author: Todd, J.

text:
    No. 8713.
    The State of Louisiana vs. Amos Buchanan.
    Where a party is indicted as E. Buchanan, is arraigned and pleads as Amos Buchanan, which is his true name, the State during the progress of the trial can amend the indictment by setting out the true name.
    In case of a conspiracy to commit a crime after such conspiracy is proved, a declaration of one of the conspirators made even out of the hearing of the other relating to the commission of the crime, is admissible against him, but not if made after the common purpose has been consummated or abandoned. And this rule is not varied by the fact that after the commission of the offense and the arrest of the offenders, they have entered into a new conspiracy to manufacture or influence evidence favorably to themselves at the approaching trial, and the declaration of one of the conspirators in question is made whilst pursuing the purpose of the last conspiracy!
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. J.

      J. 0. Egan, Attorney General, and Jos. A. Ohargois, District Attorney, for the State, Appellee:
    1. Indictments may be amended so as to make the name of accused mentioned in the indictment correspond with the proof adduced on the trial. R. S. Soc. 1047 ¡ 23 An. 604 j 30 An. 367; 31 An. 40S.

      2. The declarations of an accomplice made in the presence of tlio co-defondant are admissible in evidence on the trial. Wharton, p. 189 ; Waterman’s TJ. S. Digest, p. 13S, 27os. 123,124, 125 and 126.
    3. Uowly discovered evidence to be tlio basis of a new trial must be material, and not only cumulative, corroborative or collateral.
    4. This Court will not review the ruling of the court a qua on a motion for a now trial based on newly discovered evidence, because it is a question of diligence, and not au unraixed question of law. 2 An. 921; 4 An. 438, 441; 6 An. 311, 593, 652; 7 An. 284, 531; 8 An 515; 8 It. 554, 590; 13 An. 573; 21 An. 473; 22 An. 403 ; 30 á.n. 305, 114; 38 An. 842; Const., Art. 81.
    0. JDebaillon and M, E. Qircird for Defendant and Appellant:
    To make the declarations of others evidence against an accused, when made out of his hearing, it must bo first shown that there was a conspiracy between him and them. State vs. Smith, 30 An. 457; Wharton, Sec. 702; Bishop Crim. Proc. Yol. II, Sec. 229; Archbold, Yol. I, p. 398.
    The Act, declaration or dictation of one conspirator, after the common purpose is at an end, cannot affect the others. 29 An. 354; 31 An. 860 ; Wharton, Secs. 703, 704, 705; Bishop Crim. Proc. Yol. II, Sec. 230; The State vs. Thibeau, 30 Yfc. 100, 106, 107; Archbold, Yol. 1, p. 409 ; Destey, 11 h.
   The opinion of the Court was delivered by

Todd, J.

The defendant appeals from an eighteen months’ sentence of imprisonment in the penitentiary on an information for larceny.

The.grounds of the appeal are

J. That the information charged that the larceny was committed by one E. Buchanan, and the Court during the progress of the trial, on motion of the District Attorney, permitted the information to be amended by setting out the name of the defendant as “Amos Buchanan.”

It appeared that the accused was known and called in all the proceedings, Amos Buchanan, was thus arraigned and pleaded, and the evidence showed it was his true name.

The amendment allowed was authorized by the express terms of Sec. 1047, R. S.

Under the common law, as it existed before the statutory change referred to was made, an accused could not take advantage of a misnomer after arraignment and plea. 1 Chit. Cr. L. 202; Archb. Crim. Proc., vol. 1, 261, note; 16 Mass. 141; 1 Parker, 329.

Therefore, in this case, had the correction not been made and a conviction been bad, he could not have been relieved by motion in arrest or motion for new trial. There was no motion to quash or plea in abatement filed.

2. Complaint is made that daring the trial a witness for the State was asked what one Noah Harman had told him, the witness, and was permitted to relate what he had been told by Harman concerning the commission of the offense and the part taken therein by the accused. This testimony was objected to by the counsel for the accused, and a bill of exception retained to its admission.

The objections were in substance : 1st; that the statement to Harman was made out of the hearing of the accused; 2d, that there was no conspiracy first proved to exist between the accused and said Harman before the question was asked; and 3d, that if such conspiracy had been shown to exist, when the statement was made by Harman to the witness, the alleged common purpose must have ended, as it was made after the commission of the offense.

• It appears that Harman had been jointly charged, in the information, with Buchanan, with stealing cattle. That both had been arrested and had been released on bond, but BuchanaD alone was tried. That the statement of Harman, admitted in evidence, was made after the parties thus jointly charged had been arrested and released on bond.

If any purpoge, plan or conspiracy existed between these parties to commit the offense charged, after the commission of the offense and their arrest therefor such conspiracy or common purpose would, it is clear, have been consummated or at an end.

It is elementary, that the statement respecting such offense, made out of the hearing of the accused, by his co-conspirator, after the conspiracy has ended, is inadmissible.

Wharton thus expresses the law on this point:

“ The distinction appears to be well settled between the admissibility of declarations accompanying the acts of conspirators and statements subsequently made, as evidence against the rest.

This co-responsibility holds good without regard to the time in which the party entered the combination. He becomes responsible for every act which may afterwards be done by any one of the others, in furtherance of the common design. When, however, the common enterprise is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted by subsequent act or declarations of his own to affect the others. His confession, therefore, subsequently made, is not admissible in evidence as such against any but himself.” Wharton, Secs. 702, 705; Bishop’s Crim. Proc., vol. 2, Sec. 230; 29 An. 354; 31 An. 860.

The statement in question was admitted by the Judge, as appears from the bill of exceptions, for the reason that the parties had been co-conspirators in the commission of the offense charged, and because he, the Judge, believed that when the statement was made by Harman, he and Buchanan were at that very time engaged i,n an attempt to deceive the witness, in order to make evidence for themselves on the then approaching trial.

. This latter consideration could not affect the question of the admissibility of this declaration. The sole test of the admissibility of a declaration by one conspirator inculpating his co-conspirator, made out of his hearing, is whether such declaration was made whilst they were engaged in carrying out the purpose of the conspiracy, and this fact or condition must first be established before the declaration can be admitted. If made after the accomplishment or abandonment of the common purpose, it is mado too late and.eannofc be admitted.

If the declaration is made whilst the conspiracy' is still on foot, it . must refer exclusively to the offense or the commission of the offense, for w'hich the party is tried. If, after the offense is committed, a plan is formed by the two offenders for any purpose relating to their trial, this fact cannot render admissible the declaration of one of the parties against the other, concerning their first offense, though made during the existence of his last or new conspiracy about the evidence. Such a circumstance has no real bearing on the question presented, and the Judge should have given it no consideration.

We are satisfied that this statement of the accomplice was greatly to the prejudice of the defendant, and its admission constitutes so grave an error as to invalidate the conviction.

It is, therefore, ordered, adjudged and decreed that the conviction and sentence appealed from be annulled, avoided and reversed, and that the case be remanded, to be proceeded with according to law and the views herein expressed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 8259.
    Mrs. Johanna Dillon vs. Luke Dillon.
    Improvements erected during marriage on tlie separate property of one of the spouses, even though made with community funds, belong to the owner of the soil, subject only to the duty of paying to the community at its dissolution the enhanced value of the property resulting therefrom. Art. 2408 C. C. clearly establishes that the enhanced value above referred to, is only due to the community where the improvements have been made with community funds or labor.
    In determining this question, the Article clearly contemplates proof to he made on both sides. Whether, in absence of any proof whatever on the subject, the bare fact that the improvements were made during the existence of the marriage, would be sufficient to establish the community right, need not be here decided. The presumption flowing from such fact, if it exists, is a light one j and we hold the evidence offered herein is sufficient to rebut it.
    During the pendency of an action for separation from bed and board, the husband is not entitled to the exclusive benefit of revenues of common property, but on settlement of community must account therefor.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Brauglm, Bucle & Binlclespiel for Plaintiff and Appellee :
    1. The presumption that property is community must yield to contrary proof. 16 L. 40; 30 An. 275; 5 R. 292; 9 An. 60; 13 An. 379 j 14 An. 716 ; 30 An. 167.
    2. Any legal evidence is admissible to prove what the spouses brought into marriage, 5 R. 292.
    3. The ownership of a thing, whether it be movable or immovable, carries with it the right to all the thing produces, etc. C. C. 498-505.

