text:
    No. 10,753.
    The State ex rel. Houston, Central Arkansas & Northern Railroad Co. vs. J. Carson Riley, Justice of the Peace.
    1. The writ of certiorari will only be made peremptory when the proceedings are absolutely null.
    2. The copy of the entries in the justice’s docket does not show such irregularity as to render the judgment absolutely null.
    8. The allegations of the relator to obtain the writ can not prevail against the minutes of the proceedings as certified to by the respondent justice of the peace, particularly in the absence of any proof of any attempt made to correct them (if they be incorrect).
    4. Defaults need not be taken and confirmed before the justice of the peace courts as is done before the District Courts.
    Defaults and delays are especially provided for by Articles 1084 and 1085, O. P., and do not include defaults required before the District Court.
    y^PPLICATION for Certiorari and Prohibition.

      Potts & Hudson for the Relators.
    Respondent in propria persona.

   The opinion of the court was delivered by

Breaux, J.

This is an application for writs of certiorari and prohibition against the defendant justice of the peace who, it is alleged, has rendered an absolutely illegal judgment in an unappealable case.

The supervisory jurisdiction of the court is invoked to have the nullity declared.

The relator, in substance, alleges that suit is brought against the Missouri Pacific Railroad, H. O. and N. Division, J. M. Holcombe, agent (there being no corporation of that name), under which title it is proposed to hold the Houston, Central Arkansas & Northern Railroad Company, of which W. A. Bright is the president, responsible.

That the court did not have jurisdiction ratione personse; that the company has not been cited by its proper name, nor legal service made or delays given.

An exception was filed on the day fixed for the defendant to-answer.

The respondent justice of the peace, in compliance with the court’s •order, sent up a certified copy of the minutes of the proceedings, setting forth that, after hearing the testimony and argument of counsel, judgment was rendered for plaintiff, and read in presence of defendant’s counsel in open court.

It is no longer an open question that “ certiorari can only be resorted to when proceedings are absolutely null.” State ex rel. Broupard vs. Justice, 39 An. 776; State ex rel. Wenty vs. Judge, 32 An. 1122.

The proceedings are not absolutely null.

The respondent had jurisdiction to try the exception.

At the time fixed for the defendant to answer, if both parties are .ready to try the cause, the judge may proceed to the hearing;' otherwise he shall set such a day and hour as he may see proper.

If one of the parties fails to appear after the lapse of two hours, if the parties to the suit reside in the country, the judge may dispose ■of the case by discharging the defendant with costs, if it be the plaintiff who makes default; and if it be the defendant, he may hear the plaintiff’s testimony. C. P. 1085; State ex rel. Montague vs. Coquilla, Justice of the Peace, 35 An. 1101.

The minutes disclose that the defendant was present when the • case was tried and when the judgment was read in open court, and that no application was made for delay.

With reference to the default and its necessity as urged:

A default, its entry and confirmation, are not required as in the -District Court, although that method of proceeding is satisfactorily followed by a number of magistrates.

The other grounds of the application are not proven; the allegations of the relator are negatived by the record returned by the respondent.

It is not even suggested that the minutes do not conform with the facts.

They must therefore be accepted as correct. State ex rel. Regan vs. Judge, 36 An. 977.

The records do not disclose that the relator has a right to the relief sought.

It is therefore ordered, adjudged and decreed that the restraining ■order granted be set aside, and the relator’s demand rejected at his •costs.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,676.
    Mrs. Louise G. James vs. Widow Eloisia Rand.
    1. Tlie provisions of the Code of Practice contained in Articles 324 and 325 relate to the answer of a defendant to a suit brought on an act under private signature, the genuineness of which is denied, and to the effect of such denial. Those of the Civil Code contained in Articles 2236 and 2268 relate to authentic acts, and the proof afforded by them.
    .2. When suit is brought on a promissory note in an ordinary action, and personal judgment is sought against the maker, it is a suit on an act under private signature, in the sense of those articles of the Code of Practice, notwithstanding judgment is also asked recognizing and enforcing an authentic mortgage securing the payment of the note.
    :3. As, in such case, the primary question is the genuinness of their signature to the note — the defendant having alleged its forgery in a sworn answer — the plaintiff can not, by'offering in evidence at one and the same time the note •and mortgage, defeat the effect of the defendant’s sworn denial, and impose •upon her the burden of proving that her signature to the authentic act of mortgage was a forgery, after same had been filed in evidence.
    In such case the burden of proving the genuineness of the defendant’s signature •to the note before the note or«mortgage can be admitted in evidence, is upon the plaintiff.
    PPEAL from thG Civil District Court for the Parish of Orleans. Bightor, J,

      Farrar, Jonas & Kruttsehnitt and Bayne, Denegre & Bayne for Plaintiff and Appellant:
    Properly certified copies of notarial acts make proof of what is contained in the original, unless proven incorrect. O. O. 2268.
    An act executed before a notary and two competent witnesses is an authentic act. O. O. 2234.
    The authentic is full proof of its contents unless declared and proved to be a forgery. C. G. 2336.
    The authentic act is not only admissible in evidence, but full proof of whatpassed before the notary and of the agreement; not only of quod conventum, but quod actum est. 7 An. 98-99, Succession of Tete; Marcado Droit Civil, Vol. 5, p, 24; Commentary on Art. 1319, O. N.
    It is valid unless charged as a fraud, and proven a forgery; it must be admitted in evidence and then successfully attacked as a forgery, and such is the jurisprudence and practice. 20 An. 211, Cox vs. King.

      JQ. A. Fellows and J. B. Bosser, Jr., for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

This is a suit via ordinaria on a promissory note secured by special mortgage. The note and act of mortgage are annexed to and made parts of plaintiff’s petition. Premised by the usual allegations, the prayer is that plaintiff have judgment against defendant in the full sum of $15,000 (the amount of the note), with interest, attorney’s fees and host; “ with recognition of petitioner’s mortgage,” etc.

The defence set out in the answer is that the alleged signatures to the note and the indorsement thereon, as well as the purported signatures to the act of mortgage, are forgeries; and the prayer is that plaintiff’s demands be rejected, and the registry of the alleged mortgage canceled. This answer was sworn to.

On the trial the plaintiff’s counsel offered to file in evidence the note and mortgage on which suit is brought, but the defendant’s counsel objected to their introduction in evidence, on the ground “that the signatures are alleged to be forgeries, and unless the signatures are proved, the documents can not be received in evidence. ’ ’

The judge a quo sustained the objection, and refused to allow the documents to be filed in evidence.

To this ruling plaintiff’s counsel reserved a bill of exceptions. Having no other evidence to offer, the counsel rested the plaintiff’s case; and of course judgment went against her, and she has appealed.

On this statement of facts the only question for us to decide is whether or not the District Judge correctly refused to permit the note and mortgage to be filed in evidence.

The note is in the ordinary form, drawn fo the maker’s own order and by her endorsed, and the mortgage was executed before a notary, securing its payment.

The defendant’s counsel grounded his objection on the 324th and 325th' Articles of the Code of Practice, whilst the plaintiff’s contention is that the 2268th and 2236th Articles of the Civil Code control, and are conclusively in their favor.

To our thinking there is no conflict between the provisions of the Codes, because they relate to different subjects matter: those of the Code of Practice relating to the answer of a defendant to a suit-founded on an act under private signature, the genuineness of which is denied, and the effect of such denial; whilst those of the Civil Code relate to authentic acts, and the proof afforded by them. When the proceeding is based on an act under private signature, the genuineness of which is denied, the provisions of the Code of Practice control ; but when it is founded on an authentic act, those of the Civil Code control.

This is, confessedly, an ordinary action on a promissory note, and the plaintiff seeks to obtain a personal judgment against the de - fendant, notwithstanding she also seeks the recognition of her mortgage. The note is such an act under private signature as is contemplated by the cited articles of the Code of Practice, and is the primary evidence of plaintiff’s demand; and to such a case those articles apply.

The first of those two articles declares that “ when the demand is founded on * * * an act under private signature, * * * the defendant shall be bound in his answer to acknowledge expressly or to deny his signature.” C. P. 324.

The second declares that ‘1 if the defendant deny his signature in his answer, or contends that the same has been counterfeited, the plaintiff must prove the genuineness of such signature, either by the witnesses who have seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name. But proof by witnesses shall not exclude the proof: by experts or by a comparison of writing as established by the Civil Code.” C. P. 325.

The defendant having, under oath, denied her signature to the note, as well as her indorsement in blank thereon, the plaintiff was put to the proof of their genuineness. But her counsel offered to file the note in evidence without offering any proof of the genuineness of the defendant’s signature. We are of the opinion that the District Judge correctly declined to allow the filing of the note in evidence. It is quite true that the counsel, at the same time he offered to file the note in evidence, also offered to file the act of mortgage. And it is equally true that the Code declares that “the authentic act is full proof of the agreement contained in it against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.” R. C. C. 2236.

