author: Nicholls, C. J.

text:
    No. 11,065.
    The State of Louisiana vs. Allen Beeder, alias Beedle.
    1. The Supreme Court having appellate jurisdiction on questions of law alone, it will not revise the refusal of the lower court to grant a motion for a new trial based solely on an alleged deficiency of evidence to make out a case. State vs. Deschampa, 42 An. 575.
    2. Art. 130 of the Constitution does not make the authority of either of the judges of the Criminal District Court of Orleans to try a case dependent upon a recital in the minutes of the fact of an allotment of the same having been made.
    S.A minute entry to the effect that “the grand jurors having found a true bill upon the indictment herein preferred, and the same, together with their finding, having been regularly returned into open court, recorded and filed, and the same having been regularly allotted to Section ‘ B ’ of this court, Allen Beeclle, in person, was placed at the bar of this court to be arraigned on the charge preferred against him, and having heard the said indictment read, pleaded not guilty,” shows that the requirement of Art. 130 was complied with. It was not necessary that the record should show the manner orjproeess by Which the allotment was made. It is sufficient that it shows it was .done, and the legal presumption follows'that it was rightly done.
    4. A defendant who complains, not that there has been no allotment of his case, but only of the manner in which it has been made, must advance it before going inte trial, and point out specifically his objections, which objections must be affirmatively established as against such a minute entry as was made in this case.
    5. Objections that defendant was not seiwed with a copy of the indictment and venire, and that one of the petit jurors who tried the case was an alien, come too late when raised for the first time after verdict.
    6. Act No. 98 of 1880 is not a local and special law in the sense of Art. 48 of the Constitution, and there was no necessity prior to its enactment for the notice to be given, required by that article.
    7. Defendant showsno interest and no right to attack the constitutionality of Act No. 98 of 1880 as contravening Art. 46 of the Ooustitution, and as being a statute which attempts to regulate the practice and jurisdiction of a particular court. If that statute were read out of the books defendant's case would fall under the operation of antecedent laws, and under those laws the proceedings against him would still be regular, and his conviction legal.
    8. If the authority of the governor to appoint the jury commissioners was not to be found in Act No. 98 of 1880, it would be found in Act No. 24 of 1878 (E. S.), and on the score of their official authority would be as valid under one statute a* under the other. Defendant has no interest in tracing the authority to the particular statute.
    9. Defendant’s objections to the constitutionality of the act, made under such circumstances, are in reality a challenge to the array taken after verdict, and out of time.
    APPEAL from the Oritninal District Court for the Parish of Orleans. Batyer, J.

      J. Jt. 'Land, District Attorney, for the State, Appellee:
    1. vSupreme Court having no jurisdiction in criminal cases to review questions of fact, the evidence, though reduced to writing and made part of the record, will not be examined for the purpose of determining whether it authorized a conviction, or the refusal of a new trial asked for on the ground that it did not. 30 An. 401; 82 An. 526; 38 An. 497.
    2. The Supreme Court having appellate jurisdiction on questions of law alone will not revise the refusal of the lower court to grant a motion for a new trial based solely upon an alleged deficiency of evidence to make out the case. 30 An. 1176; 33 An. 34; 34 An. 346.
    8. Where defendant goes to trial without objection, it is too late after verdict to object for the first time that lie has not been furnished with a copy of the indictment two entire days before the trial. 23 An. 194; 33 An, 135; 36 An. 153.
    4. Act 98 of 1880 is constitutional in so far as it provides a hoard of jury commissioners to draw juries for the trial of prosecutions in the Criminal District Court of the parish of Orleans. State vs. Crowley, 33 An., p. 783.
    5. Objection to the legality of the drawing of a jury must be made before trial. Objections to the qualifications of jury commissioners must be urged in the preliminary stages of the trial. 33 An. 896.
    6. A motion in arrest of judgment lies only for substantial defects patent on the face of the record. An objection that the grand jury was illegally constituted can not he taken advantage of after verdict, by a motion in arrest of judgment. K. C. P„ Yol, 2. Secs. 887, 1285; 36 An. 96; 33 An. 896.

      M. X Ommingham, Attorney General, and Lionel Adams, Assistant District Attorney, on the same side:
    1. In a criminal cause error will not lie on the refusal to grant a new trial on the ground that the verdict was contrary to law and the evidence. A question of fact which the Supreme Court can not determine is an insuperable objection to the exercise of its jurisdiction, which is confined to questions of law alone. Con., Art. 81; 11 An. 478; 16 An. 308; lb. 385; 26 An, 888; 27 An. 572; 30 An. 1269; 32 An. 38; 3B An. 34, 785; 34 An. 347 ; 35 An. 96; 87 An. 6, 40; 38 An. 173, 308, 320, 491, 499; 39 An 673; 42 An. 229,567,803; 43 An. 401, 406; 44 An. 94.
    2. Where the accused goes to trial without objection it is too late after verdict to complain for the first time that he has not been furnished with a copy of the indictment two entire days before the trial. 4 An. 379; 6 An. 691; 7 An.567; 12 An. 679; 14 An. 667; 20 An. 145; 23 An. 194; 33 An. 138; 36 An. 154. Or that he was not served with a copy of the venire. 6 An. 691; 7 An. 47; 12 An. 679; 14 An 667; 20 An. 145; 28 An. 194; lb. 621; 30 An. 114; 33 An. 138; 3S An. 476.

      8. When the record shows that the prosecution was duly allotted to the trial court, the presumption is that the requirements of Art. 130 of the Constitution were fulfilled, and that the allotment was rightfully made. 34 An. 350; Lawson on Presumptive Ev. 80. The prosecution may be lawfully apportioned before indictment. 34 An. 1198.
    4. The objection that one of the jurors who returned the verdict of guilty was an alien comes too late after conviction. 8 Rob. 590; 13 An. 276; 21 An. 546; 25 An. 368; lb. 417; 26 An. 383; 35 An. 976; ‘38 An. 499.
    5. All objections to the manner of drawing juries,-or any defect or irregularity that can he pleaded against any array or venire, must be urged before trial. Act 124 of 1874, Sec. 5; Act 56 of 1877, Sec. 5; Act 44 of 1877, Sec. 11; 46 An. 141; 28 An. 187; 31 An. 379; lb. 825; 33 An. 896; lb. 1403; 36 An. 96; 38 An. 502; lb. 207.
    6. Nor will any irregularity in drawing or selecting a jury be sufficient cause to challenge the array unless fraud has been practised, nor unless injury results. Act 44 of 1887; 26 An. 579; 31 An. 81; 32 An. 34; 33 An. 1362; 33 An. 1414; 35 An. 1098: 37 An. 376; 38 An. 459.
    7. Act 98 of 1880 is not a local or special law, but an enabling act passed to carry into effect the provisions of Art. 130 of the Constitution. It is not violative of any of the constitutional articles — 46, 48 or 116. 33 An. 872; 37 An. 165; lb. 368.

      Jos. D. Kiernan for Defendant and Appellant:
    1. The judges of the Criminal District Court obtain jurisdiction of all cases there from their inception in the court to final determination only from the moment a case has been apportioned by lot between the judges. Louisiana Con.y Art. 130. Every proceeding in the Criminal District Court must be of record. The equal apportionment by lots of any case is part of the proceedings, and unless the record of a case shows who allotted it, and how and when it was allotted, neither judge of the court has jurisdiction over it. Louisiana Con., Art. 130.
    2. A record of court proves itself parol; evidence can not establish its contents. Rec., pp. 35, 37.
    3. Act No. 98 fixes the qualification of every person to be empaneled by the judge on a list of jurors. Every juror must be a citizen of this State, and the discovery after verdict that a juror is an alien is a good ground for a new trial. For the act itself tells the accused that every man on the panel is a citizen of the United States and of this State. Act 98 of Louisiana of 1880 is unconstitutional and in violation of Arts. 130, 116, 46 and 48 of the Constitution of Louisiana. Rec., pp. 16, 22.
   The opinion of the court was' delivered by

Nicholls, C. J.

The defendant, Allen Beeder (alias Allen Beedle), having been convicted of murder and sentenced to be hung, appeals from the judgment of the lower court, and relies for reversal upon a motion for a new trial, and a motion in arrest of judgment made in the District Court and overruled.

The first two reasons in the motion for a new trial cover the same ground, that the verdict was contrary to the law and the evidence.

In overruling these two grounds the court assigned as a reason that the evidence established a deliberate and cruel murder beyond any question of doubt. The judge’s conclusions on that subject can not be reviewed by us on appeal.

