text:
    No. 7853.
    Jno. DeBlois, Syndic vs. James J. Reiss—Succession of E. Meyer, Intervenor.
    The contract of pledge of movable property, other than promissory notes, bills of exchange, stocks or claims, in order to affect third persons, must be by written act; and the amount of the debt and the nature of the thing pledged, as required by Art. 3158, C. C., must be mentioned in the act.
    Verbal evidence is admissible to explain letters or ciphers in a written instrument, but not to prove a pledge, which must he in writing.
    PPEAL from the Sixth District Court, parish of Orleans. Bighlor, J.

    Ernest J. Wenck and Fred. Adolph, for Intervenor and Appellant:
    1. The insolvent, Testart, was not the owner of the property alleged to have been pledged to Defendant, at the time of the pretended pledge, and, therefore, said pledge was null and void. O. 0. 3142-3-5.
    2. No valid pledge has been proved as against Intervenor, who is a third person. 0. 0. 3157-8 ; 2 La. 387; 3 La. 528 ; 2 La. 361 ; 4 M. 570 ; 2 La. 459 ; 15 An. 465 ; 14 An. 375 ; 31 An. 865.
    3. The pretended pledge or privilege was never recorded as required by law. O. 0. 3158-3160. Const, of 1868.
    Posey & Posey, for Syndic, Plaintiff and Appellant.
    E. Howard McCaleb, for Defendant and Appellee:
    An expert may be admitted to decipher or explain figures or terms which an ordinary reader is unable to understand. Wharton’s Law of Evidence $ 972. Greenleaf on Ev, § 280.

      'The notes held by Defendant, as explained by the experts, prove the pledge of the jewels : it is, therefore, made by private writing, accompanied by actual delivery and good faith, the only requirements prescribed by law for the pledge of movable property. 0. 0. 3158. 31 An. 865. Partida Fifth, Title XIII, Law 6. Code Nap. art. 2074 and 2076. 9 An. 539 ; 11 An. 225 ; 5 An. 274 ; 14 Wall, 244 ; 18 Wall. 332 ; 95 U. S. (5th Otto) 764.
    The pledge of another’s property is valid, although made without the owner’s knowledge, if the pledgor had possession with the owner’s consent, Troplong, du Nautissement, Nos. 71, 72,73, 74 et seq. Story on Bailment $ | 296, 322, 323, 327, 328. 26 An. 17 and 19 ; 7 An. 227
    It is no longer necessary to register the act of pledge. O. O. 3162, 3217; 3220. Const, of 1879 Art. 197 ; 12 An. 699; 3 Peters, 290.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff, as syndic of the estate of the insolvent Amédée Testart, sues for the -recovery of a lot of jewelry, alleged to have been -deposited with Defendant, by the said Testart, in December 1877, and in August 1878; and in default of the delivery of the jewels, he prays for •a judgment against Defendant in the sum of Two Thousand dollars, the alleged value of the jewels thus deposited.

Defendant filed a general denial followed by a plea in reeonvention, In whieh he sets up four promissory notes made to his order by the insolvent Testart, amounting together to sixteen Hundred Dollars, representing the amount of a loan of money made by him to Testart, and to secure the payment of which loan, the jewelry claimed by Plaintiff had been pledged to him by Testart; and he concludes with a prayer for judgment of §1600 against the estate of the insolvent, with recognition of his privilege on the jewelry in his possession.

In this suit intervenes I. A. Hugmann administrator of the succession of Edward Meyer, who claims the same jewelry as the lawful property of said Edward Meyer, who liad entrusted them, before his death, ■to Testart for sale on commission ; and, averring the illegality and nullity of the pledge set up by Defendant, prays for the recovery of the .jewelry, and in default thereof for judgment in solido against the Testart Estate and Jas. J. Reiss, in the -sum of $1625 with interest from judicial ■ demand.

The judgment of the'lower Court was in favor of the Defendant Reiss as prayed for,-and .rejecting the demands of Plaintiff and of Inter-wen or. |

The latter two have appealed. The principal question involved in 4his cause is the validity of the .pledge set up by Defendant in his re-•conventional demand.

It is assailed by Intervenor ahd by Plaintiff on the ground that the pretended pledge was not made in writing as required by art. 3158.'of' our Civil Code; and that as a pledge it is null and of no effect as to-third parties. As evidence of his pledge Reiss relies upon the four-promissory notes subscribed by Testart, at the bottom of which appeal-abbreviated dispositions of certain articles of jewelry, and the weight and’ size of the same. He introduced verbal testimony to translate, explain’ or amplify these observations ; and upon that testimony he expects this-Court to decide that he has shown a contract in writing as contemplated by the article of the Code ; from which we copy the following language—

“ But this privilege shall take place against third persons, only in. case the pawn is proved by an act made either in public form or under private signature ; provided such act has been recorded in.the manner-required by law ; provided, also, that whatever may be the form of the’ act, it mentions the amount of the debt, as well- as-the species and nature of the thing given in pledge, or as a statement annexed thereto,., of its number, weight and measure. All pledges of movable property-may be made by private' writing, accompanied' by actual delivery ;; * * * and such pledge, so made, without further formalities,, shall be valid as well against third persons- as- against the pledgors-thereof, if made in good faith.”

The mere statement of the proposition shows that it is pregnant, with self-destruction. Parol testimony could be introduced, and was-properly admitted, to explain the meaning of certain letters-or ciphers in-a written instrument; but the district Judge erred in. allowing parol evidence to show a pledge resulting from simple notes of hand, because-forsooth a few unintelligible letters, or symbols were appended thereto.. The practical result of such a course was to allow parol testimony in proof of a pledge, of movable effects, which is required- by. law- to be-evidenced by a written contract only.

Defendant does not even pretend to hold any thing im the shape-of a written contract, but relies exclusively upon his four promissory notes and his attempted verbal explanation ; evidently losing sight of' our jurisprudence which has, long ere this, settled that privileges are-of strict right and parties claiming them must conform to the requirements; of the law. It is required, in order to create a pledge that the intention of the parties should be reduced to writing, that the nature and amount of the debt to be secured be stated, that the object or objects or things pledged be described so as to be easily identified, that delivery should, accompany the act when under private signature and the instrument', and should exhibit the nature and extent of the rights and obligations, of the contracting parties reciprocally.

