred and sixth, before me, Edmund Augustus Peyroux, a notary public, in and for the City and Parish of Orleans, State of Louisiana, aforesaid, duly commissioned and sworn, and in the presence of the witnesses hereinafter named and undersigned, personally came and appeared Joseph Llula, Iisq., residing in this city, which said appearer. declared and acknowledged by these presents, that his daughter, Louisa Llula, wife of Manuel Suarez Miranda, born on the twelfth day of December, 1848, is his natural issue with the late Lena Neiss; that there existed at the time of the conception of said child no legal impediment to the intermarriage of himself with the said late. Lena Neiss ; that he has no ascendants, nor legitimate descendants.
And the. said axipearer moreover declared, that availing himself of provisions of the laws of the State of Louisiana, authorizing natural parents to legitimate their natural children, he hereby makes this act declaratory of his intention to legitimate his aforenamed daughter, and he does, by these presents, legitimate her to all intents and purposes.
“ And the said appearer does hereby assume towards her, the said Louisa Llula, wife of Manuel Suarez Miranda, all the duties and obligations of. a legitimate parent, and hereby declares said Louisa Llula, wife of Manuel Suarez Miranda, legitimate to all intents and purposes, and entitled to all the rights and privileges accorded by law to legitimate children.
Thus done and passed in my office, at the City of New Orleans, on ilie day, month and year herein first above written, in presence of Messrs. John L. Tissot and Hon. Aristée Louis Tissot, who have hereunto signed their names, together with the said api>earers and me,, notary, after due reading of the foregoing.
“ Original signed:
“Joseph Lu:i.a.
“ J. L. Tissot.
“ A. L. Tissot,
“ E. A. Pisyroux,
■ “Notary Public.
“ A true copy from the original.
“New Orleans, May I¡5, 1882.
“Signed: “E. A. Pevroux, Notary Public.”

On August 14, 1882, he made a nuiumpative will by public act before E. A. Peyroux, notary, in which lie declared that his father and mother were dead; that lie had only one child, Louisa Llula, born on the 12tli slay of December, 1848, and he bequeathed to her liis entire estate, and nominated and constituted her his universal legatee. On March t>, 1888, Joseph Llula died. The above will was admitted to probate. Pedro Llula and Mrs. Francisca Pitre, brother and sister of Joseph Unla, attack his will, alleging that he left no ascendants or acknowledged descendants, and that Louisa was never legally acknowledged by her father, and Unit ho, could not, make a, will in her favor, to the exclusion of the said In-other and sister, and pray that the will be set aside and annulled.

The plaintiffs in the suit to annul the will contend that Louisa Llula should have been duly acknowledged by her father, Joseph Llula, in accordance with Article 203 O.-O., before the act of legitimation was passed; that only illegitimate children who have thus been acknowledged become natural children, and that natural children only can be legitimated. They deny that the acknowledgment and legitimation can be made, in one. act.

In the Civil Code, as adopted in 1825, there was only one mode provided for the legitimation of illegitimate children. Article 217 and Article 198 provided for the legitimation of children, except those born from an incestuous or adulterous connexion, by a subsequent marriage of the father and mother, whenever they had legally acknowledged them for their children, either before marriage or by the contract of marriage itself.

The legal acknowledgment and the legitimation under this article, could be,-made in one act — the contract of marriage. It was the, intention of the. Legislature to extend, and not to restrict, the mode of legitimating children by the adoption of Article 200 of the Code, providing for, another method of legitimation.

If the act of acknowledgment in accordance with Article 203, had been passed, and immediately thereafter, in the shortest interval possible, another act legitimating Louisa, had been passed before the same notary, in the, presence of the same witnesses, tlie-re can-he, no douht but that the, act of legitimation would have been legal and valid and in strict accordance with the letter of the law. The acts would have followed in natural sequence, tending to the same end and accomplishing the same, purpose. There is no reason .why the. two declarations cannot be made in one act, as they both are for the accomplishment of the same purpose. The act of legitimation, in the, instant case, conforms to Article 203 ('. ('., for the acknowledgment of the illegitimate child, and to Article 200 O. O. for the legitimation of the natural child, Louisa Llula.

In Dupre vs. Caruthers, 6 Ann. 156, it was said, in alluding to the. intention of the Legislature in adopting the articles of the Code, relating to the acknowledgment and legitimation of children horn out, of marriage: “* * * * But we know the objects of the Legislature: Jn the. first place, to honor matrimony, which is of such incalculable importance to society; and, in the next place, to discourage concubinage, which tlie cause of much dissoluteness and evil. To prevent it the Legislature held out the strongest motive which (‘¡m influence ¡1 parent — the legal disinherison of his offspring, unless he avows his sham? before. ¡1 notary public and witnesses, or in the face of the church.”

The object of the law was fully carried out when Joseph Lhda, obeying those strong motives alluded to by the court, appeared before E. A. Peyroux, notary public, avowed bis shame publicly in the presence of two witnesses, and then and there, still further obeying his strong natural impulses, legitimated bis daughter, thus removing, as the reward of his public avowal, the stain of illegitimacy from his (laughter Louisa, and giving her the rights in law of a child born in wedlock.

For these reasons the judgment appealed from is affirmed, with costs.


author: Bermudez, C. J. Bermudez, C. J.

text:
    No. 10,180.
    The State ex rel. Jefferson City Gas Light Company vs. The City of New Orleans.
    I’ndor the terms of the original contract* of 1807, with the City of Jefferson, the company is entitled to $45 per annum for each gas lamp put up •with municipal authority and used, and under the resolution of 1868 to $50 per annum for each lamp erected and used on the streets named in the instrument. It is also entitled to $45 per annum for each lamp raised and used with municipal authority on any other street in the former cities of Jefferson and Carrollton.
    By the act consolidating those cities with the City of New Orleans, the latter was burdened with the contract obligations of the, former, which can in no way be impaired.
    The proof is insufficient as to part of the claim for a larger appropriation.
    APPEAL from the Civil District, Court for the Parish of Orleans. Tmot, J.

      Frwnk N. JBiUler for the Relator and Appellee:
    1. Relator has a contract with the City of Now Orleans, as the successor of the cities of J effevson and Carrollton, to light the Sixth and. Seventh municipal Districts with illuminating gas. for a period of thirty years, or until March 9th, 1899, at the rate of $50 per lamp per annum.

      Vide: Act before P. E. Davis, notary public, dated April 24th, 1867; confirmed and enlarged by Act before Bonj. Campbell, notary public, dated May 10th, 1868; ratified and extended by the Legislature of Louisiana in Act No. 96 of 1869, approved March 9th, I860: and, further extended by a Notarial Act passed before Bonj. Campbell, notary public, dated January 14th, 1870; and by-another Notarial Act before John F. Coffey, notary public, dated January 18th, 1871.
    2. The. City of New Orleans, as the .successor of the cities of Jefferson and Carrollton, is by law compelled to carry out relator's contracts with those cities. Vide: Act of Extra Session of 1870. § 34: Act 71 of 1874. § 5 ; New Orleans vs. Clark. í)5 IT. S. 050.
    3. Relator has a contract and constitutional right to an annual appropriation of $50 per lamp, and to the levy of a tax sufficient to meet and to pay tire same; and, if necessary, for the realization of its claim to exhaust the limit of taxation existing at tin* time its said contract was entered into.

      (a.) The limit of municipal taxation, at the date of said contract, was fifteen mills on the dollar of valuation of taxable property. Vide : Act No. 364, of 1856, § 124: Act No. 57, 3867, § 7, par. 6: Act No. 75. of 1868, § 8, par. 6; Act No. 7, Extra Session. 1870, § 12. par. 20.

