author: Bermudez, O. J. Fenner, J.

text:
    No. 10,675.
    F. R. Bernard, Administrator, vs. Whitney National Bank.
    Tlie giving of a credit in payment by a debtor does not bind, third persons, unless after notice of the transfer or assignment has been given to or acknowledged by the party owing the credit.
    Delivery of title suffices between transferrer and transferee; but as against third persons, possession of the credit, which is acquired only by the given notice, is essential to bind them.
    A check is a valid instrument for the assignment of the credit of the drawer against the bank, but it does not bind the creditors of the drawer, who ai e third persons, unless the transfer was notified to the bank before a change in the title to the credit has taken place.
    At the death of an assignor his property passes to his creditors and heirs, the rights of the former being then fixed, and not susceptible of being changed afterward, so that one may acquire any preference over another.
    An assignment vests an inchoate title only so far as third persons are concerned, and, until notice to the debtor of the credit assigned has been given, the assignor’s interest may be seized by his creditors and divested.
    "The law considers as third persons all the creditors of the assignor whose property is liable to them, unless a complete divestiture has taken place previous to any action by them against it.
    At the death of an insolvent assignor all his rights to property in his name, not completely and absolutely assigned so as to bind¿7m*d! persons, pass to his insolvent succession as fully and effectually as if he had made a voluntary surrender which had been duly accepted.
    A notice of a transfer of credit made after a change in the title to the property of the insolvent has thus occurred, comes too late and does not divest the rights acquired by the creditors.
    In dation enpaiement delivery and possession are essential to operate a transfer so as to exclude third persons. Everything doubtful or ambiguous must be interpreted against the transferee.
    • A change in the title before notice of the transfer or assignment forbids the payment by the bank to the transferee, and requires it to be made to the legal representative of the succession for distribution.

      PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

    Farrar, Jonas & Kruttsehnitt for Plaintiff and Appellee:
    1. In Louisiana all contracts between husband and wife are prohibited, excep those which pertain to the restitution of her dotal or paraphernal property appropriated by the husband.
    2. Delivery is of the essence of a giving in payment. C. C., Art. 2656.
    3. A husband’s check given to his wife in payment of her paraphernal claims, which is not presented forpayment by the wife until after the husband’s death, can not be collected by the wife after the husband’s death as against the administrator of his insolvent estate.
    4. The giving of such check was not a payment, because a check is a means or instrument by which payment is to be effected when the money is procured thereon. The holder in such case becomes the agent of the drawer to collect the money. Woodburn vs. Woodburn, 5 Northeastern Reporter 82; Brown vs. Leckie, 48111. 497; 2 Parsons on Contracts, 623; Burke vs. Bishop,27 An. 466; Succession of DePouilly, 22 An. 97; Chitty on Bills, 306; Parsons on Notes and Bills, 82; Bolles on Banks and Their Depositors, Sec. 99.
    -5. A check being a mere vehicle of payment, the death of the maker of the check revokes the mandate of the drawer on the banker who holds the funds, and the vehicle is destroyed. Summers vs. Savings Society, 31 Ohio 530; Tate vs. Talbot, 2 Veazie, Jr., Ill; Story on Promissory Notes, Sec. 498; Byles on Bills, 25; Chitty on Bills, 306; Parsons on Notes and Bills, 82; Bolles on Banks and Their Depositors, Sec. 99; C. C., Art. 3027. *
    '6. It is against public policy that an insolvent and defaulting'public official should be allowed to make a preferred creditor of his .wife, and to transfer to her, in settlement of her alleged paraphernal claims, a large portion of his estate, she being aware at the time that he was a defaulter, and that he was insolvent.
    , White & Saunders for Defendant and Appellant:
    1. There can be no fraud in the doing of an act or the making of a contract allowed by law in the circumstances in which it was done or made.
    2. In enforcing such a contract, courts do not “ consummate ” any fraud, for none was attempted, but they simply recognize and enforce the legal consequences of a legal act.
    3. If a check is a mandate, it is at any rate a power coupled with an interest, and is therefore revoked neither by the death nor by the insolvency of the drawer. Jacquet vs. Creditors, 38 An. 864; Renshaw vs. Creditors, 40 An. 37.
    4. Death does not vest the creditors of one actually insolvent with any greater rights than, nor indeed with rights as great as, those of the creditors of a declared insolvent. The title to an insolvent decedent’s property is as much in his heirs as it would have been if he had died solvent. Sue. of Conolly, 6 An. 795.
    •5. Where a sale is perfect between the parties, but something remains to be done to perfect it as to third persons, that remaining thing may be done after a declared surrender, and will then bind syndic and creditors. Nicolopulo vs. ‘■Creditors, 37 An. 474; Campbell vs. Slidell, 5 An. 274.

      6. Under the reasons given in last cited cases, -where the transfer of a credit or claim is perfect between the parties, it may be perfected as to third persons after the declared insolvency of the transferrer.
    7. If the sale of á movable or the transfer of a credit may be perfected as to creditors after declared insolvency, it may also be perfected after death in case of the actual insolvency of the succession; and if a sale or transfer can be perfected as to creditors, a fortiori can either be perfected as to heirs who occupy no better position than creditors, but, on the contrary, are strictly bound by the obligations of the deceased, and are in exactly the same position that he occupied before death.
   The opinion of the court; was delivered by

Bermudez, O. J.

The plaintiff, as the administrator of the succession of M. S. Powell, brought this action to recover from the defendant the sum of $3400 standing on its books to his credit at the time of his death, on August 21, 1885.

The bank admitted the credit; but averred that claim was laid to it by the widow of the deceased.

Mrs. Powell intervened in the suit, asserting rights to the credit, in consequence of a check of her husband in her favor, given her in payment of her claims against him; which check was drawn on the 20th of August previous, and presented on the 27th following to, but not honored by, the bank, on the ground of the death of the drawer some short time before presentment.

Prom an adverse judgment the intervenor appeals.

The facts disclosed by the record are the following:

On July 31, 1885, M. S. Powell deposited $3400 with the defendant bank and was credited therefor.

On August 20 following, being indebted to his wife in the sum of $3500, Powell gave her a check f®r the entire amount to his credit in the bank.

On the 21st, the next day, Powell died.

On the 27th of August the check was presented for payment, which was declined.

On behalf of the intervenor, it is contended that the relation of principal and agent did not exist between Powell and the bank; that the relation was that of creditor and debtor; that the check imported an assignment to the payee of the creditor’s claim against the bank; that this assignment was a valid dation en paiement, under Art. 2446, R. O. O.; that the delivery required by Art. 2656 was effected by the delivery to the assignee of the check, which is the act of transfer; that if notice was required, such was validly given, although after the transferee’s death, notwithstanding his insolvency.

On the other hand it is urged that in Louisiana all contracts between husband and wife are prohibited, except those which pertain to the restitution of her dotal and paraphernal property; that a husband’s check to his wife, not presented by her until after his death, can not be collected as against the administrator of his insolvent estate; that such a check was not a payment, a check being a means or instrument by which payment is to be effected, when the money is procured thereon; that the holder in such case becomes the agent of the drawer to collect the money; that the death of the principal revokes the agency of both, the bank and the holder, the vehicle being destroyed; that delivery is of the essence of the giving in payment and that there was none; that it is against public policy that an insolvent and defaulting public official should be allowed to make a preferred creditor of his wife by transferring to her a large portion of his estate, she being aware at the time that he was a defaulter and an insolvent.

It would serve no useful purpose to undertake to discuss and determine all the complicated, broad and difficult issues thus presented by the litigants.

Authorities are not wanting to sustain many of the conflicting positions by them respectively assumed.

The question presented for solution is, after all, the following one only:

Whether the drawing of a check by an insolvent, delivered by him to a creditor in payment of a claim, operates an assignment in his favor, such as entitles him to receive the amount as assignee, when claimed after the drawer’s decith, and without any previous presentment or certification.

In other words: Whether the condition of things existing during the drawer’s life was or not changed at his death, and if it was, whether the change does or not prevent the check holder from recovering the amount of the check.

The contention of the intervenor strictly is: That she was a creditor of Powell; that the check was given by him to her in payment; that this giving operated in her favor an assignment and transfer of the amount to his credit; that by the title thus furnished to her, the credit was delivered to her, and that this delivery included the possession, if any be, required by law; that this condition of things existed at his death and that the fact of his dying; insolvent in no way impaired her acquired rights.

It is clear that being at the time a creditor of her husband, she could receive payment from him of her claim against him, and that when he issued and delivered to her the check in question, he intended to give her and she consented to receive,' in payment of what was due her, the amount to his credit in the bank. There was then an assignment made to her of his credit or right to that amount, and she held the check for a valid consideration.

The “giving in payment” in Louisiana is an act by which a. debtor gives a thing to the creditor, who is willing to receive it, in payment of a sum which is due. R. C. C. 2655.

By the same law, that “ giving of payment ” is perfect only when followed by delivery. R. C. C. 2656.

In the transfer of credits the delivery takes place between transferrer and transferee by the giving of the title. R. O. O. 3642.

The transferee of a credit, says the code, is only possessed, as regards third persons, after notice has been given to or accepted by the debtor that the transfer has taken place. R. O. C. 2643.

The check given by Powell to his wife was not the thing given in payment. In itself it was a worthless piece of paper, unless filled, signed and honored according to the purpose in view by the parties.

That which was intended to be given in payment was not any money in bank of Powell, for he had none there, on special deposit, or separate and apart in his name, which he could order to be delivered in kind; but was his claim to the amount standing to his credit on the books of the bank, and which the latter owed him, for as much as he had deposited as a loan with it, subject to payment on call.