Otherwise recourse would necessarily be had to parol proof, to explain the intention of the parties. And thus the object of the law which requires the contract to be reduced to writing would be defeated. 14 A. 375. 15 A. 165. We therefore conclude that Defendant has utterly-failed to show a pledge which can be enforced in law. We are now called upon to decide who is the lawful owner of the jewelry in controversy.

And on this point we must confess some hesitation which required a very close study of the evidence, as we must mainly rely upon the testimony of the insolvent Testart, whose testimony is contradictory, equivocal, evasive and painfully unreliable. In fact this witness manifests as little regard for truth in his testimony, as he did for honesty in his dealings, when he borrowed money on an attempt to pledge property which was avowedly not his own.

But testing his variegated statements by the light of his actions as-shown in the record, we conclude that he never hecame the owner of the jewelry entrusted to him by Meyer ; that the note which he executed in favor of Meyer, was not for the purchase of the jewelry, but was intended as a security for the restitution of the value of the jewels, in case he should fail, as he has, to account honestly for the same.

This conclusion is justified by his conduct in returning to Hugmanm the administrator, when pressed by him, a few articles of the jewelry amounting in value to $1455 37. His true interpretation of his tenure of the jewelry is also shown by his affidavit made in the 2nd Dist. Court on the 5th of December, 1878, wherein he declares, at a time not suspicious, that he is the owner of the jewelry in question.

In his testimony he several times admits that under his contract with Meyer he felt bound to return the jewels when his note would be presented to him for cancellation, and he states that when called upon by Hugmann to do so he would have produced and returned the jewels, if he had had possession and control of the same.

This is not the language nor the action of a party who is, and feels-that he is, the owner of the property which is the subject of transactions as shown by the record.

It is therefore safe to conclude, as we do, that Testart was not, at, the time of the pretended pledge, and is not now the owner of the. jewelry in ttíe possession of Eeiss, excepting one diamond ring 5 Karats,, which he owns, and which he values at $450 ; and that the succession of' Edward Meyer is the lawful owner of all the other jewelry placed by Testart in Defendant’s possession.

It is therefore ordered, adjudged, and decreed that the judgment of-the lower court, in so far as it condemns Plaintiff on Defendant’s reeon-ventional demand to pay to him the sum of sixteen hundred dollars and interests, be affirmed ; and that in all other respects it be annulled; avoided and reversed ; and it is further ordered, adjudged, and decreed that the succession of Edward Meyer be recognized as the lawful owner ■of the following articles of jewelry, now in Defendant’s possession to wit: 1. Two unmounted diamond stones, 4J Karats. 2. Pour unmounted diamond stones 6| Karats. 3. One pair of diamond ear-rings 2£ Karats ; that Defendant Reiss be condemned to return and deliver said jewelry to J. A. Hugmann, administrator of the Meyer succession, and that in default thereof he be condemned to pay to said succession the sum of Sixteen Hundred and Eleven 45-100 Dollars ;

It is further ordered that Defendant Jas. S. Reiss be condemned to return and deliver to Jno. DeBlois Syndic of the Estate of Amédóe Tes-tar! one diamond Ring and solitaire weighing five Karats, the property ■of Testart, and now in Defendant’s possession ; and that in default thereof he be condemned to pay to said insolvent estate the sum of four Hundred and fifty dollars, the value of said ring; — and it is finally ordered that Plaintiff pay the costs of the lower court, excepting those incurred by the intervention, and that all costs of said intervention and •costs of appeal be paid by Defendant Reiss.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 6448.
    William B Hancock vs. Citizens’ Bank of Louisiana.
    ‘Repeated adjudications in the jurisprudence of this State have placed beyond the domain of further controversy the principle that *• compensation does not take place in the confidential contracts arising from irregular deposits, such as the deposit of money with a hanker, and the depositary is not authorized to apply the funds on deposit in his hands to the payment of the debts of the depositor, except there is a special mandate from him.”
    APPEAL from the Superior District Court, parish of Orleans. Lynch, J.
    J. H. Ferguson, and Merrick, Race & Poster, for Plaintiff and Appellant :
    First — Compensation does not take between depositor and depositary, when the debt due by the depositor is on an account' distinct from the deposit. C. C. 2956 ; 7 An. 637 ; 3 An. 516 ; 12 An. 257 ; 23 An. 116 ; 11 An. 73 ; C. C. 2210.
    ¡Second — The claim of Defendant is not liquidated. It is for a sum alleged to have been paid in error, which Plaintiff denies. Defendant must prove that he paid through error. C. C. 2302 ; C. P. 18. It is a disputed and unliquidated claim, which can, in. no case, be pleaded In compensation. 8 M. 399; Rogron on art. 1291, N. C.

      Armand Pitot for Defendant and Appellee :
    .Defendant, in Plaintiff’s Deposit-Account, gave him credit by error for a sum he had deposited. She has proved the fact conclusively, and she had the right to prove it. 2 Ark. 113,119; 2 Bro. O. 0. 62 ; 3 Austr. 769 ; 4 Res. Jun. 118; 6 Yes, Jun. 485 ; 1 Salk, 482 ; 4 Johns. 387; Morse on Banks and Banking, p. 48 ; 3 Pick. 96 ; 11 La. 261; 2 An. 1007.
    "The Authorities which establish the rule that compensation does not take place between depositor and depositary do not apply to this case, because the claim of the Bank is for money not deposited, by Plaintiff. The relation between the parties is that of debtor and creditor, as established by the jurisprudence of the State, and compensation does take place between them. The new deposit-account of Plaintiff was only the continuation of the old one.
   The opinion of the Court was delivered by

Fenner, J.