But what is “the agreement contained” in the act of mortgage? It is “to secure, in capital and interest, the full and final payment of the said certain promissory note, which * * * has been delivered,” etc. This act only purports full proof of that agreement, and not of the signature of defendant to the note. And as the primary question is the genuineness of defendant’s signature to the note, the plaintiff could not, by offering the note and mortgage at one time, defeat the effect of defendant’s sworn denial of her signature, and impose the burden on her of proving that her signature to the authentic act of mortgage was a forgery, after it. had been introduced in evidence.

Had the plaintiff initiated proceedings by obtaining an order of seizure and sale on her authentic act of mortg'age, the defendant would have been necessitated to enjoin, on the ground “that the. act containing the * * * mortgage (was) forged,” and in support of her declaration prove that the signature was a forgery.” 0-P. 739.

Having commenced proceedings via ordinaria and demanded personal judgment against the maker of the note and mortgage, the plaintiff has abandoned her right to proceed via executiva, and lost the benefit of “the full proof” which it could have afforded her in executory proceedings.

In Robinson vs. Arnet, 15 La. 262, quite a similar question was presented, and the court held that where the plea of forgery is put in, supported by the oath of the defendant, it requires much stronger evidence to authorize a recovery than in the ordinary case of a general denial.

Our theory is fully supported by Succession of T§te, 7 An. p. 98, of which the court, in treating of the question under consideration, said: “The records of a notary are closely assimilated to judicial records. The whole system of executory process is based on this: resemblance. It is resorted to when the creditor’s right arises from an act importing a confession of júdgment, and contains a privilege or mortgage, which is an act passed before a' notary and witnesses, in which the debt is acknowledged, for which the mortgage or privilege is given. C. P. 732, et seq. This act, the law declares, shall make full proof between the parties,, unless it is declared and proved a forgery.” Huddleston vs. Coyle, 21 An. 148.

It is evident that the plaintiff did not discharge the burden of proof which the defendant’s sworn denial imposed on her.

Construing the judgment appealed from as one of non-suit, it is affirmed.


author: Bermudez, C. J.

text:
    No. 10,738.
    The State of Louisiana vs. John Jackson.
    An indictment which does not charge that the accused inflicted a wound “ less than mayhem,” as required by Section 924, R. S., amended by Act 17 of 1888, is fatally defective.
    Those words, “ less than mayhem,” or others of equivalent import, found in the statute, should have been used.
    Whether the facts were properly alleged or constitute an offence may be inquired into on a motion in arrest.
    APPEAL from the Third District Court, Parish of Claiborne. Barksdale, J.

      Walter H. Rogers, Attorney General, and E. H. McClendon, District Attorney, for the State, Appellee.

      C. W. Seals for Defendant and Appellant.
   The opinion of the court was delivered by

Bermudez, C. J.

The defendant was indicted for wilfully and feloniously, with a dangerous weapon, to-wit: a large stick, inflicting a wound on the person of one W. C. M., with intent then and there to kill, contrary to, etc., and further, for wilfully and maliciously assaulting and beating the aforesaid W. C. M., contrary to, etc.

He was found guilty as indicted.

Before sentence he made a motion in arrest of judgment, charging that the indictment under which he was convicted is totally and fatally defective, for the reason that the first count does not allege an offence known to the laws of this State; that the averments in the same are so ambiguous and uncertain that the court could not tell of what crime the defendant has been convicted.

His motion was overruled, and he was sentenced to nine months at hard labor.

The contention is that the accused should have been indicted in the words of the statute, and that he was not so charged.

Section 794, R. S., under which it is apparent that it was designed to prosecute the accused, was amended by Act No. 17 of 1888, p. 14, and now reads as follows:

“ Whoever shall wilfully aud maliciously, with a dangerous weapon, ■or with intent to kill, inflict a wound less than mayhem, upon another person, shall, on conviction, be imprisoned not exceeding two years, with or without hard labor, and fined not exceeding 81000.”

The indictment does not contain the word “maliciously ” to which the word “feloniously” is substituted, and does not contain the words “ less than mayhem,” to which none are substituted; so that it simply charges that the accused did wilfully and feloniously, with a dangerous weapon, with intent to kill, inflict a wound.

There is no complains as to the absence of the word “ maliciously,'’’’ the words “with intent to Mil” being in the indictment; but the complaint is, that the indictment does not contain the words “ less than mayhem,” which are essential.

There is foundation for the complaint. The description of the -offence must be technically exact. The special matter of the whole fact should be set forth in the indictment with such certainty that ’the offence may judicially appear to the court. Wharton Orim. Law, 287, 285.

It is settled by a long line of precedents resting on principle, that in the prosecution for the commission of a statutory offence, the words of the statutes or others of fully equivalent import should be -employed.

In a case like this, the accused probably could not have required ¡specifications of the nature of the wound; whether it was the putting out of an eye, the cutting or biting off of an ear, or of the nose, or depriving the party of the use of a particular limb or member of the body; but he was surely entitled at least to a notification of the general character of the wound, which would have been sufficiently conveyed by the use of the words of the statute, “ less than mayhem.”

The answer made to this objection is that the grand jury found a true bill against the accused for inflicting a wound less than mayhem.

The finding of the grand jury was not incorporated in the indictment, but was put on the back of it. It was not thereby injected into the charge. The accused is not presumed to have known of it, ■and even if so, was not bound to notice it. He stands prosecuted for the causes set forth in the body of the instrument, and it is to those charges, and to no others, that he pleaded “ not guilty.”

It is settled that whether the facts in an indictment are properly •alleged or constitute a crime, may be inquired into on a motion in •arrest. Waterman’s D., 363, 10.

The indictment is fatally defective.

It is therefore ordered that the verdict and the sentence thereon be annulled, and that the indictment be quashed; the accused to remain in custody until the further seasonable action of the State on the charge against him.


text:
    No. 10,743.
    The State of Louisiana vs. Alzide Ducote et al.
    The granting of a severance lies within the sound discretion of the trial judge as a rule.
    A refusal to grant such severance will not he interfered with unless manifestly erroneous and injurious to the accused.
    A PPEAL from the Twelfth District Court, Parish of Rapides. Blackman, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.
    Defendant unrepresented in this court.
   'The opinion of the court was delivered by

Bermudez, C. J.

Looel Jeansonne, one of the accused, was prosecuted for horse stealing, and convicted.

Prom a sentence to imprisonment at hard labor for twenty-four months he appeals.

.He complains that he was illegally refused a severance.

His motion stated as grounds:

1. That his defence was entirely antagonistic to that of his co-'defendants.

2. That he is informed that the District Attorney intends to establish a confession by both of his co-defendants which which will prove prejudicial to his defence.

The District Judge declined the severance, seeing no good reason itherefor, “ as the accused is a witness for himself, as are those jointly indicted with him, and can obtain a fair trial; as the defences, are different and the confessions of the two can have no effect against him.”

The appellant has entered no appearance in this court, and has. submitted no oral or printed argument.

There is nothing in the record to show that the apprehension of-the accused was founded, and it does not appear that the District, Judge has misused the discretion vested in him by law in such matters.

The transcript does not contain a motion for a new trial in which any complaint was made of the ruling or of its consequences.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,744.
    The State of Louisiana vs. Marion Perkins.
    1. As a general rule indictments for statutory offences need only follow the-words of tlie statute.
    2. The statute defining the offence of resisting an officer does not use the word “ knowingly,” and therefore it is not necessary to so allege in the indictment,, though in this case, the knowledge is strongly implied in the charge that the resistance to the officer was “ wilful, malicious and illegal.”
    3. It suffices to describe the warrant, execution of which is resisted, as haying, been issued by a particular officer whose name and office are described.
    APPEAL from the Twelfth District Oourt, Parish of Rapides. Blaekman, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.

      Robt. P. Hunter for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The defendant was tried and convicted for the crime-of resisting an officer.

Two errors are assigned, viz: (1) The overruling of a motion for.new trial; (2) the overruling of a motion in arrest of judgment.

1. The sole ground assigned for the new trial was that the verdict, is contrary to the law and the evidence. The bill of exceptions taken to the overruling recites certain contentions of counsel as to the nature and extent of the proof offered on the trial; but the judge in signing it ignores these contentions, and says: “The verdict of the jury was in accordance with the law and the evidence, and responsive to the charge of the court.” The most lynx-eyed critic can discover in this no ground on which we could pronounce the ruling to be erroneous, in absence of both the evidence and the charge.

2. The motion in arrest is aimed at the indictment, which is charged to be fatally defective, in that it fails to allege knowledge in defendant that the person resisted was an officer, or that the process or warrant which he was executing was legal.

The crime is statutory, the statute not merely naming it as a common law offence, but defining and prescribing its constituent elements. The indictment follows the language of the statute, embracing all its requirements and even amplifying them.