It has, therefore, been frequently held that the giving of a check for an antecedent debt is not an absolute payment and extinguishment of the debt, in the absence of an express agreement giving it that effect. Ordinarily, it is only a means of payment, and the debt will not be extinguished, unless and until the check is paid. Daniels on N. I., 2, 638; Eng. and Amer. Enclopsedia (Checks 218).

The evidence shows that it is some six or seven days, after the death of Powell that the check was first presented to the bank and-’ payment asked, which was refused, on account of the death.

It is certain that before that event the bank had received or accepted no notice that the check had been drawn, or that the credit had been transferred, either from Mr. or Mrs. Powell;

Surely, had the check been presented before the death, it could1 and would have been paid; but the dominant question remains, whether, after that event, it should have been honored.

The able counsel for the intervenor,' well aware of the tenderness. and difficulty of the position, here says: “ The sole test is whether any creditor of the assignor, or other assignee, has acquired a right, on the credit transferred.”

So that the contention is narrowed down to the solitary inquiry whether or not, at the moment of the death, any creditor of the assignor or any other assignee has acquired a right on the credit.

It is clear that, had the check been presented before the death,, but after the credit had been drawn against, or validly seized by-judicial authority, in satisfaction of an indisputable claim, or had. Powell become a judicially declared insolvent, to the bank’s knowledge, Mrs. Powell could not have been paid at all, because there-would have then existed no claim which Powell could have enforced against the bank, and because Mrs. Powell, transferee, could have had in the matter no greater right than he possessed.

Now, it is well settled in the jurisprudence of this State, that the-rights of creditors are fixed at the debtor’s death, and that no one can subsequently get any advantage over others. It is likewise well established that a debtor’s property is the common pledge of his creditors.

• Under those just and equitable rules, all the titles which Powell had to any property standing in his name, not divested so as to bind third parties, passed to his succession represented by both his creditors and his heirs, if any of the latter, as effectually as if he had made a voluntary surrender which had been accepted. R. O. O. 871; R. S. 1791.

The intervenor nevertheless claims that under the settled jurisprudence of this State, as the sale of a movable or the transfer of a credit may be perfected as to creditors, after declared insolvency, it may be perfected after death, in case of actual insolvency of the succession, and the creditors and heirs are then as strictly bound by the obligations of the deceased, after, as they were before, the death. In support of this bold proposition reference is made to two cases, viz: Campbell vs. Slidell, 5 An. 274; Nicolopulu vs. Creditors, 37 An. 474; Hall vs. Mulholland, 7 La. 389.

It is perfectly true that in those cases the purchasers were recognized as owners of property sold before the cession or surrender, although in the first the act of sale of an interest in real estate had not been previously recorded, and in the others delivery or possession had not followed the sale of the movables before the declared -insolvency.

It must not be forgotten that we are not presently concerned with a sale, but with a “ giving a payment,’'1 and that the principles which govern in one do not rule in the other.

The Code distinctly declares, R. O. C. 2656: “That giving in payment differs from the ordinary contract of sale in this, that the latter is perfect by the mere consent of the parties, even before delivery, while the giving in payment is made only by delivery.”

It also says, on the subject of the assignment of credits, that although delivery takes place between transferrer and transferee by the giving of title, R. O. O. 2642, the transferee is only possessed, as regards third persons, after notice has been given to the debtor of the transfer having taken place, or he has accepted the transfer by an authentic act. R. C. C. 2643.

In the ease of Gomila vs. Muhler, 34 An. 604, in which a sum to ■the credit of the defendant was claimed by three parties, (1) the bank in which the deposit had been made, (2) another bank which held a check against it, which had been presented but not paid, (3) a creditor who had attached, after the presentment of the check, this court held that the first claimant was not entitled to it, because it would not plead compensation against it; that the attaching creditor could not receive it, because the seizure had been effected too late, i. e., after the presentment, and the court allowed the amount to the bank which held the check, because the check had operated as an assignment, perfected by notice, in the form of the presentment of it.

In thus holding, the court said:

“Our law, differing therein from the common law, distinetlyrecognizes the assignability of that class of incorporeal rights known at •common law as “ choses in action,’’ and provides for the perfectibility •of such assignments by notice to the debtor, and entirely independent of his consent.” * * *

This clearly recognizes and establishes, in cases of checks drawn •against a credit in bank, that although the check may be an assignment by the drawer in favor of the drawee, that assignment is perfect and absolute as to third parties, only when the check has been presented and payment asked, even independent of the consent of the bank on which drawn.

It is the settled and unbending jurisprudence of this State, that the assignment of an incorporeal right vests only an inchoate title, and that until notice to the debtor, the assignor’s interest may be seized by his creditors. H. D., p. 1382, VIII, C. I.

The law considers as third persons all the creditors of the assignor whose property is liable to them until a complete transfer and tradition to the assignee. 2 L. 425.

The transfer of a draft, in order to be binding on third, persons, •must be made by delivery of the draft to the transferee, and by notice to the debtor, of the transfer. 15 An. 654; L. D., 641, C. I.

Delivery is of the very essence of a dation en paiement, and in such eases everything doubtful or ambiguous must be interpreted against the creditor. 3 An. 280.

Until notice of the transfer of a claim has been given to the debtor, ■ such claim, though transferred, is liable to attachment by the creditors of the transferrer. 32 An. 521; 40 An. 273.

When Powell died all his rights and obligations were transmitted to his legal representatives, who were apparently his creditors (as he was thoroughly insolvent), and his heirs, if any. R. C. C. 871, and seep

These representatives acquired by his death something besides rights, which he could not have asserted had he not died, among which that of undoing seasonably any illegal acts done by him to their injury, even by resorting to parol proof, when he would have been estopped or required to produce only written evidence; likewise that of resisting the effect of a mortgage consented by him, but not recorded before his death or failure. R. O. O. 3363, 3362.

It will not do, in order to avoid these propositions, to say that the property passed from the deceased to his legal representatives, ■eum onere, because that is a begging of the question, for the reason that in the instant case, under the special provisions of our law, the giving in payment was an absolute nullity as regards third persons,, inasmuch as the check had not been presented or no notice of the-transfer of the credit had been- given before the death.

It was emphatically held in the celebrated case of Tate vs. Hilbert, 2 Veazie, Jr., 111, in which the question presented related to the. effect of the death of the drawer of a check presented after his demise, that at the instant of the death the title vested in his legal representatives and his own order was no longer competent to withdraw any part of that which was no longer his property.

The French authorities invoked by the intervenor are to the effect that the notice given after a judicially declared insolvency is of no-avail; also that in cases of sale the contract may be perfected, even without previous delivery, after surrender; also that notice may be given after death in cases of an acceptance by the heirs under benefit of inventory; but they do not establish authoritatively that in cases of insolvent successions the title, of the deceased to credits. given in payment does not vest in the creditors as in cases of judicial surrenders.

It is to be noted thát¡ while Article (R. C. C.) 2642, and seq.,. were borrowed from the French Oode, the subsequent article, R. C. C. 2656, is not to be found in it and was inserted in our legislation obviously to differentiate, to some extent, between the two • systems in this respect.

The title which Mrs. Powell claims to hold to the credit may have been good evidence of the transfer, and binding without notice to the bank on Powell and his heirs, delivery being sufficient and pos-session not being essential as to them (7 La. 389; 14 An. 700; R. O. O. 2642) ; but as to third persons — creditors being such — it surely was barren of all effect, for the reason that the transfer or assignment of the credit could not under our law, which differs from the common law, have bound them unless notice to the debtor, the bank, had been duly and seasonably given or had acknowledged before the death. R. C. O. 2643.

Delivery is one thing and suffices in one instance. Possession is., another, and is essentially required in another.

While ruling as we do, we are not to be understood as holding that the death of Powell revoked the check delivered by him to his wife, who is not a third person, for the assignment thereby made is binding between him and her, nor as holding that a third person holding it would not be entitled to collect it. What we decide is simply that .such assignment, not having been notified before his death, he dying thoroughly insolvent, a change has taken place as to the title of the credit which, at the moment of death, has passed to the mass of his creditors, who are third parties, not- bound without notice of the assignment; consequently, that by such change Powell was dispossessed for the benefit of his creditors, and that his order to pay, given before his death, can not be executed as to them after that event has' occurred. Had he died solvent, quite a different state of things would be presented, and this case would not have arisen, for it would have been immaterial to the heirs, as the debt existed, with what money it would have to be paid.

It therefore follows, that as the check was not presented, paid or certified before the death, or that notice of the transfer of the credit ■ had been given after that same event, a change in the title then occurred, and that the transfer is barren of effect as to the creditors of the insolvent assignor; that, the credit belongs to his succession, and the amount which the bank owes as standing in Powell’s name must be paid, not to the intervenor, but to the administrator of his succession, for distribution according to law.

The District Court thought the credit had not been transferred’so as to prevent the legal representatives of Powell from acquiring title to it, and in so finding it has correctly applied the law to the facts.

Judgment affirmed.

Eenner, J., dissents.

Dissenting Opinion.

Fenner, J.

The value of legal principles consists in their practical application.

We have held that a check operates as an assignment of the fund upon which it was drawn, perfect, as between the drawer and payee, from the moment of delivery, and binding on the bank as soon as it is notified thereof by the presentment of the check. Gordon vs. Mischler, 34 An. 604; Daniell’s Neg. Inst., Secs. 1638, 1643.

This entirely removes the case from the application of those authorities which are based on the contrary principle that a cheek is a mere mandate, revocable by the drawer and not binding on the bank until accepted by the latter.

All authorities, which hold the view taken by this court, agree as a logical consequence that the death of the drawer operates no change in the rights of the parties.