      (b.) .Relator's claim being founded on contracts entered into when the rate of taxation was limited to fifteen milla, the subsequent reduction of that limit to ten mills, conld nof and did not deprive relator of its vested and constitutional right to the levy of a tax hi the extent of fifteen mills, if necessary to realize the amount due under said contract. Vide: Art. 155 and 258 Constitution of Louisiana of 1879; Art, 130, Constitution of Louisiana of 1868: §30 of Art. 1. Constitution of the United States: Saloy vs. City of New Orleans, 38 Ann. 79 ; State ex rel. Marchand vs. City, 37 Ann. 17 ; New Orleans vs. Clark, 95 U. S. 652; State ox rel. Wood vs. Board of Liquidation, 40 Ann. 430; Nelson vs. Parish St. Martin, U1 U. S. 720, 722; Mobile vs. Watson, 116 U. S. 305: Jefferson City Gas Light Company vs. City, No. 25 Court of Appeals. Parish of Orleans, N. It.
    4. 'Relator has a contract right to supply and light all the gas lamps it has erected, or that, it may put up, until the expiration of its exclusive franchise; and the city is bound to provide in each annual budget an amount sufficient to pay relator for every lamp thus erected and lighted. Vide: Act No. 96, of 1869, p. 125; also above authorities.
    5. llelalor’s rights extend to every lamp erected and sux>plied with gas light in conformity to its said contracts: its rights are not restricted to the lamps upon the streets designated in the original contract, but extend to all other lamps. Vide : Act No. 96, of 1869, p. 125: Vide: Contract with City of Jefferson, dated January 14th, 1870. ( Record pp. 45 and 48.)
    6. Iielator is not confined to the revenues of 1888 for an appropriation and tax to pay for the. lamps supplied and lighted during the year; its right to an appropriation and to a suflieiout tax to pay the same, is a continuing right: and exists until relator's said claim is fully paid. Nelson vs. St. Martin’s Parish, 111 U. S. 722: Mobile vs. Watson, 116 U.S. 305.

      Samuel L. Gilmore, Assistant City Attorney, for Respondent and Appellant.
   The oinniou of the Court was delivered by

Bermudez, C. J.

The company complains that the city authorities have placed it on the budget of 1888 for $30,000, instead of $45,000, to which it is entitled for gas furnished and to be furnished the upper districts during said year, at the rate of $50 for each of 810 lamps, under contracts with the former cities of Jefferson and Carrollton, to which tin; City of New Orleans has succeeded, burdened with their obligations.

The prayer is that, the budget be amended so as to raise the appropriation accordingly, and that eventually a tax sufficient to pay the claim he levied upon all taxable property within the limits of the city.

The answer practically is a general denial. Whatever else it may contain is argumentative.

From an adverse judgment, the city appeals.

'(’he matter in controversy is one purely of fact, the. questions of la w raised being indisputable.

We have carefully examined the contracts, the Act of incorporation, the legislative statute's, the municipal resolutions and ordinances, and the other evidence adduced on the trial of the case, and have realized that, although under the Resolution of April 27, 1868, of the Council of Jefferson City, the company be entitled to recoven- $50 per annum for e-acb of the gas lamps used on the streets therein named, it cannot, demand more than $45 per annum, under the original contract of April 24, 1867, for each of the other lamps erected and used in Jefferson City, and this it could do only where the same have been put up under municipal direction.

No stipulation is to he found in the contract with the City of Carroll-ton of January 18, 1871, which would make the use of gas lamps by it, more expensive than for the City of Jefferson.

Surely, no provision exists authorizing the company to recover $50 per annum for each lamp wherever erected and used within the two upper districts of the city, the Sixth and Seventh.

Act 90 of 1868, which recites the two contracts of 1867 and 1868, does not do so, and the Act of Incorporation of the company, which is also included, of'June 12, 1868, is silent on the subject.

Its solitary object was, as its title indicates, to ratify and confirm certain rights and privileges granted by the City of Jefferson, and to ratify and confirm an act incorporating the Jefferson City (4as Light Company, and to extend the rights and powers of said company.

While, under a formal admission in the Record, it appears that 568 lamps only, have been placed on the streets named in the resolution of 1868, there is nothing to show that the remaining 247 lamps, which arc not on the streets of Jefferson City, have been raised or lit at the instance of either of the cities or of the City of New Orleans, beyond an ordinance of October 5, 3882, authorizing the company to lay pipes and put up lamps in the Sixth District, and an agreement, to pay for the use of gas for 1886 and 1887, at $87 50 per annum for each of the 765 lamps then in existence.

There is no proof to show how many lamps had been raised and were being used on other streets at the bringing of this suit, and what agreement, if any, was ever entered into, in relation to the lamps on streets not named.

So that, conceding- that the city is liable at the rate of $50 per annum for each lamp used on the streets named in the resolution of 1868, and of $45 per annum for other lamps erected and used, this Court is left without means to ascertain the amount to which the company may be entitled for the use of the lamps on the unnamed streets.

Under the circumstances the claims of the company to $50 per annum can be presently recognized only for each of the 568 lamps on those sírcete mimed in the. resolution of 4868, and its right to more, for lamps put up on other unnamed streets, reserved for future consideration.

'Pliis means Unit the company is entitled to an appropriation for $28,-150 on the budget of expenditures for 1888.

Before concluding, it is proper to say tlia.t the position of the company is legal, to the effect that the rights which it has acquired in the, premises, prior to the. consolidation of the two cities of Jefferson and Carrollton, with the City of New Orleans, are unassailable, under both Federal and State constitutional guarantees, and that the concurrent obligations of the contracts, under which they became vested, have, not been and could not be impaired by any constitutional, legislative or municipal provision, and that eventually, it is entitled to the levy of the, tax claimed in the petition.

It is, therefore, ordered and decreed that the amount of appropriation specified in the judgment appealed from be reduced from $45,000 to $28,150 (twenty-eight thousand one hundred and fifty dollars); that the right of the. company to the difference, be reserved for ulterior’consideration, and that thus amended, said judgment be affirmed at appellee’s costs.

Ox Application por Rkiibarinu.

Bermudez, C. J.

Tlie relator contends that there is proof in the Record that 117 lamps have been raised and lit by municipal authority from the, city of Carrollton, but does not complain about the non-allowance, for the remaining 180 lamps — or other parts of the'.judgment.

The, rights of the, plaintiff to claim for both the. 147 and the. 180 lamps have, been fully reserved in the original decree and continue so to be.

A re-examination of llie evidence does not satisfy us, that we should, on the strength of it, now malee an allowance for 117 lamps claimed.

When the plaintiffs shall claim for the 180 lamps, it will be no inconvenience for them to claim also for the 4 17 lamps, which, if it is proper, will be allowed on stronger proof.

Clerical errors alluded to in the opinion have been corrected.

Rehearing refused.


author: Berudez, J.

text:
    No. 10,252.
    The State of Louisiana vs. Emma Young.
    On a prosecution Cor larceny. declarations of Che accused, made previous to and at flic lime of arrest, are admissible to show intent and repel the charge, of “ felonious” taking. 'I'he . objection goes more, io the effect than loathe admissibility. ‘

      APPEAL from tlie Sixteenth District. Court, Parish of East Feliciana,. Brame, J.

      Walter H. .Rogers, Attorney General, and J. //. Rtone, District Attorney, for the State, Appellee.
    IP. F. Kernan for Defendant and Appellant.
   The opinion of the Court was delivered by

Berudez, J.

The defendant relies on several bills of exceptions for the reversal of the verdict and sentence against her, on a charge of larceny.

Tt appears that she offered to prove by different witnesses, the declarations made by herself, before accusation, previous to, and at the time of arrest, to repel the charge of a felonious taking and carrying away, and that the District Judge declined to hear argument on the subject and to permit the evidence.

However true it may be that self-serving declarations may not always form part of the res gestee, it seems to be well established that an accused has the right to show that, having the article said to have been stolen in his possession, he has avowed, before being questioned concerning it, having taken it by mistake, or from his own negligence. Green-leaf 3, § 157.

“It is the doctrine of reason, sustained by some of the cases, and not apparently contradicted by any, in a way requiring notice, that when stolen property is found upon one, or in his possession, attention should be given to his own explanation then made of how he came by .it, and this explanation may be produced in evidence to the jury, in his behalf, as well as against him.” 2 Bishop on Grim. Prac., § 746; Wharton, Crim. Evidence, Nos. (191, 7(11; Waterman, Cr. Digest, pp. 381-2, Nos. 90, 92, 99 and p. 411, No. 443.

The doctrine in this State rests upon that princiide. State vs. Thomas, 30 Ann, 600; State vs. Delwood, 33 Ann. 1229; State vs. Chrétien, 35 Ann. 1031; State vs. Edwards, 34 Ann. 1012.