      Ghas. S. Bice for Defendant and Appellant:
    1. The burden of proof is on the plaintiff to show that the improvements built on her separate property, duiing the existence of the community between herself and the defendant, her husband, were paid for out of her separate funds. 26 An. 605 ; 10 Rob. 19; 2 An. 44 and 45; 30 An. 275; 28 An. 442
    2. The presumption of law is that the improvements and ameliorations placed on the separate property of either spouse, during the existence of the community, is community property. C* C. Art. 2408; 6 Rob. 513 ; 17 Da. 301 ; 29 An. 583 ; 28 An. 430.
    3. hTo presumption arises against either spouse, in a suit for partition and settlement of the community, from not proving the possession of separate property, or that there were actual community acquisitions.
    4. The judgment decreeing the defendant to account for rents, not shown to have been received by him, not sued for, and not referred to in pleadings and evidence, is ex gratia and should be reversed. The fruits of even the wife’s separate property administered by the husband, or by the husband and wife indifferently, belong to the community. C. C. Arts. 2386, 2385, (Rec. pp. 43, 44); 19 La. 574; 28 An. 442.
   The opinion of the Court was delivered by

Fenner, J.

This appeal is the sequel of the case between the same parties, reported in 32 An. Reports, wherein we affirmed a decree of. separation from bed and board and remanded the cause for the liquidation and settlement of the community.

The defendant complains of the judgment rendered below on the last named subject, in.two particulars, viz:

1. So far as the same decrees the buildings and improvements upon the lot of ground on G-asquet street to be the separate property of the wife.

There is no dispute that the lot of ground belonged to the succession of plaintiff’s former husband, Daniel Phillips, and at the date of her marriage with defendant, was administered by her' as natural tutrix of her minor child.

The improvements were placed thereon during the last named marriage.

The evidence shows that this marriage took place in October, 1859; that the improvements were erected during the following year; that the succession of Phillips had cash funds and other means ample to pay for them, which were controlled by plaintiff in her own right and as usufructuary of the interest of her minor eliild; and that said funds weré drawn from bank during the year 1860, when the improvements were made.

A witness, tlie daughter of plaintiff, testifies that the ownership of the entire property was always'claimed by plaintiff and never disputed by defendant, and that the rents, though collected by defendant, were always spoken of as plaintiff’s rents.

There is not a word of testimony to show that defendant had any means whatever at the date of the marriage, or that the community had made any acquisitions during the brief period of its existence prior to the making of the improvements, or in any way tending to establish that they were paid for with community funds. He stands simply and squarely on the bare fact that the improvements were made during the marriage) and he claims the benefit of the presumption arising from that fact, until rebutted by affirmative proof that they were paid for by the wife with her separate funds, which he contends is uot established by the evidence in this case.

The text of the Civil Code on the question is as follows :

When the separate property of either the husband or the wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one-half of the value of the increase or ameliorations, if it be proved that the increase or ameliorations be the result of the common labor, expenses or industry; but there shall be no reward due, if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or to the chances of trade.”

The contention that the improvements belong to the community, even if made at community expense, could not be sustained. The cases of Dominguez vs. Lee, 17 La. 301, and Babin vs. Nolan, 6 Rob. 513, which propound this doctrine, have been expressly overruled. Whiteman vs. LeBlanc, 28 An. 430; Kelly vs. Robinson, 10 An. 308; Waggaman vs. Zacharie, 8 Rob. 102.

These later cases recognize the general principle established in Articles 504 and 505 of the Code, that the ownership of the soil carries with it the ownership of all that is above or under it and of all which becomes united to or incorporated with'it, as applying to the separate property of the spouses in compion with all other owners.

And they hold that where accessions have been made to separate property with community funds, they belong to the separate' owner subject only to the duty of paying to the community, at its dissolution, the enhanced value'of the property resulting from the improvements.

In every event, therefore, the decree of the court, that “ the lot and improvements on Gasquet street are the separate property of plaintiff,” must be technically correct.

It is no doubt proper, however, that we should pass upon the question of the right of plaintiff, as partner in community, to claim one-half of the enhanced value given to the property by these improvements.

The Article of the Code already quoted very clearly shows that he is only entitled to such benefit if the improvements have been made by the common labor, expenses or industry.”

Whether, in the absence of any other proof whatever, the bare fact that ■ the improvements were made during the marriage would be sufficient to establish his right, is a question we are not here called to pass upon. The Article of the Code clearly contemplates proof on both sides; and the presumption from the fact above mentioned, if it exists, is certainly a very light one. We think the evidence in this case, recited above, in absence of all countervailing proof, is sufficient to overcome it.

2. Error is charged in the decree of the court in condemning the defendant to account for the rents and revenues of the Roman street property since the institution of the suit.

The parties agree that the ground is the separate property of plaintiff, but that the improvements were placed thereon by the community. It is not disputed that defendant has possessed and occupied the whole.

A just account of the rents is due by him and, though not expressly claimed in the pleadings, forms a proper element in the liquidation and settlement prayed for.

As the decree settles no principles upon which this accounting is to be made or the rents distributed, or in what proportion they belong to the separate interests of the parties and in what to the community, we have nothing, in these particulars, now before us, for review.

The objection that the accounting could, in^no event, be due except from the date of the decree of separation, is not sound. During the pendency of such proceedings, one party is not entitled to the exclusive benefit of the revenues even of community property, but must account therefor to the community.

Judgment affirmed at appellant’s cost.


author: Manning, J.

text:
    No. 8716.
    The State of Louisiana vs. Charley White.

      A new trial will not be granted by the Supreme Court unless it appearthat injustice has been done. A large discretion is entrusted to the lower court in the matter of granting neW trials which will not be interfered with except for grave reasons. If the ground for anew trial be the insufficiency of the evidence to convict, the Supreme Court will not consider, it, that being a question for the jury alone and exclusively.
    The Judge has a right to order the jury to reconsider its verdict when a palpable mistake ha» been made, such as finding the prisoner guilty of an offence not known to our law. It i» his duty to exhibit the mistake to them, and to explaiu the different verdicts they may find under the indictment.
    The Jury Act of 1877 is in force, and was in no manner repealed or affected by the now Constitution.
    A motion in arrest, on the ground that there is no law for the selection and composition of juries by reason of the alleged repeal of all statutes on that subject, is in substance a challege to the array, and must he made before pleading to tbe indictment. The objection comes too late in a motion for arrest of judgment.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Cole, J.

      J. C. JSyan, Attorney General, for the State, Appellee :
    1. The Court has a right to direct the jury to reconsider their verdict before it is recorded, and it is its duty to do so when satisfied that there has been a palpable mistake. 3 Parker, 552; ProffatC on Jury Trials, Sec. 450.
    2. A motion for a new trial based on the insufficiency of the evidence to convict is a matter entirely witliia the province of the jury; it presents no unmixed question of law and will not bo considered by this Court.
    3. “ All objections to the manner of drawing juries, or to any defect or irregularity that can be pleaded against any array or venire, must bo urged on the first day of the term, or all such objections shall be considered as waived, and shall not afterwards bo urged.” Sec. 11, Act No. 44 of 1877.
    4. Act No. 44 of 1877 is not iu conflict with nor repealed by Arts. 116, 47 and 48 of the Con" stitution of 1879.
    5. It has been continued in force and effect by Act No. 54 of 1880.
    6. Act No. 54 of 1880, is not a “local ” or “ special ” law and docs not contravene Art. 47 of the Constitution.
    7. The terms “local” and *• special” are used in contradistinction with “ public,” in reference to laws.
    8. Act No. 54 of 1880 embraces but one object, the formation of good and impartial juries», and that object is expressed in its title.