We have heretofore held that “when acts specifically described are declared offences and the penalties described by statute, they are really statutory offences and are to be charged, not according to the strict requirements of the common law, but the indictment may follow the language of the statute.” State vs. Philbin, 88 An. 967. The statute here does not embrace the word knowingly” or its equivalent, and it was not necessary to use it in the indictment. ■2 Bish. Crim. Proc., Sec. 887. It is, however, strongly implied in the language of the indictment that the defendant did “wilfully, maliciously and illegally resist ” an officer.

Nor does the statute require a specific averment that the process, which the officer resisted was executing, was a legal process. The indictment qualifies the process as “writ, warrant or order of arrest issued by Opey Johnson, a justice of the peace in and for the said parish of Calcasieu,” etc. This is sufficient under the statute. If Johnson was not a magistrate, or if the warrant of arrest was illegal and issued by him without authority, proof of such facts might be matter of defence, but they do not go to invalidate the indictment.

Judgment affirmed.


text:
    No. 10,739.
    The State of Louisiana vs. C. C. Aubrey.
    1. A bail bond will not be vitiated by a manifest clerical error which does not obscure or render doubtful its true meaning.
    2. It is essential in such a bond that the time and place fixed for the appearance of the prisoner shall be clearly set forth.
    3. Where the condition of the bond is for appearance at the next jury term to be holden on the fourth Monday of February, 1891, this condition is not affected by the subsequent action of the court ordering a special jury for an earlier intervening non-jury term; and the failure of defendant to appear at said earlier term furnishes no ground for forfeiture of the bond.

      Barksdale, J. PPEAL from the Third District Court, Parish of Claiborne.

      Walter H. B,ogers, Attorney General, and E. H. McClendon, District Attorney, for the State, Appellee:

      “ The sureties on a bond which was given for and procured the release of a prisoner charged with a criminal offence can not gainsay its regularity, or the regularity of the proceedings in which it was allowed.” 30 An. 528.
    “ The State is not under obligation not to have the accused tried before the regular term of court, because the latter has furnished bond to appear at such regular term.” Si An. 69.
    A fugitive from justice will not be heard to urge that judgment of forfeiture of bond be set aside.

      J. W. Holbert and J. B. Phipps for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The defendant and his sureties appeal from a judgment of his bail bond.

The bond is dated September 6, 1890, and the condition expressed therein is that “said O. C. Aubrey shall well and truly make his appearance at the next jury term of the Third District Court to be holden in the town of Homer, on the 4th Monday in February, 1890, and from day to day,” etc.

It is admitted on both sides that the figures 1890 are so written by mere clerical error, and that they were intended for 1891. Such manifest clerical error can not invalidate the bond, and we shall treat the case precisely as if the date had been correctly written. Under the law, and the order of court made in pursuance thereof the next jury term of the court was, at the date of the bond, fixed for the 4th Monday of February, 1891. The first succeeding term of court, however, which was a non-jury term, was fixed for November, 1890, and the Act 85 of 1880 gave the judge authority at such a term to order a special jury for the trial of all criminal cases where the penalty is not necessarily imprisonment at hard labor or death. Under this authority, at a time subsequent to the execution of the bond, the. judge called a special jury for the second week of November. The offence with which defendant was charged was one triable at said term; and accordingly the defendant and his sureties having been duly called and failingto appear, the bond was declared forfeited. After ineffectual efforts to obtain relief below the present appeal was taken.

We think it clear there was no legal warrant for the forfeiture.

The very definition of bail is: “The delivery in legal form of one under arrest to another or others, who thereby become entitled to his custody, and with him responsible for his appearance when and where agreed on in fulfilment of the purpose of the arrest.” 1 Bish. Orim. Proc., Sec. 258.

The obligation intended to be assumed must be expressed in the bond or derivable from its words; and especially the time and place stipulated for his appearance must be clearly set forth, since that is the pivot of obligation. Accordingly it is held by numerous authorities that if no day is fixed for the appearance of the accused, the bond is void. 1 Bish. Orim. Proc., Sec. 2646; 2 Am. and Eng. Oyc. of Law, “Bail,” p. 17.

It would certainly appear beyond measure unreasonable if a bond expressly conditioned for the appearance of the prisoner on the fourth Monday of February, 1891, could be held forfeited for non-appearance in the second week of November, 1890. There is no authority and no principle on which such a contention can rest.

The case of State vs. Briggs, 84 An. 69, quoted by the State, dealt with a very different question. There the defendant appeared at a term anterior to that at whicb his bond required him to appear, and although his case was legally triable, he claimed that he- could not be tried before the term named in his bond. jWe held that the bond placed the State under no obligation not to have the accused tried before the regular term of court fixed in the bond for his appearance. If, in the instant case, the defendant had appeared and objected to trial, that decision would have been pertinent. But the question here is whether his non-appearance in November was a breach of the condition of the bond requiring his appearance in the ensuing February, to which it is impossible to give other than a negative answer.

The judge refused to listen to the application of defendant for relief, on the ground that he was a fugitive from justice. There is no proof to that effect. The only evidence is that he was absent,’ and that his counsel did not know where he was. Non constat that he will not appear at the time fixed in his bond. If not, the bond will remain in force, and may then be forfeited. We shall merely set aside the present forfeiture as premature and unwarranted.

It is therefore adjudged and decreed that the judgment of forfeiture of bond herein appealed from be annulled and set aside, without prejudice to the continuing force of the bond according to its.terms and conditions.


author: Breaux, J.

text:
    No. 10,626.
    Succession of Mrs. M. Foerster.
    . Promissory notes receipted by the owner as follows: “This note is paid in full’ afterward found among valueless ones, extinguished, when it is conclusively proven that the intention was to dischaige the maher.
    2. The extinguishment of these notes is an accomplished fact, and'release from their payment has passed to the state of an absolute presumption of release, either because they were considered paid as written across them, or for other good reason their extinguishment was preferred.
    3. These notes, at the instance of a legatee, will not be given binding effect anew unless it be shown that the superscription was not the result of the deliberate exercise of the owner’s will.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Buck, Dinkelspiel & Hart for the Executor, Appellee:
    1. Promissory notes, in unconstitutional commercial form, found among worthless papers of the deceased, with the words “ This note is paid in full ” written across them, sigifed by the deceased and explained, and accompanied by proof that this was done with the intention of discharging the malrers of the notes, will be held extinguished and remitted.
    2. The modes of extinguishing obligations provided in the Civil Code are not exclusive of others; the extinction of an obligation may be a question of fact involving the destruction or surrender of a right, resulting from acts of the creditor, done with the intention to release the debtor. Cage vs. People’s Bank, 40 An. 11)3.
    ■ 3. The writing on the notes is a virtual destruction of the obligation, until alleged and shown to have been the result of error, fraud, violence or some other extrinsic cause which would negative the natural effect of the writing on the notes.
    •4, An executor of an estate, findingsueh notes among the papers of the deceased, can not be compelled by heirs or legatees to sue on them, unless there is evidence to show that he could truthfully, or at least with appearance of probability, make the allegations necessary to rebut the presumption gf remission or release resulting from the form in which he finds the notes; a fortiori, he can not be compelled to do so when the evidence shows the express intention of the holder, decedent, to release her or his debtors.

      -5. Article 2279, Revised Civil Code, in regard to obligations “ lost or destroyed,” speaks of such as are lost or destroyed by “ decedent or force,” and by implication excludes obligations voluntarily destroyed. This is the jurisprudence of the Roman and French law.
    ■¿6. The articles of the Code on “ remission ” are liberally construed and acceptance is always presumed. The weight of authority in the French law holds that “remission,” technically as defined by the code, may take place by the mere will of the creditor without notice to the debtor. Where this will is expressed by an act destructive of the evidence of the indebtedness the discharge is complete; the act is not subject to any formality; it is not adonation; nothing passes by it from one to another; it is a destruction, surrender or cancellation of a right which accomplishes itself by the voluntary destruction, of the evidence of it, coupled with the intention that the right shall perish with it.

      Wm. Armstrong and F. G. Zacharie for Opponents and Appellants :
    The transactions in question herein must be considered either as donations or remissions of debts.
    The donations of incorporeal rights must be by act before a notary and two witnesses. Art. 1536, R. C. C.; 12 Rob. 77; 22 An. 97.
    No valid or legal donation has occurred herein. The donation of corporeal rights must be accompanied by manual delivery or tradition. R. C. C. 1539; 19 An. 96; 11 An. 467; 26 An. 195.
    To constitute the remission of debts herein involved five elements must concur. 1. The offer of remission by the creditor. 2. The notification of the offer by the creditor to the debtor. 3. The acceptance of the offer by the debtor. 4. A notification to the debtor by the creditor of his acceptance. 5. A manual delivery or tradition. R. C. C. 2201; Bouv. Inst., Vol. 2, See. 30pi,etseq.; Evans •Pothier, Oblig., Vol. 1, p. 562 (606); 7 R. R. 387; 5 An: 560; Louque’s Dig. Evidence, 111 (a).
   The opinion of the conrt was delivered by

Breaux, J.

The estate of Mrs. Foster was opened in 1888.

The assets amounted to more than $40,000.

She left no forced heirs.