It- appears that the accused proposed to show by three, witnesses, that before the arrest she had showed them the article, telling them it belonged to a certain party; that she had taken it from the child; that she had inadvertently and unintentionally brought it away; that she intended to return it the next day, and that she repeated the same thing to the constable' who arrested her, at the time, of the arrest.

She claims that, had said evidence been admitted, it would have repelled all idea of a “felonious ” taking and established her innocence.

It is not, for this court, nor was it for the lower court, to say, what effect tlie evidence, if received, would have produced on the jury.

It is clear that, without, a felonwus taking there can be no larceny, and that., had the testimony been admitted and satisiied the jury of the absence of a felonious intent, and taking, it. would have been their duty to acquit the accused.

it is, therefore, considere,d that the evidence refused ou^bt to have been received.

It is, accordingly, ordered and decreed that the verdict, and judgment appealed from he set aside, annulled and reversed, and that this case be remanded to the lower court, with instructions to hear the evidence proposed, and further to proceed according to law.


author: Bermudez, C. J.

text:
    No. 10,290.
    Morris Edrington vs. Louisville, New Orleans and Texas Railway Company.
    ín an action for damages against a chartered railroad company, to hold it. responsible for injury sustained in consequence of a fire alleged to have been occasioned by sparks emitted from one of its locomotives, the law requires the proof: that the sparks so emitted were the cause of the ignition and that, to all probability, the wrong is tbe result of the careless use and negligence of tbe company in not using such proper scientific contrivances and appliances as most effectually arrest the emission of such sparks and prevent consequent haim to property.
    Pretormitting the questiou of burden of proof, on the latter, nol only lias the plaintiff in this case failed to establish tbe former, but has the defendant shown physical impossibility for tbe existence of tbe fact and exonerated itself from all charge of carelessness and negligence.
    APPEAL from the Twenty-sixth District Court, Parish of St. John the Baptist. Rost, J.

      Prentice M. litlrinylon for Plaintiff and Appellee:
    ICvery act whatever of mini that causes damages to another obliges him by whose fault it. happens to repair it. Civil Code of Louisiana. Article 2335.
    livery person is responsible for the damage he occasions, not merely by bis act, but his negligence. bis imprudence, or his want of skill. C. O. Article 231(5.
    Masters and employers are answerable for tbe damage occasioned by their servauts and overseers in the exercise of their functions in which they are employed. ('. C. .Article 2320.
    Fire being necessary to run engines, and. being at the same time a dangerous agent, more than ordinary care is necessary from tbe officers or engineers running and managing the engine. Thompson on Negligence,, pp. 168. 153 : 55 Wis. 106 : 30 Wis. 110.

      Tho fact that fires are communicated are evidence of negligence. 1 Redfield on Railroads, p. 4G7, §.1.
    When tho evidence allows tlie destruction of property by sparks omitted from the ongine of defendant} company, at time antecedent to tlie destruction of plaintiff’s property, tho presumption of law, as to negligence, is against defendant. Law and authorities. 9 Nev. 271; 55 AVis. 106; Thompson on Negligence, p. 153; TJ Rorer, p. 802; 1 Otto (U. S. S. C.) 454 : 32 N. Y. 339: 42 Ills. 355-58; 54 AVis. 140 ; 131 Mass. 469; 41 Ind. 228.
    Negligence can be proved by circumstantial evidence in cases of fire from locomotives; and it is nofc necessary for plaintiff to do more than show such circumstances avS lead to the inference of negligence. AVharton on Negligence, § 871; Thompson on Negligence, pp. 131-153.
    Negligence vel non is a question of fact for the jury to decide.
    Negligence in most cases is a mixed question of law and fact, and when there is a conflict as to tho time, as to tlie true state of facts involved, is a question for the jury to docido. 35 Penn. GO; 40 Penn. 406 ; 48 Penn. 320; 90 Penn. 15.

      St. 31. Bémult and Farrar, Jonas cfi Kmttsehnitt for Defendant and Appellant:
    1. In a suit claiming that a damagiug tiro has been propagated by sparks emitted from the engine of a chartered railway company, the burden of x>roof is on tho xilaintiff to show:
    (a) That the fire was propagated hy sparks emitted from the engine.

      (b) That such omission was due to the negligence of the dofendant or of its employes.
    2. Tlie law never presumes the willful omission of duty from tho proof of a fact which in tho ordinary course of business may, and does happen from accident, when the party’s liability for the consequences of the fact depends not on the nature of his business or me ployment; hut on the tact of his negligence or want of proper care.
    3. AVliethor the burden of proof be upon plaintiff or dofendant, all the authorities are unanimous that the negligence which alone, will render defendant liable is the omission of such diligence as good specialists in this department are accustomed to exercise — the failure to use the best practicable machinery, and every reasonable x>recaution such as is usual among good engineers; and the measure of care against accident which will exonerate defondant is that which a person of ordinary prudence and caution would use if his own interests were to be affected, and the whole risk wore his own.
    4. Under all authorities, if the defendant shows that its engine was. at the time of the fire, equipped with the most effectivo practical applianoos to provent the escax)e of fire, was in good repair, and properly and skillfully managed, it will not ho held liable.
    5. In support of the above propositions, we cite the following authorities: Knight vs. Opelousas II. It. Co.. 15 Ann. 105 : The Nitro-Crlyoorino Case. 15 AVall. 537-538: Wharton on Negligence, § 868 ot seq.: Pierce on Railroads. ])p. 437 jind 437 : Redfield oil Railways, vol. 1, § 125 et seq.. x>ar. 5 et seq.; Angelí on Carriers, § 566; Shearman and Redfield on Negligence, § 332; Wood on Railways, vol. II. § 328: Burroughs vs. Housatonic R. R. Co., 15 Conn. 134: Phil, and Reading R. R. Co. vs. Yeager. 73 Pa. Stat. 125; Reading* and Columbia R. R. Co. vs. Lueshaw. 93 Pa. Stat. 452; Ruffher vs. R. R. Co.. 34 Ohio, 96; Sheldon vs. Hudson, etc., R. R. Co., 14 N. Y. 218.
    6. The evidence in the case at bar utterly fails to show that the destruction of plaintiff’s property was due to fire commuuicated by sparks from a locomotive, of the defendant railway company.
    7. If the tire was due to the cause alleged, there is no evidence of negligence on tho part; of defendant or of its employes.
    8. There is abundant affirmative proof that the defendant company exercised all proper care •in providing its locomotives, and especially the locomotive which is claimed to have damaged plaintiff, with all proper appliances o.f. the'most approved pattern, and that the locomotivo which is alleged to have caused the Are was in a perfect condition at the time of the Are.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to recover from the defendant the value of a barn and contents destroyed by fire, alleged to have been occasioned by sparks ■ emitted from the smoke stack of one of the company’s locomotives, on the evening of December 11th, 1887.

The charge is that, the injury is attributable to the fault and nogligenre of the defendant, in failing to use such scientific improvements as would have prevented the emission of sparks and consequent destrucstruction of property by ignition.

Practically, the answer is the general issue and a special denial of negligence.

From the judgment, rendered on a verdict for about half the amount claimed, the defendant presents this appeal.

In a suit like this, brought against a chartered company, it is necessary that a plaintiff should prove two things, viz:

1. That the fire was occasioned by sparks emitted from defendants’ locomotives; and

2. That, to all probability, the injury caused is the result of the carelessness and negligence of the defendant.

The evidence establishes conclusively, that the barn and contents, consisting in a large quantity of valuable pea-vine hay, were destroyed by fire, on the evening of the 11th of December, 1887, between the hours of 6 and 7, shortly after the passage of a south bound locomotive and train of defendant. It also shows, that the hay house was situated at a short distance of one hundred and fifty feet from the road and that it had an opening facing the track.

It is admitted by the plaintiff that there was no eye witness to the ignition of the barn by the sparks from the defendant’s engine,” but it is claimed that the circumstances point to that fact; that there is no counter theory offered by the defendant and that the damage is chargeable to the absence of caution and to the negligence of defendant.