      Barrow & Pope for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

Upon a conviction, of murder without capital punishment, the prisoner was sentenced to hard labor for life.

1. An exception was taken to the Judge’s refusal of a new trial, and the evidence is set out in the bill.

Applications for new trials are founded upon the supposition that some injustice has been done, and without proof to that effect they are invariably denied. State vs. Camp, 23 Vermont, 551.

A new trial ought, never to be granted, notwithstanding some mistake or even misdirection of the Judge, provided the revising court is satisfied that justice lias been done, and that upon the evidence no other verdict could have been found. Johnson vs. The State, 14 Georgia, 55.

The Supreme Court of Missouri will not interfere with the finding of the facts by a jury in criminal cases unless it is a case where manifest injustice aud wrong have been done, the presumption being in favor of the verdict, nor will it exercise any control over the discretion of the lower courts except in cases strong and unequivocal. State vs. Craise, 16 Mo. 391.

It must be a very clear case of error in law, or a very naked, bald case as to the facts, which will authorize the Supreme Court of Georgia to control the court below, where it has a discretion to grant or refuse a motion for a new trial in criminal cases. Jones vs. State, 1 Kelly, 610.

The spirit of these decisions pervades the administration of criminal law in this State. The lower Judge is allowed a large discretion on this matter which will not be interfered with unless for grave reasons. Besides, the sufficiency or insufficiency of the evidence to convict is a question confided by our law and jurisprudence to the jury alone, and will not be considered by this Court.

2. The jury having returned a verdict, “guilty of murder second degree without capital punishment,” the prosecuting officer moved that they be ordered to retire again, when the court told the jury there was no crime of murder in the second degree in this State, and explained the different verdicts they could render upon the indictment, and the punishments the law awarded to each. On returning from their second retirement they presented the qualified verdict of murder first above mentioned.

There was no error in this. No exception is taken to the correctness of the Judge’s charge. It was the duty of the Judge to direct the j ury to reconsider their verdict when they had made a palpable mistake, and it was certainly a mistake to convict of an offence not known to our law. Rev. Stats. Sec. 785; People vs. Bush, 3 Parker, 552; State vs. Gilkie, just decided.

3. A motion in arrest of judgment is based upon the allegation that the jury was not drawn in accordance with any existing law, and that the Act of 1877, p. 55, has been repealed by the Constitution of 1879.

This point has been very lately disposed of in the case of State vs. Thomas, not yet reported. But if the objection had any force, it comes too late. It is in substance a challenge to the array which must be made before pleading to the indictment. 1 Bishop Grim. Proc. §§874-889.

Judgment affirmed,


text:
    No. 8034.
    Charles Daul vs. The Firemen’s Insurance Company.
    In a contract of insurance, the condition requiring preliminary proofs is one introduced solely for the benefit of tbe insurer and which ho may waive either expressly or h\ implication ; aud where prolonged negotiations for settlement are conducted without such proofs, and settlement is finally declined upon grounds entirely exclusive of the absence of such proofs, this amounts to a waiver thereof.
    The effect of such waiver is equivalent to the striking of such condition out of the contract.
    The defense of fraud and false swearing in a statement of loss, requires that the swearing must not only be false, but knowingly and wilfully done with intent to cheat the Company. And whore such statement was only made, as a preliminary to suit, after tbe insurer lias made full investigations and after it has finally refused to settle the loss and after negotiations for such settlement have been finally broken off, exaggeiation of the loss contained in such statement cannot bo construed as having been made with tbe intent or expectation to deceive or mislead the Company.
    The condition authorizing the Company to rebuild cannot be invokod to defeat an action for pecuniary indemnity, unless tbe Company' has distinctly eleotod to rebuild and has insisted thereon and put the insured in default for refusing to pennit such rebuilding.
    Charges of attempts by insured to bribe tbe Company’s inspector and a builder are nob clearly sustained in this case; but, even if they were, however reprehensible, they do not, by themselves, fall within any condition of tbe polioy, and oaunot have the effect of oxtiu- ? guisliing the Company’s liability under the policy.
    APPEAL frora the Fourth District Court for the Parish of Orleans. Houston, J.

      H. I). White and J. H. Ferguson for Plaintiff and Appellant:
    1. Whore a loss is ooramunicated to an underwriter, and he negotiates for its settlement, makes offers to that end, and never complains of want of preliminary proof, its production is waived. Philips on Insurance, vol." 2, p.475; Flanders on Fire Insurance, p. 593; Blake vs. Ex. Mutual Ins. Co., 12 Gray, 255; Owen vs. Farmers' «Joint Stock Ins. Co., 57 Barb, 518; 48 Iowa, 644; 30 Md. 102; 2Ü Mich 241; May on Insurance, 468.
    2. There was an express waiver by the Secretary, even if not an implied one, from the acts of the Company.
    3. He was competent to make it. 43 Barb.; 14 Mo 220.
    4. Wilful false swearing must be an intentional abtómpb to deceive, and in a matter where, from the nature of the oath, tbe Company may be deceived. 35 Mo 148; 7 An. 244.
    5. The statement sworn to was not a preliminary proof; it, was made afier the breaking off of the negotiations for the purpose of being annexed to the petition. It proved nothing but rent ipsam. 42 Penn. Stafe. IBS.
    6. It is obvious that the cost and not the amount of loss on the property was coutemplati d by the assured when his claim was made.
    7. The claim made is the measure to determine whether he wilfully swore falsely.
    8. Tbe facts justify a reversal and a judgment for plaintiff’ for §2,435.

      J. O. Nixon, Jr. for Defendant and Appellee:
    1. Wilful and fraudulent fraud aud false swearing will deprive the assured of any claim against the Company. 12 L. 336 : 1 Rob. 442; 1 An. 218.
    2. A great variation between tbe real and sworn value of property insured is a circumstance which, unexplained, will cause forfeiture of the policy. 1 An. 218; 1 Rob. 442.
    3. Where the polioy gives the right to rebuild and the insurer offers to do so, a refusal to permit the rebuilding by the assured will forfeit all claim. Wood’on Fire Insurance, §130.
   The opinion of the Court was delivered by

Fenner, J.

The action is to recover a loss under a policy of fire insurance.

The defenses will be stated, aud disposed of consecutively.

1. That no proof of loss was ever received, as required by the conditions of the policy.

The insurance in this case was on buildings, a cistern and fences, to the amount of $2,550, and on household furniture aud kitchen utensils to the amount of $450.

The evidence establishes that the defendant was promptly notified of the loss, and that immediately thereafter, the parties entered into prolonged negotiations for' its settlement. Investigations were made by the inspector of the Company. The Company never disputed the loss. It proposed to rebuild, as authorized by the policy. Estimates of the cost of rebuilding were obtained by both parties. They could not agree upon the plans and cost of rebuilding. The whole finally culminated in an offer of the Company to pay $1,500 on the buildings and $450 on the furniture. This was declined, ending negotiations, and followed by the present suit. It appears that the secretary of the Company expressly told plaintiff that he need not make proof of loss. But it is sufficient to say that, during all these negotiations, the insurers made no objection to the absence of preliminary proofs; recognized their liability in absence of such proofs, and placed their refusal to pay on grounds entirely exclusive of said proofs.

All well considered authorities agree that the condition requiring preliminary proofs is one introduced solely for the benefit of the insurer, and which he may waive either expressly or by implication ; and that conduct such as detailed above operates an implied waiver. Flanders on Fire Insurance, p. 541; Priest vs. Citizens’ Insurance Co., 3 Allen, 602; Lewis vs. Monmouth, 52 Maine, 492; Peoria vs. Whitehill, 25 Ill. 466; Great Western vs. Staaden, 26 Id. 360; Blake vs. Exchange, 12 Gray, 265.

2. The appropriation of certain salvage by the plaintiff.

The evidence does not substantiate this charge.