Mr. Morse says: “ It is perfectly clear that, where a check operates as an assignment, the death Of the drawer will not revoke it. Whether it be with or without consideration, a right once vested can not be divested by the death of the party from whom it was acquired.” Morse on Banks and Banking, Sec. 400.

Mr. Daniells says: “The idea that the death of the drawer of a check given to a payee for value operates a revocation is, as it seems to us, a total misconception of the law. * The drawer is deemed the principal debtor; and it is anomalous to hold that his death in any wise lessens his obligations or the rights of the bank to pay it when given for value.” Daniell Neg. Inst., Sec. 1618, B. and Note.

Prof. Parsons takes the same view: “The right on the part of the drawee to complete the assignment would seem to be a privilege of his own, and it is somewhat difficult to see how the death of the drawer can affect it.” 2 Parsons’ Notes and Bills, 287, Note.

In the case of Gordon vs. Muehler above cited, we assimilated a a check to the transfer or assignment of an incorporeal right, saying: “ It will not be disputed that a written order by a creditor, addressed to a debtor, directing him to pay to a third person a debt due to the former, accompanied by due notice to the debtor, would comply with all the requirements imposed by our Civil Code, Arts. 2642 to 2654, forthe valid giving of title, delivery and complete assignment of the credit or incorporeal right referred to in the order. The check, its presentation, protest, and the written notice herein given, unequivocally fulfil all these requirements.”

If the death of the drawer of. a check would operate to destroy the right of the payee to perfect his assignment by giving notice to the bank, the death of the assignor of any pother incoporeal right would have a like effect.

There is certainly no authority for such a proposition in our jurisprudence, and the French courts and commentators agree that the death of the assignor of an incorporeal right has no such effect, and that notwithstanding the same the assignee preserves intact his right to perfect his assignment by giving notice to the debtor. Journal du Palais, 1837, 1, p. 431; Id., 1841, 2, p. 715; 24 Laurent, No. 494; 4 Aubry & Rau 429.

A reference to these authorities will show that all the reasons assigned in the majority opinion touching the intervention of the rights of creditors as resulting from the death, etc., are considered and disposed of. They also refer to Article 3363 of our Oode (O. N. 2146), which refuses effect to mortgages inscribed after the death, as declaring an exceptional principle not to be extended beyond its terms, and hold that the failure to make such provision with refers enee to notice of assignment of incorporeal rights exempts the latter from a like regulation.

I do not think the provisions of our law on the subject of giving in payment have any application. They apply to the giving in payment of things other than money. A check is an order for the payment of money, and is a mere vehicle or process for effecting a payment in money.

Moreover, I think the delivery referred to in Article 2656 is the delivery as between the transferrer and transferee, which, under Article 2642, takes place “ by the giving of title.”

I dissent.


source: Caselaw Access Project

author: Fenner, J.. Renner, J.

license: Public Domain

text:
    No. 10,687.
    Succession of Mary Barrett, Wife of W. H. Barrett.
    1. Positive testimony by witnesses whose character and credibility are not impeached can not be overcome by suspicion founded on mere improbability of their statements when not shown to bo in any sense impossible; especially when the judge a quo who heard the testimony has given credence to it,
    2, The enforcement of the penalties against administrators for not depositing succession funds in bank lies within the sound discretion of the court a qua, which will not be interfered with by this court at the instance of appellants who are shown by the final account duly homologated to have no interest in the succession.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Branch K. Miller for Opponents and Appellants:
    A surviving husband has no power to incur debts for the succession of his deceased wife.

      All moneys received by an administrator, for account of the succession represented by him, should be deposited in bank, and there kept till disbursed by him in accordance with law. The violation of this rule subjects the administrator to dismissal from office and the piayment of 10 per cent, upon the amount so deposited. 37 An. 105.

      Wynne Rogers and Ker & Duvigneaud for the Administrator, Appellee.
   The opinion of the court was delivered by

Fenner, J..

The decedent left no estate except her share in the community of acquests and gains subsisting between herself and her surviving husband, who was appointed administrator of her succession. He filed a final account, to which the legal heirs of deceased made opposition on various grounds. The judgment of the court below maintained their opposition in certain respects, of which the administrator does not complain, and otherwise overruled it.

The only appeal is taken by the heirs, and that appeal is, by its terms, expressly confined to the judgment on the opposition above referred to. Appellants complain of error in this judgment in overruling their opposition to the claims of certain creditors, which are allowed on the administrator’s account, the verity and reality of which they contest. Nothing but questions of fact are involved. We have examined the testimony with care.

The evidence in support of the verity of each claim is direct, positive and circumstantial, and supported by corroborating circumstance. The witnesses are not contradicted nor is their credibility impeached. Nothing in the record asperses their characters as upright and honest men, or indicates that they would become parties to such a criminal conspiracy' to defraud a succession as that charged against them.

Appellants have nothing to rely on except the improbability that laboring men in their circumstances could have accumulated the sums represented by their claims.

One of them, Flood, is now, and has been for twenty-five or more years, a United States Government employó, receiving now $50 a month, and formerly a larger salary.

Another, Snell, is an iron moulder, now employed in the Whitney Iron Works at wages of $2.25 per day, and formerly engaged in railroad work in the West, with higher earnings. The third, ■ Jaehme, has been employed on the police force of the city, and was formerly at railroad work in Mexico, where he claims to have accumulated the money with which he bought the note here claimed.

There is nothing intrinsically impossible about their claims, and the District Judge who heard the testimony maintained them. We can discover no sufficient ground for reversing his conclusion.

Even if we could, on this appeal, review the action of the judge a quo on the rule taken by the heirs to destitute the administrator and to subject him to the penalty denounced by Section 1463, Revised Statutes, for failure to deposit the succession funds in bank, it is clear we should not, under the circumstances of this case, interfere With the discretion vested in the judge in the enforcement of these penalties. Congregation vs. Farrelly, 34 An. 533.

Our rulings on the account show that the administrator has made no improper use of succession funds; that the debts which he has paid were justly due; that their payment saved the running interest thereon; and, moreover, that the complainants are without interest in the subject matter, because the account, as finally homologated, shows that the community was insolvent, and the heirs of the wife are entitled to nothing.

Judgment affirmed.

On Application for Rehearing.

Renner, J.

This application raises no question except as to the ■correctness of the statement in concluding portion of our opinion that “the community was insolvent and the heirs of the wife are entitled to nothing.” This expression was not necessary, and is withdrawn. We do not find that the judgment appealed from ordered the items of “rents collected from October 1, 1886, to January 21, 1888,” to be stricken from the asset side of the account. The correctness of the amended account filed under the order of the court is not before us. If it does not conform to the decree, relief may be had by proper proceedings in the court below.

Rehearing refused.


author: McEnery, J. Fenner, J. Bermudez, O. J.

text:
    No. 10,575.
    Thorp Westerfield et al. vs. Levis Bros. et als.
    1. A child of the age of five years and seven months is prima facie incapable of contributory negligence.
    2. The conduct of an infant of tender years is not governed by the same rule ■ which applies to an adult. While an adult must be free from fault which contributed to liis injury in order that he may recover, the care and caution re quired of a child is according to his maturity and capacity and the circumstances of the particular case.
    8.The doctrine of imputed negligence, as announced in Ilartfield vs. Itoper, 21 Wendell 015, docs not prevail in Louisiana.
    4. Where the defendant negligently leaves exposed in a public place, unsecured, unguarded and unattended, a dangerous machine, likely to attract children, excite their curiosity and lead to their injury, while they are pursuing their childish instincts, a child of tender years injured by said machine, while meddling with it, is entitled to recover damages for the injury inflicted.
    5. In order that a parent may recover under the second cause of action in Act 71 of 1884, for the death of his child of tender years, he must be free from negligence proximatoly contributing to his death.
    O. Parents arenot obliged to restrain their children within doors at their peril. It is not negligence for a parent to permit his child to go on the sidewalk in front of his residence.
    7. Where the age of the child leaves a doubt as to his maturity and capacity, this must be "alleged in the answer of the defendant.
    8. Under the rules this court has the right, when it grants a rehearing, to proceed to render judgment immediately without any new fixing of the case, more particularly where the application for a rehearing has boon orally argued.
    9. Only one rehearing is granted in any cause, unless matters are decided which, had not been previously considered and reserve made for a rehearing.
    10. It is not indispensable, in order to reconsider a case, that a rehearing be expressly granted by a special decree.
    11. It suffices, if the opinion on the reconsideration shows that it is rendered “on rehearing.” This circumstance necessarily implies the granting, specially where the decree rendered sets aside the previous judgment, and adjudicates-anew on the controversy..
    APPEAL from the Civil District Court for the Parish of Orleans.. Voorhies J.

      Gibson <& Hall> F. L. Tullis and Farrar, Jonas <& Kruttsclmitt for Plaintiffs and Appellants:
    One who leaves in apublic place where a person has a right to go a dangerous machine is liable for injuries caused thereby to persons who are in fact without fault, or who being infants are in law incapable of being contributorily negligent. Cooley on Torts, 2d Ed., 818 to 823; Lynch vs. Nurdin,l Q. B. 29; Railroad Company vs. Stout, 17Wall. 657; Mangan vs. Brooklyn Railroad Company, 38 N\ Y. 455; Pittsburg, etc., Railroad Company vs. Bumstead, 48 111. 221;. Rauch vs. Lloyd, 31 Penn. State 358; Birge vs. Gardner, 19 Conn. 507; Robinson vs. Cone, 22 Vermont 213; East Saginaw Railroad Company vs. Bohn, 27Mich. 513; Brennen vs. Railroad Company, 45 Conn. 298; Eitzsimmons vs. Railroad. Company. 22 Kans. 690; Spengler vs. Williams, 6 South L. 613. See also on general subjeet Shea vs. Reems, 36 An. 966; McLoughry vs. Einney, 37 An. 37.
    It is well settled that the conduct of an infant of tender years is not to be governed by the same rules which govern an adult. While it is a generalrule in, regard to an adult that entitle him to recover damages for an injury resulting; from the negligence of another, he must himself have been free from fault; such is not the rule in regard to an infant of tenderyears. The cares and caution required of a child is according to his ’maturity and capacity only, and this is to be determined in eacl^case by the circumstances of that case. Same authorities.