The third reason assigned was that Section “ B ” of the Criminal Court was without authority and jurisdiction to try the case because the minutes did not show that the indictment was ever allotted, or -that the two judges had equally apportioned the same between them; the fourth, that the indictment had never been allotted as is required by the Constitution, Article • 130; the fifth, that the defendant was not served with a copy of the indictment and a list of the panel of jurors to try the case; the sixth, that one of the jurors on the petit jury which tried the case was an alien,'a fact not known to accused at the time he was' accepted as a juror; the seventh, that Act No. 98 of 1880, “ creating a Board of Jury Commissioners,” etc., is violative of Articles 46 and 48 of the Constitution, and, therefore, unconstitutional.

The motion in arrest is to the effect that all the proceedings in the case were absolutely null and void, for the reason that there was no proper and legal indictment found against the defendant, for the reas,on that Act No. 98 of 1880, under and by authority of which the grand jury of the parish of Orleans found the indictment, was unconstitutional, in violation of Articles 46 and 48 of the Constitution.

The first two grounds have already been disposed of.

The position taken by the defendant in his third reason for a new trial, that the “jurisdiction” of the Criminal District Court to try this case is dependent upon what the minutes should show in respect to an allotment, has probably resulted from the fact that in the appellate court judgments have been frequently reversed absolutely or cases remanded on account of the failure of the record to show the existence of certain facts which should be shown in order to sustain the action of the lower court.

Prom these decisions the defendant has fallen into the error of not discriminating between the “existence” of a thing and the “evidence” to establish it. Defendant’s position “as taken” was not well taken. In so stating there is no inconsistency in saying that under certain circumstances we might have reversed this judgment entirely or remanded the case for further proceedings had there been nothing in the record to show any allotment. The Constitution, however, does not only not make the jurisdiction of the court dependent upon the recital in the minutes of the fact of an allotment, but it is absolutely silent as to the necessity of any record whatever. State vs. Blackman, 35 An. 483.

As a matter of fact we find the following minute entry under date of 21st March, 1892, on the minutes of Section “B” of the Criminal Court: “State of Louisiana vs. Allen Beeder, alias Allen Beedle. Indictment for murder.

“The grand jurors of the State of- Louisiana duly empaneled and sworn in and for the parish of. Orleans having found a true bill upon the indictment herein preferred, and the same, together with their finding, having been regularly returned into open court, recorded and filed, and the same having been regularly allotted to Section “2J” of this court, Allen Beeder, alias Allen Beedle, in person, was placed at the bar of the court to be arraigned on the charge therein preferred against him, and having heard the said indictment read he pleaded ‘Not guilty’ thereto. The court ordered his plea recorded and the accused remanded to await further proceedings in this cause.”

We may understand defendant’s fourth ground to mean either that there has been no allotment whatever of this ease, or that there has not been such an allotment as is required by Art. 130 of the Constitution of the State.

If the first idea was intended, the facts of the case do not bear the defendant out in his contention. The objection having been raised on a motion for a new trial, the district judge permitted the fact as to whether an allotment had been made to be examined into, and evidence was heard on that point which supports thoroughly the minute entry.

If defendant’s attention was to contest merely the manner of the allotment, he should have urged it before going into trial, and should have made known the specific grounds he relied on. To say that the allotment was not such as the Constitution required was entirely too general. But, as has |been said, the Constitution is absolutely silent as to any details of the allotment in the Criminal District Court. In the first part of Art. 130 (when referring to the Civil District Court) the allotment was ordered to be made under “rules of court ” to be adopted for that purpose, but in the latter part, (when referring to the Criminal District Court) nothing was said on that subject. In the absence of any statute regarding it, the only possible way for the Criminal District Court to carry out the requirements of the Constitution was (as the Civil District Court was required to do) to establish rules to govern its action, and we presume not only that it has done this, but that .the allotment in this case has been made in accordance with them. If the allotment was not so made, it was defendant’s duty to have shown that fact affirmatively, and he should have introduced the rules in evidence and brought them up with the transcript. Only in that way can we come to a knowledge of them (Heunen, page 76, No. 4). In the case of the State vs. Shalling, 34 An. 350, speaking of an entry similar to the one in this case, this court said: “The entry showed that the requirement of the Constitution was complied with — that this prosecution was allotted to Section ‘ B ’ of the court, and there is nothing in the entire record that impairs the force or legal effect of this entry, or weakens the presumption that the allotment was rightly made. It is not necessary that the record should show the manner or process by which the allotment was made. It is sufficient that it shows that it was done, and the legal presumption follows that it was rightly dme.” State of Louisiana vs. A. C. Blackman, 35 An. 483.

The court alluded to the case of the State vs. Ardotto (34 An. 1), sa.ying it was not applicable to the one at bar as the record was presented.

We make the same remark here. In the Ardotto case there was an utter absence of any allotment whatever. Here there would be, at best, an irregular or informal allotment.

We think it well to repeat what we have already said, that an objection of that character should be seasonably made, and when made as against such an entry as we find in this ease, affirmatively established. There is much force in the views expressed by Mr. Justice Manning in his concurring opinion in the case of the State vs. Williams, 34 An. 1198, where he said:

“The sole object of the constitutional requirement that criminal' proceedings should be apportioned between the judges by lot is to prevent any selection of cases by preference.

“Chance must determine which judge shall try each case. When that is accomplished it is a matter of indifference how or at wha^ stage of the proceedings the lot is cast. The constitutional provision is of that character that requires the most liberal construction in the interests of society and public order.”

In passing upon the fifth and sixth of the complaints set up in the motion for a new trial against the regularity of the proceedings had at the trial, which were to the effect that reversible error is to be found in the fact that copies of the indictment and venire were not served upon the defendant two full days before his trial, and that one of the jurors who sat upon the trial was an alien, the district judge said : “The objection that the defendant was not served with a copy of the indictment and venire comes too late when raised for the first time after verdict. The alienage of a petit juror is ground for challenge, but not for objection after verdict.” The authorities sustain the judge in these rulings.

The last reason assigned for a new trial and that embodied in the motion for an arrest of judgment cover the same ground — they both attack the constitutionality of ActNo. 88 of 1880 as violative of Arts. 46 and 48 of the Constitution of 1879.

The defendant assuming that statute to be a local and special law claims that it was enacted without the preliminary notice required by Art. 48, and that it contravenes Art. 46 in that it attempts to regulate the practice and jurisdiction of a particular court.

The question of the constitutionality of that statute has been twice before this court; once in the case of the State vs. Crowley, 33 An. 782, and once in the case of the State vs. Dalon, 35 An. 1142, and in both instances the law was upheld.

In the latter case, where the precise point was made which is taKen here, that the notice required by Art. 48 was not given, the court held that it did not fall under the provisions of Art. 48, as it was not a local or special law in the sense of the article relied on, and at some length it went into an examination of ' the meaning of these terms. The decision in that case controls the present one. • We do not see what interest the defendant would have in obtain - ing a decree declaring the unconstitutionality of Act No. 98, for were we to read the act out of the statute book the position of the defendant would not be bettered. Were we to say that the Governor of the State has no authority to appoint jury commissioners under the authority of that statute, their appointment by him would be still sustainable under Act No. 24 (E. S.) of 1878, and their acts on the score of their official status would be valid.

We do not see in what way the defendant is concerned in tracing the Governor’s power of appointment to any particular source.

jlf it be gran ed that the commissioners were legally appointed, defendant’s objection to the constitutionality of the act bears — if it has any bearing at all: — merely upon the manner of their action, and resolves itself into nothing more or less, as was said in 35 An. 96, than a challenge to the array after verdict, and as such not seasonably made.

The character of the objection is not changed by the form in which it is presented.

We do not see wherein any provisions of Act No. 98 touch defendant’s case or injuriously affect his rights, or wherein it attempts to regulate the practice of the court or its jurisdiction to his detriment."

If anything in "the act had that effect it was defendant’s duty to have pointed out to us specifically wherein he was aggrieved. "25 Pacific Reporter, 248.

As we understand the situation, the destruction of Act No. 98 would cause defendant’s case to fall under the operation of replacing antecedent laws, and by those laws to leave the proceedings against him still regular, and bis conviction legal.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the lower court be and the' same is hereby affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,068.
    In the Matter of the State of Louisiana ex rel. William C. Baumann vs. William L. Langridge, Sheriff of the Parish of Jefferson.
    At the time tlie petition was filed, thp relator was in the custody o£ the sheriff of Jefferson parish, awaiting- a hearing and preliminary examination before the judge of the district, who was absent.
    Alleging the absence of the district judge the accused applies to the Supreme Court for a writ of habeas corpus, that he may obtain either his release unconditionally, or under bond.
    The writ of habeas corims' is one of right, but not one of course.
    A party seeking to avail himself of it, is not at liberty to select for, himself absolutely the time or place for relief, or the tribunals through which it is to be obtained.