3. Fraud and false swearing in estimation of loss.

It appears that, after the final breaking off of negotiations for settlement, and more than sixty days after the fire, the plaintiff, under the apprehension that such action was a necessary condition precedent to suit, furnished to the Company a sworn statement of the loss. This estimate is charged to be so excessive as to constitute fraud and false swearing, within the condition of the policy.

The defense must fail, for two reasons: 1st, The filing of that statement was entirely superfluous under the circumstances of this case. We have already held that there was an implied waiver of the condition requiring preliminary proofs. The effect of such waiver was “ to strike the condition out of the contract.” Flanders F. I. p. 541. “The rule is that if the preliminary proofs are waived, such waiver, in effect, strikes the condition requiring them out of the contract.” Commonwealth Insurance Company vs. Lennett, 41 Penn. 161. 2d, The circumstances under which the statement was made, preclude the idea that there was any intention to deceive or mislead the Company. As shown above, the statement was only made as a preliminary to suit and after the final termination of long-pending negotiations for settlement, in which the only point of controversy was the amount of loss, on which point botli parties had made exhaustive investigations and reached their own positive conclusions. It is not conceivable that plaintiff could have intended or expected that the Company should he deceived or influenced by his statement so made.

The law is well settled that the swearing must not only be false, but it must be knowingly and wilfully done, with intent to cheat.the Company. Franklin vs. Updegraff, 43 Penn. 350; Hoffman vs. Western, 1 La. An. 216; Raffel vs. Nashville, 7 Id. 244; Marion vs. Great, 35 Mo. 148.

4. That under the policy, defendant had the right to rebuild, which they offered to exercise, but were not allowed to do so by plaintiff. The evidence does not establish such a distinct election to rebuild on the part of defendant or such a default on the part of plaintiff to permit them to do so, as would defeat his action for pecuniary indemnity. There were negotiations on the subject of rebuilding in which the parties did not agree, but the defendant never insisted on its right to rebuild nor made any demand on plaintiff to permit the same. On the contrary, the negotiations ended with an offer of pecuniary indemnity which was declined. Nor, in answer to this suit, does defendant tender performance of its alternative obligation. We find nothing in the point.

5. The attempts to bribe an inspector of the Company and abuildor, which are charged against the plaintiff, are not clearly established by the evidence, the language used by him admitting of different interpretation. However that may be, such attempts are covered by no condition of the policy, and we know of no law giving them the effect of extinguishing the Company’s obligation to pay the loss.

On the whole, we conclude that the Company has no just defense.

As to the amount of the. loss, the evidence does not clearly establish that it exceeds the amount actually offered in settlement by the Company, viz: nineteen hundred and fifty dollars.

It is, therefore, ordered that the judgment appealed from bo annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that plaintiff have judgment against defendant for the sum of nineteen hundred and fifty dollars, with legal interest from judicial demand, and costs in both Courts.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 8743.
    John I. Adams & Co. vs. Felix A. Basile.
    Whore ft sheriff’s return on a citation is irregular and void, the judgment rendered to oonñrm a default is a nullity and will be reversed on appeal.
    Although the return be bad, the service may be good. In sueli á caso the suit should not be dismissed, bat should be remanded for further proceedings, at the cost of plaintiff and appellee in both Couits.
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. J.

      Tobias Gibson for Plaintiffs and Appellees.

      L. F. Suthon for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from the judgment confirming a default against Mm, assigning as error the irregularity, if not the nullity, of the service of the citation issued.

The sheriff’s return is, that on the day stated, he handed a true aud certified copy of the petition and citation to G. Tennent, at the store of Mr. F. A. Basile, in the town of Houma, as the said Basile was not at the store at the time of service.”

This return-’does not show a domiciliary service. If the store was kept a.t the domicil of the defendant, and the person on whom the process was served, lived or resided therein, the sheriff should have so stated distinctly, with mention of the apparent age of the person and the source of his knowledge of the circumstances attending sueli service.

It would seem that a ministerial officer, such as a sheriff, should be better informed of the mode of performing Ms duties and returning the manner in which they have been fulfilled.

The provisions of the Code of Practice, with which he should be familiar, require no explanation on such plain matter. C. P. 187 et seq.; 15 An. 462; 19 An. 33; 21 An. 613, 630; 4 An. 363; 3 An. 130; 6 An. 702; 7 An. 268; 19 L. 36, etc.

The return of service is irregular and was no foundation for a default.

It is do answer to avoid the nullity of the judgment consequent on such service, that interrogatories liad been served on the defendant shortly after the citation had issued. It lias been repeatedly held, that knowledge of the suit, however clearly brought home to a defendant, does not supply want of citation, which is the foundation of the proceedings.

The appellant further contends, not only that the judgment should be annulled, but that the suit should be dismissed.

The precedent cited, if authority, is only to the effect that a case will not be remanded, but will be dismissed, where there is an utter want of legal service.

In the present instance, it does not apirear that there is an utter want of legal service. It may be that the service was good. It is the return which is bad. Under the facts, as they may be, it is possible that the service may have been good, and some advantage may be derived by plaintiff therefrom, such as interrupting prescription, etc. 18 An. 337. In such a case the sheriff would be authorized to make a proper return, by amendment or otherwise, conforming with the facts and the law. 21 An. 27; 10 M. 91; 2 R. 485; 8 R. 236; 3 N. S. 489; 5 L. 287.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; that the default preceding it be set aside, and that the case be remanded for further proceedings, at the cost of appellees in both Courts.


author: Pociié, J.

text:
    No. 8282.
    T. H. Faries vs. Ranger, Fatman & Co.
    Iu tile construction of an ambiguous contract, the safest mode is to ascertain the intention and meaning of the parties to the contract, as shown by their own acts, and by the manner in which they proceeded to the execution of the same.
    Hence, when a party orders a cotton buyer in an inland cotton market to buy a quantity of cotton for him of a stipulated quality and of a stipulated price, and a portion of the order is filled by the buyer within a delay of eleven days, without objection as to delay on tho part of the purchaser, the contract will be construed as contemplating a reasonable delay for its execution.
    By consent of parties the cotton buyer may replace inferior cotton by other cotton of the required standard ; and after such consent, the fact of the buyer’s offer of inferior cotton in execution of orders, will not be considered as a violation on his part of the original contract.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      IP. 0. Zacharie for Plaintiff and Appellee.

      Miller, Mnney & Miller for Defendants and Appellants.
   The opinion of the Court was delivered by

Pociié, J.

Plaintiff sues for the recovery of profits which he could have realized from a cotton contract which he had made with the defendants, and which he lost through their violation of the contract.

He charges that under two orders, dated respectively January 23d and 25th, 1877, lie had been directed by defendants to purchase for them 1,000 bales of cotton of a stipulated quality and at a stipulated price, on the market of Shreveport, where he was then engaged in the business of cotton buyer; that while he was proceeding to fill said orders, and after he had bought for and delivered 453 bales of cotton to defendants, he was informed by them that they would receive no more cotton from him, and he alleges that by their said violation of the contract they caused him the' loss of profits which he would have realized through the purchase of the remainder of the order, which he fixes at $1,422.20, and for which he obtained judgment in the District Court.

The answer is a general denial, but the real defense is that the defendants were justifiable in putting an end to the contract, for the reasons:

1. Because the cotton which he had bought to complete the balance of the order was not of the required quality, and was under the stipulated standard.

2. Because the order was not filled within the time prescribed in the contract.

As the 453 bales of cotton were shipped, accepted by the defendants and paid for, there is no dispute about that part of the order.

The undisputed facts shown by the record are as follows:

In January, 1877, plaintiff, a cotton buyer in Shreveport, operated with merchants in New Orleans through one J. P. ICraemer, his agent who resided in this city, and through whom he entered into negotiations with the defendants, touching large cotton transactions.