      Howe & Prentiss for Defendants and Appellees:
    1. In such a case, verdict should not be set aside \mless.manifostly wrong. 3 An 655; 3!) An. 929.
    2. The prohibition of city ordinances as to vehicles, etc., did not concern the roller.

      8. Xo invitation, by persons not in employ of defendants, to boys to ride on gz*avel carts not owned, employed or controlled by them,.can affect defendants

      4. Roadway of St. Mary not intended as playground and use for that purpose unlawful. 43Maine, 248; 119 Mass. 472; 8 Allen 237.
    5. The “ fault ” mentioned in Art. 2315, R. O. O. must, to justify recovery, be the efficient cause of the injury, and plaintiffs can not recover if their fault or the fault of their son intervened to complete the chain of efficient causation. 3 An. 799; 95 TJ. S. 442.
    6. Burden of proof is on plaintiffs to show fault of defendants, and that they and their son were without contributory fault. 40 An. 786 ; 30 Md. 47; 58 Md. 347; 4q Barbour 529. Dilemma stated, “Turntable Oase,” 17 Wall. 657, not against de-' fondants. Lynch vs. Xurdin, distinguished, and shown to have been repeatedly disregarded and overruled. 2 I-Iurlstone & Coleman, 744; L. R. lKx. 239; 109 Mass. 104; 111 Id. 136.
    7. It is not averred nor proved that defendants, natural persons, could have prevented the act and have not done so. R. C. O. 2320; 17 La. 545; 2 An. 405.
    8. Quantum of damages discussed hypothetically. 6 So. Rep. 799; Tucker vs. Railroad, Jan., 1890, 7 So. Rep. 124.
   On Rehearing.

The opinion of the court was delivered by

McEnery, J.

The plaintiffs, father and mother of a boy, Richard, aged 5 years and 7 months, brought this suit under Act 71 of 1884 for damages for the death of their son, caused by a large iron roller left by the defendants opposite to the residence of plaintiffs, and a very short distance from it. The residence was located on St. Mary street, corner of Coliseum.

The defendants, under a contract with the city of New Orleans, were engaged in placing gravel on Coliseum street.

The defendants plead a general denial, and specially aver that they had never been in fault, nor had the minor child Richard, nor had the plaintiffs ever suffered any damage or injury by their fault.

And they further allege that, if said boy Richard was injured and their employees were negligent, they are not responsible in damages, as the boy Richard was guilty of contributory negligence. They allege neglect on the part of plaintiffs as contributing to the accident. And they also allege that they were not present when the accident occurred, and are therefore not responsible.

There was judgment for the defendants, from which the plaintiffs have appealed.

The damages allowed in case of death by the Act 71 of 1884 consist of two elements:

1. The right of action for the damages suffered by the child, and which passes to the surviving parent by inheritance.

2. The action for the damages suffered by the parent on account of the loss of the child.

The plaintiffs inherit this action for damages suffered by the child from him, and it must be treated as though the child was alive and suing for an injury to himself.

The question on this branch of the case therefore is one of contributory negligence on the part of the child.

For the purpose of leveling and grading Coliseum street the defendants used heavy iron rollers, with two mules attached. One of them was left unattended, the mules not hitched so as to prevent them from moving off with the roller; and the roller unfastened by a chain, although it was capable of being so secured so as to prevent the rotation of the cylinder at little inconvenience and an inconsiderable cost.

Since this accident the rollers have had chains attached to them, so as to secure them. The roller was a dangerous machine of that character which would attract the instinctive curiosity of children. The boy Richard escaped from the residence of his parents, got on the roller, started the mules, and was -thrown from it and under it, and mortally injured.

The testimony clearly establishes the negligence of the defendants in leaving the roller unattended, the mules unhitched and the roller unsecured by a chain.

The driver in charge of the machine, and who abandoned it (unattended as stated), was in the employment of defendants, and the. machine was left by him in the course of his employment.

The defendants are therefore responsible in damages for the injury to the child Richard unless they are relieved by contributory negligence on his part.

Article 84 of the Civil Code says: “Age forms a distinction between those who have not sufficient reason and experience to govern .themselves and to be masters of their-own conduct. But as nature does not always impart the same maturity and strength of judgment at the same age, the law determines the period at which persons are sufficiently advanced in life to be capable of contracting marriage and other obligations.”

This article applies to civil obligations. But it recognizes the difference in the maturity and strength of judgment of children of the same age, and the necessity, as a matter of public policy, of fixing the period at which responsibility shall commence.

There is, however, no statutory period fixed at which this responsibility shall commence.

Under the common law a child under 7 years of age is presumed to be incapable of committing a crime, and between seven and fourteen his capacity requires to be affirmatively proved. Under seven the presumption is absolute as to the infant’s incapacity to commit, crime.

Children are, in the first year of their existence, non sui juris.

Under the Roman law several degrees of infancy are recognized. The first is absolute infancy, in the literal sense speechless; after that, until the age of seven, a child is infantile proximus; and from the eighth year to puberty he is pubertati proximus.

The child’s responsibility, in American jurisprudence, for its acts,, is a question of capacity, and it has been found a difficult question, and has been in many courts a very fruitful source of controversy as to what age is sufficient to constitute a child sui juris.

Where there is no doubt as to the capacity of the child at one extreme or the other to avoid danger, the court will decide it as a matter of law- Thus courts have held as a matter of law children of various ages, from one year and five months to seven years, non sui juris. Beach on Contributory Negligence, par. 39, p. 120; 2 Thompson on Negligence, par. 81, p. 1180.

In the ease of Hatfield vs. Raper, 21 Wendell 615, it was held that when a child of such tender years as not to possess sufficient discretion to avoid danger, is permitted by its parents to be in a public highway without any one to guard it, and is there run over by a traveler and injured, neither trespass nor case will lie unless the injury be voluntary or the result of “ gross neglect ” on the part of such traveler. In an action for such injury, if the conduct of the child be such as would constitute negligence on the part of the adult, although the child by reason of its tender years be incapable of using that degree of care which is expected of a person of prudence, the want of such care on the part of the parents or guardians of the child furnishes a complete defence to an action by the child for the injury sustained. Thompson on Negligence, p. 1184.

This rule has been adopted by the courts of last resort in some of the States, and has been denied in others.

We can not sanction this doctrine, and prefer to adopt, as more in accordance with our system of jurisprudence, the rule adopted by these courts of last resort which have denied the rule in that case.

In Thompson on Neglgence, Vol. 2, p. 1192, the correct rule is stated as follows:

“Therefore where the circumstances of the case do not justify the imputation' of negligence on the part of others, or in jurisdiction where implied negligence is not applied, the only question in the case is whether the defendant has been guilty of ;any negligence which may be reasonably said to have been the cause of the injury. * * Tf, however, the child is old enough to have some perception of danger, and capable of exercising other faculties for its self-preservation, it is held bound to do so, but only as effectually as can be reasonably expected of a child of its maturity and capacity.”

The boy Richard was of that age according to the Roman law which placed him nearer to the line of the first stage of infancy than puberty. But he evidently had attained that degree of maturity where he was capable of some slight degree of discernment, and was capable to some extent of exercising his faculties for self-preservation. His conduct must be judged by this degree of capacity.

The law is forcibly stated in the case of Westbrook vs. Railroad, from the Supreme Court of Mississippi, and reported in 6 Southern Reporter, p. 821. The court said: “ We are unable to subscribe to the doctrine that a minor 4 or 5 years of age shall, as a matter of law, be charged with contributory negligence, and barred from recovery in an action brought by him, or in his behalf, for an injury 'inflicted on him by another, because he did not exercise reasonable care to avoid the injury. A child of such age is generally incapable of choosing between right ar>d wrong, between good and evil, and between care and rashness.

“ From him duties to others are not exacted, but from others to him duties are recognized and enforced.

“The rule which exempts a child of tender years from responsibility, while it may not operate justly in every possible case, on the whole promotes the end of justice, and we followed the authorities which held that a child of the age of appellant is prima facie exempt from responsibility, but testimony is admissible to show the contrary.” Mayor vs. McLain, 6 So. R. 774; Central Trust Co. vs. Wabash, St. L. & P. R. R. Co., 31 Fed. Reporter 246; 15 Wall. 401; 17 Wall. 657; Morgan vs. Brooklyn R. R. Co., 38 N. Y. 455; 38 N. Y. 445; 26 Conn. 591; 57 Penn. 187; 65 Penn. 269; 53 Ala. 70; 23 Wis. 186; 41 Ia. 71; 58 Ill. 226; Borksdoll vs. Railroad, 23 An. 180; Merkins vs. Blaise, 37 An. 92; Beach, Contributory Negligence, par. 39, p. 120; Wharton, Negligence, pars. 310, 322.