      The court will not entertain and grant the -writ where a hearing may be had before a competent lower court, unless there should be special circumstances in the ease making- immediate, direct action or intervention necessary or expedient.
    The application is not maintainable, either as a matter of pleading or as a matter of fact.
    As a matter of pleading the averment of absence is defective in not declaring- that there was good ground'for believing that it would be protracted a length of time as would work an unreasonable delay in the administration of justice and in obtaining, in a legal sense, speedy relief., 35 An. 609 ; 40 An. 5.
    As a matter of fact, in argument of the case it was announced, and it was not denied, that the district judge has returned, and is now in the district.
    In the exercise of the discretionary powers of the court to take or not to take action, it being evident that there has not as yet be/in any unreasonable delay in the matter of a prelimin ary trial, the writ is refused without prejud ice.
    y^PPLICATION for Writ of Habeas Corpus.

      H. N. Gautier, P. L. Fourchy and A. D. Henriques for the Relator.

      Gervais Leehe, District Attorney, M. J. Cunningham, Jr., acting for the Attorney General, now absent, and Evans & Dunn, for the Respondent.
   The opinion of the court was delivered by

Nicholls, C. J.

The court having decided to decline granting the relief prayed for in this proceeding, upon grounds not involving the merits of the application, it is not deemed necessary to make any extended statement of the pleadings or facts of the case.

It suffices to say, for the purpose of explanation, that the relator, James O. Baumann, was arrested by the defendant sheriff under authority of a warrant of arrest issued by Victor Estopinal, one of the justices of the peace of the parish of Jefferson, based on an affidavit charging him with having committed' a crime in the said parish, and that at the'time of the filing of the petition herein the relator was in the custody of the said sheriff awaiting a hearing- and preliminary examination before the Honorable Emile Rost, judge 'of the Twenty-first Judicial District (of which the said parish formed a part), under' a commitment to'that effect issued' by the same justice; that the accused had not as yet obtained' such hearing or examination by reason, it is alleged, of the absence of the district judge from the State, who is averred to be the only judge of competent jurisdiction authorized to act in the premises.

It was under this condition of things that the present application was addressed to this court for a writ of habeas corpus, under and through which the relator seeks to be either released unconditionally or under benefit of bail.

Whilst the writ of habeas corpus is one of right, it is not one of course. A party seeking to avail himself of it is not at liberty to select for himself, absolutely, either the time or place for relief or the tribunals through which it is to be obtained. So far from conceding it to be the duty of this court to entertain and act under each and every application for the writ1 on which we might legally do so, we are of the opinion that we should abstain from action where this may as well be done in competent lower courts, unless there should be special circumstances in the case making immediate direct action or intervention necessary or expedient.

In taking this position we are establishing no new rule, as will appear by reference to pages 167, 178, 185, 203, 208 of the American and English Encyclopedia of Law and the authorities there cited, and to the notes upon those pages. See also Paul McCarty’s case, 2 Martin (O. S.) 280, and 7 An. 382.

It is claimed that the present application does show a special circumstance in the absence of Judge Rost from the State. We do not think so. The position is not maintainable, either as a matter of pleading or as a matter of fact. As a matter of pleading the averment of absence is defective in not declaring that there was ground for believing that it would be so long protracted as to work an unreasonable delay in the administration of justice and in the obtaining, in a legal sense, of speedy relief. 7 An. 382; 35 An. 609; 40 An. 5.

As a matter of fact the argument loses its force, as it was orally announced to the court on the argument of the case, and not denied, that at that time Judge Rost had returned to his district.

It is contended, however, that our decision should be based upon the state of things existing when this application was made, and not upon the status of the case at the time of the decision.

As the fact referred to has no bearing upon the question of the legality or illegality of the arrest and detention of the relator, and serves no purpose further than that of furnishing us a light by which to be guided in the exercise of our discretion as to taking or not taking action in this matter, we see no reason for applying the principle invoked.

For the reasons herein assigned it is ordered, adjudged and decreed phat the writ of habeas corpus be refused without prejudice.


author: Fenner, J.

text:
    No. 11,083.
    Mrs. Lena Benjamin vs. The Connecticut Indemnity Association.
    In an action upon a policy of life insurance, although the application is made part of the policy, and the truth of the answers therein made is expressly warranted, breach of such warranty is matter of special plea, and evidence of such breach is not admissible under the general issue, applying the rule frefluently recognized by this court that “ in relation to the contract of insurance, all matters which goto show the transaction to be void or voidable, on the ground of fraud or othenoise, must be specially pleaded.”
    APPEAL from the First District Court, Parish of Caddo. Hicks, J.

      Wise & Herndon for Plaintiff and Appellee:
    1. Our law presumes every contract, which does not appear illegal or immoral on its face, to ho made for a valid cause and upon a sufficient consideration. 12 An. 35.
    í¡. A life insurance policy is'such a contract.
    3. Defendant pleaded the general issue.
    .1. To show the policy of insurance to he void or voidable in point of law, on the ground of fraud or otherwise, it must be specially pleaded. 12 An. 35; 17 An' 135; 19 An. 232; 28 An. 917.

      Bell & Randolph for Defendant and Appellant,
    cited: Greenleaf on Ev., Part 4, Sec. 376; Bliss on Life Ins., Sec. 44; 6 Martin, N. S., 53;-3 Rob. 351; 7 An. 344; 25 An. 219, 332, 458; 26 An. 298; 27 An. 63, 695.
   The opinion of the court was delivered by

Fenner, J.

This is an action on a policy of life insurance, one clause of which makes the application on which the insurance was effected a part of the policy and the basis of the contract, which application contains a stipulation making all the statements, answers and representations therein contained express warranties.

The petition and amended petition contained all usual and necessary allegations establishing the cause of action, including one to the effect that plaintiff “ had complied with and performed all the obligations, representations and warranties required and imposed by the contract.”

The defendant answered, pleading the general issue without any special defence.

On the trial before a jury defendant offered evidence to prove that certain statements and representations made by the insured in his answers to questions in his application for insurance were not true, and that the policy was, therefore, void by reason of the breach of the stipulated express warranty.

The plaintiff objected to the reception of this evidence on the ground “that such evidence is not admissible or competent under the general issue and that all matters whicn show the contract to be void or voidable must be pleaded specially.”

The judge a quo overruled the objection and admitted the evidence with the' qualification that ‘ ‘the evidence is admitted so fair as it may disprove any allegations necessary to be proved by plaintiff under the allegations in his petition and documents annexed; but it is not admitted to prove fraud, concealment or misrepresentations not so connected or involved in the pleadings.”

Under this ruling the evidence went to the jury, which nevertheless found a verdict in favor of the plaintiff, and from the judgment in accordance therewith the defendant prosecutes this appeal.

The plaintiff and appellee insists in this court upon his bill of exceptions to the ruling of the judge above stated and we must determine that question.

The learned counsel ■ for defendant insists, with great vigor', that the question is controlled by the application of the general principles of law requiring allegation and-proof of the performance of conditions precedent as an essential to recovery of any contract depending on such conditions; and that, under the general issue, he has the right to all evidence tending to disprove any fact,- the proof of which by plaintiff is'necessary to make out his case.

This statement of general principles must be admitted as correct, and it must be further conceded that the warranties here involved belong to the class of affirmative-, as distinguished- from ■ promissory, warranties, and ,do partake of. the nature of conditions precedent in the sense that when breach thereof is established- -it has effect to render the contract void ab initio, or rather-to prevent it from ever taking effect.

But in the matter of pleading and proof, these general principles, in their application to insurance contracts, have been greatly modified.

As regards the proof even of affirmative warranties, involving the truth of facts existing at the time of the contract and warranted as conditions precedent to the effect of the contract, the Supreme Court -of the United States has discharged the insured from the burden of proving compliance therewith, and has thrown upon the insurer the burden of proving a breach thereof, if he relies upon such a defence.

That court said: “ The number of the questions now asked of the assured in every application for a policy, and the variety of subjects and length of time which they cover, are such that it may be safely said that no sane man would ever take a policy, if proof of the truth of every answer were an indispensable prerequisite to. payment of the sum secured, that proof to be made only after he was dead and could render no assistance in furnishing it. On the other hand, it is no hardship that, if the insurer knows or believes any of these statements to be false, he shall furnish the evidence on which that belief-rests. He can thus single out the answer whose truth he proposes to> contest, and, if he has any reasonable grounds to make such an issue, he can show the facts on which it is founded. The judge of the Circuit Court was therefore right in refusing to instruct the jury that the burden of proving the truth of these answers rested with the plaintiff below.” Piedmont Ins. Co. vs. Ewing, 92 U. S., p. 377.