In 1869 the Plaintiff kept a deposit-account with the Citizens’ Bank. On the 8th of April in that year he carried his Bankbook to the Bank for the purpose of having the same balanced. It was balanced by the Bank, and a certain sum was carried forward to his credit as the result of the balancing. Eor this amount he drew to a point, and thus closed his account with the Bank ; and had no further dealings with it as a depositor until two years afterward, in 1871.

The Bank avers that about one month after the settlement of plaintiff’s account in 1869, it discovered, in settling up the account of H. H. ■ Hansell, another depositor, that a sum of seventeen hundred and thirty 35-100 dollars, which had been deposited by the latter on April 8th, 1869, had been erroneously credited to the account of plaintiff, and was included in the balance found to his credit and paid to him on that day, so that he thereby received the said amount in excess of what was really due to him.

The Bank, after discovering the alleged error, made no effort to communicate the discovery to plaintiff, and made no call upon him to correct and set right the error.

In 1871, two years afterward, plaintiff procured a new bank-book and opened a new deposit-account with the Bank. He was still not informed by the Bank of the alleged error in the settlement of his former account, but was left in ignorance of any claim against him, until his new deposits had reached an amount sufficient to cover the alleged over-payment, when the Bank debited his account with the amount thereof, notified him, for the first time, of the alleged error, and, after paying him all of the new deposits except the sum of seventeen hundred and thirty 25-100 dollars, retained that amount in satisfaction of the alleged over-payment. Plaintiff drew his check for the said amount,, payment of which was refused, and the check was protested. Plaintiff' then brought this suit to recover the balance due on his new deposit-account.

The Bank, in its defense, does not dispute that the old deposit-account of 1869 had been settled between the parties, a balance struck by the proper officers of the Bank itself, and the whole account closed to a point by payment of the exact balance then entered as due.

It does not deny that the deposit-account of 1871 was opened on a new bank-book, which had no entry of any thing carried forward Romany old account, which made no reference to any old account, and which could, in no sense, be regarded as a continuation of the old account.

The Bank does not dispute that the plaintiff actually made all the deposits which appear on the Bank-book of 1871 as having been made. It does not deny that of those deposits there remains a sum of $1730 25-which plaintiff has not drawn out, and which has not been paid to him. It does not pretend that the debit charged against this amount was so charged by plaintiff’s direction, or upon his order, or with his assent. The Bank simply claims that this balance of deposit has been compensated by the debt which became due from plaintiff to it in 1869 by reason of an alleged payment in error then made to him, and is thus extinguished by operation of law.

Repeated adjudications in the jurisprudence of this State have placed - beyond the domain of further controversy the principle that “ compensation does not take place in the confidential contracts arising from irregular deposits, such as the deposit of money with a banker, and the depositary is not authorized to apply the funds on deposit in his hands to the payment of debts of the depositor, except there is a special mandate from him.”

Morgan vs. Lathrop, 12 An. 257.

Breed vs. Purvis, 7 An. 53.

Bludworth vs. Jacobs, 2 An. 25.

Bogert vs. Egerton, 11 An. 73.

Murdock vs. Bank, 23 An. 116.

It is perfectly plain that there was no mandate, express or implied, from plaintiff, to authorize the application of his deposits in 1871 to the extinguishment of the debt claimed by the Bank as growing out of the over-payment in 1869. The claim of the bank also violates the doctrines laid down in the well-considered case of Nolan vs. Shaw, 6 An. 46, where it was held that “in the absence of agreement to the contrary, a factor” (and a banker as well) “is to be considered as undertaking to hold the-funds confided to him by his principal, subject to his order, and to be-ready to pay them over to him on demand. * * Compensation-«does not take place against a party who has confided his funds to •■another under such circumstances. Compensation must rest upon the basis of good faith. It is not permitted where its operation would Involve a deception and a disappointment of the just expectation.and ■confidence of the party against whom it is set up.”

In the case at bar, we are constrained to say that the conduct of the bank in concealing from plaintiff its discovery of the error alleged, and permitting him, in ignorance of any claim against him, to open a new ■deposit-account and continue it until he had got hold of enough money , to satisfy its claim, did not come up to the standard of candor and good faith required in dealings of this nature. It “ involved a deception,” and justified plaintiff in the “expectation and confidence” that his deposits in 1871 would be subject to his order, without which we cannot believe he would have made them. The Bank had no right to disappoint this just expectation and confidence, by suddenly springing upon its depositor this claim of which he had been kept in ignorance. It was the plain duty of the Bank to have notified the plaintiff of the error in its former settlement as soon as discovered, or at the first possible opportunity.

Suppose the Bank had so notified him and made the claim, and plaintiff had, as he does, disputed and refused to recognize it, he would probably not have commenced the new deposit-account. But, even if he had made the new deposits, under such circumstances, and the bank had received them without notifying him of its intention to apply them to the payment of its disputed claim or having his assent thereto, we think it could not have made such application, because it would hold them subject to his order, and would know that such application would be against his will and desire.

The suggestion of defendant’s counsel, that the whole transaction, from 1869 down, is to be treated as one continuous account, and, as such, to be balanced as a whole, making allowance for the error claimed, cannot be entertained, because it ignores the complete settlement and closing of the account of 1869 which left the Bank no right against the plaintiff except an action for the recovery of money paid in error; and because it also ignores the entire independence of the account of 1871 resulting from its being opened in a new bank-book without the slightest reference to, or connections with, past transactions.

The conclusion reached by us, that compensation did not take place, dispenses us from considering the questions raised as to. the admissibility of evidence to contradict the bank’s settlement of the Bank-book, or as to the liquidated character of the Bank’s demand, or as to the sufficiency of the proof thereof. The Bank’s remedy was clearly by original action, or, as plaintiff was a non-resident, by a demand in recon-vention. This decree does not affect its rights to proceed by proper-action.