As a rule, the presumption is that a minor is not responsible for his contracts. There are exceptions, and the situation and necessities of the minor may be such that his contract may be binding upon him. These exceptions must be averred and proved. And for a like reason the child of tender years being prima facie incapable of taking care of himself, and thei’efore presumptively relieved from the consequences of his act, the exceptional capacity and maturity of the child must be pleaded by the defendant in his answer. There was no averment of this in the answer. But evidence was introduced on this point without objection. We will therefore consider it.

The evidence does not impress us with the belief that the boy Richard was endowed with exceptional capacity and maturity beyond his years.

He went to school, but was only in his first letters. He was a bright and sprightly boy. His capacity is best expressed in the words of his teacher, that he was a “ bright and obedient boy.” That he was not considered of exceptional capacity and maturity by his parents is proved by the fact that he was, when permitted to go on the streets, accompanied by a nurse. She accompanied him to school, and when unable to do so the teacher went for him and accompanied him.

On the day of the unfortunate accident he eluded the vigilance of his parents and escaped to the street.

In the case of Lynch vs. Nurdin the child injured was under 7 years of age. He climbed on a cart left standing and unattended on the street by the defendant. Another child started the horse, and the child who was on the wheel was thrown from it and under it, • and his leg broken. The defendant was held liable, though the ■child, the plaintiff, was a trespasser. In this case the court said: “Ordinary care must mean that degree of care which may be reasonably expected from a person in plaintiff’s situation; and this would evidently be very small indeed in so young a child. But this case presents more than the want of care; we find in it the positive misconduct of the plaintiff as an active instrument toward the effect. ’ ’

The doctrine announced in this case has been affirmed in every court ■of last resort where it has been presented in this country, except in the courts of Massachusetts. Beach Contributory Neg., par. 45-47, p. 145; 2 Thompson on Neg., par. 39, p. 1192.

In the case of Railroad Company vs. Stout, 17 Wall. 660, where the child, Mary Stout, was 6 years of age, the law, in the case of Lynch vs. Nurdin, was affirmed.

Justice Hunt, the organ of the Supreme Court of the United States, said: “It is well settled that the conduct of an infant of tender years is not to be judged by the same rule which governs that of an adult. While it is the general rule in regard to an adult, that to entitle him to recover damages for an injury resulting from the fault or negligence of another, he must himself have been free from fault. Such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case.” 2 Wharton on Neg., par. 309.

On this subject Mr. Wharton says in his work on Negligence, par. 314: * * * “ Of an infant of tender years less discretion is required, and the degree depends upon his age and knowledge. The caution required is according to the maturity and capacity of the child, a matter as we have seen to be determined in each case by the circumstances of the case.”

In paragraph 315 he says: “But in cases where a child mischievously meddles with a machine or other dangerous agency, or with structures in public streets, another phase of facts presents itself, and a result is reached, which, though differing superficially from the last stated case, accords with it in principle.

‘ ‘ In the case just mentioned the railroad engineer or the driver of a carriage is held liable if, by the exercise of due diligence, he could have avoided running over the child. Supposing, however, a well is left open, or machinery is exposed, and a child is thereby damaged? Again we say, notwithstanding the high authority to the contrary, that the negligence of the child’s parents has nothing to do with the issue. That issue is, was it negligence to leave the well or the machinery exposed? And this issue must be determined by the test whether such an exposure is consistent with the mode of action of a prudent and skilful business man. In applying this test we must necessarily view the community as a mass. To make a machine that would not be dangerous if tampered with by a meddlesome boy would be impossible; and therefore a good business man does not undertake to make a machine that would not be dangerous if tampered with by a meddlesome child. In other words, it is not a condition of the diligence of a good specialist that he should construct a machine with which a meddlesome child could not injure himself; but it is part of the condition of a good specialist that he should not negligently start in the streets a machine which destroys a child, no matter how meddlesome. And it is part of the diligence thus spoken of not to leave a dangerous machine (which it is not negligence to place in a private apartment) in a public street where it may be unconsciously handled by passengers or meddled with by idlers or children.” Kiffe vs. Railroad, 21 Minn. 207.

To the same effect as the above is the doctrine in the numerous ‘‘turn table cases,” which is as follows:

“A child injured while trespassing has no right of action, unless injured by the negligence of defendant when the injury might have been avoided by ordinary care on defendant’s part. But when a child of tender years commits a mere trespass and is injured by agencies that to an adult would be open and obvious warnings of danger, but not so to a child, he is not debarred from recovering if the things instrumental in his injury were left exposed and unguarded, and were of such a character as to be likely to attract children, excite their curiosity and lead to their injury while they were pursuing their childish instincts.
“ Such dangerous and attractive instrumentalities become an invitation by implication.” Am. and Eng. Eney. of Law, Vol. 4, p. 53.

In the instant ease the boy Richard was in his parents’ yard, and was allured by the exposed machine to elude the vigilance of his parents in order to get on the roller. It was dangerous. It was of such a character as to excite his curiosity, and lead to the injury inflicted upon him while he was in the pursuit of his childish instinct. It was an invitation to him by implication. The machine was in a public place, on a public street, in close proximity to the yard of the plaintiffs. It was left exposed, unguarded and unsecured. The child Richard was of that tender age when childish instincts are probably at their fullest intensity.

The defendants are responsible in damages for the injury inflicted upon him.

Second Cause op Action.

In order that the plaintiffs be entitled to recover under this cause of action, under Act 71 of 1884, they must be free from negligence proximately contributing to their son’s injury. 2 Thompson on Negligence, par. 37, p. 1191.

The evidence does not establish the parents’ negligence. The child was forbidden the streets without an attendant. The gata was locked in order to keep him in the yard inclosure. He escaped from the yard over the fence into the street, where he got on the roller, not a half street distant, and opposite, or nearly opposite, the parents’ residence.

But had no precaution been observed to confine the child, it would not have been negligence for the parent to permit a child of his age to go on the sidewalk in front of the residence. Parents are not obliged to restrain their children within doors at their peril. 2 Thompson on Negligence, par. 34, p. 1185; Morgan vs. Brooklyn, 38 N. Y. 455; Burksdoll vs. Railroad, 23 An. 180; Mullins vs. Blaise, 37 An. 92.

It has been held that the mere fact that a child five years of age strayed more than two blocks from home, at play with other children, is not of itself evidence of contributory negligence on the part of its parents. 2 Thompson on Neg., Sec. 35, p. 1188, Note.

In this case the child was in the parents’ yard, and by the dangerous machine of the defendant was induced to leave it.

From the circumstance in the case, it is evident the plaintiffs were not 'guilty of any negligence that' proximately contributed to the accident.

On the first cause of action the plaintiff’s are entitled to recover damages, for the suffering of the child. He was painfully injured, lacerated about the abdomen, and his body severely injured in other places. He lingered for five days, and during that time must necessarily have suffered intense agony and pain.

We fix the damages for this item at §1000.

For the second cause of action the plaintiffs would only be entitled to nominal damages. If we could compensate in money for the grief of the parents at the loss of their boy, the deprivation of his society, the endearment and affection which has been lost to them, there is nothing in the record to enable us to do so. Nor is there any evidence upon which we can base an estimate for the expenses incurred by the parents for the last sickness.

It is therefore ordered, adjudged and decreed that our former decree in this ease be avoided and reversed, and it is further ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and set aside, and it is now ordered, adjudged and decreed that there be judgment for the plaintiff in the sum of §1000, appellee to pay all costs.

Dissenting Opinion.

Fenner, J.

We originally decided this ease in favor of defendants by affirming the judgment appealed from.

On application for rehearing the court sets aside its former decree and decides in favor of plaintiffs.

I' extract from the original opinion a statement of the facts of the case, the correctness of which was not impugned even in the application for rehearing:

“The defendants were engaged in paving Coliseum street with Gloster gravel. The iron roller in question was one of two which were employed by them as necessary implements for the prosecution of the work. The other roller having met with an accident, the driver of this roller was called to go to it, at a distance of two or three squares, to render assistance. He drove to a point on St. Mary street, near the crossing of Ooliseum, and left his team against the sidewalk, nearly opposite the residence of plaintiffs. The mules were rgentle, accustomed to stand, and disinclined to move and pull the heavy roller without urging.
“The minor child of plaintiffs was a bold, active, intelligent boy of 5 years and 7 months of age, whom it was difficult to keep out of the street, although his parents usually kept their gate locked. Their yard was separated from the adjoining lot by a wooden partition which the boy had no difficulty in climbing, and the evidence shows that he was frequently in the street unattended. ’ On the occasion in question his proceedings were observed by an invalid lady who sat upon her gallery in view of plaintiffs’ premises. She first observed him within his yard trying to start the mules by pelting them with pieces of mud or dirt. Failing in this, he clambered over the partition, and running to the roller, began to climb up it. She called out to him ‘Don’t, Richie,’ and he, hearing her, and, as she says, evidently thinking some one in his house had called, jumped down, ran and climbed back into his yard. Presently he came over again and began to mount the roller, when she again called to him: ‘Oh, Richie; don’t Richie!’ whereupon he again got down; but looking around and seeing that it was she who called, he paid no attention and again began to climb the roller. She still called to him, as she says, ‘intones of alarm and entreaty,’ ‘ Oh, don’t, Richie!’ but in spite of the warning he mounted, got into the driver’s seat, and, catching hold of the reins, started the mules. The excitement, in her condition of nervous prostration, caused her to faint, and she saw no more of the accident. Another lady testifies to his pelting of the mules, and also heard him, from her chamber, cry ‘ Gee up,’ on which she ran out and saw the mules moving off with him in the seat and holding the reins. The attention of other persons was attracted, who began to cry out ‘ Whoa ’ to the mules, and ran to stop them; but before they could reach them the little fellow tried to get down, and in the effort was caught between the frame work and the iron roller, and was fatally injured.”