In that case the particular breach of warranty relied on had been specially’pleaded, and, therefore, the court had no occasion to pass on the admissibility of such evidence under the general issue; but it is manifest that all the reasons which induced the court to-require that the insurer should single out the answer whose truth he proposes to contest * * ’ * and show the' facts on which his contention is founded,” equally apply as requiring him to notify the insured of such defence by special plea. Otherwise the insured would enter on the trial ignorant of what one of his multitudinous-answers would be singled but for contest, and necessarily unprepared to meet his adversary. Indeed, the principle that the defendant carries the burden of proving such defences involves the necessity of specially pleading them, because, under the general issue, his evidence is limited to that which goes to negative those facts which the-plaintiff is required to prove in order to recover.

Accordingly the modern rule requiring that such defences should be specially pleaded is supported by ample authority.

Mr. May, in the latest edition of his work on Insurance, referring to matters of defence, such as breaches of warranty, misrepresentations, etc., says:

“ Matters in defence can not be availed of unless pleaded. In setting forth the grounds of defence it is not enough merely to negative the truth of a declaration or performance of a condition in the application made by the insured. The particulars in which the untruthfulness or breach consists should be set out as far as can be reasonably done, that the plaintiff may have some notice of what he is to meet. So, where misrepresentation or breach of warranty is alleged, facts from which the court can see that there is misrepresentation or breach of warranty must be stated.”

He fortifies this principle by citation of numerous authorities which need not be here enumerated. May on Life Ins., See. 591.

Mr. Wood sets forth the same doctrine, as follows:

“ The insurer, if it relies on special matter in defence, must set it forth by proper pleas, as such matter' can not be shown or relied upon under the general issue, as when fraud is relied upon, or a breach of any of the conditions of the policy, as a refusal to arbitrate.” 2 Wood on Ins., Sec. 522; See also Bacon on Benefit Soc. and Life Ins., Sees. 455, 469.

Mr. Cooke in'his very recent work on life insurance frankly concedes that these doctrines are contrary to general principles, but concedes that they are well established. He says: “Many of the established principles of the law of life insurance are in direct contrariety to the rule requiring allegation and proof of the .performance of conditions precedent; ’ ’ and again: 1 ‘ The weight of authority is decidedly against the distinction (between representations and warranties) and the prevailing rule is,that the burden of proof of breach of a warranty rests on the insurer as well as does the burden of proof of a material representation. It would seem, however, that we have here another instance of a plain departure from a settled doctrine of the common law, that one seeking to enforce a contract must prove the performance of conditions precedent.” Cooke on Life Ins., Secs. 123, 14, 93.

Finally, this court, in a line of decisions, has maintained the principle announced by Mr. Arnould in his work on insurance, that, as relates to policies of insurance, all matters in confession and avoidance, including not only those by way of discharge, but those also which show the transaction to be void or voidable, on the ground of fraud or otherwise, shall be specially pleaded.” 2 Arnould on Ins., p. 1287; Pino vs. Merchants’ Ins. Co., 19 An. 214; Theodore vs. Ins. Co., 28 An. 917; Flynn vs. Ins. Co., 17 An. 135; Katheman vs. Ins. Co., 12 An. 35; Kennedy vs. Ins. Co., 10 An. 809; Manning’s Unrep. Cases, 169.

We conclude that the foregoing authorities fully maintain the rule invoked by plaintiff that the -matters of defence here involved required to be specially pleaded, and that the evidence in support-thereof was not admissible under the general issue.

It is not denied, however, that there is a conflict of authority on the question, and counsel for defendant are supported in their views-by very respectable precedents. Their error, fortunately, has not. prejudiced their client; for, upon the evidence as received and brought up, we could not have reversed the judgment.

Judgment affirmed.


author: Bermudez, O. J. WATKiNsj J.

text:
    No. 11,034.
    St. Patrick’s Church vs. The Consumers’ Ice Company.
    A bond furnished by one in an official capacity, by cmd through -whom a suit is brought by an organization styling itself a corporation, is a bond furnished by the plaintiff and fulfils the requirements of the law.
    It can not be considered as one furnished by him in his individual capacity.
    Eventually a reference may be had to the motion of appeal and to the petition in the suit, to ascertain the character of the bond, in which both are mentioned.
    The surety is liable, eventually, on such a bond.
    An action must be brought in the name of the party or parties having a real and actual interest which they pursue; or in the name of some one who is alleged, to have authority to institute the suit.
    APPEAL from the Civil District Court for the Parish of Orleans» King, J.

      E. A. O’Sullivan and J. J. O’Connor for Plaintiff and Appellant.

      Francis B. Lee for Defendant and Appellee on Motion to Dismiss.

      Harry H. Hall on same side on the Merits:

      1. A suit by the pastor ol a religions corporation., dissolved in 1853, to vindicate a right of property formerly owned by that corporation, can not be maintained forty years after said dissolution, in the name of the corporation.
    2. Such a suit can only be brought in the name of the individual members then composing said corporation, or in the names of their legal representatives.
    3. Corporations can only stand in court while they have a legal existence,-and must be represented therein by their legal representatives. After their dissolution 1he property thereof vests in the individual members, who must vindicate their rights thereto in their own names. C. C. 446 (437), 432 (423); 15 An. 441; 29 An. 369; 11R. 37; 21 Wall. 609; Morawitz on Corporations, II, Sec. 1031; American and English Encyclopedia of Law, IV, p. 284; C. 1’. 15; Cross on Pleading, 3; 3 An. 541. ' ■ •
   On Motion to Dismiss.

The opinion of the court was delivered by

Bermudez, O. J.

The appellee, in the shape of a dilemma, moves for the dismissal of the appeal.

It would have been preferable to have first stated the ground on which the motion rests, and, next, developed it, than at once to have gone into a metaphysical discussion of what it must be assumed to be.

That ground may be considered as being that the devolutive appeal asked and obtained was not perfected by the giving of a valid bond.

The suit was brought by the Roman Catholic Congregation of St. Patrick’s Church, by and through their pastor, duly appointed and acting as such, the Reverend Edward J. Fallon, of the city of New Orleans.”

Its object was to prevent the defendant company from using certain artesian wells, perforated on its adjoining lot, so as to overflow the premises of the plaintiff and injure the buildings and improvements upon them.

Exceptions were filed and a rule was taken tending to the dissolution of the preliminary injunction issued and to the dismissal of the suit.

Upon hearing, the exception and the rule were sustained, the injunction was dissolved and the suit dismissed.

From the judgment thus rendered, on motion of counsel for plaintiff, a devolutive appeal was allowed upon the giving by plaintiff of a bond in the sum of $100, conditioned according to law.

Contending that the bond furnished is not that required by law, the appellee asks the dismissal of the appeal, arguing:

“1. That if the appeal herein sought to be taken by motion on the 14th of March, 1892, is to be considered as one by the plaintiff in this suit, then the said appeal has not been perfected by the filing of a bond as required by law and by the order of court.

“2. That if the said appeal is to be considered as an appeal by the Rev. E. J. Fallon, then there is nothing in. the record to show that the said Fallon has a pecuniary interest in the result of said suit, sufficient to give the court jurisdiction.”

The caption of the bond begins: “Know ail men by these presents, that we, Edward J. Fallon, pastor of St. Patrick’s Church, ,as principal.” * * *

The second paragraph recites: “Whereas, the aboye bounden Edward J. Fallon, pastor, as aforesaid, has filed a motion of appeal from a final judgment.” * *

The last sentence stipulates the obligation of the surety to pay, should the principal fail to do so. It is in the usual type.

The bond is for $100, and is so fully identified by other recitals with the suit, the parties and the proceedings, that it can not be suspected as having been given in any other case, and there is no charge in that sense.

The dilemma proposed is, that, if the appeal can be considered as taken by the plaintiff, it has not been perfected by the filing of the bond required by law and by the order of court; and that, if the appeal is considered as taken by Rev. E. J. Fallon, there is nothing in the record to show that he has any pecuniary interest in the result of the suit sufficient to give the court, jurisdiction.

It is impossible to realize the process of plausible reasoning by which it could be seriously advanced, either that the bond was not furnished by the plaintiff or that it was given by Rev. Fallon, individually.