In her testament she donated her property to her nieces and grand nieces, and to. a sister.

Some time prior to her death she was the owner of three promissory notes. Two of these notes are signed respectively by two of her nephews by marriage, and one by her niece.

About a month previous to her death another relative, who is1 named in her will as her testamentary executor, was sent to consult a well known notary who attended to her notarial.business, to ascertain in what form she might remit the payment of these notes. It was thought preferable to cancel them entirely, but on the advice of the notary the words This note is paid in full was written on their face and signed by her.

She was an old lady, feeble, and evidently did not expect to live long. At her period of life, and in her frame of mind, it can not be presumed that she signed words of relinquishment of the obligation without seriously intending to release the parties.

They were relatives, named in her will.

It is stated in evidence that she desired to release the makers of these notes from their payment; for if she did not, they would receive but little under the terms of her will. She had a bank box in which she placed her valuable paper; another, a paper box, in which she put away papers that were valueless.

In the latter, loosely stored away, these notes were found with the worthless papers while the inventory of the succession property was being taken. The executor considered them of no value, and made no attempt to collect them.

He filed his final account. There are five legatees, each inheriting; in the proportion, of one-fifth.

One of these legatees filed an opposition to the homologation of' the account, on the ground that the executor has failed to give account of these notes.

This opposition was dismissed, and the account was homologated.

On the trial it was proven that the maker of one of these notes knew of the release from the payment of his indebtedness before the death of his creditor.

His release from payment is not seriously questioned.

The makers of the other notes did not know of this superscription until after her death.

The question is exclusively one of remission of debt vel non, and is-narrowed to a question of form and notice.

The opponent contends that to constitute a remission of the debt-certain elements, wanting in this case, must concur, and confidently relies upon the absence of notice, of the release to the debtors and acceptance on their part.

It is also urged that the notice after the death of the creditor and the acceptance can not have any legal effect.

We have not found any absolutely analogous case reported in the-decisions of this court.

In Peoples Bank vs. Cage et al., 40 An. 138, Marcadé’s comments-on the articles of the Code Napoleon, relating to the remission of' debts, are quoted with approbation in so far as they applied, and in that ease it was held that in addition to the general modes there is a-multitude of other causes of extinguishment peculiar to each kind of obligation. Marcadé declares that the remission of the debt is-not a novation. That it may be made expressly or tacitly, and the. author affirms that it is a controverted question since many years,, that relating to the possibility or impossibility of extinguishing a. debt by the sole will of the creditor.

In support of the affirmative of the proposition it is said that the-creditor is at liberty to relinquish his claim; that a debt can be remitted as well as that any other right can be abandoned; that no-debt can exist without a corelative creditor, and that the abandonment which the creditor makes of his credit and by which it is extinguished carries with it ipso faoto the extinguishment- of the debt..

It was the doctrine of Barbeyrae, says Marcadé.

Duranton and Toullier argued in its support.

Pothier does not give it his undivided approbation. He opposes, the doctrine of Barbeyrae from a practical standpoint; at the same time he gives his assent to the extent of stating that a creditor can,, by his will alone and without special notice to his debtor, extinguish an indebtedness. Laurent, Yol. 18, p. 362.

There are French commentators opposed to the doctrine.

We accept the conclusions of those who argue in its support,'being more in accordance with our Civil Oode, in which the subject of remission is more liberally treated. See Article 2201 of the Civil Oode,. not in the Oode of Napoleon.

In the case of Booth vs. Succession of Smith, 3 Woods, p. 21, the. pleader alleged a voluntary destruction of the evidence of the debt, to recover which the suit was brought. The court held, in such case there can be no recovery based either on the instrument itself or on the debt, which was the consideration for which the instrument was given.

There follows along list of decisions. The doctrine'is notentirely without support in our jurisprudence. A gratuitous remission may be implied. Mouton vs. Noble, 1 An. 194.

The acceptance of a release from the payment of a debt was presumed, and it was held not revoked by the creditor. Lee vs. Ferguson, 5 An. 533; vide also Pike vs. Charotte, 39 An. 302.

By Article 2201, O. 0., the “ release or remission of a debt is presumed always to have been accepted by the debtor, and it can not ■be revoked by the creditor.”

A few days after the death of the owner of these notes the two •“makers” that had had no prior notice urgently claimed the release. .

The benefit could not be revoked at”the instance of the legatees.

Death will not give validity to canceled notes on the opposition of •one of the legatees. Another article of our Gode reads:

“ When an instrument in writing containing obligations which the party wishes to enforce, has been lost or destroyed by accident or force, evidence may be given of its contents, provided the party shows the loss, either by direct testimony or by such circumstances, •supported by the oath of the party, as render the loss probable; and in this case the jury may, if required, order reasonable security to be given to indemnify the party against the appearance of the instrument in case circumstances render it necessary.” O. C. 2279.

No provision is made for acts of voluntary destruction establishing ■a discharge.

The opponent legatee can not reinstate their binding effect.

The debt was released.

The fact would not be more conclusively proven if the creditor had delivered the notes or had destroyed them after special notice to the debtor.

The cancellation is a fait accompli, and has passed to the state of an absolute presumption of release.

The opposition offers no ground to amend the judgment of homologation.

Judgment affirmed at appellant’s costs.


text:
    No. 10,740.
    The State of Louisiana vs. Gilbert Anselm.
    1. Section 854 of the Revised Statutes denounces two different crimes of burglary: (1) An entry in the night time without breaking, and (2) breaking or entering in the day time.
    2. In charging the former, it is essential to allege that the entry was made in the night time; but in charging the latter, it is not essential to allege that the breaking or entry was in the. day time — an averment of a breaking or entry being sufficient.
    3. In case the defendant is charged with and has been convicted of a crime which is necessarily punishable with imprisonment'at hard labor, and upon motion in arrest of Judgment, the indictment is held to be defective and wanting in essential averment and set aside, he is not'entitled to bail pending a suspensive appeal on part of the State.
    APPEAL from the Thirteenth District Oourt, Parish of St. Landry. Lewis, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.

      Jules Gil and E. P. Veazie for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The State is appellant from a judgment of the District Judge sustaining defendant’s motion in arrest of judgment, on the ground that the information is wanting in essential averment.

It charges the defendant with burglary, alleging that he did feloniously and burglariously break and enter the store house of Arthur Yeltin with intent to steal,” etc., but without alleging that he burglariously entered said store house either “ in the day time ” or “ in the night time.”

The information was evidently framed under the provisions of Revised Statutes, Sec. 854, which are as follows, viz:

Whoever, with intent to kill, rob, steal, commit a rape, or any other crime, shall in the night time enter without breaking, or in the day time break or enter any dwelling house,’? etc.

This section of the statutes differs from the preceding sections, 850, 851 and 852, in this, that they specify, as an essential element of the crime of burglary charged therein that the breaking and entry •shall be in the night time; while it specifies that the only essential to the commission of the crime of burglary therein charged is an entry in the night time without breaking, or a breaking or entry in the day time.

Different grades of the crime of burglary are denounced in each of those different sections. The punishment affixed to that denounced in Section 850 is death. That in Section 851 is imprisonment at hard labor for not exceeding fourteen years. That in Section 852 is imprisonment at hard labor for not exceeding ten years. And that in Section 854 is imprisonment at hard labor not exceeding five years.

They are crimes generic in character, but differing in gravity.

In the last named section a simply felonious entry in the night time is declared to be and denounced as just as grave and serious a crime as a breaking or entry in the day time.

Each is a specific and distinct offence. Of one a breaking is a non-essential; and of the other a breaking or entry is an essential element.

Of the burglary committed in the night time an averment should be made that the entry was made in the night time without breaking; but of the burglary committed in the day time an averment may be-made that the breaking or the entry occurred in the day time.

Therefore, if a breaking or entry in the day time is burglary in the sense o'f that statute, the mere averment in the indictment that the accused did break or enter a dwelling house would seem to be sufficient, without the addition of the words “in the daytime.” But, if' the accused be charged with the crime of burglary, which is denounced under any of the other sections of the statutes, or under the-alternative provision of Section 854, in which the night time is of' the essence of the offence, an indictment would not be sufficient without it.

The object to be attained by an indictment or information is to convey to the accused a clear and concise statement of the offence charged against him, so as to enable him to prepare his defence. It ought to be sufficiently clear and specific to enable the accused to. plead it in bar of a further or additional prosecution.

These requirements have been, in this information, sufficiently complied with, and same is not, in our opinion, wanting in any essential averment, and the judge a quo erred in quashing it.

The complaint of the defendant’s counsel, that the trial judge declined to allow him bail pendente lite, is without any foundation. At the time the defendant’s motion in arrest was filed and sustained he was held in custody under conviction of a crime which is punishable” with imprisonment at hard labor: Notwithstanding the judge a quo sustained the motion, the State suspensively appealed therefrom, and thus maintained the status quo during the pendency of the appeal.

The Oonstibution provides that ‘ ‘ all persons shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or presumption great, or unless after conviction for any crime or offence punishable with death, or imprisonment at hard labor.” Art. 9.