I take pleasure in commending the majority opinion for its learned and lucid statement of the law and careful review of the authorities. I deduce from these the following propositions of law, in which I concur.

1. Children of tender years are not held to the same degree of care and caution required of adults, but only to that degree of care and propriety of conduct which may be expected of children of the :same maturity and capacity, to be determined according to the circumstances of each particular case.

• 2. The particular age at which children may be held responsible for some degree of care is, as Mr. Bishop says, “not made definite by adjudications, but depends upon the particular case, with its circumstances, and the intelligence of the individual child; and the minor, of whatever age, is required to exercise the care which, under the circumstances, is reasonably to be expected of one of his particular age and capacity, a lack whereof is, if contributory to the injury, the barring contributory negligence.” Bishop, Non-Contract Law, Sec. 586.

3. No doubt a child of extremely tender years would be held as matter of law to be irresponsible for any degree of care, but after a child passes the age of 5 years human experience teaches that he has some discretion, some capacity for distinguishing between right and wrong, and for earing for his own safety. Mr. Thompson sensibly defines the rule to be: “If there is any doubt as to the child being of the age and capacity that in law constitutes one (in any degree) sui juris, it should be submitted to the jury to say by their verdict whether he is or not;” and he quotes cases where such was held to be the proper course in cases of children of 6, of 5 and 6 months, of 5, and of 4 years and 7 months old. 2 Thompson on Negligence, p. 1182.

In the case of a child 5 years and 9 months old the Supreme Court of Maryland held it to be a proper question for the jury whether “the accident could not have been avoided by the exercise of such ■care and caution as ought under the circumstances to be reasonably expected from one of his age and intelligence.” McMahon vs. R. R. Co., 39 Md. 438.

The question in this case is whether, under the particular circumstances, this child of 5 years and 7 months, shown to be bright and intelligent, exercised that care and caution which might be reasonably expected from children of like age and capacity under similar circumstances. This is not a question of law, but of fact, which in the common law States would go to the jury, whose finding thereon could not be reviewed.'

It was, on the prayer of plaintiffs themselves, submitted to a jury in this case, which found unanimously in favor of defendants.

Under our peculiar jurisdiction we have power to review the verdict both on the law and facts; but it is difficult to conceive of a question on which the verdict of a jury should have greater weight. It is a question of observation and experience as to which the judgment of any pater familias, unskilled in the law, would be just as valuable as that of the most learned jurisconsult.

The circumstances of this case are exceptional and extraordinary, without aparallel in any case cited, except thatof Wendell vs. R. R., 91 N. Y. 420, where the circumstance that the child acted in defiance of warning defeated his claim.

They exhibit a mischievous purpose, conceived by an intelligent boy, acted on in defiance of repeated and strenuous warnings given at the moment, accompanied with clear consciousness of wrongdoing, evidenced by his running away when first warned, desisting again temporarily at the second warning, renewing his misconduct only when he discovered the helplessness of the person warning' him, and finally by his jumping off in order to escape when he saw persons running toward him, without which latter act he would not. have been hurt.

I am bound to hold that such conduct, under such circumstances, did not exhibit that care and propriety which are reasonably to be expected from the ordinary run of children of even his tender years.

Warnings given at the moment operate to check the natural heedlessness of childhood and to counteract its lack of comprehension. Very few children of his age would have disregarded andjdefied them so recklessly. This feature radically distinguishes this, case from Lynch vs. Nurdin, and all the others relied on in the majority opinion.

The case against the defendants is not aggravated by any gross and criminal negligence on the part of their agent. He left his mules only for a brief period, and on urgent occasion. The mules were gentle and accustomed to stand. The roller was heavy and difficult to pull, and there was no likelihood of their running away with it, or moving, even if started, otherwise then at a slow pace, little likely to hurt anybody. The roller was not a dangerous machine, but, on the contrary, innocent, and little likely to injure any one. This boy might have climbed upon and over it to his heart’s, content without danger. He might even have driven it without the slightest peril. The cause of his injury was simply his act, inspired by his consciousness of wrong-doing, in jumping off to escape being caught in his mischief. While sympathizing with the bereaved parents, I think they have no case for damages against these defendants, and I therefore dissent.

Dissenting Opinion.

Bermudez, O. J.

While the correctness of the legal principles invoked is not contested, their application to the exceptional facts of this case is not easily perceived. Conceding that the child was, to some extent, deficient, his consciousness or responsibility is undeniable from the circumstance that he was several times admonished, and nevertheless persisted in provoking the mules to move. The deficiency was thereby fully supplemented.

Although children may enjoy the open spaces, still they strictly have no right to play and expose themselves to peril on the thoroughfares, the streets properly, which are constantly run over by vehicles, and in a condition of danger.

The liability of the masters for the omission or commission of their servant is not so clearly established as to fix liability on the defendants.

• On Motion to File Application for a Rehearing.

• The defendants have moved for the filing of a petition for a rehearing.

The application can not be granted; The case was first decided in favor of the defendants by a divided court.

On an application for a rehearing by the plaintiffs an oral argument was allowed and heard and the case submitted.

After consideration, the court by a majority granted a rehearing, and, without refixing the case, rendered judgment setting aside its previous decree, reversing the finding below, and deciding in favor of the plaintiffs.

In doing so it passed on matters which had been previously considered, and made no reserve for an application for a rehearing on the second judgment.

Under the rules this court has the right, even where no argument has been heard, on the application for a rehearing, to grant such and pass upon the case immediately, or assign it to a day for argument; and only one rehearing is granted, unless matters are decided which had not been previously considered, and reserve made for a rehearing. (Rule 9, Secs. 3 and 5) ; L. D. 57 (3) 32 An. 356; 37 An. 727.

It is true that, in the body of the decree, it was not expressly stated that the rehearing was granted; the fact is that it was granted, as sufficiently appears from the heading of the opinion as “ On •Rehearing,” a circumstance implying the same, from the nature of the decree rendered.

The motion is denied.


author: Breaux, J.

text:
    No. 10,691.
    Herman Neugass vs. City of New Orleans et als.
    1. Certificates of indebtedness can not legally bo placed in circulation before signing the receipts required as a condition precedent by Section 2 of City Ordinance No. 347, C. S. Herman Nougass vs. City of New Orleans, 42 An. 103.
    2. The certificates held by plaintiff having been declared illegal and null in a suit between him and the City of Now Orleans, are not evidence that the original claims against the City are owned by the plaintiff.
    To recover on these original claims, it was necessary to allege plaintiff’s ownership and not limit the allegation with reference to transfer to the delivery of the illegal certificates.
    The ownership of the claims of the original transferees is not alleged.
    3. If plaintiff be the owner of the claims, he must exhaust his remedy against the debtor; until then he has no cause of action for damages.
    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      W. S. Benedict for Plaintiff and Appellant.

      Francis B. Lee, Assistant City Attorney, and Oarleton Hunt, City Attorney for Defendant and Appellee:
    1. Where the allegations of a petition are so vague and indefinite as not to be clearly understood, and as to make the character of the cause of action sought to be set up doubtful, an exception in limine to that effect will bo sustained.
    2. Two or more essentially distinct and separate causes of action against different defendants can not be set up in the same suit. New Orleans Insurance Association vs. Harper, 32 An. 1167; Waldo & Hughes vs. Angomar, 12 An. 74; Mayor et als. vs. Armant, 14 An. 181; Leverich vs. Adams, lo An. 310; Cane vs. Sewall, 34 An. 1096; Holzab vs. Railroad, 38 An. 187.
    3. Defendants can object to a cumulation of several distinct causes of action against them where they have no cognate origin, and where the defendants have no common interest to be adjudicated upon in one judgment. Riggs & Bro. vs. Bell et als., 39 An. 1031; Tutrix vs. Telegraph Co., 40 An. 181.

      4. Where two defendants are sued in the same petition, the causes of action must not he contradictory of each other.
    5. The petition does not, as against the City of New Orleans, one of the defendants, disclose a cause of action.

      Charles A. Conrad on the same side.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sues the Oity of New Orleans and a number of other defendants to recover the sum of $2176.86.

He, in substance, alleges that he holds claims, vouchers, payable to bearer for services rendered.

That for many years past the defendant city has issued evidence of indebtedness, payable to bearer, which is sold in open market as negotiable paper.

It is signed by its officers, and credit given to the paper on account of their signatures.

He also alleges that he acquired the paper in good faith, before maturity, and has a right to its amount and to its recovery from, the city and from the different officers who have signed the paper, and the sureties on their bonds. Further, he alleges that it is pretended (by whom is not stated) that this paper was fraudulently issued by one of the officers of the city, but that it is legally due him by the defendants in solido.

The defendants, Joseph A. Shakspeare, J. N. Hardy and W. J. Behan, in their exceptions, allege that there is a misjoinder of parties defendants; that the petition discloses no cause of action, and that plaintiff’s action is barred by the prescription of one and three years. Another defendant, W. E. Huger, filed an exception of no cause of action.

The Oity of New Orleans, the remaining defendant, in an exception alleges that plaintiff’s petition is vague; it sets forth no cause of action; no common interest of defendants, and is contradictory.

The exceptions were maintained, a judgment of non-suit was entered, and from that judgment this appeal is taken.

Most of the propositions are not original, for the questions presented by them, have been presented, considered and decided at the last term of the court, in the case of Herman Neugass vs. City of New Orleans, 42 An. 613.

The record in this case discloses that a statement or account was made, giving the name of the person appearing upon the city pay roll as its creditor, the amount due him, the number of the financial ordinance authorizing payment of the claim, and the date of the ordinance. For this amount a certificate was issued. The statement shows the number of each certificate.