We ñnd no authority to justify us in treating this plea in compensation as a demand in reeonvention and giving judgment on it as such.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled avoided and reversed, and that plaintiff have judgment against defendant in the sum of seventeen hundred and thirty 25-100 dollars with legal interest from judicial demand and for-costs of the lower court and of this appeal.


text:
    No. 7648.
    M. F. McDonald vs Mechanics’ & Traders’ Insurance Company. On Rule against J. P. Harrison Jr. & Co.
    "WMlsfc, in the Attachment of incorporeal rights, there must he either an actual seizure of the written evidences of the rights or credits, or a citation in garnishment, — for the seizure of such rights under the writ oí fieri facias, notification to the debtor of the-credits, is suifioient. G-arnislunent process in the latter case is only an auxiliary and. cumulative remedy.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers,

    W. S. Benedict and J. P. Hornor for Plaintiffs in Rule and Appellees ;•
    First — Therefore, the only remaining question is in reference to the secure of McDonald’s interest in the hands of the Clerk of the-Court. The Court below holding that it was no seizure at all, and-Harrison acquired no rights thereby.
    In the case of Daley vs. Cunningham, 3 A., 55, it was held:
    “A judgment could not be attached by a seizure in the hands of the-Clerk of the Court by which it was rendered, who is merely a keeper of its records, having no legal possession of, or control over it.
    This is exactly the ease now before the Court, and we think conclusive-on the issue.”
    'Second — The only mode by which the sheriff can proceed under a writ of fieri facias to seize the rights and credits of a debtor in the-hands of a third person are very clearly and distinctly laid down in Article 246 of the Code of Practice, and section 1523 of the Revised-Statutes, The last section of Article 246, C. P., reads as follows :
    ■« The property and effects in the possession of a third person, belonging-to the defendant, or debts due by him to such defendant, shall be-decreed to be levied on as by the sheriff from the date of the service-of the interrogatories on such persons. And no seizure shall bind! any property, money or effects, rights or claims in the hands of a garnishee, either under process of attachment or -fieri facias, unless service of the interrogatories has been personal upon such garnishee.”
    It has been repeatedly held that until the interrogatories are propounded there is no legal or valid seizure against the property in the hands of a third person. Mere notice of a seizure is not sufficient. The law and the decisions on this subject are' direct, clear and positive,, and must be strictly complied with, otherwise the whole proceeding is null and void.
    Third — And it is further urged that said writ of fieri facias had expired) when the rule was tried. Section 3415 Revised Statutes prescribes-the method by which a sheriff may proceed after the return day by keeping a certified copy of the writ and returning the original into court, and authorizing him to proceed to sell under the copy.
    In the present case the original writ was retained and not even a copy returned to the Court, and the property seized is therefore released. 2 La., 280 ; 1 Rob. 540 ; 2 Rob., 341; 9 Rob. .64.
    S. S. Carlisle and McGloin & Nixon for Defendant in Rule and Appellant :
    First — Service of interrogatories was not necessary. The claim seized was an incorporeal right. Garnishment is only auxiliary and cumulative. 23 An. 346.
    Second — The original writ of fieri facias was retained by the Sheriff of this Parish beyond the return day, as he should do under the law. Rev. Sta. I 3415. 2 La. 280 ; 30 An., 88 ; 5 An. 237 ; 2 An. 361; 12 Rob. 13; 11 Rob. 66.
   The opinion of the Court was delivered by

Fenner, J.

William H. Jack, as- the agent of sundry creditors of McDonald, received from the latter a transfer, with subrogation, of all his rights as plaintiff in the above suit against the Mechanics’ and Traders’ Insurance Company. The subrogation was entered of record in the suit on the 15th of February 1879, and notice thereof was served on the defendant Insurance Company on the 19th of the same month. This was the first notice the Insurance Company had of the transfer.

It is elementary that the transfer only took effect, with regard to creditors of McDonald or other third persons, from the date of notice to the debtor, viz : the 19th of February.

J. P. Harrison Jr. & Co, creditors of McDonald, having obtained judgment against him in the Court of the Parish of Natchitoches, his domicil, issued a writ of ñ. fa. addressed to the Sheriff of the Parish of Orleans; under which the said sheriff seized the right, title and interest of McDonald in and to the said suit, by notices to the Clerk of the Court served on February 1st, and to the Insurance Company served on February 3rd.

On the 15th of February 1879, a rule was taken upon J. P. Harrison Jr. & Co ordering them to show cause why the seizure made under their writ of fi. fa. should not be quashed and set aside, on the grounds that McDonald had parted with his interest in the claim against the Insurance Co. prior to the institution of the suit, with the full knowledge and assent of Harrison & Co., who were thereby estopped from questioning the validity of the same.

These are the issues and the only issues tendered by the rule.

We have examined the record with great care and find no proof that J. P. Harrison Jr. & Co. ever assented to, or were even cognizant of the transfer. The only allusion we find to that subject is a vague statement in the testimony of .Mr. Jack, that a Captain Johnson, who, he says, was the agent of J. P. Harrison Jr. & Co, was personally cognizant of the transaction. The nature and extent of the agency is not disclosed ; nor are we able to perceive why mere knowledge that such a transaction was .attempted, should prevent a creditor from trying to defeat it.

The rule was tried and made absolute, quashing the seizure of Harrison & Co, on the ground that it was null and void for want of citation in garnishment and interrogatories to the debtor of the claim sought to be levied on, notwithstanding due notification of seizure to ■said debtor from which judgment this appeal is taken.

This is error, resulting from a failure on the part of the Judge a quo to distinguish between the rules applicable to seizure of incorporeal rights under the writ of attachment and under the writ of fieri facias.

In the case of Stockton vs. Downey 6 An. 585 and Woodworth vs. Lemmerman 9 An. 521, it was held that without an actual seizure or a citation in garnishment, there can be no attachment.

On the other hand, in the cases of Rightor vs. Slidell, 9 An. 606 and Safford vs. Maxwell 23 An. 347, it is as distinctly decided that, so far as, writs of fi. fa. are concerned, the Act of 1839 authorizing garnishment proceeding under writs of fi. fa. did not abolish the former modes of seizing incorporeal rights under such writs, but merely furnished an auxiliary and cumulative remedy; and that valid seizure might be made, without garnishment, by notification to the debtor.