Their correspondence, mainly by means of cipher telegrams, culminated in an order from defendants to plaintiff for the purchase of 600 bales of cotton of a stipulated quality and for a stipulated price, which order was given on January 23,1877, and was at once accepted by Paries. It was followed by another order on January 25, 1877, for the purchase of three or four hundred bales under the same stipulations. The second order was accepted also by Paries, who telegraphed that he had already bought 700 bales and would fill the whole order by night or early morning. No time was fixed in either order for the delivery of the cotton.

Simultaneously with the first order, the defendants by telegram opened credit for plaintiff by drafts on them for six hundred bales. As to the credit for the second order, Paries was referred to Landaner, a member of the defendant firm, who was announced to proceed in person to Shreveport, and who left on the next day, the 24th, for that place, where he arrived on the 26th.

On his arrival he at once called on Paries, who showed him the samples of the 700 bales purchased for them. After examination, Landauer accepted 453 bales of the lot and rejected the balance as of inferior quality. At that point begins the divergence of the testimony, and from that point flows the conflict.

Plaintiff’s theory is, that under his contract he was allowed a delay of ten or twelve days to fill the order and to ship the cotton ; that it was agreed between himself and Landauer, the accredited representative of the defendant house, that he would replace the rejected cotton and to continue to fill the entire order with cotton of the required standard at the stipulated price, within a reasonable time, and that after going with him through the market and finding on hand no cotton to suit his order, and after instructing plaintiff to suspend his purchases temporarily, Landauer left on the same day for Galveston, whence lie was to return shortly with currency, which had become very scarce in Shreveport, with a view to resume the suspended operations. But, that owing to a considerable decline in the prices of cotton in all tlie markets of the world, Landauer did not return, and the defendants ceased to correspond with him ; whereupon, he notified them, on the 6th of February, following, that he was ready to fill his contract, on which he was informed, for the first time, that the contract was abrogated and annulled by the defendants.

He asserts finally, that from the 26th of January to the 6th of February following, he was ready to fill the entire order within a delay of six days, and he had, during that time, the refusal of the cotton in quality and quantity necessary to fill the order.

Their proposition is that their contract, as explained by the custom and usages of trade, contemplated the filling of their order within twenty-four hours, and with cotton of the prescribed quality, both of which conditions had been violated by plaintiff, although he had telegraphed on the 25th that the whole order would be filled and completed by the morning of the 26th.

Both parties have introduced the testimony of witnesses touching the prevailing usages of trade which should regulate similar contracts’.

■ But we find a safer mode to guide us in the construction of this particular contract, by considering the manner in which the parties themselves understood it, as shown by their own acts.

The evidence shows that the 453 bales which were received without objection, and which made part of the order of January 23d, were shipped in three different consignments, made respectively on January 29th and 31st and February 2d; the last consignment being made in a delay of eleven days from the date of the order. It further appears that the samples of these 453 bales had been examined and accepted by Landauer on the 26th, and that to his knowledge the consignments had not yet been begun.

These circumstances are conclusive proof that a longer delay was contemplated by the parties than is now urged by the defendants, for the execution of the contract.

‘ Now, Faries, in his testimony, explains to our satisfaction why he did not complete the order as he had promised in his telegram of the 25th : his operations were suspended by the arrival and in obedience to the orders of Landauer.

Defendants’ counsel confidently rely on the testimony of Landauer to rebut and destroy that statement of plaintiff, and they point to a page of the record in which Landauer is represented to have said to Faries, with impressive distinctness, that “ he eould not buy for ms.” This language is held out as an order cancelling all unfilled orders from defendants to plaintiff, and to have been predicated on the failure of Faries to have bought cotton fit to be offered or received.

On this statement.of facts counsel’s conclusions are irresistible. But a careful examination of the record has created an entirely different impression on our minds, and has had the effect of satisfying us that the expression used by the witness Landauer, had reference to a particular lot of cotton which he was then examining and not to the further execution of their order by Faries.

In another part of his testimony, Landauer admits that when be left Shreveport for Galveston, his intention was to return to Shreveport, stay there a few days and return to this place by way of Memphis, but that his plan was frustrated by contrary orders from his house, thus corroborating Faries? statement concerning his intended return from Galveston.

Nothing in the record shows that either he or any other member of his house ever complained that Faries was taking too much time in filling these orders. On the contrary, the reason given by Ranger to Kraemer for cancelling their order was that the cotton was not up to the standard, and said nothing about unreasonable delay.

We thus find plaintiff’s theory supported in the main by the testimony of Kraemer and by his own testimony, which, if not corroborated by that of Landauer, is not refuted • by any testimony in the record.

We have not had the benefit of Ranger’s testimony, a circumstance which is to be regretted, because the orders wore given by him personally.

Our conclusion is, therefore, that plaintiff’s theory is substantially supported by the record, and we find no error in the judgment which he has obtained.

Judgment affirmed.


text:
    No. 8674.
    The State of Louisiana vs. George Frey, alias Fritz.
    A motion in arrest of judgment is not tlio proper proceding to reach a variance between allegation and proof said to exist in an information, Such a motion cau be directed ouly against defects or intrinsic causes apparent on the face of the record, whioh vitiate the proceeding.
    APPEAL from the Criminal District Court for the Parish of Orleans. Homan, J.

      J. 0. Egan, Attorney General, for the State, Appellee.

      Jos. E. Blearing for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was prosecuted, first, for forgery ; second, for publishing as true a certain false, altered, forged arid counterfeited order for the delivery of goods, etc. He was tried, found guity on the second count and sentenced to fourteen years at hard labor in the State penitentiary.

After verdict and before sentence he filed a motion in arrest of judgment, charging tl that it appears and is so stated and alleged in the information herein, that the alleged order for delivery of goods purports to have been made and signed by one James F. Walsh, when in fact and in law said order purports to have been made and signed by one James M. Walsh j that the said variance is a matter of substance, and that said judgment should be arrested for other manifest defects in the record aforesaid appearing.”

The District Judge properly overruled the motion-.

The defect alleged, consisting in a variance between the allegation and the proof, discovered either during or after the trial, was not a matter of substance. The law does not require the setting out of any copy 01'fae simile of tlie instrument, or description of the same or value thereof, otherwise than by the name or designation by which the same may be usually known, or by the purport thereof. The reproduction of the instrument was mere surplusage.

The defect charged cannot be availed of by a motion in arrest of' judgment, which can be made only when there exists some intrinsic error patent on the face of the record, which vitiates the proceeding and as would have been sufficient on demurrer.

“ A variance between proof and allegation, * * * or auy other matter appearing only on the evidence at the trial, will not be reached by this motion.” Bishop on Crim. Proc. vol. 1, Sec. 1285; also, Secs. 1107, 1108, 1109; besides, 8 R. 513; 6 An. 310; 7 An. 284; 8 An. 515; 9 An. 94; 14 An. 828; 15 An. 557, 185; 25 An. 370, 537; 28 An. 129; 30 An. 91.

Even if the objection had been seasonably and properly presented, it would be untenable. Innumerable cases hold that the middle name is a superfluity and may be safely omitted in criminal prosecutions. That is a reasonable view'. In this country the middle name is seldom used in common parlance, and even in writing is generally belittled to an initial. Thus, in a case lately decided, containing copious references, it has been held that “ William Shepard ” and William Hezekiah Shepard ” are the same name, the addition of “ Hezekiah ” making it fuller, not different. State vs. Feeny, R. I. R., March, 1882; Reporter No. 23 of 1882, pp. 733-4.

It is unnecessary to indicate what the remedy was which the defendant should have invoked.

In this Court the accused complains further, that the information is violative of Article 8 of the Constitution, now in force, w'kich is to the effect that the accused shall enjoy the right to be informed of the nature and cause of the accusation against him.

That provision simply means that prosecution shall not be conducted in secret, but shall be open and public, by information or indictment on specific charges, and that the party shall have full opportunity to assert and make his defense. State vs. Bartley, 34 An. 147.