We think the judge correctly declined to allow the defendant bail at the stage of the proceedings at which his application was made.

Judgment must be reversed.

It is therefore ordered and decreed that the judgment appealed from be reversed, and that the information and verdict thereunder, be reinstated, and the cause remanded for further proceedings and ■decree therein as may conform to law and the views herein expressed.


text:
    No. 10,742.
    The State of Louisiana vs. A. L. Gournet et als.
    Whether or not a severance* will he granted is a matter within the discretion o£ the trial judge.
    'The plea of guilty by the co-defendant, entered before trial, and,the announce’ ment made by the District Attorney that their confession of guilt would not he proven on the trial against the defendant, leaves them without any defence whatever on appeal.
    PPEAL from the Twelfth District Court, Parish of Rapides. Blackman, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.

      L. J. Dueoté for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

Gournet, Dueoté and Lovel Jeansonne were indicted for horse stealing.

They filed pleas of not guilty.

Jeansonne moved for a severance.

Subsequently Gournet and Ducoté withdrew their pleas of not guilty and plead guilty.

Jeansonne a few days after was tried, convicted and sentenced to three years’ hard labor.

He appeals on the ground that the evidence adduced against his co-defendant was calculated to prejudice his cause with the jury, and that he was informed at the time of the District Attorney’s intention to offer in evidence the confession of one of the defendants in the trial.”

The trial judge states in the bill of exception that the District Attorney announced to the court before any ruling was made, and at the time the motion for a severance was filed, that he would not prove any of the confessions made. Two of the accused then withdrew their plea of not guilty [and plead guilty, thus leaving the accused Jeansonne to be tried by himself.

The statement of the bill disposes of the case.

There is nothing for this court to decide.

Whether or not a severance will be granted is within the discretion of the court; further, the co-defendant having plead guilty, there was a severance and the accused was tried alone.

Judgement affirmed. ,


text:
    No. 10,751.
    The State ex rel. Joseph Feeny vs. The Judges of the Court of Appeals, Parish of Orleans.
    One thousand nine hundred and seventy-eight dollars does not exceed $2000. In tailing jurisdiction over a controversy involving that amount the Court of Appeals did not usurp authority.
    y^PPLICATION for Certiorari and Prohibition.

      Henry P. Dart for the Relator.

      B. B. Forman for the Respondents.
   The opinion of the court was delivered by

Bermudez, C. J.

The relator seeks a prohibition to prevent the Court of Appeals from taking jurisdiction over a litigation in which he avers that the amount in dispute exceeds $2000.

The return is that the court is competent to pass upon the matter-in controversy, which is less than the upper limit of its jurisdiction.

The proceedings are in partition by the relator, sole heir of his; father by a first marriage, and the defendant, his third wife and surviving widow.

They relate to property said to compose the community of acquets, once existing between them. »

It was agreed and admitted that the property to be partitioned was worth between $500 and $2000.

The judgment sought by the plaintiff was that he be recognized as-, sole heir, and entitled to half of the common property.

The widow answering, set up certain claims, which it is unnecessary to specify.

The judgment rendered by the District Court was reviewed by the-Court of Appeals, and the cause was remanded.

The plaintiff then filed a supplemental petition, charging that the defendant was indebted to the community in certain ways for various amounts, and praying that the matters and things by him set up be held as fit and proper, deductions and charges against her share and interest, and that the court render a full and final judgment, settling all issues between the parties.

The widow excepted and answered, defending herself and claiming §1000 as having been left in necessitous circumstances.

Prom the judgment rendered below an appeal was taken to the Court of Appeals; and while the ease was being argued the plaintiff intimated want of jurisdiction.

The court paused and considered the objection. In an elaborate and well reasoned opinion it however overruled it, and declared its competency.

It is then that, the present application for a prohibition was pre-. sented to this court.

To determine the question submitted, it suffices to say that there was no money judgment asked; that, had any been prayed for, it would have been only for half of the amount, and that had the defendant confessed the claim, the judgment could not therefore have been at most for more than $1978, which is less than §2000, within the appellate jurisdiction of the Court of Appeals.

Application refused.


text:
    No. 10,737.
    The State of Louisiana vs. W. P. Roubles.
    :1. To maintain a prosecution for embezzlement there must be some averment made of the fiduciary relation sustained by the defendant and made by the statute an element of the offence; and it must be alleged that by vii-tue of said reflation and embezzlement liereceived into his possession the thing' which he is • accused of embezzling.
    ;'2. The ownership of the property embezzled must be alleged.
    . It is not sufficient to allege that a certain draft was entrusted for collection ' without alleging to whom it belonged and for whose account the collection \ was made.
    "A PPEAL from the Thirteenth District Court, Parish of St. Landry. ft Lewis, J.

      . Walter H. Rogers, Attorney General, for the State, Appellee.

      Laurent & Dupré for the Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

An information was filed against the defendant charging him with having embezzled the amount of a draft he had been entrusted with by one William Burr, for the purpose of its collection, which he collected and feloniously appropriated to his own use.

He was tried, convicted and a few days later was sentenced to imprisonment in the penitentiary for twelve months.

Errors are alleged in a motion in arrest of judgment, which are also made a bill of exception.

It is contended that the information is deficient in matter of substance in not charging that the defendent was in the employ of the person by whom he was entrusted with the collection of the draft; that it was not sufficient to allege that he had been entrusted with the collection, but that the capacity in which he was entrusted, whether as clerk, agent or servant, should have been stated.

In deciding the questions presented we must consult the statutes of our own State and the decisions of our courts.

Those of other States are not always safe guides, owing to the varying terms of the statutes creating the offence.

We copy from the statutes the words applying in this ease:

“Any * * * agent * * servant who shall wrongfully use, •dispose of, cancel or otherwise embezzle any money, bill, note, ■check, order, draft, or any other property which he shall have received for another, or for his employer, principal of bailor, or by virtue of his * * trust or employment, or which shall have been entrusted to his care, keeping or possession by another, or by his employer, principal or bailor * * upon conviction thereof, or of having aided or abetted in the commission thereof, or having ■been accessory, etc., shall suffer.”

The offence may be described as the embezzling of property designated by the statute by the person and under the circumstances ¡specified therein.

It is the “ fraudulent appropriation of property by a person to whom ■it has been entrusted.”

Although, the defendant was not in the regular employment of the ^prosecuting witness, the single act with which he is charged may have created the relation of principal and agent, or employer and ■servant.

The bare temporary charge, the entrusting him with the eollec■tion of the draft, may have made him quoad the collection, the ■agent. •

In the matter of contracts the party who is charged with-the responsibility of representing another is termed the agent, the party represented the principal; in non-contract law master and servant.

“ A servant is commonly an agent; and ordinarily an agent is a servant. In the law of contracts the related parties are usually ¡termed principal and agent; in the non-contract, master and servant.

“ In both there may be an agent or servant by estoppel, ag well as by direct appointment.” Bishop, Non-Contract Law, p. 694.

To constitute an agency, it is not necessary that there should be more than one act authorized, or more than one act performed, “unless this single act created the relation.” Archbold, Vol. 2, p. 578.

In the case of the State vs. Jones, 9 An. 307, the defendant was indicted under the embezzlement statute of March, 1845.

There was an agreement between him and the prosecuting witnesses to purchase property on joint account. The latter placed a note in Ms hand to be delivered to the owner of the property in payment of his half of the price, which note the defendant did not deliver, but negotiated.

“ The- agreement between Holmes and Jones to purchase the schooner on joint account did not. deprive the transaction of the character of agency, undertaken by Jones for Holmes in purchasing the one-half interest in the schooner for him.” See also Bishop on Criminal Law, Vol. 1, p. 347, E. Ed.

It is contended by the defendant “that it was not sufficient to allege that he had been entrusted with the collection, but that the capacity in which he was entrusted, whether as clerk, agent or servant, should have been stated.”

There can be no question that the defendant’s fiduciary character must be averred.

It is not necessary, however, to allege the particular word of the statute, for the cases on embezzlement seem to employ them almost interchangeably, especially “clerk” and “servant,” but the capacity “ in which he was entrusted, whether as clerk, agent or servant, should be alleged.

“ The allegation must contain a word found in the statute, else it will ordinarily be defective.” Bishop on Criminal Law, Vol. 2, p. 349; Bishop on Criminal Procedure, Vol. 2, p. 323.

The information should charge “that the defendant stood in some fiduciary relation to another person named within the terms of the statute, as thathe.was the other’s servant ’ or clerk or treasurer,’ ” or some other word should be used equally as expressive and within the meaning of the statute. •

None of these words are alleged in the information, nor any equivalent word, only that the defendant was entrusted. It should have • been alleged that by virtue of his employment, or by virtue of the ■ trust as clerk, agent, or servant he received and took into his possession. The confidence violated by the “ agent,” clerk or “ servant” must be set forth. “ There must be some of the fiduciary relation-sustained by the defendant, and made by the statute an element of the offence. The fiduciary relation is not alleged.