The reason for this distinction between the respective modes of proceeding under attachment and fi. fa. are well explained in the cases just referred to, and in the learned brief prefacing the case of Rightor vs. Slidell, where all the authorities are discussed.

We therefore think the seizure of Harrison & Co. was valid and ■effectual and primed the transfer to Jack, notice of which was only given to the Insurance Oo. long afterward.

We think the point made here by Counsel for Jack, touching the proceedings of the sheriff in the return of the writ of fl. fa. long after the taking of the rule, is entirely foreign to the issue presented under this rule and cannot be here considered.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, and that the rule of William H. Jack upon J. P. Harrison Jr. & Co. be discharged and denied — plaintiff ,in rule and appellee paying costs of both Courts.

In this case, Mr. Justice Levy recuses himself, having been of Counsel for J. P. Harrison Jr. & Co. in obtaining the judgment against McDonald.


author: Bermudez, C. J.

text:
    No. 5680.
    La. Ice Company vs. State National Bank.
    On Motion to Dismiss.
    This Court lias the power to construe Constitutional as well as Statutory provisions.
    'The framers of the Constitution of 13T9 never intended, in creating Courts of Appeal for the , country parishes, by Art. 95, and a Court of Appeals for the Parish of Orleans, by Art. 128, to make any unjust distinction between those different sections of the State, and to deprive litigants in the Parish of Orleans of the right of appeal when the amount in dispute is exactly $1,000.
    The words “ less than one thousand dollars ” in art. 128, were evidently used by inadvertence, and the jurisdiction of the Court of Appeals for the parish of Orleans, like that of the other Courts of Apxieal in the State, extends to cases in which the amount in dispute is $1000.
    j^PPEAL from the Fifth District Court, parish of Orleans. Cullom,

    J. McConnell for Defendants, Appellants.
    E. Evariste Mo’lse for Plaintiff and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The amount in dispute in this case, which was instituted while the constitution of 1868 was in force, and comes on appeal from a District Court for the Parish of Orleans — is exactly one thousand ■dollars, exclusive of interest.

With the averments that, by the adoption of the Constitution of 1879 this Court has ceased to have jurisdiction over it and that the Court of Appeals for the parish of Orleans is denied the power of revision of the adjudication complained of, — the Plaintiff moves the dismissal of the appeal, in order that the judgment of the lower court, in his favor, may in furtherance of its assumed sovereignty receive full execution without delay.

We are then called upon to determine whether this case shall remain to be tried here, or shall be transferred to the Court of Appeals-for the Parish of Orleans, or shall be stricken from the docket of this Court. Our powers of construction of the terms found in the provisions of the organic law, on the subject, are thus brought into activity.

There can be no question as to the right of the Judiciary to construe,, as well constitutional as statutory enactments, by which persons or property, in the territory within which those enactments are intended to operate, are to be affected. From the earliest days of civilization in all countries, in which reason and law have prevailed, such a right has been constantly and uniformly recognized as an inherent power which that branch of government could and should, in cases of emergency, exercise,, to avert public or private wrong or mischief. It cannot be conceived that it could be more logically, legitimately, and safely lodged elsewhere. In this country, this power has been extended to this extremity, that the-Judiciary has in innumerable instances pronounced, and daily continue to do so, — the nullity of provisions adopted by the law-making power in antagonism of constitutional inhibition, rendering them totally inoperative. The exercise of such right, and powdr is. however, justly regulated not only by special rules, but also by custom and usage — the wisdom of which is consecrated by Jurisprudence. Cooley on Const. Lim. ch. 11,. p. 13, ch. iv. pp. 44, 45, 53, 54, 55, 57, 59, 80 ; Sedgwick on Statutory and Constitutional Law, p. 229 et seq. 9-238; Lieber on Civil Liberty and Civil Government; De Tocqueville, Democracy in America, c. 6; Blackstone’s Rules, vol. 1, pp. 60, 61, rules 4 and 5; Lord Coke’s Rules, as-found in Sedgwick, p. 235; Bouvier’s Law Dic. vo. Constzf the Judiciary.

A study of the different theories announced and discussed in those authorities, leads .to the conclusion that in the construction of constitutions and of laws the following main rules are to be followed :

•The whole instrument is to be examined. Every part' should be considered and so expounded as to be rendered efficacious, if practicable ;

The intent of the framers of the constitution or of the law should be diligently ascertained and must govern ;

The common law is to be kept in view, The object, sought to be-accomplished, should be borne in mind, as well as the mischief to be ■ remedied or guarded against;

The construction should be uniform, so as -to make the whole instrument, even in its discordant parts, — consistent and harmonious.

Ooming now to the matter before us :

The motion in this case squarely presents the question : Whether-the Court of Appeals for the Parish of Orleans has .jurisdiction of causes., in which the matter in dispute is exactly one thousand dollars, exclusive ,- of interest?

In order to arrive at a correct solution of that knotty question, it is-proper that we should first ascertain the objects which the Eramers o£ the Constitution of 1879 were commissioned to accomplish, those which they contemplated, the means to which they resorted — attaching ourselves, primarily and above all to the intention which must necessarily have-animated them in the discharge of their arduous and important functions. They were delegated for the purpose of giving to the country a. magna charta, which was to contrast strikingly with anterior despotic,., iniquitous, and ruinous litigation, the legitimate offspring of woeful revolution and its consequent disasters, — under which the people had been, so long groaning and suffering ; and to that end, they were authorized to legislate so as to prevent the recurrence of the crying abuses of the past and to provide for future guarantees, without distinction of persons or localities, by affording complete and effectual protection to life... liberty, honor, property, and the pursuit of happiness ; — a protection which necessarily was to execrate and banish all individual discrimina-' tions and irresistibly to prove general and equal in its operation, safeguarding, with the same common impartiality and efficacy, all persons . entitled to enjoy similar rights and prerogatives. They were not empowered to legislate that persons in certain contingencies, residing in ,, one section of the country, should not exercise certain rights, — while all other persons, residing in other sections of the State and similarly situated, should have the privilege of exercising rights identical in substance and nature. Their legislation touching all such persons and all such, rights were, — in order to be responsive to the mission which had been assigned to them, essentially to be undiscriminating and uniform throughout the State, without heed of territorial confines or boundaries. The ¡ ■object which they must have had, and which they did have in view, — - was — a stern compliance with their solemn obligations, under the exalted; mandate conferred upon them.