The bond states, as clearly as language can make it, that it is furnished by Rev. Edward J. Fallon, .pastor of St. Patrick’s Ohurch, who has filed a motion of appeal from the final judgment in the case, and the petition declares that the suit is brought by the Roman Catholic congregation of St. Patrick’s Chjirch of the city of New Orleans, “ by and through their pastor, duly appointed and acting as such, the Rev. Edward J. Fallon of the city of New Orleans.”

There is strictly no necessity to search in the motion and in the petition to ascertain who gave the bond as principal. The presumption is that it is given by the only party having cause to complain of the final judgment mentioned in it, and that is the Roman! Catholic congregation of St. Patrick’s Church, represented expressly by its named pastor, Rev. Fallon, who signed it in proper hand as plaintiff in the case, and who is thus completely identified.

The appeal is devolutive and taken by the plaintiff cast on the' exception.

Appellee’s interest in having a bond so framed that the surety therein shall be bound under its stipulations eventually in place of the delinquent principal js nominal. Appellee could not be held under it to any responsibility, and in no contingency ever will have' occasion to enforce its conditions against either principal or surety; which enure practically to the benefit of clerks only, who are almost invariably covered by safer precautionary measures.

The rule relied on in 35 An. 348 establishes that where a surety can be held under a bond the obligation is valid. Such is the case here. The surety could not escape responsibility.

Of course neither the exception nor the rule can be now considered; as they can be passed upon only when the judgment in the case will be up for review on the merits.

Motion denied.

On the Merits.

WATKiNsj J.

The plaintiff is appellant from a judgment sustaining the defendant’s exceptions of want of plaintiff’s capacity to irisfitute this suit and stand in judgment, and of no cause of action, and dis* missing its suit.

This suit is one in damages against the ice company, and the sug-1 gestión of the want of capacity in the plaintiff is grounded upon the following averment, viz.:

“The petition of the Roman Catholic congregation of St. Patrick’s Church of the city of New Orleans, by and through their pastor, duly appointed and acting as such, the Reverend Edward J. Fallon; of the city of New Orleans, respectfully represents:

“That in the year 1833, the Roman Oatholics of New Orleans formed themselves into a religious corporation, and with the means under their control did, in the year 1837, build, on the upper side of Camp street, in the city of New Orleans, a church known as St-. Patrick’s Church * * * * ; that the charter which was granted the said corporation by legislative act of 1833, for twenty years, expired by limitation in the year 1853, and the property thereto belonging was, thereupon, immediately vested, by said dissolution, in the members of said church, in whose custody and under whose power the said property is vested.”

Upon this statement of the capacity of the Reverend Edward J. Fallon to represent the Roman Catholic congregation of St. Patrick’s Church, claim is made of the defendant for |30,000 damages alleged to have been wilfully and maliciously inflicted upon the property of said congregation.

Does this averment of the petition disclose the capacity of the pastor of the church to sue for, and recover of the defendant, a judgment in the premises? We think not. For, when simplified, the allegation averring the pastor’s authority is, that he, being “duly appointed and acting as such (pastor), the Reverend Edward J. Fallon * * respectfully represents,” etc. Instead of averring any specific authority to have been conferred upon the pastor by the congregation, it is alleged that, by virtue of his having been duly appointed and acting as such, he represents, etc.

Whether the pastor was, or not, authorized to institute this suit, or whether the congregation had customarily recognized his right so to act, are not questions presented in this case, the defendant’s exception being directed to the absence of such essential averment of capacity in the pastor to institute suit.

It is evident that “ an action can only be brought by one having a real and actual interest which he pursues” (0. P. 15) ; and it is not alleged that the Reverend Fallon has any personal interest in this suit to subserve. And, forasmuch as the church edifice, which was erected by the corporation, has, since its dissolution and extinction as a corporate body, become vested in the members of said church, it would seem axiomatic that the members of the church should have, themselves, brought this suit, or authorized their pastor so to do. A party sued is entitled to be fully and distinctly advised of the names and capacities of the parties who are suing him; and for manifest reasons.

It is clear to our minds that the district judge correctly entertained this exception of want of averment of capacity in the pastór to institute this suit.

But in respect to the further exception of no cause of action, we are of the opinion that it is not well taken, because the averments of the petition do not disclose this to be a suit by or in behalf of the defunct religious corporation.

The two exceptions appear to have been urged in the alternative, and we have so considered them. On this theory the suit was properly dismissed, but the right of proper parties to institute suit is reserved.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,920.
    The State ex rel. City of New Orleans vs. New Orleans & Carrollton Railroad Company.
    jn proceedings, under Act 133 of 1888, to enforce the performance of a contract therein named, the contract must be so fixed in terms, and the liability of the defendant so certain, and the duty to be performed so particularized, that the duty imposed upon the defendant by the court in decreeing the execution of the contract can be readily ascertained, and as readily executed.
    An ordinance of the city of New Orleans, enacted before the passage of Act 133 of 1888, and which becomes a part of a contract between said city and a railroad corporation, requiring notice to be given to said corporation of certain repairs to be done on the streets, must be complied with before the city can invoice the remedy by mandamus as provided in said Act 133 of 1888.
    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      E. A. O’Sullivan, Oity Attorney, and Horace L. Dufour, Assistant Oity Attorney, for the Relator and Appellant.

      John M. Bonner for Defendant and Appellee:
    1. Act 133 of 1888 is in derogation of common rights, and should be strictly construed. It should be applied to no case not embraced in the very wording of the statute. 42 An. 138.
    2. Where the contract points out the method in which the company shall be put in default, that method is alone to be used, and so essential a stipulation of the contract can not be dispensed with.
    3. Act 133 contemplates that the specific acts required to be done should be minutely particularized, as a condition precedent to the use of the harsh writ of distringas. “ A prayer for a mandamus that merely seeks to accomplish a general result, and does not specify the particular acts to be done, is too vague. 30 An. 237; High on Ex. Rem., 2 Ed. 561.

      i. A contract imposing the burden on a street railroad company of keeping the streets in order through which its tracks pass only requires such material to be used in making repairs as the roadways were composed of when the contract was made.
    5, When the evidence discloses that the city of New Orleans has failed to do her duty in keeping the longitudinal ditches necessary to the drainage of the streets open, and where it is proved that the defendant has, in good faith, endeavored to comply with its contract, the obligations of which have been largely added to by the arbitrary and malicious acts of the Commissioner of Public Works, aresorttothe summary proceedings of the Act 133 should be discountenanced.
    6. Where a statute creates a liability, and names a remedy for the violation thereof, that remedy is alone to be used. 20 Wal 526, 527; 120 TJ. S. 783.
    So when a liability is created by contract, and a specific remedy is stipulated to be used to enforce said liability, that remedy forms a substantive part of the contract, and can not be changed by the Legislature without impairing the obligation of the contract.
   The opinion of the court was delivered by

McEnery, J.

The city seeks by mandamus, under Act No. 133 of 1888, to compel the defendant company to perform certain duties growing out of its contract with the city of New Orleans.

The petition refers to the several stipulations in the contract, which, it is alleged, have been violated, and the prayer is “ that the defendant be ordered to proceed at once to do the work, and furnish the materials set forth in the said specifications made part hereof and annexed hereto as Exhibit B, and complete said work as soon as possible, or show cause to the contrary.”

The specifications annexed to and made part of the petition are as follows:

“1. Jackson street, from St. Charles to Water street, from curb to curb, including all crossings, bridges, culverts and intersections, is not now, and has not been kept in good order and condition at all times.

“ The earthen roadway is not properly attended to by filling and grading, but is full of ruts and irregularities. At many points it is difficult and dangerous to cross the track from side to side of the street.

“ This road should be repaired by cleaning out the holes, and filling and grading with river sand, or other equally good material, to the levels given by the city engineer, with such guard planks on both sides of the rail as will allow the tracks to be crossed at any point.

“ 2. The tracks of this railroad, on Jackson street, have not a flat four-inch wide rail, but a T rail. This T rail should be removed, and the track relaid on four stringers and cross-ties to a grade given by the city engineer, with guard planks on either side.

“ 3. Jackson street, between the. rails and tracks, from St. Charles avenue to Water, street, has notbeen paved with an improved pavement agreed upon by the property holders and the City Council. In the removal of this pavement Belgian blocks should be selected, as neither wood, cobble, gravel nor asphalt is an ‘ improved ’ or suitable pavement for this location.

“ 4. The street or roadway bordering the laké side of the neutral ground on St. Charles avenue, from Louisiana avenue to Madison street in Carrollton, from curb to curb, also including all crossings, bridges, culverts and intersections, is not now and has not been kept in good order and condition at all times.

“ The roadway throughout the entire length requires crowning up with new lake shells, and also the opening of the side drains.

“ It is now badly shaped, and full of irregularities and holes.