Several witnesses were heard on behalf oí plaintiff. Two declare that they were on a road, at about twenty to thirty feet from the shod, when the train passed; that the locomotive was emitting numerous sparks as large as the end of the thumb; that there was a high wind from the north, in the direction of the barn, and sparks may have gone, one says, about an acre, the other, a hundred feet; that they noticed the barn on fire some five minutes after the passage of - the train, the fire coming out of an opening in tliefbuilding .toward the track. Two other witnesses testify, that they saw'áre set by sparks from defendant’s engine to rice, hay and corn fields at distances ranging from forty to one hundred feet. A last witness, the stable minder of the hay house, says, that, on the day of the occurrence, between 6 and 7 o’clock p. m., he was on the gallery of his house, which faces east, at a distance of some twenty-five feet from the road, when the train, which was behind time-went through; that he did not exactly notice that sparks were emitted from- the locomotive on that particular day, although he did on other occasions. On cross-examination, he declares that he smokes, went into the hay house between 3 and 4 o’cloch, was not then smoking, smokes only when in his house. This is all of plaintiff’s jiroof.

Had plaintiff rested his case here, it might possibly bo claimed that the judgment rendered, is justified; but it is difficult to conceive how, in the presence of all the counter proof introduced by the defence, such judgment can be sustained.

Whatever might be the force of plaintiff’s evidence, as circumstantial proof, if it stood alone, it would be circumstantial proof only. In estimating its force all the circumstances must be considered together. In doing so, it is apparent that the evidence adduced by the defendant establish circumstances, which overthrow and destroy the effo'ct of plaintiff’s testimony.

The evidence of plaintiff is purely conjectural and to a certain extent, not to be underrated, self-destructive.

It surely does not show that the sparks omitted from the locomotive were seen flying, or carried in the air, from it, to the shed and that, on “falling there, they set the building on fire. Neither does it establish that the accident, if it happened as alleged, is attributable to the carelessness and negligence of the company in not using proper appliances to prevent such occurrences and injury to proi>erty or that, under the circumstances, it exhibits a condition of things which shifts the burden of proof from his shoulders upon the defendant, which as a chartered corporation may be entitled to greater immunity than if not authorized by law.

It would serve no useful purpose to discuss that interesting question which, however, considered and dealt with by other courts of last resort, in our sister States and abroad, has not been passed upon in this State as yet.

Conceding arguendo, however, that the plaintiff has by the juoof adduced, thus shifted the burden, we are clear that the testimony offered by the defendant is of such grave character, as entitles it to serious consideration, before treating it as nugatory and inflicting on a corporation, legally empowered to carry on the business of transportation by steam power necessarily generated by lire, tlie reparation of damages for which it would uot otherwise be amenable.

The engineer who drove the locomotive, from the smoke stack of which, sparks are said to have been emitted which destroyed plaintiff’s hay house, says, that, when he passed through the plantation, she was throwing some little sparks and some fine dust of sparks that came out alive from the stack; that they could be seen, if it was dark enough; but that, he thinks, it was not dark enough that time to see them plainly; that the engine did not throw sparks very far, that he comXilained of her blowing them too close down inside the cab ; that it was a mighty poor engine for getting rid of the sparks, that he tried to get a change of cone, as the one she had was too large, as it made the engine work against herself in regard to steam and throwing the sparks down. He says that the stack used is known as a diamond stack, x>rovided with a cone and a netting, or spark arrester, which are tried and successful npx>liances, used for the purpose of preventing large sparks from passing through the stack, which, when forced up by the steam from the tiro to the stack, are, when large, beaten up and down under an internally supported surface, or circular roof, under the netting, until, by this process, reduced to such small size, as will x>ermit them to pass harmlessly through the netting,— the parts pulverized being sent back and expelled by the lire box beneath.

The master of transportation declares positively that, after sparks leave the stack, they are thrown straight in the air and may possibly get as far as fifteen or twenty Coot from the centre of the rail, owing to the velocity of the train ; that, when it runs fast, the sparks do not go even that far; that a spark, coming through the netting on the smoke stack, used on the locomotive in question, would live fifty feet, either side of the track; that it is im]iossiblo to xiass any thing through ■Hhe netting that is not. ground up to one-sixth of an inch; that a gallon of sparks emitted through the netting weighs about three and a half pounds, and this gives an idea of how -many sparks there are in it and what is the weight of each one.

The foreman of the machine shox>s says, that it would be just as absurd to attribute that fire to the sparks emitted from that engine, as to attribute it to the sparks from an engine in England. A spark emitted, lie says, from a diamond stack would have to he fired out of a gun to roach a distance of forty feet, as, there is no weight in the spark to carry it that distance, and no coal or wood spark could be alive on reaching that distance. Its fast speed through the air would chill a coal spark before reaching that distance, and would break a wood spark to atoms.

Tt is not claimed that any but .coal was used in this case.

The master mechanic says, that sparks might go behind the train as far as a hundred feet, but could hot set anything on fire beyond that distance, and that he does not think that it is possible that the barn in question could harm been set on lire by sparks emitted from the locomotive alluded to, supplied as she was.

Another master mechanic corroborates this testimony, resting his opinion on facts, also.

The chief engineer of the New Orleans Fire Department says, that he has an experience of twenty years in combatting and extinguishing fires, and that it is not reasonable to suppose that a spark of a quarter of an inch could set fire to anything after traveling twenty-five or thirty feet through the air, and that a locomotive, running at such speed and the wind blowing hard, could not throw sparks alive much further.

The testimony of those witnesses is unimpeaclied. It bear the semblance of truth in all of its parts and cannot be considered as barren of effect or suspicious, simply because it emanates from employees of the company.

The discrepancy between the testimony of two of plaintiff’s witnesses as to the size of the sparks and the distance through which they wafted, and that of other witnesses on the same or kindred subjects, is easily accounted for and reconciled by the notable and recognized circumstances that, owing to a certain optical delusion, the size of a light and the space through which it may be carried, during darkness, are by a wise dispensation of nature invariably magnified to considerable disproportion.

Were it true that, from the facts proved by the plaintiff, namely : the passage of the train, the emission, of sparks from its smoke stack,-and five minutes afterwards, the ignition of the barn, a presumption arose that the fire was occasioned by the sparks emitted, which threw the burden of contradiction and of proof of proper care and attention, etc., on the company, we think that the testimony thus offered has effectually repelled' that presumption by establishing quite the reverse, namely: the talcing of all the required precaution' and the physical impossibility of the occurrence, under the circumstances charged.

It is such as well suggests the probability of fire from some other cause, which may be imagined, either because the barn was exposed to such accident, by being on a road of foot and vehicle traveling, or was in cliarge of one wlio smoked and who accidentally or without noticing it, might have been instrumental in the accident, or spontaneous combustion, or some other cause.

Aj>art from these considerations may it not well be asked: whether the plaintiff was not guilty of contributory negligence, by having an ox>ening in the hay house towards the track and by leaving it unclosed, as it must have been, if the fire was occasioned by some external cause, and besides: whether, under the circumstances, the fact of the plaintiff’s barn, being at a distance within which it could be set on fire by sparks from locomotives (taking his theory for true), the maxim, volenti non fit injwia, may not be applied?

A close examination of the testimony satisfies us of the identity of the smoke stack or spark arrester referred to by the witnesses with that used on the locomotive in question, so effectually, that we deem it unnecessary to discuss that matter of fact.

We conclude that the defendant had just cause to appeal.

It is, therefore, ordered and decreed that the verdict of the jury be set aside and the judgment upon it be reversed and annulled and that there now be judgment in favor of defendant rejecting plaintiff’s demand, with costs in botli courts.


text:
    No. 10,213.
    Mary J. Ashbey, Tutrix, vs. Joseph H. Ashbey et al.
    Tlio rights which children have against their surviving father or mother, for their shares of community property, adjudicated to the surviving spouse, and which lie hold in usufruct, must not be confounded with the rights accruing to them by reason of the tutorship.
    Tlio action for account of the usufruct is barred by the proscription of ten years only, to bo computed from the termination of the usufruct. Cochran vs. Violet, 38 Ann. 525.
    Courts cannot supply the plea of prescription, which must be pleaded specially and dhstinotly.
    An averment by tlio pleader that, in the same matter between the same parties, but in a diiferont suit aud in another court, he had pleaded prescription, is not sufficient as a plea in the latter case.
    The character of an action must be determined from the nature of the relief prayed for. A prayer for the nullity of a mortgage, in so far as relates to the complaining creditor’s rights, characterizes tlio suit as a revocatory action.
    The lapse of time within \vhich a revocatory action must be brought, is not a term of proscription strictly speaking; it is a forfeiture of action by delay; and not affected by the rule of law which provides that prescription does not run against minors. Hence the rule of Article 1987, Civil Code, fixing the delay of one year as a forfeiture of tlio right of action therein conferred, must apply to minors as well as to persons of age.
    It is, therefore, a proper plea for a defendant in a revocatory action brought by a tutor for his . ward, as judgment creditor of the common debtor.
    The plea cannot be iifi'ectod by an action as operating a suspension of the dolay proscribed by law, if it appears that such action was dismissed for the reason that the party who had brought it had no interest in the matter, and was not a creditor of the debtor, whose act was assailed as being a fraudulent preference of one creditor over another.
    An action judicially declared to be a nullity can produce no legal effect.
    APPEAL from tire Civil District Court for tlie Parisli of Orleans. Monroe, J.