It can be safely assumed, therefore, that the Eramers of the Constitution of 1879 intended above all things to provide for the administration of justice equally and impartially among all parties pleading; ;sfc ‘tb3 bar oí the law, and consequently that it never entered their wHmd'ja the least degree to assert and uphold odious discriminations of persons-and things under any circumstances, and particularly on account •e£ authorized local habitation or residence, which can in no eventuality the visited with any direct or indirect incrimination or penalty in the ¡shape of deprivation of any common right.

■ iw’complish that great purpose, they have established courts of ijasfiee, by which proper and full protection is to be awarded within the ■sphere of their respective action. The organic law proclaims that courts shall be open, and every person, for injury done him in his rights, lands, goods, person, or reputation shall have adequate remedy, by due process of law and justice administered without denial or unreasonable ¡delay.

.Impressed with those promised considerations and guided by the anfles of construction to which we have adverted, let us now enter into an examination and scrutiny of the terms used in the articles of the constitution which have a bearing on the question before us ; let ’ us ascertain what necessarily must be the practical meaning of the obnoxious words “ less than ” found in such constitutional provisions and ■which are urged as restrictive of the jurisdiction of the Court of Appeals lor the Parish of Orleans ; but which, at first view, when previous provisions are borne in mind, would appear to be an unfortunate illustration of accidental though not irremediable legislative inadvertence.

It is undeniable that the framers of the Constitution of 1879 intended absolutely, that the right of appeal should be respected in all the ■cases in which it existed previously and that for the future it should be areeognized in all the cases in which the matter in dispute or fund to be ■distributed would exceed two hundred dollars, exclusive of interest.

For the purpose of revising the judgments rendered by Courts of Ifirst instance, in such cases, the constitution has created Courts of Appeals and a Supreme Court; — never contemplating in the remotest degree, ■that, because of their respective sectional circumscription, the various ¡Courts of Appeal, within and without the Parish of Orleans, should have .-a different jurisdiction as tó the amount or property in contest. Hence, .Article 95, relative to Courts of Appeal generally was adopted, providing •¡that their appellate jurisdiction shall extend to all cases, — civil or pro-Ibsute, — when the matter in dispute or the fund to be distributed, shall (cssceed-tioo hundred, but not one thousand dollars, exclusive of interest. Menos .also Article 81 which is to the effect that the Supreme Court ©hail have jurisdiction over all cases when the matter in dispute shall ■exceed one thousand dollars exclusive of interest.

The jurisdiction of the Court of Appeals attaching, when the matter'in dispute exceeds two hundred dollars, terminates precisely where that of the Supreme Court begins, so that there is no hiatus between; the two appellate jurisdictions.

The constitutional provisions being, as we have seen, to regulate» appeals in cases in which amounts exceeding two hundred, but not one-thousand dollars, are claimed, there would be no difficulty in assigning: the case before us to a different jurisdiction, viz.: the Court of Appeals-, for the Parish of Orleans, were it not for the terms found in Articles 128 and 129, l 2, which seemingly depart from the general provisions of Article 95, making an unaccountable exception to the same by restricting the jurisdiction of that Court to cases in which the matter in dispute is less than one thousand dollars, exclusive of interest.

Did the Eramers of the Constitution, by using the terms found ica those articles, mean that the Court of Appeal, in the Parish of Orleans,, which is in every other regard similar to the other Courts of Appeals established throughout the State, shall be essentially different from them and to that extent impotent to afford relief to litigants, only in the particular of the upper limit of its jurisdiction ? In other words, that the Court of Appeals for the Parish of Orleans shall have jurisdiction inclusive of the highest incalculable possible fraction of one thousand dollars, and that the other Courts of Appeal in the State shall have jurisdiction up to the entirety of one thousand dollars ; thus leaving between the respective jurisdiction of thos.e Courts an imaginary margin which it is impossible for the wisdom of man to appreciate practically ?

Do the terms used mean, that litigants residing in the Parish of Orleans in a case involving exactly one thousand dollars, shall not have a right to have the judgment rendered reviewed on appeal, while othetr litigants, in every other Parish of the State shall eDjoy that privilege

Do the words employed mean, that the Courts of Appeal for the-Parish of Orleans, — the jurisdiction of which covers the extensive area, of one of the largest commercial cities in the Union, in point of wealth, population, and magnitude, shall be inferior to that of the other Courts of Appeals in the State, and that the organism of that tribunal which was deemed of an importance and necessity equal to that of similar ones, shall be materially paralyzed and annihilated ?

Do the words used mean, that because parties litigant reside in the» Parish of Orleans, and are concerned there in a suit involving exactly-one thousand dollars, they will not be entitled to appeal from the judg-. ment in the case, while other parties litigant residing in any other Parish:, of the State and parties in a similar ease, shall have the right to have the judgment revised by superior authority?

Can it be supposed that the Convention ever intended any such unjust difference? Would not such distinction amount to a denial o£' j ustiee ? Is it possible that in utter contempt of another constitutional .provision the clear and unambiguous purport of which can neither be disguised or mistaken, — the Framers of the Constitution of 1879 intended ■ that the Court of Appeals, in the Parish of Orleans, would be closed to litigants in cases in which one thousand dollars exactly would be claimed ■before the Civil District Court in the same Parish, while litigants situated alike, but in any other Parish, would have a right of appeal to the ■Court of Appeals having jurisdiction?

Is it possible that the Convention intended that persons for injury 'done them in their rights, goods, persons, reputation, property,litigating 'before the Civil District Court for the Parish of Orleans in cases in which the matter in dispute would not exceed one thousand dollars, should not have adequate remedy by appeal, to the Court of Appeals for that Parish ; that justice should not be administered them in that respect, while other litigants, involved in a like manner, in any other Parish in the State, would have such right of appeal to the Court of Appeals having 'jurisdiction ?