The gutters on either side of the road should be opened so as to establish drainage for the road, the neutral ground and the properties on the swamp side, throughout each block to the gutters of the cross streets, on grades and with dimensions to be given by the city engineer.

“5. Many of the crossings, bridges, culverts and intersections are out of repair, as well a¡s too steep, uneven and rough, both below and above Louisiana avenue.

“It is impossible permanently to enumerate these, as the work from time to time received temporary repairs. Their general condition is bad and is condemned as not being a fair compliance with the contract of the road.

“ These repairs should be made by replacing all work out of grade, and all decayed material, so as to give a smooth, soft and convenient passage for both foot and street traffic.

“6. The neutral ground is uncared for and in bad order, being in many places rough and overgrown with weeds.”

The defendant filed an exception to the suit, the first ground of which was incorporated in the answer. The other grounds are as follows:

“ 1. Defendant excepted to that portion of the petition that asks for the laying of a guard plank, and the changing of the T rail into a flat four-inch rail on Jackson street, on the ground that the writ of mandamus would not issue to enforce the repairing or construction or reconstruction of a railroad track, and does not lie to compel the changing of the form of rails that have been in use on that street for more than twenty-five years.

2. The defendant has not been put in default under and in pursuance to its contract, which provides that ‘ it shall be the duty of the Administrator of Improvements and City Surveyor, to notify, in writing, the company of any violation of these specifications, and giving a reasonable time to rectify any such violation’, etc., and no such demand has been served on the company.

“8. That the Act No. 188 of legislative acts of 1888, under which this proceeding was taken, requires and contemplates that a specific detail of the exact work to be done, its exact nature and location, with lines and levels and everything needful and necessary for the intelligent performance of the work, should be embodied in and should accompany the application for a writ of mandamus, and that these essential requirements are not contained in the petition.”

The exceptions were overruled and the defendant company answered, reserving its exceptions, averring in substance that it was not required by its contract with the city to change the T rail on Jackson street with a four-inch rail until said track had been paved with improved pavement to be agreed upon by the city and the property holders residing on said street, and for the same reason it was not required to pave between its tracks on said street; that its contract does not require a guard plank on either side of the track; that a portion of said street is a dirt street and has always been a dirt street, and that the defendant is not required to use any other material than dirt for its repairs; that it is not compelled under its contract to beep the neutral ground on St. Charles avenue in repairs. Nor does its obligation extend to opening side drains, and the gutters on either side of the roadway on the lake side of St. Charles avenue; that those duties are imposed upon the city of New Orleans.

Finally the defendant avers that it has used due diligence in complying with its contract, and has endeavored to keep the streets in order and in good condition.

There was judgment for the defendant denying the mandamus, and the plaintiff, city, appealed.

The contract between the city and the defendant company contains the following stipulation, which was a part of the ordinance under which the contract was sold, and forms a part of said contract.

‘1 It shall be the duty of the Administrator of Improvements and Oity Surveyor to notify in writing the company of any violation of these specifications, giving them a reasonable time to rectify any such violation; if upon the expiration of said mentioned time the company has neglected or refused to comply, the Oity Council shall have the said violation rectified.

“The cost for so doing shall be recoverable before any court of competent jurisdiction.”

In a case similar to this in the issues involved, the State ex rel. City of New Orleans, 37 An. 589, it was held that the writ of mandamus does not lie to compel corporations to perform obligations arising simply from contract. This was the law until the enactment of Act 133 of 1888.

This act simply gives the remedy by mandamus to enforce certain obligations on the part of corporations therein named in favor of certain parties mentioned in the act.

But it will not be seriously contended that this act arbitrarily shuts out all defences to the contracts named in the act. Nor does it in any way change or modify the law governing proceedings by mandamus. It provides for summary trial, and a speedy enforcement of the judgment rendered. In other respects the rights of the litigants and the law regulating them are left undisturbed. The act provides for a decree of specific performance of the contract, and the law on this subject must govern in the proceedings instituted under the act.

We had occasion to say in City of New Orleans vs. New Orleans & North Eastern Railroad Company, in reviewing the provisions of said act, that the decree ordering the execution of the contract “can not be demanded as a matter of right. It rests largely upon judicial discretion, not arbitrarily exercised, but according to the soundest principles of equity and justice. Not only the question of the ability of the plaintiff to seek adequate compensation in damages, but the ability of the court to grant the relief [jmust necessarily enter into the discretion which the court is bound to exercise in considering the remedy invoked. The contract must be fixed and the liability of the defendant so certain that the duty imposed upon him by the court in ordering the execution of the contract can be readily ascertained, and as readily enforced.” 44 An. 67.

The application for the mandamus and the specifications annexed do not show either that element of certainty in the contract or specify with sufficient particularity the duty to be performed. The specifications may be characterized in the summary with which they conclude:

“ It is impossible to permanently enumerate these, as the work from time to time received temporary repairs. Their (streets) general condition is bad, and is condemned as not being a fair compliance with the contract of the road.”

As stated by us in State ex re). Railroad Company, 37 An. 594, “it is plain that the enforcement of such a mandate would practically throw upon the court the administration of the streets of the city, and its time would be consumed by constant rules for contempt, involving questions as to whether this hole should be filled up or that quagmire be made firm, and how these things should be done, and the like.”

But, conceding that the defendant company has failed to perform its duties under the contract, and the specifications are such that a decree of specific performance could be rendered thereon, it is evident that the plaintiff must comply with the statutory regulations of the City Council as a condition precedent before it can avail itself of the proceedings authorized by Act No. 138 of 1888. The Ordinance No. 7812, administration series, which forms a part of the contract sought to be enforced by mandamus, provides that the Administrator of Improvements and City Surveyor shall notify in writing the company of any violation of its contract, giving it reasonable time to rectify the same, and if upon the expiration of said time the "company fails to perform its duties, the city shall have the work done, the cost of which may be recovered before any court of competent jurisdiction.

This notice had not been given to the company before the institution of this suit. It was a condition precedent, stipulated by the parties the failure to perform which must necessarily result in a denial of the relief prayed for by plaintiff.

Judgment affirmed.


text:
    No. 11,084.
    Charles M. Hero vs. Mrs. Sarah Bloch, Wife of Emile Bloch, et als.
    1. A married man intending to purchase property with his separate funds, and to hold it for his individual account, must make that intention manifest at the time of purchase. The property would otherwise be held under an uncertain floating title, neither advisable nor permissible.
    2. A person who has come under an engagement to purchase has the right to insist upon the tender.to him of a good title prior to the institution of a suit against him for a specific performance.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      W. S. Benedict and Percy Benedict for Plaintiff and Appellee:
    1. Property acquired during marriage, purchased with the separate funds of the husband, “ eventually proven to he such contradictorily with the heirs of the wife,”is separate propei’ty. 46 An. 823. *
    2. Property purchased during marrjage, paid for out of the separate funds of the husband, is a charge against the community in favor of the separate estate of the husband for tlio amount of such purchase. 14 An. 619.
    3. There is no law which forever precludes a man establishing the legal status of property. The dictum of the court as argued by the defence is at most merely directory. 14 An. 619.
    4. The right of action to recover common property is only in the wife, and then only under an allegation of fraud. Civil Code, 2404.
    5. A defendant, a third person, can not be heard to discredit the acts of a deceased father, ostensibly representing the rights of his children. And, a fortiori, without an allegation of fraud.
    6. Where a father, natural tutor, appears and judicially admits, as against Ills own interest, that certain property was his own, individual and separate, and before trial dies, the burden of proof is shifted to defendant, who alleges same to he community property, to prove his latter status.
    7. The law does not sanction any proceeding by an heir looking toward the vilification or turpitude of the father. 5 Rob. 26.

      J. Z. Spearing for Defentant and Appellant.

      C. M. JEustis, Curator ad hoc, on the same side:
    In order to take out o£ the community o£ acquets and gains, and make the separate estate of the husband, a piece of property purchased in his name during the existence of the community, it is necessary that the husband clearly establish his intention at the time of purchase to make it his seperate estate by declaration in the act, and mention the fact of the payment out of his individual assets, and he ready eventually to establish that last fact. 36 An. 823; 5 An.'.611; 7,An. 104; 14 An. 618, 619; 32 An. 162.
   The opinion of the court was delivered by

Nicholls, C. J.

On January 17, 1880, Thomas W. Collens, Jr., by act before Alcee J. Villéré, notary, purchased from the heirs of P. Mallard, certain property, which forms the subject matter of the present controversy. At the time of this purchase Collens was a married man. The act was in the usual form, and it contained no recital that the land was purchased with funds belonging separately to Collens, nor did it contain the slightest intimation that it was being acquired for his individual account.