These certificates were issued under ordinance approved April 7, 1881,-and under another ordinance approved June 26, 1888.

On the reverse of each certificate is endorsed the ordinance authorizing its issuance.

The ordinance and certificate being embodied in the decision previously rendered (42 An. 165) will not again be copied, except the section of importance in this case, which reads as follows:

“ Section 2 — That said creditor shall sign and receipt therefor (the certificate), stipulating that the warrants (which in time will be issued on the Treasurer on a fund mentioned) shall be claimed only on the production and surrender of this certificate and accepting the provisions of the ordinance.”

In the case referred to, it was decided that these certificates sued on could could not be legally placed in circulation before signing the receipt required as a condition precedent by this section; that the terms of the ordinance are made a part of this certificate; that without this receipt it was as if it had not been issued.

The wrong doings of a clerk in the Comptroller’s office made it evident that these certificates were fraudulently placed in the market by him in his personal interest.

Not only these instruments are not “ invested with that supreme and dangerous attribute of commercial paper which insulates the holder for value; from equities which attach to their inception,” but even as evidence of indebtedness their value is made more than questionable by the fraudulent irregularity of their issue.

The plaintiff alleges, with reference to these certificates, “thathe is the holder of certain claims * * * being vouchers for money due.”

If they are not made the basis of the suit, they are prominently averred as'securing his right.

The suit on the open account as set forth in the petition is secondary and weakened by allegations setting forth indebtedness on the certificates.

It is not even alleged that plaintiff is the owner of the original claim, but reliance is placed on the transfer of these illegally issued certificates to enable plaintiff to sue.

Having come to a conclusion in so far as relates to the certificates, we will determine whether plaintiff has alleged a cause of action on the claims.

We meet with some difficulty, occasioned by the pleas on the certificates.

It was held in a previous suit (42 An. 163) that they are not evidence of the transfer of the claims against the city. We have already stated that the transfer of the claims is not alleged.

The only possible conclusive evidence in support of plaintiff’s demand would be such as show a transfer or a pledge to him of all the claims by the original transferees.

He has not made the required allegation to enable him to make this proof unless the certificates are sufficiently legal to carry with them the transfer of the claims. This would be inconsistent with the previous decisions.

Allegations of transfer are:

“ That he is the holder of claims against the Oity of New Orleans, * * being vouchers payable to bearer.
“ That for many years past said obligations for the use and benefit of the Oity of New Orleans have been issued to represent its indebtedness, and it has become the custom of parties * * to purchase same in Open market as negotiable paper.”

There can be no question; the allegations of transfer áre limited to the certificates. They are not evidence of transferable ownership, as they were not preceded by the required receipt to the city.

If we were to construe that the certificates are valid, as contended by the plaintiff, the opportunity for immediate collection would not be improved, for it has been decided in the case referred to that ‘ ‘ they do not entitle the owner to any money; only to a warrant for money to be paid out of funds legally appropriated for the purpose.”

This count of plaintiff’s suit is amenable to the further objection that the causes of action are separate and distinct against different defendants who have no interest in common to defend. ,

The officers can not be held to answer personally in a suit brought against the city to recover an amount alleged to be due, as made to appear by certain certificates issued in the name of the city, and not of its officers, who signed as its representatives.

The alleged liability of the officers contained in the third declaration of- the petition is for damages; it can not be cumulated with the causes of action before declared;

The origin is dissimilar and the defendants have no common interest to be adjudicated upon in one judgment. Waldo vs. Hughes, 12 An. 74.

Different parties having been joined in a suit to annul a judgment and to recover damages in solido, the origin of the claims not being-cognate, there was a misjoinder and the exception was maintained. Cane vs. Sewell, 34 An. 1096.

The defendants may sever in their defence, but severance is optional with them. Riggs & Bros. vs. Bell, 39 An. 1031.

With reference to damages in the last count of his petition (not an alternate plea) plaintiff alleges that he has a right to damages against the city and the officers who signed the certificates of indebtedness he held.

In other declarations of the petition it is alleged that these certificates issued and were signed legally.

The inconsistency is not reconcilable.

The pleas must be consistent in their averments of facts, and in the sequence deducible from them.

Plaintiff argues in his brief that the similarity is complete between an agent who signs a note, bond or draft of an assumed principal, and thereby becomes personally responsible, and an officer who signs the paper of a municipal corporation without authority. If similar responsibility exist, it should be subject to analogous construction.

It would not be possible to hold an agent responsible if the principal’s responsibility remains, although the evidence of the obligation was signed without authority.

It is the loss that gives rise to the responsibility of the agent.

The defendants in answer to the last declaration will be liable, if-at all, in the event that no recovery can be had upon the claims; for if the plaintiff be the owner, he must allege his ownership aud exhaust his remedy. Until then he can not recover damages. TheOity and its officers can not be held in damages for refusing to pay ■ certificates of indebtedness fraudulently issued by a clerk.

No issue having been presented on the claims per se it can not be held that the Oity refuses to pay them.

The effect of the affirmance of the judgment will be to relegate the plaintiff, if the owner, to recover the amount due him directly on his claim.

Judgment affirmed.


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

text:
    NO. 10,703.
    G. C. Goldman vs. J. M. Gillespie.
    Claims to an oitiee, under conflicting commissions, will not bo considered and passed upon in an injunction proceeding, the sole object of which is to maintain the incumbent in possession provisionally until the pretensions of the. adverse claimant, who threatens to induct himself into office and thus oust the defacto oflicer, without legal intervention, are judicially determined.
    Such injunction lies at the instance of a member of a board, where it appears that the adverse claimant may, otherwise than by a concurrent action with the other members of the board, induct himself extra judicially in part into office and to some extent oust the incumbent.
    It lies also when it is a possibility that the members of the board, though they may actually repudiate the validity of the appointment under which the claimant shelters himself, may recognize his pretension and admit him as a member.
    Young, J.. PPEAL from the Ninth District Court, Parish of Concordia.

      Felix P. Poehé, Thos. P. Clinton and C. J. Boatner for Plaintiff and' Appellee:
    1. An injunction will lie to protect a de facto officer in his possession against the interference of a claimant whose title is disputed, until the latter shall establish his title by the judicial proceeding provided by law. Guillotte vs. Poincy, 41 An. 333, and authorities therein cited.
    2. An officer de facto is one who claims an office and is in possession of it, performing its duties under color of an election or appointment, although such an election or appointment be not valid. Wait’s Actions and Defences, Vol. V, p., 7, and authorities cited; Guillotte vs. Poincy, 41 An. 33.
    3. One holding over after the expiration of his term of office, and publicly continuing to exercise its functions, is an officer de facto. Am. and Bug. Ency. of' Law, Vol. 5, p. 105; 28 Kans. 286, Morton vs. Lee; 71 Maine 207, Woodside vs. Wagg; 27 Minn. 292, Carli vs. Rheuer.
    A general law on the subject of removal of officers is controlled by a subsequent particular law as to the removal of certain officers provided in the particular law. 39 An. 513, State vs. Labatut, and authorities therein quoted. C. C. Art. 23..

      5. An act of the Legislature declaring that an officer may he removed on the request of certain persons, means that he shall not he removed without such request. Serg. and ftawlo, Vol. 5, p. 115, State vs. Sherman; Wait’s Actions and Defences, Vol. 5, p. 12.
    6. An injunction proceeding to restrain a party from assuming an office is a personal action and must he brought at the domicil of the defendant. O. I\ Art. 162; Stats vs. IL It. Pfceclc, 33 An. 910.

      Walter H. Rogers for Defendant and Appellant:
    A removal from office is a destitution of office.
    A removal creates an absolute vacancy.
    Proceedings against a person contemplating a direction of a performance of official duty must be instituted before tlxc court in whoso jurisdiction the duty is to be performed. 33 An. 912.
    The Governor has the power to fill vacancies caused by removal. 33 An. 116.
    In the exercise of tlio power given to him by law, of removing public officers for certain causes, the Governor is the sole jxidge of the existence of such causes and his action of removal is final. 88 An. 117.
    Questions in their nature political, or which are, by the Constitution and laws, submitted to the executive, can never be made in this court. 1 Oranche 170.
    One duly appointed and commissioned to fill a vacancy becomes the legal incumbent and entitled to discharge the duties of the office. The former incumbent and not the appointee must resort to action at law to determine the right to office. 52 Ala. 66.
    One appointed to fill a vacancy caused by removal by the Governor, is entitled to take possession of the office. 11 An. 1097.
    A person removed l>y the Governor under his power of removal can not ho a de facto officer.
   The opinion of the conrt was delivered by

Bermudez, C. J.

This is exclusively an injunction proceeding.

The fundamental averments upon which the plaintiff relies are simply:

1. That he is a duly commissioned, qualified and inducted member of the Board of Levee Commissioners for the Fifth Louisiana Levee District, and, as such, is in possession of the office, discharging the functions thereof and receiving the perquisites thereto attached; in other words, is a de facto officer.

2. That the defendant, who has been illegally commissioned by the Executive to succeed the petitioner as having been removed, unless restrained by injunction, will soon attempt to assume the functions of said office and claim the perquisites of the same in the place •and to the exclusion of petitioner.

As a corollary, it is charged that, being the incumbent, petitioner-is entitled to a writ of injunction to restrain the defendant from interfering with him in his possession of said office and in the discharge of his duties, until after proper proceedings the disputed right to the office shall have been judicially determined.

The prayer is in accord with the averments.

The injunction sought was allowed.

The petition was followed by a supplemental petition. Issue was joined by exceptions and by a general denial, amplified by averments of previous vacancy occasioned by a removal, which denied to the plaintiff the right to aver -himself an encumbent.