Do not those words rather mean that all the Courts of Appeal throughout the State, that of the Parish of Orleans included, shall have the same jurisdiction ralione maierice el ralione personce, other than territorial; that the litigants domiciled within the jurisdiction and those bringing themselves within it, shall have and enjoy the same rights of -appeal, be and remain on the same footing of equality, to have their •differences judicially adjudicated upon and set at rest by the constituted authorities ? If the former were the meaning of the words mon-■tioned, the most significant consequence would simply follow ; that the Framers of the Constitution intended, in violation of their trust — a highly reprehensible and self-destructive measure, or rather an absurdity, which in fact their mind never for a moment entertained.

We must prefer the latter intendment as fully consonant with and .-.ancillary to our well-settled conceptions of the great principles upon ■which society and government are established and by which mankind is shielded and ruled.

Uourts of justice are powerless to legislate. They cannot add to nor 'take from any provision of law whether organic or statutory, but they /have complete authority and it is their duty so to consider and expound rthe same as to prevent any injurious, clash, to reconcile apparently '■incompatible expressions, to make the various laws intended for the •greater good of the people harmonize, and in that manner fulfill and ■■carry out the glaring intentions of the lawgiver.

It is their duty so to construe laws and constitutional provisions "that they shall be neither unjust, absurd, incongruous, or monstrous, imor.in derogation of common right, when by a proper comparison with ■-other enactments in the same subject found in the same act or instrument, or in pari materia, such a result can be reasonably accomplished, not only without giving an undue preference to any, but, on the contrary, by giving to every one his right and placing all on a footing of perfect ■equality in every like regard.

We are therefore of opinion that the jurisdiction-of the Court of Appeals for the Parish of Orleans, like that of other similar Courts in the State, extends to all eases in which the matter in dispute exceeds two hundred, but not one thousand dollars, exclusive of interest; that the case now before this Court cannot be tried by it, and is not to be, ■stricken from its docket without any arraignment to some other tribunal, and that it must be transferred to the CouVfc of Appeals for the Parish of Orleans, there to be tried and determined as provided by law.

It is therefore ordered that the motion to dismiss, herein made, be denied, and it is further decreed that this cause be transferred to the Court of Appeals for the Parish of Orleans to be there disposed of as the law directs.


text:
    No. 7870.
    Amedée Testart vs. Hypolite Belot et al.
    Oít Motion to Dismiss.
    "It is ■well settled that, where a third person enjoins the seizure under writ of fi. fa. or seizure and sale issued against another, on the ground that the property "belongs to him. the matter in dispute is the property and the ownership thereof, and the right to appeal is regulated by the value thereof.
    In such a case, the Plaintiffs affidavit is sufficient to show the value of the property and maintain the Appeal.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers,

    A. & W. Voorhies for Plaintiff and Appellant.
    A. B. Philips for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff and appellant alleges that the defendant has -caused to be seized, under an order of, seizure and sale against a third person, property of which he is owner, and asks for an injunction against -.the seizing creditor and the sheriff to stop the execution of the writ, and ;$or a decree perpetuating said injunction and recognizing his ownership. From a judgment rejecting his demand, he has appealed. Appellee-moves to dismiss the appeal on the ground that the amount in dispute-does not exceed one thousand dollars.

The amount for which the writ of seizure and sale is issued is un-appealable, and, if the plaintiff were the defendant in that writ, the-appealable character of his injunction suit would be governed by the amount involved in the writ enjoined. But it is well settled that where-a third person enjoins the seizure under writ of fl. fa. or seizure and sale issued against another, on the ground that the property belongs to him, the matter in dispute is the property and the ownership thereof,, and the right to appeal is regulated by the value thereof.

State vs. Judge, 12 A. 48. Gayarré vs. Hays, 21 A. 307. State vs. Elder, 30 A. 229. McCormick vs. Sullivan, 28 A. N. R. 12 Rob. 519. I A. 310. Plaintiff, in his petition, alleged that the property was worth over six hundred dollars.

This allegation does not exclude the idea that it may be worth over one thousand dollars ; and was made with the evident intention to bring the case within the appealable jurisdiction of this Court, as it then existed. He has now filed affidavit in this Court that the value of the property exceeds one thousand dollars.

He would have had the right to file such affidavit and so maintain his appeal, if the record had contained no valuation of the property involved, and we think he is not shut off from doing so by the allegation in his petition which is, in no way, inconsistent with the truth of' the affidavits.

Carrollton vs. Board, 21 A. 447.

State vs. Judge, 20 A. 574.

State vs. Hitot, 21 A. 336.

Hennen’s Dig. Appeal I (a) 1), No. 3.

Under above authorities the affidavit is sufficient to maintain the-appeal, and the motion to dismiss is overruled.


text:
    No. 7479.
    Madeleine D’Auvilliers, Wife of Auguste De Livaudais, vs. Her Husband.
    Article 147 of the Civil Code has no application 'when the spouses, at the time the suit is-brought, are residing in a foreign country.
    It is not necessary that the parents of the spouses, though they were parties to the marriage-contract, should be made parties to the suit of the wife for a divorce and settlement of her rights under the marriage contract.
    The Courts of Louisiana have jurisdiction of the suifc of a wite for a divorce, though the-marriage, as well as the causes alleged for the divorce, took place in Prance, if the husband, a citizen and resident of this State, was only temporarily staying in Prance, when the marriage and the acts complained of, occurred.
    Yerbal evidence to prove a misunderstanding between Counsel is inadmissible when, under1 the rules of Court all agreements of Counsel must be in writing.
    A PPEAL irom the Fourth District Court, parish oí Orleans. Houston,. A j. -
    J. L. Tissot and Chas. F. Claiborne for Plaintiff and Appellee:
    Defendant declared in his marriage contract that he was a citizen of the-United States and of the State of Louisiana, domiciled in the City of New Orleans. His wife followed his condition, and has no other domicile than that of her husband. O. 0. art. 39 ; 29 An. 253 ; Story,. Conflict of Law, g 46. Suit must be brought before the Court of the Defendant’s domicile. 27 An. 566.
    All Exceptions are waived by going to trial on the merits, without requiring a decision thereon. 23 An. 254 ; 18 An. 207 ; 26 An. 312.
    Eobt. G. Dugué for Defendant and Appellant:
    Defendant was not represented on the trial in the lower Court, owing to-a misunderstanding between Counsel. He is entitled to a new trial. Verbal evidence is admissible to prove the misunderstanding. There is no law or rule of court which requires evidence of this fact to be in writing.
    Under art. 147, C. C., a bouse should have been assigned by the Court to Plaintiff, as a residence during the pendency of the suit.
    There are necessary parties wanting to the suit.
    The testimony taken under Commission was illegally received.
   The opinion of the Court was delivered by

Fenner, J.