      J. S. & J. T. WMtalcer for Plaintiff and Appellee:
    1. By the Code of 1870 proscription does not run against minors unless specially mentioned. The Code of 1870 and all the rules upon the subject require that full effect shall be given to the exceptional and subsequent provisions of Articles 3522 and 3554, taken in connection with Article 3541, in so far as they might be considerod effected by tbe anterior and general provisions of Article 1987.
    2. When plaintiff alleges a fraudulent transfer of property to his prejudice this is sufficient to maintain a suit to annul a transfer. 28 Ann. 938.
    3. A mortgage made by an insolvent to his children, to the prejudice of a creditor having a just claim, for the purpose of screening all his property from pursuit under pretense of securing rights long prescribed and under, false statements, in said act of mortgage, of the existence of a judgment by a competent c'ourt in their favor, may he annulled and set aside.
    4. The effect of a judicial mortgage in favor of a person of full age ceases even against tlie contracting parties if the inscriptions have not been renewed before the expiration of ten years in the manner in which they were first made. C. C. 3369.
    5. The action of the minor against his tutor, respecting the acts of the tutor, is prescribed by four years, to begin from the dayof his majority. C. C. 362; 38 Ann. 529. A second marriage puts an end to the usufruct of property. 38 Ann. 529.
    6. The adjudication to minors and the mortgage resulting from it does not settle or liquidate the question of liability of tutor to his children, it being competent for him to show in making settlement that he had paid tlie débts oi the community and that there was nothing due to the minors. 2 Ann. 282; 12 Anil. 78; 34 Ann. 510.
    7 • In a suit brought by maj ors against their father as tutor, it is competent for him to plead prescription of four years, and an intervener in said suit may interpose said plea if lie fail to do so. 8 Ann. 504; 37 Ann. 809.
    8. ‘Seizures and notice interrupt prescription as in cases of executory process. 33 Ann. 305; Article 2244 Code Hapoleon; Marcade. p. 134, vol. 3.
    9. A suit unsuccessful on final decree followed by another between the same parties, or substantially the same, and for the same cause of action, interrupts the prescription of one year if the first was brought immediately after final judgment in the first suit. 37 Ann. 722 and 34 Ann. 413.

      A. J'. Leíais for Defendants and Appellees:
    The liriiit of one year to tlie revocatory action, provided by Article 1987 (1982), R. C. C., runs against minors. 24 Ann. 211; 5 R. 85; 39 Ann. 29.
    Ho suspension thereof is produced by a suit brought by a tliird person, said by this Court in 39 Ann. 235, to be the only plaintiff and to have had no interest therein. 28 Ann. 412.
    The adjudication to the survivor of the community of the shares therein inherited by tlio minor children, is a sale and not a money judgment. 21 Ann. 643 ; 25 Ann. 349 ; 5 Ann. 598.
    Such adjudication cannot be attacked collaterally. 2 Ann. 394; 23 Ann. 17.
    By it tbe common becomes the father’s separate property, and he owes the minors the price, 5 Ann. 598. whereof he has the usefruct, winch is prescribed by ten years from its termination. 37 Ann. 224; 5 Ann. 121; 13 Ann. 35*0.

      Prescription must, bo formally plead, and the burden of proof is on him who pleads it.
    When tho minor’s rights were thur fixed and liquidated by such proceedings regularly had in the Probate Court, in 1857, and formally set forth in a notarial act and in a judgment of court, both recorded promptly at that date in the mortgage office, the inscription again made as required by tho Constitution of 1868, and Act No. 95 of 1869, preserved the legal mortgage of the minors, who wore still sucli and under the tutelage of their father. 25 Ann. 611; 34 Ann. 1041; 35 Ann. 943.; 39 Ann. 222.
    The minor's claims being thus liquidated, no account is necessary where they make no additional claim. 23 Ann. 361; 24 Ann. 190 ; 12 M. 106; and the prescriptions of four and ten years, if plead, do not apply.
    The prayer of tlio petition characterizes the action. 5 Ii. 132 ; 20 Ann. 170.
    A mortgage granted to his children hy the father, recognizing and securing their claims against him resulting from such adjudication, rostston a sacred, lawful cause, as well as a natural obligation. To be attacked, it must be alleged and shown that the entire judicial proceedings were simulated and intended to defraud creditors. Where plaintiff'’s petition and evidence all show the reality of the minors’ rights and their liquidation in 1857, at a time not suspicious and when tlieir father was in prosperous circumstances, plaintiff cannot attack tho subsequent recognition by the father of such debt as a fraud. 4 L. 256; 10 Ii. 363 ; 4 It. 408; 12 P. 141; 26 Ann. 467 ; 12 Ann. 429 ; P. C. C. 4759 (1752), 1900 (1894).
    Plaintiff’s judgment may be reduced by way of defense, as well as by direct attack, where a payment of $1500 has been denied but subsequently admitted in another suit. 40 Ann. 288; 32 Ann. 1248; O. C. 21 65 (2162): 2 Ann. 817; 15 Ann. 174, 526; 16 Ann. 294; 20 Ann. 569; 25 Ann. 315.

      Armand Filié, Curator ad hoc, for absent Defendant:
    1. When tho action is barred by prescription,'a natural obligation still subsiste, and is a sufficient consideration for a new contract. Pev. O. C., Articles 1758 and 1759.
    2. Although not so expressly provided for by law, annual prescription runs against minors, not only when found conducive to the preservation and alienation of immovable property. 5 Pob. 85, Troplong, de la Prescription, No. 1038, Duranfcon, vol. 16, No. 237, but also wheu resulting from a legislative enactment, which, if not in direct terms, yet virtually, derogates from the general rule of Articles 3522 and 3554 of the Pev. C. Code, and thus forms an exception thereto. Pev. O. C., Article 13; 24 Ann. 211; Aubry & Pau, vol. 2, p. 335 and note 5.
    3. The term, of one year mentioned in Article 1987 of the Pev. O. C., is, strictly sp-oaking, less a species of prescription, though, commonly so called, than a delay of forfeiture, vn délai de déchéwnce, whereby an action is forfeited by the mere fact of its not having been brought within the period prescribed bylaw; and this, without, as is the case with the creditor in tlio matter of prescription, any presumed negligence, or idea of renunciation, on the part of him to whom the action belonged: dies actionis exit vel abit. Aubry & Pau, vol. 8, p, 426, No. 4.
    There is also this further difference between prescription and delays of forfeiture, that the latter run against all persons without exception: majors, minors and interdicts. Aubry & Pau, uH supra, Duranton, vol. 21, No. 290; Troplong, de la Prescription, vol. 1, No. 27 and vol. 2, No. 1038; De Préminville. de la Minorité, vol. 1, 354; Vazeille, vol. 1, 258 and vol. 2, 268.
    4. Prom a suit brought by one without any real or actual interest which he pursues, and which, therefore, is nothing more than the semblance of a suit — amere deluciou — no legal consequences, sucli, for instance, as the interruption of prescription, can be made to ffow. C. P. Article 15; Leberman & Co. vs. New Orleans and Havana Steamship Com. pany. 28 Aim. 412; Knoop et al. vs. Blaffer et al., 39 Ann. 29.
    The civil interruption of proscription, or of a delay of forfeiture, and which intoiTuption pro. eeeds from executory process, or a citatioii. is strictly limited to the parties between whom the act of interruption has taken place, to the absolute exclusion of all other persons, except in matters of solidarity, indivisibility, and suretyship: d persond ad personam non fit interruptio, passivé nec activé. Marcado, de la Prescription, pp. 124 and 147: Laurent. Oours de droit élémentaire, vol. 4, 639.
   Tlie opinion of tlie Court was delivered by

Poché, J.