“The pleader would not be allowed, in framing his indictment, to make under all circumstances his own choice of terms.” Says. Bishop on Criminal Law, Vol. 2, p. 332.

“ There are various terms, such as ‘ agent,’ ‘ servant ’ clerk ’ and the like, employed in them to designate the classes of persons within their penalties.

“ If the pleader is satisfied the defendant is either an agent,’ a clerk or a servant, he selects the term which pleases him best; then should the proof sustain the allegation in this respect, all is well, though it should appear that one of the other statutory terms would bé equally appropriate.” Bishop, Oriminal Law, Vol. 2, p. 334.

We will not rest our decision on the ground just considered.

We will examine the next presented, viz: “That it is not stated who was the owner of the draft, nor that it was to be collected for the account of the prosecuting witness.”

The ownership of the property embezzled must be alleged or an equivalent term used.

“The ownership must be alleged and with the same accuracy and after the same rules as in an indictment for common law larceny.” Bishop on Crim. Proc., Vol. 2, p. 321; Archbold, Vol. 2, p. 564.

“ Unless’the pleader be relieved from this exactness by special statute, the goods and ownership must be set out with the same, completeness as in larceny.” Wharton, Vol. 2, Sec. 1945.

The words of our statute, viz: “Any servant or agent, and who shall wrongfully use * * * money, etc., intrusted to his care, keeping or possession by another ” does not relieve from the necessity of alleging the ownership. It is not alleged to whom the draft belonged nor for whose account it was collected.

It can not be presumed that the prosecuting witness is the owner,, because of the allegation that the defendant was entrusted with its collection by him.

We have not hastily reached the conclusion before expressed, for those who violate confidence in matter of money should be punished, but we will not decide that an information is legal; drawn under a statute adopted to punish any “servant,” clerk, broker, agent, consignee, trustee, attorney, mandatory, depositary, common carrier, bailee,” when it is not alleged that the draft nor the amount collected belonged to the prosecuting witness, nor that it was received and its amount embezzled by virtue of any of the relations, above expressed.

Because (quoting from the information) “ he was intrusted by one Willie Burr with the possession of a certain draft for the sum of |20 on James Nicholson, of Washington, La., for the purpose of collecting said amount, and haying collected said amountthe defendant did feloniously and fraudulently embezzle,” etc., it does not necessarily follow that he was entrusted within the words or intendment of the statute.

It is therefore ordered, adjudged and decreed that the judgment and sentence appealed from be annulled and quashed as not good in law, and that the verdict of the jury be set aside, and the defendant remanded in custody subject to the orders of the District Court of the parish of St. Landry.


author: McEnery, J.

text:
    No. 10,741.
    The State of Louisiana vs. Lezune Ashworth.
    This court can not taire cognizance oí evidence embodied in a bill of exception to the denial of a new trial when said evidence was submitted to the jury on tlie trial of tlie accused.
    This court can not review the verdict of the jury on the facts before them on the trial of the accused.
    'The description of the. offence, in the language of the statute, is sufficient.
    APPEAL from the Twelfth District, Parish of Rapides. Blackman, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.

      John C. Ryan for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The accused was indicted under Act No. 11 of 1882, for resisting an officer while serving on defendant a warrant for his arrest.

He was convicted and sentenced to hard labor. He appeals from the verdict and sentence.

The motions for a new trial and in arrest of judgment were overruled.

There was no testimony offered on the motion for a new trial and embodied in a bill of exceptions.

In the bill, reserved to the ruling of the District Judge in denying the new trial, the testimony offered on the trial and submitted to the jury is embodied.

We can not review this testimony. In the case of the State vs. Nelson, 32 An. 842, we had occasion to determine the power of this court, in passiug upon questions of law in criminal eases, to look into the facts with which these questions of law are blended. In this case we said:

“The prohibition to the exercise of the jurisdiction of this court lies to its power to find pure questions of fact, such as were submitted to and found by the jury. The inhibition does not extend to the questions of law, based upon facts submitted to and determined by the judge. Of course this court could not review under any circumstances the verdict of the jury on the facts before them on the trial of the accused. The court has, therefore, authority to consider the faqts established on a motion for a new trial, when they are such as were not submitted to and passed upon by the jury, but were considered and decided by the judge only.” State vs. Chatham, 34 An. 821; State vs. Hudson, 32 An. 1052; State vs. Belden, 35 An. 823; State vs. Spooner, 41 An. 781.

The several reasons assigned for the arrest of judgment are to the effect that the offence was improperly set forth in the indictment.

The description of the offence is in the language of the statute.

This is sufficient.

Judgment affirmed.


text:
    No. 10,504.
    Heirs of P. Robin Delogny vs. W. N. Mercer et als.
    A vendor is bound to express liimself clearly as to tbe extent of his obligations, and an obscure or ambiguous clause must be interpreted against him.
    Expressions employed in a prospectus, settingforth the terms of credit and the conditions of a sale of real estate, 'which forms part, by formal reference, of the act of conveyance, are to be read as incorporated into the contract.
    Language thus used, showing that the intention of the vendor is to sell specific riparian estate, and in consideration of the sale to obligate himself to leave free, for the common use of the purchasers, a certain space in front thereof, between designated limits, without any qualification as to the duration of such obligation, when this should have been done, if designed, must be interpreted as meaning an abdication, or abandonment, or divestiture in perpetuity, of al previous title of the settler to the space.

      This is so, even though the vendees are expressly denied the right o£ disposing o£ the space for any one’s benefit, particularly when the privilege or grant is bur dened with the obligation, on the part of the beneficiaries or grantees, of repairing roads and levees and draining the spot subjected to the use.
    The allowance, privilege or grant is a covenant which runs with the lands, absolutely conveyed, and in favor of the lots sold, whoever the owners be, to no end of time.
    A PPEAL from the Civil District Court for the Parish of Orleans. ■‘N Rightor, J.

      Edgar if. Farrar for Plaintiffs and Appellees:
    1. Fee simple title being shown to exist in plaintiffs’ ancestor, it continues in them unless divested, and the divestiture must be shown.
    2. Right to batture is a right inherent in riparian property. It results from nat-' ural law, in consequence of the local situation of the land to which it attaches. Mun. No. 2 vs. Orleans Cotton Press, 18 L. 122.
    3. Neither the plan nor the prospectus of the Faubourg Laeourse show any intention of dedicating to public use the levee and the batture between the levee antj the river.
    The city admits that there was no such dedication to public use, but contends that if it is in error in this admission, and the court thinks otherwise, the court can hold that there has been such a dedication. She wants two strings to her legal bow: one furnished by her counsel, and if that snaps, the other by the court.
    3. The claim that the tenth section of the Delogny prospectus transfers the riparian property to the lot purchasers, and divests the title of the Delognys, is not maintained by the terms of the alleged grant, which purports only to bind the vendor to leave the space in question “ free to the common use ” of the lot purchasers, prohibiting to them both th cjusfruendi and the jus disponendi, containing no words of alienation or of perpetuity, and imposing on them as a charge certain obligations which the law of itself imposed on them.
    (!. Such a provision in the prospectus of a riparian faubourg is nothing more than the expression, in favor of the lot owners, of the general servitude which the law imposes in favor of the public on the batture.
    7. The original batture having increased so as to leave large portions unnecessary to the public use, the public servitude is terminable by the act of the muncipal authorities, and a sale of a portion of such batture by such authority terminates such servitude, changes the destination of the property, and enables the riparian owner to recover the property in the hands of a private purchaser.

      3. If an obligation to leave riparian property free to the common use of lot purchasers in a faubourg, is the grant of a particular servitude on the batture in favor of the lots they buy, and such servitude is not drowned in the greater one to the whole public, and does not disappear when the greater one disappears, then the existence of such a servitude is no bar to the eviction of one without title, or who holds and enjoys the property as a private owner, by the riparian proprietor. The trespasser, or person without title, can not set up the servitude to defeat the owner under whom the owners of the servitude hold. The owners of the servitude can enforce their rights, or not, as they please.

      Merrick <& Merrick for St. Anna’s Asylum, Defendant and Appellee:
    1. The brief is taken up for the most part by the statement of the facts of the ease. The city, our warrantor, has, as it was bound, assumed the defence of the case. On the question of title we will not offer arguments which can in any way mar the unity or effect of the argument of the able city attorney. See Mathes vs. Meyers, decided April 7,1890.
    2. The force and effect of the act of sale of the city to Dr. Mercer, in 1854, is controlled by the Code of 1825, and the city of New Orleans is thereby bound (1) under Article 2485 for $10,900, value of 'useful improvements; (2) for the sum of $10,843.66 for the rents and revenues which the plaintiffs’ subrogee has recovered against this defendant, and (3) for $4150, the original price paid the city, and interest on all these sums. C. C. 1825, Art. 2482; R. C. C. 2506; Delord vs. New Orleans, 11 An. 701; Dyson vs. Phelps, 14 An. 623.