Mrs. Alice E. Ward, wife of Collens, between whom and her husband there existed presumptively a community, died on or about the 1st of August, 1884, leaving a number of minor children, issuq of her marriage with him.

On the 22d day of October, 1884, by act before Charles J. Andry, notary, Collens sold the entire property to Lionel «Adams, who in turn, by act of date December 4, 1891, conveyed the property to Charles M. Hero, the plaintiff.

Matters being in this situation, the defendant entered into an agreement to purchase the property from the plaintiff, but she refused to carry out the same, on the ground that plaintiff’s title is defective and not such as he was required to give, and she entitled to exact. She claims that inasmuch as at the time of Collens’ purchase of the property he was a married man, it fell into the community between him and his wife; that when the latter died, one-half of the same vested in her minor children, who are still the owners thereof, the sale of their interest therein by their father being that of another person’s property without right or authority and absolutely null and void as to them.

Upon this refusal the present suit was instituted, in which Mrs. Bloch, Thomas Wharten Collens, Jr., as natural tutor of his minor children, and Johnson Armstrong as their under tutor, have been made parties defendants.

The object of the action was to obtain first, a judgment decreeing the property mentioned to be free from all claims of the minor children of Collens, and secondly, a judgment ordering Mrs. Block to comply with her promise of purchase.

The plaintiff claims that the property bought by Collens was purchased with and paid for by individual funds derived by him from the succession of his father; that he acquired the property for his separate estate; that the community left no property; that everything acquired by it was exhausted in the support of the family; that the minors have no interest in the property, for were they to be held to have title to one-half it would be practically useless to them, as they would have to account to their father’s estate for the purchase price.

Oollens, in the answer filed by him as natural tutor of the children, admitted all of plaintiff’s allegations. Johnson Armstrong, as their under tutor, pleaded the general issue, and held the plaintiff to strict proof.

Before the case went to trial Thomas W. Oollens, Jr., died. C. M. Eustis was appointed curator ad hoe of the minors, and made a defendant in that capacity.

The proceedings resulted in a judgment in the court below in favor of the plaintiff, and against the defendants, in conformity with the prayer of the petition.

The defendant appealed. In this court C. M. Eustis has filed a paper in his capacity as curator ad hoe, in which he declares that he joins in the appeal taken by the defendant, and prays that the judgment of the District Court be either reversed, or that it be amended so as to adjudge the minors to be the owners of one-half of the property.

In reference to this it suffices to say that the curator ad hoe did not appeal from the judgment, and is not before us as an appellant.

The ease was tried below with great latitude in respect to the introduction of evidence, and it comes before us in an exceedingly unsatisfactory manner as to the record. A large part of the evidence referred to in the note of evidence was not brought up in the transcript, and although that omission was, by consent of parties, authorized to be corrected, this has only been partially done.

We think the judgment of the District Court erroneous, and it should be reversed.

In the first place, we are by no means satisfied from the facts disclosed by the fragment of the mortuary proceedings in the succession of Wharton Oollens further produced before us, that his son received enough from that succession with which to purchase and pay for the property, but had the fact been otherwise, and had he actually employed those funds for that purpose, the legal situation would not be thereby altered.

The property was purchased during the marriage between Collens and his wife; there was, as has been stated, no recital in the act as to the origin of the money which the purchaser was using in the acquisition, and nothing therein tending to show that he proposed and intended to buy for his own separate account. We are referred to the testimony of W. S. Benedict, as to conversations between himself and Collens, in which the latter stated that everything made during the community was absorbed as soon as made — for family charges and expenses, and to the judicial admission contained in Collens’ answer as natural tutor.

When the community ended by the death of his wife, Collens ceased to represent it, and he was thereafter without authority to make admissions binding upon his wife’s heirs, in respect to their rights therein, particularly in respect to matters in which there was a conflict of interests between him and them.

The judicial admissions made by him in this case, as their natural tutor, under the circumstances and for the purpose they were made, should not be permitted to prejudice and can not prejudice the minors.

Whether the conversations alluded to by W. S. Benedict in his testimony occurred before the’ death of Mrs. Collens or after, is not shown, but whatever their date, they were, at least, mere loose, casual conversations, entitled to no weight.

The case of Caldwell vs. Hennen, 5 R. 22, bears no resemblance to the present one.

The statements and admissions of the father, mentioned in Caldwell vs. Hennen, were written statements made by him during the community in connection with dealings being then made with a third person in respect to certain property, and were subsequently used by that third person as a means of defence against claims of the wife’s heirs.

It was there held that heirs of the wife claiming title to that prop - erty, under the community, were estopped by admissions made by the father during the community, and as its head; that although the title of the property stood in his name, yet in fact it never belonged either to himself or to the community, but to such third ¡person for whom he held it as agent.

We can see no possible application of what was said in that case to the facts, as shown in this. The existence of Hero’s rights are essentially dependent upon his tendering to the defendant a good title. He can not successfully eke out in this action a defective title, and charge defendant with legal obligations, particularly by putting forward by way of attack against her, and as part of the case, verbal declarations of the father with which she had no connection whatever, and to which she is an utter stranger.

We .can see nothing in this case to take it out of the line of decisions cited in defendant’s brief. 5 An. 611; 7 An. 104; 14 An. 619; 32 An. 163; 15 An. 588; 36 An. 823; 20 An. 531.

Plaintiff claims that there should be an equality between the spouses, and inasmuch as the wife has been held to be authorized to purchase property in her own name and support the purchase as one for her separate account by proof of the fact that her paraphernal funds were used in its acquisition, and this without the necessity of a recital to that effect in the act, the husband should.be permitted to do likewise. It is true that equality should be the rule of the community, but there are considerations in this matter affecting others than the parties to the community which are not to be lost sight of. The public are interested in that subject.

When the title of real estate is placed in the name of the wife during the community the public is put upon its guard and on inquiry as to actual existing facts, but title to property in the husband, with no indication in the act of purchase as to the character of the funds with which it is bought, and none of present intention of owning the property for separate account, conveys no notice, and the husband is left free to fix, at such time as might subsequently suit his convenience, or in such way as might best subserve his after interests, the tenure by which it is to be held. The title would be an uncertain floating title, neither advisable nor permissible.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby annulled and reversed, and that there be judgment in favor of defendant, Mrs. Sarah Bloch, wife of Emile Bloch, against the plaintiff, Charles M. Hero, and rejecting plaintiff’s demand.


text:
    No. 10,962.
    Interdiction of Thomas W. Bothick.
    In declaring that family meetings shall be composed of the nearest relatives and connections of a minor Arts. 281, 282, 283, C. C., merely announce a general rule, without attempting to write out therefrom exceptions which spring from the very nature and reason of things. '•
    A judge, without the necessity of a special statute to that effect, has authority, in the exercise of a sound legal discretion, to exclude relatives and connections in such exceptional eases, and the statute now standing as Art. 28 of the Revised Oivil'Oode must not be construed, so as to restrict his action, and confine it to cases falling under a narrow and technical definition of the term conflicting interests. The intention of that statute Was to grant, not to withdraw, powers.
    It would be a perversion of law to apply its bare letter to cases where by so doing its whole theory and object would be clearly violated.
    In recommending persons for curatorship family meetings are not limited to applicants for the position, nor to parties suggested by relatives of the interdict or minor.
    Women are not eligible under the law as members of a family meeting.
    A PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      James McConnell and F. L. Richardson for C. W. Drown, Curator, Appellee.

      Augustus Bernatl for Opponents and Appellants.
   The opinion of the court was delivered by

Nicholls, C. J.

In June, 1890, proceedings were instituted in the Civil District Court for the parish of Orleans by Thomas B. Bothick, James W. Bothick, Bella Bothick, wife of A. L. Lagay; Mathilde Bothick, wife of Lambert J. Franz; Lizzie Bothick, wife of M. Pitcher, and John A. Solari, looking to the interdiction of Thomas W. Bothick, and seeking the appointment of a curator for him through a family meeting. These parties were afterward joined by Jefferson D. Bothick.

All of the petitioners were sons and daughters by a first marriage of the person sought to be interdicted, with the exception of Solari, who was the husband of Annie J., a predeceased daughter, and who appeared in the suit in his capacity as natural tutor of his minor children.

In anticipation of the judgment asked for, plaintiffs united in a prayer for the appointment .of either Thomas B. or James W. Bothick, or both, as curator, and of Solari as under curator.