This is a revocatory action brought by the tutrix of a judgment creditor of the defendant, Joseph Ashbey. Its object is to annul a conventional mortgage executed by said Ashbey in favor of his son, Louis Ashbey, and of his daughter, Martha B. Ashbey, wife of William P. Healey, and intended to secure them in an indebtedness of $5606 19, due to them by their father as the usufructuary of their shares of the property hitherto belonging to the lega^ community existing between their said father and their deceased mother.

The main ground of attack is that the assailed mortgage was fraudulently intended to defeat plaintiff tutrix from recovering the amount due to her minor child in her judgment against Joseph Ashbey, who owed nothing to the mortgagees, and who was at the date of the mortgage, helplessly insolvent, to his own, and to the knowledge of the other contracting parties.

The prayer of the petition is for. the nullity of the mortgage, in so far as it relates to the rights of the complaining creditor, and to subject the property to the ranking judicial mortgage of tire minor, who is the real and only plaintiff in the suit.

The defense is a general denial and the plea of prescription of one year, under the provisions of Article 1987 of the Civil Code, which reads as follows:

“No contract made between the debtor and one of his creditors for the purpose of securing a just debt, shall be set aside under this section, although the debtor were insolvent to the knowledge of the creditor with whom he contracted, and although the other creditors are injured thereby, if such contract were made more than one year before bringing the suit to avoid it, and if it'contain no other cause of nullity than the preference given to one creditor over another.”

The assailed mortgage was executed on .the 20th of May, 1885, and the present action was brought on the 29th of March, 1887.

The judgment of the District Court, was in favor of plaintiff, and defendants appeal. Under our understanding of the pleadings, the issues presented in the case involve the discussion of the three following questions:.

1. Did Joseph II. Ashbey owe a just debt to his two children, Louis and Martha Aslibey, in May, 1885, when he granted them the mortgage assailed, and was such mortgage merely a preference of one creditor over another 9

2. Are the provisions of Article 1987 of the Civil Code, which limit the revocatory action within one 3ear, applicable to minors ?

3. If so, lias the plaintiff done any act which suspends the operation of the law as to Ms present action ?

I.

The pertinent facts bearing on the point of discussion are substantially as follows :

The succession of Martha B. Ashbey, wife of Joseph H. Ashbey, and the mother of the other two defendants, was opened in the proper court in May, 1857, at which time both of said defendants were minors.

On the petition of Joseph H. Aslibey, as surviving partner in community, in which he urged his claim to hold in usufruct the shares of the community accruing to the minor children, issue of the marriage, and in which lie prayed that their interest aforesaid be adjudicated to him at the price of inventory thereof, a family meeting was convened and held in behalf of said minors to deliberate on the subject matter.

On the recommendation of' the family meeting, whose proceedings were duly homologated, judgment was rendered in favor of the prayer of the petitioner.

The judgment, not only operated the adjudication as prayed for, but it liquidated the interests of the minors, which were fixed at $5605 18, and “remitted” the matter to a designated notary public in order to complete the adjudication.

The judgment was signed on Januaiy 23, 1858, and the notarial act, which it contemplated, and in which the minors were represented by their under-tutor, was executed on the 23d of September of the same year; it was registered in the proper office on the 29th of the same month.

It then appears that, on the 21st of April, '1885, Louis Ashbey and Martha B. Ashbey Ilealoj'', who had become of age and who had left the State, brought suit, in the United States Circuit Court, against their father, for judgment in the sum of $5605 18, annexing to their petition a copy of the notarial act just referred to, and which, in legal effect, was but a repetition of the judgment of January 23, 1858, by which their claims against their father had been determined and fixed. In that suit Mary J. Ashbey intervened in her own right and as the natural tutrix of her children, for the purpose of resisting plaintiffs’ claim, to which she interposed numerous objections, all resting on a claim, which she was then pressing in a Staie Court, against Joseph II. Aslibey, the common debtor, including among her ploas that of the prescription of four and t'en years in bar of plaintiffs’ right of'-recovefy.' A judgment by default was rendered against the defendant, but thecase proceeded no further, and it is yet undecided, the default haying' never been confirmed.

' It was at this juncture that the act of mortgage between Joseph II. Aslibey and his two children was executed on the 20th of May, 1885.

The judgment in the State Court, in favor of Mary J. Ashbey, Tutrix, vs. Joseph H. Ashbey, rendered on May 11, 1885, and which was held in suspense by a motion for a new trial, was not signed before the 29th of that month.

Hence plaintiff realized the necessity of removing the mortgage of May 20th as an obstacle in the way of. her minor son’s judgment, and to that end is her present action.

In her petition herein she recites some of the facts and incidents hereinabove stated, including the allegations contained in her petition of intervention in the Federal Court, and she attacks the mortgage of May 20th as a fraud against her minor son, and as á fraudulent device to defeat her son’s rights under his judgments-, and she concludes with a prayer for a decree setting aside said mortgage, and deciding it to be, “so far as relates to petitioner, tutrix,'etc., fraudulent, null and void, revoking said mortgage and setting it aside-'and declaring all the property mentioned in said act of mortgage, etc., to be subject to the judgment of petitioner aforesaid, etc., etc.” We conclude from the prayer, as just quoted, that the suit is 'simply the'revocatory action as defined in our code.

. Hence it follows, as already stated, that the first point of investigation is to ascertain what was the real status of the indebtedness, if any, of Joseph H. Aslibey to the mortgagees-at the date of the mortgage.

For the purposes of this case, under the -restricted issues to be discussed, it is unnecessary to determine whether the mortgage resulting from the judgment of adjudication of January 23, 1858, had been i>reserved by inscription and timely re-inscription. _ No claim is pressed under that mortgage.. The vital question is whether the indebtedness resulting from the judgment was, or not, .alive .at the date of the mortgage herein assailed.

The fundamental error of the judgment appealed from, the reasons of which are made part of their brief by plaintiffs’' counsel, consists in considering, as an issue in the case, the plea of prescription of four years, as a bar to any claim in favor of Louis and Martha Aslibey against their father, growing out of the tutorship.

Id this case, plaintiff lias entirely failed to set up am/ plea of prescription at all. Tlie only allusion to prescription, in lier petitition, is contained in the recital of lier pleadings as intervenor in the case in the Federal Court. There the plea was made, as hereinabove stated, and there alone it is entitled-to consideration and discussion. Courts cannot supply the plea of prescription, C. C. 3403, and a statement in pleadings that a plea of prescription was interposed in another suit, in a different court, although between the same parties, and affecting the same rights, cannot be construed as a sufficient plea in the action under consideration.

The next error of the judgment, which flows as a corollary from the principal or main fallacy, lies in the contention that the indebtedness which Ashbey was intending to secure by tlie assailed mortgage grew out of his tutorship of his co-defendants. From the mortuary proceedings had in the settlement- of his wife’s succession, which are not assailed, which could not be assailed collaterally, and which took place at a time not suspicious, it clearly appears that tlie indebtedness of the father to his children grew out of the usufruct of their shares of the community property, and not out of the tutorship. It appears from the inventory that the deceased wife and mother owned at least one piece of separate and movable property, which the survivor kept, and that the estimated value of that property did not- figure in the proceedings which liquidated tlio minors’ interests in the community.

His accountability for that property would result from the tutorship, but as regards the one-half of the community property, his liability grows out of Ms usufruct, and it has been fixed by the judgment of January 23, 1858, as a debt due for the purchase price of the minors’ shares of said property, which he withheld under the law. And for such an account the prescription of ten years only could have prevailed. Cochran vs. Violet, 38 Ann. 525.

But that prescription is not pleaded in the case, and hence it cannot be considered as-an issue under the pleadings. And it is very doubtful whether it coidd have availed plaintiff even if it been specially and distinctly pleaded as part of the revocatory action, because this is not a case in which the children are seeking to enforce liability for an account of usufruct against their father, either adversely to him, or over objections by intervention of his creditors.