      Sami. L. Gilmore, Assistant Oity Attorney, for City of New Orleans, Warrantor and Appellant-:
    1. When a clause is susceptible of two interpretations, it must bo understood in that in which it may have some'effect rather than in a sense which would render it nugatory. Art. 1951, C. C.
    2. The reduction to private ownership of batture withheld by the city or its transferees, can only he recovered by the riparian proprietor upon allegation and proof that it is not necessary to public use. Act No. 333 of 1853; Cire vs. Rightor, 11L. 142.
    3. The city does not represent its citizens in cases where their private rights of property and servitude are involved, and controversies regarding such rights must he held contradictorily with the citizens themselves.
    4. A real servitude is not established unless the deed said to create it describes with certainty the property which owes it, the property to which it is due, and the nature of the servitude itself. Parish vs. Municipality, 8 An. 152.
    5. A right of use or usufruct being a personal right cannot be created unless it be made to a person named, oh account of that person alone, and independently of his being in possession of a particular estate. See authorities cited in argument of Mr. Le Gardcur in Arnould vs. Delachaise, 4 An. 116.
    6. A right of use or usufruct expires by the death of the grantee, and where it is evident that the grant is one in perpetuity, it can not be merely one of use or usufruct. To give the perpetual use or usufruct of a thing is to give the ownership of the thing. Art. 606, C. C.; Arnould vs. Delachaise, 4 An. 111.
    7. The seller is bound to explain himself clearly respecting the extent of his obligations, and any obscure or ambiguous clause mustbe construed against him Art. 2474, C. C.
   The opinion of the court was delivered by

Bermudez, C. J.

This is technically a petitory action, instituted in 1860. It was determined in the first instance only in 1889, nearly thirty years later, having remained dormant in the meantime.

The original plaintiffs have transferred their interest in it to an .assignee, who continues it in his own behalf.

The sum total of the prolific and argumentative petition is to the-effect:

That the author of the plaintiffs, P. R. Delogny, from the date of his purchase of certain lands fronting the Mississippi down to the present day, has never parted with his title to that portion of it which lies between the front line of the front lots (sold by him in 1807) and the river.

That the sale then made on certain terms, contained in a prospectus published at the time, provided for no divestiture of the ownership of said portion, either by dedication to the public use or otherwise, and secured nothing beyond an easement thereon in favor of the purchasers, who subsequently lost their right thereto by non-user or change of destination, by legislative and municipal interference, and action.

. That after the levee on said portion had been removed forward the portion or space was not necessary for public use, and the plaintiffs had a right to'take possession of and enjoy the same absolutely..

That the city of New Orleans, claiming to own a triangular fraction of said space, undertook, without warrant, in 1854 to sell it to-the defendant, who took and is in possession of it; but that the city conferred and the purchaser acquired no title whatever thereto.

The prayer is that the triangle be declared to be the property of the plaintiffs; that the sheriff put them in possession, and abate and remove the constructions thereon should the defendant fail to do so; that the plaintiffs recover fruits and revenues until the surrender of the property.

The answer is a general denial, accompanied with an averment of the purchase in 1854 from the city of New Orleans, which is called in warranty, and which urged various defences, leveled against the pretensions set up by the plaintiffs, and justifying its doings.

The main defendant having died, the special legatee of the property, the St. Anna’s Asylum and the universal heir, Butler, became parties in his stead, standing on the call in warranty.

It would serve no useful purpose to allude to other proceedings.

The District Judge,'for “reasons orally assigned,” rendered judgment for the plaintiffs, with a right to fruits and revenues, subject-to indemnity for improvements in favor of the defendant, and against the city for the price of the property and the revenues, to-which the defendant had been condemned.

By the silent acquiescence of the litigants,. who do not assail the-pecuniary adjustments, the issue to be determined, on the appeal, relates to the title vel non of the plaintiffs to the triangular piece of land, which forms part of the original space, mentioned in the prospectus as lying between the front line of the lots and the river.

The established facts are the following:

In 1807 P. B. Delogny, who had previously acquired from J. F. E., Livaudais, for 870,000, a certain tract of land having riparian privileges, about half a league above the city of New Orleans, fronting-on the Mississippi river, being part of an estate then known as the Marigny Plantation, shortly after, in the same year, divided it into squares and lots, which he advertised for Sale according to a map by Lafon, surveyor of the territory, and tó terms and conditions set forth in a prospectus also made public; the locality in which the land was. situated being known as Faubourg Lacourse.”

In the front of the front squares and lots a broad street named. New Levee was left open, beyond which there was an embankment. and also a batture, touching which no mark is found on the plan.

The squares and lots were all sold on certain terms of credit and conditions, specified in the prospectus, which formed part of the act, of sale in each case, by formal reference.

The tenth section of the prospectus reads as follows:

En eonsidération de la dite vente, le vendeur s’oblige de laisser libre, powr Vusage commun des aequéreurs, Vespace qui se trouve entre le fleuve et le premiere ligne de terrains de la devanture, marqué, sur le dit plan, sans pourvoir jouir, ou disposer, soit & leur profit, soit & celui d’autrui, cl la charge par les dits aequéreurs, chacunen droit soi, de restar obligé de l’entretien des ehemins, des levées, et de fairs tous les canaua d’écoulement, ou d’égout qui pourraient leur étrenécessaires. respectivement. A cet égard, le vendeur, d’ accord avec M. Livaudais, a fait marquer sur le plan, Vemplacement d’un canal pour servir d’égout commun.”

Labentibus annis, a Considerable batture was formed between the ■ line in front of the front squares and iots sold and the river. So much so that a plan' in evidence shows that in 1884 a street named Front was laid in front of New Levee street and a square, which includes the triangle involved, was laid, bounded by those two-streets and other streets, with a batture between the new street and the river.

Another plan shows that in 1837 this triangle was thereon designated by Bringier, surveyor general, who made it, as ‘ ‘ Property ceded by the original proprietor to the public.”

In 1854 the city of New Orleans undertook to sell to W. N. Mercer this triangle for some $4000, who went into possession of and Improved it.'

In 1860 the heirs of P. R. Delogny brought the present action to recover the triangle. What followed has already been stated.

Under that state of things the question arising for solution is simply:

Did or not the sale made by Delogny in 1807.of the squares and lots, under the terms and conditions and stipulations set forth in the prospectus, divest him absolutely and irrevocably of all title to the triangle in dispute?

The contention of the plaintiffs is that it did not; and that, if it did, it was conditionally, and that by non-user or change of destination the dominion returned to them.

Being strictly petitory in character, the action must be governed by the rules applicable to such cases, the main of which is that the plaintiffs must recover on the strengh of their own title, and not on the weakness of their adversary’s.

The absolute or conditional title which the plaintiffs claim not being apparent on the face of the act of sale and prospectus, the attempt is made to establish it by deductions.

The plaintiffs charge that, as the title to the triangle, which assuredly dwelt in their author Delogny after his purchase, was not divested by the sale, either by a dedication to public use or a transfer to the purchasers; and as the only, benefit conferred as to it on 'the purchasers was to secure to them the quiet enjoyment of servitudes established by law and previously existing in favor of the public, the title continued to reside in him subject to a mere servitude of common use.

It is further, however, pressed by them that'were it true that the title passed from him either to the public or to the vendees, it reverted to them, continuing from them in their assignee because of non-user or change of destination.

On the other hand, it is contended that when Delogny sold all the -squares and lots he irrevocably parted with the ownership of the ■space between the front line in front of them and the river, as he obliged himself to leave it free, and so abandoned it in perpetuity for the common use of the purchasers in consideration of the salé, and that whether its destination was or not changed after the divestiture is no concern of his representatives, as the concession was absolute; and that if the change took place, the purchasers are the only ones to complain, and they have not done so; that it is irrelevant and immaterial to the issue presented by the plaintiffs whether the sale by the city to Mercer did or not confer ownership and full dominion to the latter.

As it is apparent that Delogny never made a dedication of that space to the public, the issue is practically narrowed down to the inquiry, whether or not an abdication and transfer of the title took place in favor of the purchasers by the use of the words contained in the prospectus, viz: “In consideration of said sale the seller obligates himself to leave free for the common use of the purchasers the space, * * * -(¡he purchasers to remain bound to repair,” etc.

At first sight it is evidentthat the language used does not so clearly express the intention of the seller as to preclude or dispel any doubt as to what it unquestionably was, for it is manifest that, had not the terms used been deemed susceptible of a double signification, this controversy would 'not have arisen. It would not have lingered as long, and learned counsel would not have had to appeal to the Roman and to the French law. and to our own to establish its meaning. .

It is patent that the intention of Delogny was to sell the land ■ which he had acquired from Livaudais. To accomplish that object :as advantageously as practicable, he divided it into squares, separated by intersecting streets — those-perpendicular to or in the direc•tion of the river leading to a main front street; gave terms of credit, • and, with a view to enhance their value, offered to the purchasers in consideration of the sale, and besides the absolute, full and complete title to the specific land conveyed and sold, an inducement of value which formed part of the thing or object of the contract between them.