We have examined tlie information, which contains specific charges, and do not discover in what respect it fails to inform the accused of the nature and cause of the accusation against him, unless it be in the variance between the description of the signature or name to the order for the delivery of goods and the person intended.

The discrepancy, if it exist, was immaterial and might, on timely objection to proof at variance under it, have been corrected on simple motion during the progress of the trial. R. S. 1047, 1052; Bishop on Crim. Proc., vol. 1, Sec. 478.

No other defect has been pointed out to us on the motion in arrest.

The authorities relied upon •by the defense are from sister States, in which it does not appear that statutes similar to Secs. 1049 and 1052 of the R. S. exist, which were passed in this State purposely to meet contingencies like those which have arisen in the present instance.

The judgment appealed from is affirmed with costs.


text:
    No. 8276.
    Allen, Nugent & Co. vs. Ben. Buisson. Bickham & Moore, Intervenors.
    A vendor of cotton is entitled to have the sale annulled for non-payment of the price when vendee is in actual or constructive possession.
    The fact that the vendee has delivered the cotton to a oreditor of his, the proceeds to he applied to the payment of his debt, cannot be set up by such oreditor to j ustify a claim to the ownership of the cotton.
    The ownership did not thereby pass. It continued in tbe vendee, at whose risk the thing remained. The creditor’s possession, after such delivery, is that of the vendee.
    Such a transaction is not a dation en paiement. A consent} a price and delivery were necessary, but a weighing was not indispensable.
    Where special defenses are not set up, the Court cannot supply them.
    A PPEAL from the Lamms, J. Civil District Court for the Parish of Orlean*.

      W. S. Benedict for Plaintiffs and Appellants.

      Miller & Finney for Intervenors and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to annul a sale of cotton for nonpayment of the price.

The defendant having failed to appear, a default was entered against him.

Parties claiming to own the cotton intervened in the suit.

Prom a judgment in favor of the third opponents, the plaintiffs have appealed.

The following is a summary or abstract of the facts :

On October 26th, 1880, plaintiffs sold a number of bales of cotton to the defendant, the price of which has never been paid. On November 1st, next, the cotton was delivered by the defendant, under a pressure, to the intervenors, the proceeds to be applied to the payment of an indebtedness of his, to them, arising from another sale of cotton which they had made to him on the 9th of October previous. There is no evidence that the cotton was intended to be given and received in payment of the debt. On the 16th November following, averring the nonpayment of the price of sale by the defendant, possession of the cotton by the intervenors, and alleging the fears usually entertained on such occasions, the plaintiffs caused the cotton to be sequestered in the hands of the third opponents,.who bonded the same on an allegation of ownership.

The defendant has not joined issue. The contention is simply between the third opponents, who claim ownership of the cotton, for having acquired it from the defendant, for value received in good faith by a elation en paiemeni and previous to the institution of the suit, and the plaintiffs, who merely ask the resolution of the sale, which they made of tiie same cotton to the defendant, from whom the opponents claim to have received it, in payment of an indebtedness of his’in their favor.

It is apparent that as to the defendant the plaintiffs have made out their case, as far as the fact of the sale to him and the non-payment of the price are concerned; but of what avail would a judgment be to them, annulling that sale, unless the thing sold, the cotton, which had been delivered by the defendant to the third opponents, be returned to them 1

This is a sort of cross action between the plaintiffs and the third opponents, in which the former ask a rescission of the sale and the latter revendicate title to the cotton sequestered-

The third opponents were not made and have not become defendants in plaintiffs’ suit. They have made themselves claimants in it, and have forced upon the plaintiffs the attitude of defendants on their third opposition. Upon them rests the burden of proving their averment of title to the cotton by transfer and possession. Should they fail in this, then plaintiffs would be entitled to recover possession of the cotton which the opponents claim to hold animo domini.

There can be no doubt as a rule, positis ponenclis, that one to whom cotton lias been sold and delivered and who is in actual possession, apparently as owner, may lawfully sell it or transfer it in payment of his debt, free from all claim, after five days have elapsed from the delivery to him, and that the sale or giving in payment for non-payment of the price canuot be annulled where the cotton has been turned over to the purchaser or creditor, and title of ownership has thereby been divested.

Hence, the theory upon which the opponents revendicate the c.otton is, that the ownership of it had passed from the defendant and has vested in them. This is an assumption which is verified neither by the facts nor by the law.

In order to show title, the opponents aver that the cotton was given to them in payment of their claim, but they have introduced no evidence that such ever was the intention of the parties on the subject. It is true that the opponents were the creditors of the defendant and that the cotton was delivered to them by his order; but the circumstances under which the transaction took place do not establish au intention, a consent, in the parties to give and receive the cotton in payment of the debt. The evidence does not show that the cotton was transferred for any specified price, agreed upon and fixed for the giving in payment, which is assimilated to a sale.

The proof shows that the defendant was a man of no means, not blindly trusted by those who dealt with him, and that he was under a strong pressure from the opponents when he authorized the delivery of the cotton to them. The record.shows, besides, that the cotton after being thus delivered to the opponents was by them sold during the pendency of the suit, not for their own account as owners of it, but for the account of the defendant, their debtor, and that in furtherance of the previous agreement between them, the proceeds were applied to the satisfaction of his indebtedness, reduced by a partial payment.

The very letter which they wrote on the 10th of November, 1830, to the plaintiffs, in answer to theirs of the day before, in unmistakable language admits that they received the cotton from the defendant, proceeds of which were to be applied to the payment of his indebtedness to them. The letter concludes by saying that until the indebtedness is satisfied they decline to comply with plaintiffs’ demand for the cotton.

The bills of sale of the cotton show that it was sold for defendant’s account, and the statement of his account with the intervenors proves that the proceeds were carried to his credit, leaving a small balance against him.

If, as claimed by the opponents, the cotton had, under a Contract, been given and received in payment of defendant’s indebtedness to them, that debt, on the delivery of the cotton, would have been extinguished, the intervenors would simultaneously have become the owners of the cotton, and no further claim could have been asserted against the defendant growing from that indebtedness.

The letter, the bills, the statement of account, the balance to the debit of defendant, show conclusively that the opponents never considered themselves as the owners of the cotton.

It is clear that had the cotton, after its delivery by the defendant to the opponents, been destroyed by fire, or otherwise perished, defendant could not have claimed credit for its value. The loss would have had to be borne by the defendant, whose property it continued to be and at whose risk it remained, notwithstanding the delivery. R. C. C. 2439, 2458, 2655; 19 An. 489; 10 An. 242, 249; 17 An. 146; 20 An. 111; 19 An. 123, 489; 24 An. 150; 24 An. 85; 27 An. 534; 30 An. 894.

If it be true that plaintiffs by their ineautiousness have invested the defendant with the indicia of ownership, and thus enabled him to hurt them, and perhaps to affect third innocent persons, it cannot be pretended that it has been shown that he has done any act from which it can be legally inferred that he has ever parted with that ownership to the injury of either the plaintiffs or the intervenors. Had he actually by such act divested himself of that ownership, either by a valid giving in payment or sale, or any other act of alienation and self-expropriation, or had he affected the solidity or value of such ownership by a pledge of the cotton, the asserted rights of the plaintiffs to a recovery would not have been so very clear.

The intervenors have boldly averred a title of ownership and have revendicated the cotton as their property. They did not allege a contract of pledge or assert any other right except ownership. They had to elect and they have done so. Silbernagel’s case, 23 An. 699.

By the delivery of the cotton to them, with the understanding that the proceeds should be applied to the extinguishment of defendant’s debt, the intervenors did not acquire the ownership of the cotton, which continued to be in defendant. He had merely turned it over to them, with the power of selling it, with the obligation on their part to use the proceeds to satisfy his indebtedness. After such delivery, had he tendered the amount of his debt to the intervenors, they would unhesitatingly have returned the cotton to him.