The exceptions were overruled, and the injunction issued in limine was allowed to continue until the determination of the pretensions, of the defendant in a proper proceeding.

From the judgments thus rendered the present appeal was taken.

The exceptions were properly overruled. The petition disclosed a cause of action, and the other matters thereby set up appertained to another future suit, and not to that before the court.

The litigants asserted conflicting titles to the office, raising questions involving the power of the G overnor to remove and to appoint a successor.

Whatever the appearances and contentions of the parties were below and here on that subject, it is clear that under the conservative ruling in the case of Guillotte vs. Poincy, 41 An. 333, which is. fully applicable to this ease, as far as the law is concerned, touching the quid judicandum, the respective title of the contestants to the office of commissioner of the Fifth Levee District can not now be. determined.

The facts in that ease are not parallel to those in the present one.

There, Guillotte was an incumbent, and feared that the board of which he was a member would aid Poincy in entering upon the discharge of his duties.

Here, Goldman is also an incumbent, but he does not allege any-fear that the board will recognize Gillespie.

On the contrary, he proves that the board does not admit the validity of the appointment of the defendant.

Practically, the injunction in the Poincy case against the board was a superfluity, as it issued' against Poincy, who could not, while* so enjoined, claim any recognition.

Here, it could not at all issue against the board owing to the stand taken by the commissioners.

For the same reason that it was useless in the Poincy case it would have been unnecessary here.

It is this, that although the board may be unwilling to recognize Gillespie, he may induct himself into office by discharging, otherwise than concurrently with the other members of the board, some of the duties which are, under the law creating the board, susceptible of being performed by a commissioner alone in the district of his residence.

By Section 17 of the act creating the board (Act 44 of 1886, p. 68) the care and police of levees devolves of right on the resident commissioner, who is specially authorized in cases of danger or urgent necessity to order out all, or as many as may be necessary, of the road hands of the parish, and cause them to work on the levees, provision being made for their payment.

It is clear therefore that, unless restrained, the defendant may thus assume the functions of levee commissioner; and were the board to change its attitude and to consider him as entitled to recognition, it might admit him to act as one of the board to the exclusion of the. plaintiff, who is an incumbent.

It may be well to add that in applications for injunctions in cases of this description judges should require the strongest essential showing, for it is a grave thing in itself for an incumbent to resist the appointment of a successor to him by an Executive; otherwise, upon mere routine allegation, every commission, issued by the Governor, even in proper cases, could easily be for awhile nullified.

Judgment affirmed.

Breaux, J., dissents.

Dissenting Opinion.

Breaux, J.

Plaintiff alleges in his original petition that he was duly appointed and qualified as a member of the Board of the Fifth Louisiana Levee District, and that he is the incumbent on the said board for the parish of Tensas, and that he is entitled to hold that office until the month of May, 1892.

That the defendant holds an invalid commission, and unless prevented by injunction he will soon attempt to assume the functions of that office and claim its emoluments.

That the board has authority to build and maintain levees in the district necessary to protect its lands from floods; also power to levy taxes, borrow money and issue bonds.

That a long line of levees has been built and kept in repair, and-thereby property of great value protected.

That the board was making contracts and providing for the construction of several extensive levees and to repair and strengthen a long line of levees in the district, when their acts were impeded by the acts of the defendant in claiming the right of holding the office of commissioner as successor of plaintiff.

That the operations of the board have been paralyzed, and its credit impaired.

That the defendant, unless prevented by injunction from asserting his illegal claim to the office, will cause damage to the petitioner in •a stated sum by the depreciation in the value of his immovable property and the threatened destruction of his crop by overflow in the absence of a proper and efficient system of levees in the district.

In this petition for an injunction no act is alleged to have been donej.by the defendant as an officer, except in genez’al terms.

No particular act is set forth.

He held a commission, and took the required oath.

He could not become a member of the board, for they, in the deliberations at one of their meetings, refused to recognize the validity of his appointment, and formally declared that he would not be admitted nor considered a member.

He could not perform any act in his own district. He was not, under the circumstances, vested with the least authority, for he could not act as an individual officer without some sanction.

The allegations are directed against his possible acts as a member in claiming to act with the board, not that it was apprehended that he, as an individual officer, would assume the care and police of levees devolving on the resident commissioners, nor that the threatened danger or necessity made it probable that he would order out all or as many road hands of the parish as the urgency required.

It would have been entirely useless on his part. His acts would have been ineffectual and nugatory. The board’s regulations apply When hands are called out to work. The appointment by inspectors and watchmen is made under these regulations.

All persons serving during the emergency are paid by the board. They may be called out by the individual member, but by authority of the board, else his acts would not be entitled to legal recognition.

He certainly could not act as a member, for they refused all recognition.

He could not act as an individual officer in his district, for to thus act it required the board’s authority, which he did not have.

The allegations do not raise issues with reference to defendant’s possible acts, as one clamoring to be an officer in his district and having the right to enforce Section 17 of Act 44 of 1886, relative to the care and police of levees devolving upon the resident commissioner.

They are limited to his claims to act as a member of the Board of Levee Oommissioners.

The following shows the action of the board, and the determination not to recognize defendant’s authority:

“ On motion, the following resolution was adopted:
“Whereas, The Governor of this State has attempted to remove Hon. F. L. Maxwell, president, and Messrs. G. O. Goldman, A. S. Oolthrop and O. O. Oordill, members of this board, without assigning any legal cause for his action, and he is clearly without authority to make said removals. Act 44 of 1886 provides the only mode and manner in which members can be removed from said board. And they were not removed in pursuance of said act; therefore
“Be it resolved, That we, the members of the board, have full faith in the capacity, diligence and integrity of the members whose commissions have been attempted to be revoked, and that it is the duty of said members to continue as members of this board in their several capacities, and we believe it to be our duty to maintain the legal rights of the board and the members thereof.”

Plaintiff does not allege that it is apprehended that the board will admit or recognize the defendant, but the opposite is shown.

Quite different is the case of Guillotte vs. Poincy, 41 An. 335, urged as similar in every respect to the pending case.

In the former it was alleged that the members of the board (to fill an office to which the petitioner had been appointed), “unless restrained, will admit him to the discharge of the duties of the office and to a participation in its emoluments.”

No such apprehension was felt in the ease at bar, but it is proven that the board had determined not to receive the defendant.

From the Poiney-Guillotte case I quote:

“ The record shows that plaintiff’s apprehension is well founded. It appears on the face of the pleadings that the remaining members' of the board but for the injunction would have recognized his right, and would have admitted him as a member.”

To this time in the course of the proceedings the plaintiff had nothing to apprehend; the injunction granted by the clerk of court had accomplished nothing; prevented nothing; only a citizen holding a commission was enjoined from performing acts, the record discloses, he could not perform.

The original petition was filed August 16, 1890.

In October the plaintiff chose not to rely on that petition, and on the injunction effecting so little, if anything, and filed an amended petition reiterating the allegations of his original petition.

He further alleged “ that he had been advised that the appointment of the defendant as a member of the board has been predicated on and made to fill the alleged vacancy in said board resulting from the attempted removal of petitioner by the Governor of the State; but petitioner avers that said attempt to remove him is unwarranted in law, null and void and without effect, for this, that the power of removal from said office as member of said board is not absolute in the Governor, but can be exercised only when he is requested thereto by the said board and for legal cause, expressed by said board as it is specially provided for in said Act No. 44 of 1886.

“ And petitioner avers that no request thereto" has been made by said board on the Governor, who was therefore powerless to effect a legal removal of your petitioner, and without power, right or authority to appoint defendant to said office.”

The issues are directly presented. The plaintiff denies to the Executive the authority to create the vacancy by removing him; denies his power to appoint defendant.

Plaintiff has by his allegations in his amended petition presented the issues involved.

The defendant has traversed plaintiff’s allegations.

They have introduced their evidence.

The questions are presented for solution as clearly and as well defined as they ever will be. v

There is no averment made that the evidence is not before the court, and that further testimony should be admitted and further opportunity granted for the purpose.

The questions here have been fully argued. Nothing can be added to more closely define the issues.

It would be injustice to able counsel to intimate that further argument is needed.

In the Guillotte-Poincy case the question of title was not presented, and therefore could not be decided.

Plaintiff was entitled to relief by injunction “in order to preserve the status quo until the right shall be judicially determined.”

In the case at bar, the plaintiff prays that the issues be at once decided.

The State can only nominally be made a party to the suit.

The addition of the name is only a form.

There is not an iota of right affecting the State.

Whether she be made a party or not does not in the least change the issues.

In criminal cases in which precision is required and the pleadings must include every essential allegation, it is held that a formal statement in an indictment, that “it was found by the authority of the State, is not essential if it appears from the record that the prosecution was conducted in the name of the State.” State vs. Russell, 2 An. 604.

In the case at bar the State is not a party, but the suitors have not chosen to raise any objection on that ground.

The intrusion in office act provides that an action by petition “may be brought before the proper court by the District Attorney, and in the City of New Orleans by the Attorney General.” The word “may” has become “shall” by interpretation in those cases in which there was well founded apprehensions of disturbance, and the incumbent desired to maintain the status quo, but not in these cases in which the legal rights of the parties are completely alleged, and each has made his proof.

This does not prohibit officers from testing their right to the incumbency of an office without making the State a party.

Delay will not accomplish anything, and there can be no legal purpose in making the State a party.

I can not avoid the conclusion that it would be preferable to decide the issues presented at this time, and that they can be legally decided, and the rights of the parties determined, and that there is no necessity of relegating the parties to another suit.

I therefore respectfully dissent.