The rights of those defendants have been determined by a solemn judgment; their right to an account qf usufruct has been repeatedly and continuously admitted and recognized by the usufructuary debtor, whose mode of accounting was by means of the Act of May 20th, 1885.

Should it even he conceded that on the face of the papers the claim of defendants was prescribed, there was no legal- impediment to the father’s treating the indebtedness as a natural-obligation, which is recognized in law as a sufficient consideration for a new contract. C. C., Art. 1758, $ 3, Art. 1759, § 2; Succession of Edmond Dejepm, 8 Ann. 505.

. The new contract Avas entered into on the 20th of May, 1885; it is hoav an accomplished fact; the mortgage which it created is anterior in date to the judicial mortgage held hy: appellee.--- Proscription cannot he attributed a retroactive effect, so as to destroy rights Avhich Avere duly revived, even if apparently extinct, and Hence , tlie plea, if made, could not have been considered. In these proceedings those rights are resisted as having no existence, and the- act' AAdiich Avas intended to secure them is attacked as fraudulent.

For Avant of countervailing proof, the action fails in so far as their existence is concerned. Hence Aoavs the conclusion, that the claim covered by the. mortgage was a just debt within the meaning of the Code.

But the record shows that tile debtor was., in sol vent at the time, as well to the knoAA’ledge of the mortgagees ás to. his orvn, that the mortgage was intended to give a preference tó his children oA'er the complaining- creditor, and that the latter A\dll be/'-injured thereby if it is sustained. ’ '

Hence the act was open to his attack, as .conferring an undue preference, and his action must be maintained unless it is barred by the lapse of one year as provided in Article 1987 of. the Code.

II.

And that- brings us to the second point of discussion in the case.

Appellee’s contention, which Avas adopted by ¡the District Judge, is that the delay of one year prescribed by Article 1987 of our Code, oiy the subject of revocatory action, does not apply to minors, against Avliom prescription does not run, under the textual proA’isions of the Code. Articles 3522, 3554.

That proposition naturally suggests the inquiry whether the delay prescribed by the Article is technically a termof prescription as contemplated in civil laAV.

According to that system, “prescription, is a mariner of acquiring the ownership of property, or discharging debts, by th£ effect of time, and under the conditions regulated by larv.”. Cíat.1 Code, Article. 3457. Code Napoleon, Article 2219. . ■ ■ -- 1

The essence of prescription is that the party who invokes it as a remedy, thereby acquires the ownership of property or is thereby discharged from a debt or obligation. • , . ,

Now in tlie contract herein assailed by the revocatory action, the defendants can acquire no property or be discharged from no debt or obligation by and through the lapse of one year which they plead in bar of plaintiff’s action.

The rights of mortgage which they claim were acquired by the Act of May 20th, 3885, and the indebtedness to be secured thereby, accrued to them by right of inheritance from their mother) and was liquidated by the judgment of January 23d, 1858.

The defendant, Joseph H. Ashboy, cannot be beneñtted by the plea; his liability to plaintiff, the minor, is fixed by the judgment of May 29th, _ 1885, and his indebtedness to the others is determined by the act of mortgage of May 20th, 1885. Under any event his property, the common pledge of his creditors, will be forfeited to him.

The only advantage which his co-defendants can derive from the plea, is the defeat of plaintiff’s right, under the law, to inquire into their mortgage rights, and avoid their legal effect.' The grant of that right to a creditor, known as the revocatory action, is coupled wish a condition, and that is the limit of time within which it must be exercised.

It would, therefore, seem that the lapse of time thus prescribed by the law is more in the nature of a term of forfeiture than a term of prescription. Nothing is acquired by the lapse of time, but a right is destroyed by inaction during the prescribed time.

That idea must have prevailed in the minds of the compilers of the Code, and of the legislators who adopted it, for it appears that the rule of law under discussion is not to be found in the Code under the title of “ Prescription,” not even in the paragraph of the section which treats of the proscription of one year; but it is to be found under the title of i‘ Conventional obligations,” and in the section entitled : “ What contracts shall be avoided by persons not parties to them.”

But, should it be conceded that the term or limit of time proscribed by the article can be construed as moaning technically prescription, it appears to have been the clear intention of the framers of the Code not to have excepted minors from the effect of the shortest term of prescription as established in our law.

Article 3541 reads: “ The prescription mentioned in the preceding article, and those described above in paragraphs I and II, ran against minors, and interdicted persons, reserving, however, to them, their recourse against their tutors or curators.” The paragraphs referred to are those which treat of the prescriptions of “one year” and of “three years.” Hence it is that this court, in commenting on the prescription of one. year as a bar to the action for the supplement of the price on the part of tho seller, and that for diminution of' the price, etc., on the part of the buyer, under the provisions of Atricle 2474 (now Article 2498) of the Code, used the following language: ’“It.runs against minors from tho day of the sale. * * * This short 'and absolute prescription was found conductive to the security and alienation of immovable property.” Sowell vs. Willcox, 5 Rob. 85.

These considerations apply with great force to the revocatory action, and are strongly sirggestive of the wisdom of restricting that right of action within a short space of time, and of making the restriction applicable to all persons, without the slightest discrimination in favor of minors.

It is of the very essence of the reason which requires a short term for action that it should apply alike to minors, for otherwise the object of the law could frequently be defeated. It is easy to conceive that the minor, who is the real plaintiff in this .case, might be only two years of age, and hence the matters at issue herein could he held in suspense for nineteen years, during which túne confusion'would characterize all questions connected with the mortgage rights’of the defendants in this case. Such a construction would surely not be “conductive to the security and alienation of immovable property,” and would defeat the precise object contemplated by the law-maker when he restricted the right of action within the short space of one year.

No doubt can be entertained of the .wide-distinction which exists in our system of laws, between the rules which regulate tlie mode of acquiring rights by the lapse of time, which is, strictly speaking, prescription, and the principles which govern the mode of circumscribing certain judicial actions or proceedings within a prescribed limit or space of time.

The question came up before this Court in’the case of Beaird vs. Russ, 34 Ann. 315, in which one of the parties contended that the modes of interrupting prescription defined in the Code under that title, could be applied to tho delay for appeals as fixed by law. After referring to the definitions of “ prescriptions ” and of “ appeals,” the Court said :

“ As will be readily seen, one is a rule of action jirescribing 0ne of the modes of acquiring property, or of discharging debts, the other is a rule of jiidicial procedure looking to the correction of an alleged judicial error. The only element in common between prescription and appeal is that of time; in the former it is' the essential element, in the latter it is only incidental, and intended only to regulate or limit the exercise of the act.”

It is too plain for argument that the same difference exists, and that the same distinction must be observed, between tbe rules which govern prescription, strictly speaking, and those which prescribe, the lapse of time which limits the exercise of the right of the revocatory action.

The same distinction is recognized in French jurisprudence, as shown by the writings of learned commentators on that system whence ours has derived.

Thus, iu the Droit Civil Franjáis,” by Messrs. Aubry and Rau, vol. 8, p. 426, we find the following language which bears directly on our present discussion :

La prescription proprement dite se distingue facilement, et par sa nature máme, des dóchéanoes résultant de l’expiration des délais accordés par la loi, par la convention, ou par le juge, soit, pour l’exeroice d’une option ou d’une faculté quolconque, soit pour le paiement d’une obligation ou l’exócution d’une condemnation. II ne faut pas, non plus, confondre la prescription proprement dite avec les dóchéances qu’ent-raine l’écoulement d’un dólai prófix auquel la loi, en accordant une action, en a limité l’exercice.” * •*
lí A la difference de la prescription, qui est suspendue en favour des mineurs et des interdits, les délais emportant dóchéauce courent contre eux, aussi bien que contre les majeurs jouissant de leurs droits.”
“ C’est á, ce point de vue surtout qu’il importe de distinguer les déchóances de la prescription extinctive.” (Note 16, p. 427).

We, therefore, feel fully warranted to conclude, and to hold that the lapse of time prescribed by the article, within which to institute the revocatory action, is not suspended as to minors, and that the rule fixing the delay was properly invoked by the defendants in this case. Hence the. present action came too late, unless appellee’s contention, that her previous action in this matter operates a suspension of the, rule, is correct.

III.