In the petition filed it was averred not only that the father’s mental condition was such as to require his interdiction, but that his present wife, Olivia Tyree, had obtained complete influence and control over him, and was using the same to his great injury and her great individual separate benefit; that she had caused him whilst in a condition of imbecility to make donations to her which should be annulled and set aside; that she had obtained from him a power of attorney, under which she was conducting his business and appropriating the moneys she received.

These allegations were inserted for the double purpose of strengthening the prayer for immediate interdiction, and of meeting the claim which, it was assumed, she would ultimately advance of being entitled to the curatorship of her husband. Petitioners averred that her actions had been of such a character that she should be denied that right. The husband and wife were made defendants to the action.

Mrs. Bothick, in her answer, denied all the charges made against herself, and, as had been expected, asserted'her right to the curatorship.

The demand of the plaintiffs precipitated a very fierce and acrimonious litigation between these children and their step-mother, which seems each day to intensify and become more bitter.

During the progress of the controversy a mass of testimony was adduced disclosing family dissensions and quarrels which it would serve no good purpose to dwell upon. The initial proceeding terminated in a judgment decreeing the .interdiction of Thomas W. Bothick and appointing the wife curatrix.

In his opinion in the case the district judge commented very severely upon the children in respect to their relations with their father and his wife, and commended the latter very greatly both as a wife and step-mother.

The judgment was appealed from, and on appeal the appointment of Mrs. Bothick as curatrix was annulled for the reason that the judge had made the appointment upon the theory that a wife was entitled as a matter of absolute right to that position, whilst this court held it was dative, and dependent upon the advice and consent of a family meeting. Interdiction of Bothick, 43 An. 547.

The effect of this decision was to leave Bothick interdicted and without a curator, with the applications of both Mrs. Bothick and that of the plaintiffs relatively to the curatorship outstanding and unacted upon.

On the return of the case to the District Court, James Shay (who had in the meantime been appointed under curator) and Mrs. Bothick both applied for the convocation of a family meeting to deliberate upon and recommend a person for curator — Mrs. Bothick renewing her application for the position.

In this petition Mrs. Bothick stated that the only male relatives of her husband residing in the parish of Orleans are James W. and Thomas B. Bothick, and she submitted the names of a number of persons as being friends of her husband who would be proper persons to constitute the family meeting.

It appears, from a statement of the district judge embodied in the minutes, that subsequently to this, and at his request, both sides presented a list of persons as being suitable to compose the meeting (that furnished by the plaintiffs being handed in without prejudice), and that from those lists he selected eight names, four from each, and excluding from membership in the meeting the sons, the daughters and the sons-in-law of the interdict, although both they andtheunder curator strenuously insisted upon their right of membership, denying the authority of the court to exclude them, and to replace them by friends.

In the daughters’ opposition they took the position which they still maintain, that they were not disqualified for membership by reason ■ of their sex.

When the family meeting, as composed, met before the notary for deliberation its members divided equally — four [voting for Charles W. Drown as curator, and four forW. O. Hart; four voted for giving the custody of the person of the interdict to his wife, and four voted blank on that subject. When the pro oes verbal showing the result reached the district judge, he ex officio ordered the meeting to reassemble and again deliberate, which it did, reaching, however, practically the same result as before — the only difference being that the four who had before voted for Hart now changed to Kernagan, and those who-had cast blank votes now voted for Mrs. Lagay as custodian of the person. There being a dead-lock in the proceedings the judge, on being officially informed of the fact, added another member to the body, and when, on orders to that effect, the meeting deliberated a third time, five voted for Drown, four for James W. Bothiek, six for Mrs. Bothiek as custodian of the person, and three for Mrs. James W. Bothiek for that position.

When these proceedings were reported back Drown moved for their approval and homologation, but the application was met by opposition from the under-curator and all the plaintiffs. The opposition of all cover the same ground, only that the daughters make their exclusion from participation in the meeting a special ground.

The first ground of opposition was that there was a sufficient number of the relatives of the interdict present in the parish to have composed the family meeting, and they alone should have composed it, and that Drown had not been suggested for the curatorship by the relatives.

The second, that Art. 283 of the Civil Code does not apply to interdicts — the third, that there was no evidence before the court that any of the persons related to the interdict- and suggested by the plaintiffs to compose the family meeting had any interest conflicting with those of the interdict, and that the mere suspicion or presumption that the sons and sons-in-law would seek the setting aside of donations made by the interdict to his wife could not take the place of evidence.

The fourth to the ninth were simply arguments to show that if the object of the relatives of the interdict in naming the curator were to institute proceedings to set aside such donations, that fact would not establish a conflict of interest, but a concurrence of interests between themselves and their father, as by success in such suits his estate would be thereby increased.

The ninth is to the effect “that Drown is prejudiced against the interdict’s children and strongly prejudiced in favor of the interdict’s wife and very much devoted to her interests, and consequently incompetent to receive the appointment, and a person who, owing to his position as an intimate friend of Mrs. Bothiek’s and an officer of the court (sheriff), can not take the necessary proceedings and steps to attain the objects sought to be attained by the interdiction of Mr. Bothiek.”

On trial the district judge dismissed the opposition, approved and homologated the proceedings of the family meeting, and under and by virtue of the same appointed Charles W. Drown as curator of the interdict Thomas W. Bothiek.

From this judgment and all the interlocutory orders, rulings and decrees incident to the subject matter and leading up to it the under curator and all the plaintiffs have appealed.

The first matter before us in regular order is the contest which arose in relation to the composition of the family meeting. The objections raised prior to its sessions were not directed against the personal fitness or competency of any of its members, but were based on the fact that the sons and daughters and sons-in-law were excluded from membership. The daughters were rightly excluded by the district judge by reason of their sex (O. O. 25), and the sons and sons-in-law under the circumstances of this case were properly Replaced by friends.

The plaintiffs claim that they were entitled of right to be members of that body under Arts. 281 and 282 of the Civil Code, which declare that the family meeting shall be composed of at least five relatives, or, in default of relatives, friends of him on whose interests they are called on to deliberate, and they contend that the present Art. 283, which is to the effect that “every' person who shall have interests conflicting with those of a minor in any matter in which a family meeting may be necessary shall be incompetent to be a member of said family meeting, although he be one of the nearest relatives does not apply to interdicts.

Articles 281 and 282 of the code are merely declaratory of a principle — they look to a general rule, but do not attempt to write out of the articles the particular exceptions to the same, which may result from the very nature and reason of things. The theory of the articles is that the nearest relatives and connections of minors being bound to them by special and direct ties would-take a more earnest and lively interest in their welfare than would strangers or even friends.

The family meeting is an advisory jury — one, however, differing radically from an ordinary jury in this, that it is constituted with direct reference to its members having a bias, a partiality, án affection for those upon whose affairs it is called to deliberate. A family meeting composed of persons unfriendly or hostile to a minor, or evidently pursuing their own interests as their first motive and consideration, would outrage the spirit and purpose of the law. It would require no special statute to authorize'and justify a judge in rejecting from participation in deliberations upon the affairs of either a minor or an interdict persons who would enter upon the deliberations with such feelings and aims.

The statute of the State which now stands as Art. 283 of the Revised Oode was probably presented to the General Assembly by some member of that body who, having doubts as to whether the broad and general terms of the article referred to did not forcedly cover all possible cases, was seeking to establish a more liberal and flexible legislation. It was evidently intended to extend the judge’s control over the subject matter.

We do not think the statute was specially needed for that purpose, and.it would be applying to it what has been styled a “ cursed interpretation ’ ’ were we to hold that its effect would be to restrain the power and discretion of the judge which had existed prior to its enactment. The law maker did not contemplate by the use of the words “ conflicting interests ” found in the statute, to restrict the ground of exclusion to cases which would only fall under a narrow technical definition of those terms. O. O. 1962.

The objections leveled against the fitness and competency of the persons selected by the judge to replace the sons and sons-in-law o the interdict, urged by way of objection to the homologation of the proceedings of the meeting, should have been advanced before it took action, but even had they been so taken, they were not well taken.

We find nothing in the record which would go to show that Drown, the person recommended for curator, could not properly perform his duty to all parties. There was no necessity that he should have applied for appointment, and none that he should have been suggested by the relations of the interdict.

We have examined the evidence on which the district judge acted, and think his course was eminently conservative and proper. We think it beyond question that under the circumstances of this case it would be better that a stranger or friend should be curator of the interdict than one of his own family, and unquestionably better that friends should have been upon the advisory council than those whom the judge excluded. The plaintiffs have, besides, utterly overlooked the fact that in the heated litigation which they are carrying on with their step-mother they are all parties to the record as plaintiffs, and that to place them on the family meeting would be to make them substantially jurors in their own case.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment i f the court below be and . the same is hereby affirmed.