In the analagous case of Burkett, 19 An. 489, this Court in substance said:

“ Chandler, the intervenor, claims the bales of cotton as owner. We are satisfied, by his own answers to the interrogatories, that they belonged to the defendant Hopson, who had sent them to the interveuor to be sold on his account, the proceeds to be applied to his credit. There was no price agreed on and the cotton was not weighed. If the cotton had been destroyed by fire, how could Hopson have claimed credit for the value. It was not a dation en paiement for any specific sum. The credit to be given depended upon the sale yet to be made.”

While referring to this case, we are not to be understood as saying that cotton cannot be given in payment of a debt without having passed the scales. Unweighed cotton can be thus given upon delivery, provided the amount of the debt which it is intended to extinguish be specified, as a price must be stated, as in case of a sale.

Tiie fallacy underlying the judgment appealed from consists in the assumption of the fact that the defendant liad actually transferred the ownership of the cotton to the intervenors, which was not the case.

The possession of the cotton at the time of sequestration was defendant’s possession. The seizure of it in the hands of the intervenors was a seizure in the hands of agents, lidding for their principal, which is, in every respect, equivalent to a seizure in the latter’s hands directly.

We have not to deal with the case as it might have been presented. As it is submitted by the pleadings and by the evidence, so must it be decided, particularly when thereby the ends of justice are fully attained.

As there was no special defense interposed, we have no authority to supply or recognize any, •

Owing to the importance of the question at issue, from a commercial standpoint, we have taken pains to review most of the law and jurisprudence, local and French, bearing on the same, and we remain confirmed in the correctness of our conclusions. R. C. C. 2045, 2046,2138, 2139,2561,2439, 2458, 3227, 1970, 1978," 1983, 2655, et seq. ; 1 An. 80; 10 An. 242, 249; 11 An. 91; 12 An. 521, 700; 17 An. 146; 19 An. 123, 489; 20 An. Ill; 23 An. 699; 24 An. 85, 150; 27 An. 534; 28 An. 942; 30 An. 894, 1246; N. C. 2102, 1654; Gilbert, p. 787, and notes; Marcade 6, 288; Merlin R. J., Vo. Revendication, p. 36; Pont. 1, p. 103, 121; Duranton XIX, No. 120; Troplong, No. 199; Mourlon 3, p. 520, Nos. 1300, 1305, etc.

There was error in the finding of the lower court.

It is, therefore, ordered and decreed, that the judgment appealed from be reversed. It is now ordered, adjudged and decreed, that there be judgment in favor of plaintiffs against the defendant and the third' opponents, annulling the sale of cotton made by the plaintiffs to the defendant, rejecting the third opposition of the intervenors and entitling the plaintiffs to possession of the cotton sequestered or the proceeds thereof, reserving their action on the forthcoming bond for recovery of either the cotton or the proceeds, appellees to pay costs in both Courts.

On Aiteication for Rehearing.

The intervenors insist that they are entitled to a rehearing, for the reasons that there is an admission of record that the cotton was given them in payment and that the suit was brought too late.

The admission is that the cotton was given in payment, proceeds to be applied to Buis son's debt It is self-destructive.

The intervenors have claimed ownership and set Up no-otlier right. Their letter and their acts, in selling the cotton for account of Buisson and applying tlie proceeds to his credit, leaving a balance against him, destroy their pretension to the ownership and show that they never considered themselves as owners of the cotton.

Special defenses, such as the expiration of time debarring a plaintiff’s action, should be distinctly stated. The intervenors have not set up any such either in the court below or here, and have not even made the point in argument. This cannot be done in an application for a rehearing. C. P. 895; 6 L. 193; 1 R. 221, 330; 5 R. 467; 13 An. 394; 14 An. 67; 19 L. 48.

Rehearing refused.


text:
    No. 8115.
    P. H. Legendre, Receiver, vs. Seligman, Hellman & Co.
    'Where one firm buys cotton with funds furnished by another, which, under the agreement, is to be entitled to the cotton from the date of the purchase, the bills of lading for the cotton with the exchange drawn against it, to be delivered to the firm furnishing the funds, that firm is entitled to cotton thus purchased, in hands of the firm making the purchase.
    That right cannot be defeated by the death of one of the partners of the ’firm purchasing the cotton, and the delivery of the cotton on hand when the death occurs, to the firm, with whose funds it was purchased under the agreement stated by the surviving partners, is valid.
    The receiver of the partnership, subsequently appointed, cannot disturb such a delivery.
    An exception to one’s capacity to sue must be pleaded before issue joined.
    APPEAL from the Fifth District Court for the Parish of Orleans. Bogers, J.

      A. B. Phillips, B. TF. Huntington aud H. L. Bufour for Plaintiff and-Appellant.

      Miller ds Finney for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

In December, 1873, the defendant firm furnished Eimer Bader & Co. with funds to buy cotton for them, and a consid-' erahle quantity had been bought and delivered. Thirty bales were on shipboard on the 27th of that month, when Eimer Bader died, which were delivered to the defendants by Bulirman, the surviving partner of Bader, in the same way that previous purchases ou same account had been delivered.

Bader’s succession was opened In the former Second Gourt, and his widow was appointed administratrix, and Buhrman was appointed liquidator of the firm of Eimer Bader & Co. by that court. Afterwards, in a suit before tlie Sixth Court between the widow as administratrix and Buhrman, the plaintiff Legendre was appointed receiver of the firm by that court. This suitis by Legendre, under that appointment, to recover thirty bales of.eotton, or their value.

Answer was filed, setting up the agreement between the defendant firm and Eimer Bader & Co., and-three months afterwards an exception was made to the capacity of Legendre to sue, which was properly overruled because coming too late. When.a plaintiff sues in a representative capacity created by law, his want of authority must be pleaded in limine.in order to put him to the proof of it. Code Prac. Art. 344; Parker vs. Moore, 2 Ann. 1017.

The agreement was that the defendants, who are bankers, should furnish Eimer Bader & Co. with funds to buy cotton, which was to be the defendants’ property until bills on shipments were delivered to them by Eimer Bader & Co. Bills of lading, with the. exchange drawn against them, were delivered to the defendants under this agreement through December, during which time the advances of the defendants amounted to within a fraction of seventy-five thousand dollars, and the bills on shipments had covered this sum except six thousand dollars.

The cotton bought with the defendants’ funds was marked and entered on the books of Eimer Bader & Co. so that it could be identified. Immediately after Bader’s death, Buhrman and Heilman together went over the books of the Bader firm, and could recognize only thirty bales as the property of the defendants. There was more cotton on hand, but only this quantity bore the marks indicating it was bought with the defendant’s exchange. Letters of Bader shewed also the same fact. This cotton was in the ship, and bills would presumably have been drawn and delivered on that, as was the course of business between the parties. Bader’s death was sudden. His partner Buhrman delivered the. bills of lading and exchange drawn on them to the defendants, thus carrying out the agreement as it had been done before. He delivered bills for only the thirty bales that were indentified. The proceeds of their sale did not pay the balance of the advances made by the defendants.

He had a right as surviving partner of the firm to deliver the bills of ■ lading for the cotton. Under the agreement the defendants could have-forced him to deliver them. They had taken the precaution to stipulate that the cotton bought with their funds should be theirs from the date- of the purchase, and should so remain until the bills of lading and exchange drawn against them were delivered to them. The receiver cannot disturb the transaction thus consummated.

Judgment affirmed.

Rehearing refused.


text:
    No. 8757.
    C. Chaffe, Jr., Syndic, vs. Madison Carroll.
    In an executory pioceeding by a syndic, to enforce payment of a note secured by vendor’s privilege and mortgage, it is not necessary to accompany tbe petition for the seizure and sale of the property with any evidence of transfer of the note by the insolvent, who was the payee, to his creditors. Possession of such note by the syndic, even if unendorsed, isa piesumption of such transfer. -What title the payee had to it has passed to his creditors by the surrender and by the acceptance of it by the court.
    In such a caBo it is sufficient for the syndic, under proper averments, to exhibit authentic evidence of his appointment as syndic of the creditors of the insolvent payee, the note and an authentic copy of the act of sale and mortgage.
    Damages will not be allowed, even if tlie appeal bo frivolous, where it is daoolutloe only, and, therefore, has not delayed the appellee in the execution of bis judgment. Having sustained no loss consequent on the appeal, appellee cannot recover such damages.
    APPEAL from the Tenth District Court, Parish of Red River. Logan, J.