That contention involves the third question in this case, as herein-above indicated. In that connection the following facts are of record: On the. 24th of August, 1885, a suit was brought by Mrs. Mary J. Ashbey, who therein obtained a judgment in the lower court annulling the mortgage herein assailed as a fraudulent preference in favor of the defendants, Martha I?. and Lewis Ashbey. On appeal to this court the. judgment thus rendered was reversed on the distinct and exclusive, ground that Mrs. Ashbey had no interests in the premises, not being the owner of the judgment of May 29, 1885, rendered in favor of her children. Ashbey vs. Ashbey, 39 Ann. 105.

This is the action which is now held up.as a. legal interruption of the delay fixed by law for the revocatory action.

But the very reason for which her action was dismissed, to-wit, her absolute failure to show a real and actual interest which she was then pursuing, is a sufficient answer to her present contention as tutrix, representing her minor child, in whom was centered the right of action which did not exist in her personally.

The action was decreed to be a nullity, and' it is clear that a nullity or nothing can produce no legal effect

In the case of Bertrand vs. Knox, 38 Ann. 350, it was held that a defendant sued as a single woman and thus cited could not be brought into court by the service bn her of an amended petition alleging that she was a married woman.

A citation served on her in a different capacity, and as such illegal, could not be completed by the mere service of an amended petition alleging her correct status or real capacity. Liberman vs. Company, 28 Ann. 412.

In the case of Knoop et al. vs. Blaffer et al., 39 Ann. 29, it was held that suit against the same defendants as directors of a defunct bank, by parties who were dismissed for want of personal interest, did not interrupt prescription. The Court said: The plaintiffs in that case were without a cause of action. * Prescription is st'rioii juris and cannot be eked out from one cause to another by analogy; neither can the legal interruption of prescription.”

The same rule applies here; no legal effect can flow from a proceeding decreed to be null for want of real or actual interest in the plaintiff therein. The delay of forfeiture was not interrupted ’by that suit. Ashby vs. Ashby, 39 Ann. 105.

lienee the present action is defeated by the plea herein interposed by the defendants.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered that plaintiff’s demand, as tutrix of the minor, William H. Ashbey, be rejected, and that her action be dismissed with costs in both courts.

Rehearing refused.-


text:
    No. 10,202.
    Union National Bank of New Orleans vs. Mrs. Eugénie Forstall, Widow of V. Choppin.
    1. Xhe subsequent holder of a promissory note, executed by a mother in her individual capacity, cannot recover the same from the minor children of the maker, on the ground that til© money borrowed on such note was used for the support of said minors or for the pro sorvation of their properties. Such holder, having boon no party to the original transaction. acquired the notes with only the rights and obligations imported by their plain tenor, and has no concern with the use which the maker made of the money loaned.
    2. A tutor is prohibited from borrowing money for the minors without judicial authority based on the advice of a family meeting. A contract of loan entered into by the tutor, without authority, is not binding, as such, on the minors; nor will an action ex cequo ct bono, lie therefor, against the minors, on the ground that the money borrowed was used for their support, unless it can be repaid out of their revenues 5 nor on the ground that it was used for the preservation of their property, without clear proof that such use enured to their benoiit.
    APPEAL from the Twenty-second District Court, Parish of St. James. Duffel, J.

      Gwrleton Bunt for Plaintiff and Appellant.

      Pugh c& Lchnbreinont for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

In 1878, the “ Home Plantation ” belonged in indivisión to Mrs. Eugenie Clioppin and her five children, Fernand Clioppin, Mrs. Robert Dugué, Edward Choppin, Forstall Choppin and Louis H. Chopx>in. The throe last were minors under the tutorship of their said mother.

On March 14th, 1878, Mrs. Choppin and her two major children, Fernand and Mrs. Dugué, acting solely in their individual capacities, executed certain promissory notes secured by an act of mortgage. The act recites that the parties aforesaid “are indebted unto Charles W. Cam-mack in the sum of $20,000, amount of a loan which they have this day received from him, for which they have given their promissory notes, etc., * * and in order to secure the payment of said notes, the said Mrs. Choppin, Fernand Choppin and Mrs. Dugué hereby specially mortgage * * all their respective right, title and interest in and to the plantation called the Home Place.’ ”

Nothing in the notes or acts indicates that the parties assumed or intended to act for, or to bind, anybody but themselves, or to mortgage any property except their own respective interests in the “Home Place.”

The Union Bank, which does not appear to have had any connection with the transactions between these parties, having subsequently become the holder and owner of six of the notes, brings the present action, not only against the makers thereof, but also against three minor children of Mrs. Choppin (now become majors) and seeks to recover a judgment in solido against them all with mortgage on the whole “ Home Place.”

The basis for this demand against the.,minors is the allegation that said notes were given for supplies arid advances furnished the Home Place Plantation, which belonged to Mrs. Choppin and all her said children ; * * that the minors were represented by their mother in her capacity as natural tutrix; that it was absolutely necessary to incur said indebtedness for the support of said minors, and for the cultivation and preservation of their property, and that said supplies and advances were enrployed for the preservation of said property and enured to the benefit of said minors.”

There was judgment in the court below against the makers of the notes, with mortgage on their interests in the plantation (of which there is no complaint) and rejecting the demand against those who were minors. The bank appeals.

It is difficult to understand what right the bank has to set up any claim against these minors. Her suit is .upon negotiable promissory notes. She propounds no rights except such as are based on her being holder and owner of said notes. She never had any dealings with the minors or with any person professing or purporting to represent them. They are, as to her, perfect strangers. She acquired the notes with the rights and obligations imported by their plain tenor and by the tenor of the act of mortgage securing them — and no more. It is not alleged that Mrs. Choppin acted for or intended to bind them by her signature to these notes, and there is not a word of proof to that effect. All that is claimed is, that, after the notes were executed, the money' received therefrom was used for the benefit of the minors and their property. What concern has the bank, as subsequent' holder of these notes, with the disposition of these proceeds ?

If Mrs. Choppin had signed the notes in her capacity as tutrix, though without authority, or if the notes had been given in the course of some dealing between the bank and herself acting as tutrix and for some debt arising from such dealing, and though signed by her- only individually, yet obviously intended to bind the minors, the following cases quoted by the learned counsel might apply, and, on the requisite proof of benefit to the minors, they might ex cequo et l>ono be held bound. Succ. of Johnson, 4 Ann. 253; Leonard vs. Hudson, 12 Ann. 840; White vs. McDowell, 4 Ann. 543.

But in this case the bank had no dealings with the tutrix or the minors, and has simply acquired individual notes of the parties thereto for money lent to them, not purporting, in any manner, to affect the minors. She has acquired no rights against the latter, Daniell, Neg. Inst., § 303; Daniels vs. Burnham, 2 La. 245; Cragin vs. Lowell, 109 U. S. 198; 127 U. S. 603.

On other grounds, however, even if Mrs. Choppin had signed tlio notes as tutrix, the proof would fail to make out a ease against the minors.

Article 353 of the Code prohibits the tutor from borrowing money for the minors without judicial authority based on the advice of a family meeting.

So far as this money is said to have gone to the support of the minors, it cannot be recovered, because Article 350 provides that the expenses incurred for the minor cannot exceed his revenues. Such expenses, when incurred without authority, cannot be recovered out of the minor’s capital, as is here attempted. As for the allegation that the money was employed in the preservation of the minors’ property, that can give no basis for recovery except to the extent, and on the ground, that it enured to the benefit of the miuor, and that he cannot be permitted to enrich himself at another’s expense.

The evidence here shows that the cultivation of the plantation in which the money was used resulted in a loss every year aud did not, therefore, enrich the minors or enure to their benefit.

“The tutor is prohibited, under the wise provisions of our law, from borrowing money on behalf of minors. If their support, or the preservation of their property require an expenditure beyond their revenues, it is the duty of the tutor to cause to be convened a family me efcing, to deliberate upon the propriety of making a loan. In the absence of such authority, the tutor can make no contract binding as such, which creates au indebtedness on the part of his wards. Those who deal with tutors acting on behalf of minors do so at their peril.” Payne vs. Scott, 14 Ann. 760; Urquhart vs. Scott, 12 Ann. 674. See 33 Ann. 355; 32 Ann. 907, 100; 23 Ann. 421; 22 Ann. 296; 21 Ann. 375.

Judgment affirmed.