That inducement was that he obliged himself to leave free for the - common use of the purchasers a certain designated space, without the right of disposal by them, but with stated obligations relative to -the road, levee and necessary drainage canals.

He therefore proposed selling and sold the specific lot, together-with the right of nse of the space, complied with those restrictions, and the purchasers, when they agreed to buy and bought, expected to acquire and acquired a title, absolute as to the squares and lots purchased and qualified as to the use of the space, but not so, however, as to leave any title whatever in the vendor.

It at once strikes the synthetic mind that there is not a word or the least intimation in the terms used to indicate that the privilege or advantage conceded by the prospectus touching the use of the space, was not to be indefinite or perpetual, but was to be temporary only.

Had it entered the mind of Delogny not to bind himself to leave that space free for ever, but only for a limited period, it would have been to his interest, and surely his duty, fairly to have so clearly stated, and he has not done-so.

It' is very evident that his object was to connect irrevocably, with the right ’of absolute dominion over the specific property conveyed, the benefit of the use of th.e space for no determined time.

Clearly he !< obligated himself to leave free, for the common use of the purchasers, the space.”

. If the obligation which he thus voluntarily, in advance and subsequently by contract, imposed upon himself, was not one which he was for ever to respect, and one which he could have been forced to observe had he attempted to obstruct the use, what was the time to be during which it was to last ? There would be as much justification to answer a century as an hour.

The section in the prospectus unquestionably means that Delogny obligated himself to leave free the space in question, by abandoning for ever all right of obstruction to the use conceded in favor of' the purchasers.

It will not do to say that, from the exclusion of the right of enjoyment and of disposal, it is legally inferrible that the fee or naked ownership continued in the seller; for, in cases of dedication for public use, for instance, the denial of the right of alienation not only is often formally expressed, but is always implied, in the absence of clear stipulation to the reverse. In such cases the fee or title is completely and absolutely divested, passing at once from the grantor to the grantee, sub modo.

Neither does it avail to say that the words used do not purport to - allow anything, but the common use to the purchasers.

If the allowance be to a perpetual common use, the conferring of the unrestricted benefit carries with it the title to the ownership of the thing to be thus used. It is a “covenant which runs with the land;” in other words, a species of servitude resting on the space, in favor of the lots, whoever the owners be, to no end of time.

It is further insisted that this servitude was no broader than, and was nothing additional to, the general servitude imposed by law in favor of the whole public, of which the purchasers formed part, which was determined by the change of destination of the use of the thing, namely, the space.

If such were the case, it was useless to insert the allowance or privilege as an inducement, and the incorporation of it in the prospectus was a fraud, the giving of the shadow for the substance, a deception, of which the seller should not be permitted to take any advantage. Vie, mihi quia tacui!

“If there were any doubt concerning the extent and meaning of the terms made use of in this contract, the law would oblige us to construe them against the seller.

“ The vendor is bound to explain himself clearly as to the extent of his obligations, and an obscure or ambiguous clause must be interpreted against him.” Arnauld vs. Delachaise, 4 An. 120; C. C. 2449; R. C. C. 2474; L. 39, Depactis.

In the first cited case a germane question arose, which was most thoroughly discussed, as appears from the reported learned briefs of the erudite and distinguished counsel engaged, and by the lucid and conclusive opinion delivered, which determined it adversely to the the pretensions of the vendor.

It is true that the words used in the prospectus there were abandoned in perpetuity, while they are not the same in the instant controversy, but we have seen that the words “ obligates himself to leave open ” are of equivalent import, and this makes the rulings in both cases concordant on principle, and therefore consonant with law, justice and equity.

Having reached the conclusion that Delogny at the time divested himself absolutely and irrevocably of all title to the space of which the triangle in controversy formed part, it becomes unnecessary to pass upon the question whether by the non-user or change of destination this title has reverted to and dwelt in his heirs, and now resides in their assignee.

The purchasers are not heard to complain. Had they done' so, their chances of recovery would surely have been more than doubtful. The third and more of a century effectually closes many mouths.

It is therefore ordered and adjudged that the judgment appealed from be reversed; and it is now decreed that there be judgment, rejecting plaintiffs’ demand, and that of the defendant, calling the city of New Orleans in warranty, and that the costs in both courts be paid by the plaintiffs or their assignee and present representative.

Rehearing refused.


text:
    No. 10,776.
    B. Penouilh, Tutor, vs. Simon Abraham et al.
    1. In tlio decree rendered, and not in tlie opinion pronounced, will be found the thing adjudged.
    2. Commentaries on evidence contained in the opinion, not confirmed by decretal action based thereon, do not form the basis of res judicata.

    8. Where on application for rehearing a certain theory of the evidence is advanced on which a modification of the former decree is asked, if the modification asked is denied, expressions contained in the opinion refusing the rehearing, accepting or even approving the theory advanced, can not be invoked as res jxtdicata in a subsequent suit in which the same facts come in controversy.

      4. The plea of res judicata is stricti juris; it must be established beyond controversy, and doubts enure to the benefit of th’e party against whom it is pleaded.
    APPEAL from the Twentieth District Court, Parish of Lafourdhe. Beattie, J.

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

      L. P. Caillouet for Defendants and Appellees.
   The opinion of .the court was delivered by

Fenner, J.

In a former suit between the same parties, Simon Abraham took out executory process to enforce his mortgage on the property of the minors represented by the plaintiff tutor.

• The tutor* enjoined the seizure on the ground that time had been granted by agreement between the parties. On this issue judgment was rendered in the District Court dissolving the injunction. Appeal was taken to this court. We reversed the judgment, and rendered a decree setting aside the order of seizure and sale and perpetuating the injunction. Application for rehearing was made on various grounds, of which only one was deemed worthy of comment. It was this, that as the time granted was for one, two and three years in equal instalments, and as they were to be computed from the date of the agreement, and as the first year had expired at. the date of the order of seizure and sale, the injunction should have been maintained only to the extent of the amount not due and dissolved as to the rest; and we were asked to amend our decree accordingly. We declined to amend our decree, and refused the-rehearing. See Penouilh vs. Abraham, 42 An. 326.

In the course of our opinion on the application for rehearing we accepted as true the claim that under th.e agreement the delays granted ran from its date, and that the first instalment was due, and we used language which perhaps might be construed as intimating our own opinion to that effect; but we said:

In such case he ought to have, asked the sale on proper terms, allowing to the adjudicatee the time to whifch the debtors were entitled. He has not done so either in his original petition or in any other subsequent proceeding below or on appeal. We can not amend the judgment in his favor so as to allow him to proceed further in the seizure and sale case.
“ What can be done is simply to explain that he is not perpetually enjoined from collecting his debt, but that he is not allowed to do so' in manner and form in which he has attempted to do so. His rights, in other respects are fully reserved.”

Thereafter the creditor, Abraham, took out a new order of seizure and. sale for one-third of his debt as due, and on terms of credit for-the other two-thirds. The tutor again took out an injunction setting-up the same agreement and promises of delay which had been the basis of the former injunction, and claiming that no portion of the debt was due. To this petition for injunction Abraham opposed the plea of res judicata, which was sustained by the judge a quo, and from his judgment thereon the present appeal is taken.

The basis of the plea is not the decree or judgment rendered by this court, but merely the expressions referred to above contained in the opinion on rehearing.

It is elementary that in the decree rendered, and not in the opinion pronounced, will be found the thing adjudged. Keane vs. Fisher, 10 An. 261.

The reasoning and opinion of the court on the evidence are not res judicata unless the subject matter be definitely disposed of by the decree. Pepper vs. Dunlap, 5 An. 200; Same, 9 An. 136; Fisk vs. Parker, 14 An. 491; Paul vs. Creditors, 7 N. S. 430.

The plea of res judicata is striati juris, and must be established beyond question, and all doubts enure to the benefit of the party against whom it is pleaded. 9 Mart. 521; 3 An. 530; 4 An. 451; 5 An. 503.

The plea here was manifestly unfounded.

The only decree rendered by this court in the former suit was one perpetuating the injunction and quashing the former writ of seizure and sale.

The only issue was whether that writ was issued prematurely, and we decided that, in manner and form as prosecuted, it was, and we decided nothing else. .

The issue as to whether it would have been premature if it had been taken out in the manner and form now pursued, was not decided by us. The creditor asked us to decide it, and to grant him relief, but we declined to do so, for the reasons given, viz: that his pleadings did not support such a demand. We therefore refused it, and simply reserved his rights. This left ¿he entire subject matter of that contention “in the air,” undetermined by any decree, and whatever we may have said in our opinion by way of commentary on the evidence, being followed by no decretal action, can not serve as basis for the plea of res judicata. Non constat that the evidence adduced in support of the present injunction may not be very different from that formerly before us.

We are constrained to reverse the judgment appealed from, and to remand the case.

It is therefore adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the cause be now remanded to the lower court to be proceeded with according to law.