      M, S. Jones for Plaintiff and Appellant.

      Lj. JS. Watkins for Defendant and Appellee.
   The opinion of the Court ivas delivered by

Bermudez, C. J.

This is an .appeal from an order of seizure and sale rendered.to enforce payment of a note of $5,500, secured by vendor’s privilege and mortgage on the land sold, made payable to the order of J. H. Scheen and drawn by the defendant as purchaser.

The defense is, that the note was not endorsed by the payee, and that there is no authentic evidence of its transfer by tlie payee to the plaintiff. .

The petition is accompanied by ample evidence, that J. H. Sclieen, to whose order the note was made payable, has made a surrender of his property to his creditors, which was accepted by a competent court; that the plaintiff is the syndic in charge of the liquidation of the affairs of the insolvent} that he has taken the oath and furnished the bond required by law, and that letters, showing his appointment and qualification, have been issued to him.

-In a previous similar proceeding by tlie same plaintiff against the same defendant, on the same note and security, as there was no authentic evidence of plaintiff’s official capacity and of an alleged endorsement by the payee, we reversed the decree and aunulled the order for executory process. 34 An. 122.

The present proceeding is brought in strict conformity with the views expressed in the opinion in that case.

If, as claimed, the note never, was endorsed by the payee, title to enforce payment of it continued in him and passed from Mm to Ms creditors, by the surrender andby the acceptance thereof by the court. It was not necessary for the plaintiff, in order to obtain executory process on the note, to produce any evidence to show that the note had been surrendered by the payee. It is no concern of defendant whether it was or not. The presumption is that it was. No third party is heard to claim ownership of it or assert any title to it.

In order to procure the order it was sufficient for the plaintiff, under the allegations of his petition, to exhibit the note, an authentic copy of the act of sale and mortgage with which it is identified, and the letters showing his appointment as syndic of the creditors of the payee, all of which he has done. 28 An. 457.

The fiat of the District Judge was justified by the evidence before him.

The law requires, in a case like this, no other proof of title than the fact of the possession of the note. On payment of the note, the defendant will certainly be relieved from all responsibility and will be entitled to a cancellation of the mortgage inscription securing it. Zapata vs. Cifreo, 26 An. 87.

The appellee is not entitled to damages as in case of a frivolous appeal.

The appeal was devolutive only. It has not delayed the plaintiff in the execution of his judgment. 26 An. 727; 18 L. 31; 13 An. 286.

■ He has sustained no loss consequent on the appeal. C. P. 907.

Judgment affirmed, with costs.


text:
    No. 8285.
    D. W. Hughes vs. La Variété Association.
    A plaintiff must make his claim certain; it is not enough to make it probable.
    A defendant who is sued for movable property, is not estopped in denying plaintiff’s ownership of it, because he had previously, in a suit against plaintiff for the rent of a house, caused this property to be provisionally seized, as subject to the privilege for rent. Property not belonging to the lessee may be subject to such privilege.
    Judgment affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      W. 8. Benedict and A. J. Murphy for Plaintiff and Appellant.

      Breaux & Hall for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.


text:
    No. 8669.
    Robert J. Taney vs. J. S. Meilleur.
    A default can be confirmed ¿wo judicial days after it is entered. The law does not allow tbe ' defendant tbe ¿^(¿judicial day after the taking of the default to file bis answer, unless no confirmation lias intervened. A judgment by default, which is confirmed on tbe third udiciul day following tbe default, is seasonably rendered.
    The appeal being frivolous, damages are allowed.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      33. 0. 33lliot for Plaintiff and Appellee:
    When two judicial days have elapsed and intervened, a default may be confirmed. C. P. 312; Hall vs. Mulholland, 3 G. 113 ; DoBIanc vs. LeBlanc, 15 An. 224 ; Hart vs. Hixon, 24 An. 137.
    Where tbe appeal is taken only for delay, the judgment will be affirmed with damages. C. P. 907; 3 M. 405; 31 Au. 427.

      Geo. O. Préot for Defendant and Appellant:
    In aU cases where delay is granted either to do something or to answer, neither the day of serving the notice, nor that on which the act is to be done or the answer filed, are included. C. P. 318.
    Article 312 of the Code of Practice is to be interpreted under the above rule. 25 An. 137.
    The last day of delay falling on a dies non, the whole of the next day is allowed. 30 An. 677.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from a money judgment against him.

He assigns as error, patent on the face of the record, that the judgment by default properly taken against hirn was prematurely confirmed on the third judicial day, and that this could only have been done on the fourth judicial day, as he was entitled to the whole of the third judicial day to set the default aside.

• The appellant lias misconceived the law on the subject.

Article 312, C. P., which is applicable thereto, is in the following terms: '

“If two days after this first judgment has been rendered, the defendant neither appear nor file his answer, a definitive judgment will then, be given for the plaintiff, provided he prove his demand.”

Previous to 1853, the delay required to elapse between the default' and the confirmation was three days.

The decisions on the Article, as it was and as it is, are uniformly that a default can be confirmed after the full expiration of the prescribed delay. 3 L. 113, 115; 14 L. 268; 1 R. 448; 12 R. 41; 2 An. 806; 15 An. 224; 24 An. 137, etc.

. The appellant however relies upon Article C. P. 318, which says that: In all cases where the delay is given, either to do something or to answer, neither the day of serving the notice nor that on which the act is to be done or the answer tiled, are included.”

He contends that under the terms of the two Articles and the juris» prudence upon them, the law requires as well that the whole of the eleventh day following the service of a citation, shall be allowed to pass before a default can be taken, as that the whole of the third day shall also elapse before a default can be confirmed.

The authorities to which our attention has been called, 25 An. 137; 29 An. 224, 850; 30 An. 677, no doubt contain a correct exposition of the law, but have no bearing on the point now at issue.

The error in which the appellant has fallen is the legitimate result of a confusion of ideas on the subject of computation of time.

While it is undeniably true that a default cannot be taken before the eleventh day, after service of the citation, it is equally so that a default can not be confirmed before the third judicial day after the taking of the default; but- it may well be so on that third day.

In the first, case, the defendant is given ten full days to appear, which are to be counted from and exclusive of the day of service of the citation. In the second case, he is allowed two full judicial days, to be counted from and exclusive of the day on which the default is entered, to set it aside or file his answer. If he do not appear within the ten days following the service of a. citation, a default can go against him on the eleventh day, not before. If he do not set the default aside within the two judicial days following that on which it was entered, confirmation, on proof, can take place on the third judicial day, not before.

The initial point for computation, in the first instance, is the day of service of citation, excluding it from the ten days. The initial point, in the second instance, is the.day of the taking of the default, excluding it from the two judicial days. The law is equally imperative in both cases.

It does not allow the defendant the third judicial day following the taking of the default, unless no confirmation has intervened.

In the present case it is admitted that the default was properly taken on the 18th of May, 1882. The 19th and 20th, following, were judicial days. The 21st was Sunday. The default was confirmed on the 22d of May, 1882. The entire delay of two judicial days allowed by law had then fully elapsed. The judgment of confirmation was, therefore, seasonably rendered.

Construing tho Articles differently would be to do them violence, by allowing three instead of two judicial days, and to run counter a uniform practice of more than half a century, which has never been questioned.

The appellee, treating the appeal as frivolous, has prayed for damages.

The suit is on a note, and no defense appears to have existed to its payment.

We think him entitled thereto.

■ It is, therefore, ordered and decreed, that the judgment appealed from be affirmed. It is further ordered and decreed, that the plaintiff recover of the defendant ten per cent, damages on the amount of the judgment, and costs in both Courts.

Rehearing refused.