This is an action of divorce for maltreatment, adultery, and abandonment, accompanied by a demand for a decree maintaining the validity of a donation to plaintiff by her husband of twenty-live thousand dollars made by marriage contract upon terms and condition® therein set forth, and reserving her rights to all other advantages stipulated in her favor in said marriage contract.

The defendant filed a number of exceptions to the action, all of which were overruled by the'judge a quo, and, we think, properly. We see no merit in any of them; and only three of them are sufficiently serious to require notice, viz.:

1st. He excepts that no house had been assigned to plaintiff as a residence during the pendency of the suit, under O. 0. art. 147. This article lias no application to a case like the one at bar, when the spouses were residing in the house of the wife’s parents in a foreign country, and the husband had abandoned her and eloped with a concubine.

2nd. That the parents of the spouses, who were parties to the marriage contract, were necessary parties to the suit. The object of the suit, so far as the marriage contract is concerned, is simply to settle the wife’s rights thereunder as against the husband. It does not affect any rights which may accrue to the parents under the stipulations of the ■contract, and there was no necessity for making them parties.

3rd. That plaintiff’s complaints are of matters which occurred out •of the State, and the marriage having taken place out of the State, and the wife never having actually lived here, such matters cannot be ground for action of divorce here. The cases referred to by counsel in 9 An. 317 and 13 An. 1, only hold that parties who did not contract marriage under, or with reference to, the laws of this State, and who only ■acquired a domicile here subsequently to the marriage, cannot, maintain action for divorce here on matters which occurred elsewhere and prior to their domiciliation here.

In this case, though the marriage actually occurred in France, the marriage contract and other proceedings show that defendant was at ■the time a citizen and resident of Louisiana, only temporarily commo-rant in France. The marriage there was contracted with reference to the laws of this State, the husband’s domicile ; and the domicile of the wife, as well as that of the husband, was, from the instant of marriage, In Louisiana. The cases, therefore, have no application.

The ease was regularly called and fixed for trial, and on the day fixed the counsel for defendant was absent, and the trial took place without him.

In his motion for new trial, he avers that his absence was occasioned by a misunderstanding between himself and one of the opposing counsel arising out of an interview which took place a few days before the day fixed for the trial, in which, he avers, said opposing counsel told him that the papers in the case, which had long been missing, had not yet been found, from which he inferred that the cause could not be tried. On the trial of the rule, he offered to make oral proof of the facts .alleged, which the Court refused to receive, on the ground that, under "ilie rules of Court, evidence of agreements between counsel could not fib© heard unless in writing.

The object of the evidence could only be to establish such a state ■■oí facts as would justify the inference of an implied agreement between •-eounsel that the case would not be tried ; and we see no reason why an 'Implied agreement should be provable by less or different evidence than ils required in the case of express agreements.

Wo think the exclusion was a proper application of the rule of f Court, the wisdom of which is well exemplified in the present case, vwhere the counsel take direct issue with each other as to any interview ••whatever having taken place between them. However, if the facts ^■offered to be proved had been-admitted, they would have furnished no legal excuse for the counsel’s absence. The mere statement by opposing ■•sounsel that the missing papers had not yet been found would not have .justified the inference that, if found, the trial would not proceed on the .-day fixed.

The objections to the admissibility of the testimony offered in be’half of plaintiff cannot be considered, because not made at the proper rijiue, viz.: when the evidence was offered. The application of this rule ’3s sot affected by the absence of counsel, who should have been present. !Ii©ekett vs. Toby, 10 An. 713 ; Underwood vs. Lacapaire, 10 An. 767.

It is a relief to us, and should be esteemed as a favor by defendant, That we pass over the testimony in the case without other commentary -than to say that it conclusively establishes the allegations of the peti-riioa fully, and j ustifies the relief sought and granted by the lower court.

The judgment appealed.from is therefore affirmed, defendant and .-appellant paying costs of appeal.

In this case the Chief Justice recuses himself, having been of < counsel.


text:
    No. 7520.
    W. G. Wilmot & Co. vs. Steamer Ouachita Belle
    Tilie Tctrocession of property does not obliterate tbe ownership of tlie purchaser, which existed during tlie interval between tlie sale and. retrocession j nor affect privileges acquired on the property, under said ownership.
    AA commercial partner has the right to confess judgment in behalf of his firm.
    4 PPEAL from the Fifth District Court, parish of Orleans. Rogers, ii J-
    J. McConnell for Plaintiffs and Appellees :
    .TPirst — -The Plaintiffs rely upon the fact that their claim is for necessary supplies purchased by the captain, in command of the steamer, on the' credit of the steamer, fully proven to be just and correct, and so admitted to be judicially.

    Second — They rely upon the seizure by the sheriff under the ft. fa., and the privilege given by that seizure (O. P. 722), as well as upon the advantage of the adverse judicial possession resulting from that seizure, which rendered it legally impossible for their judgment, debtors, McElroy & Melangon, by a retrocession or otherwise, to disregard that seizure or in any way affect their rights as seizing: creditors under it. The Court will bear in mind that under the-terms of the release, Wilmot & Co. are to be accorded all the benefit, resulting from the seizure, and the pretensions of Blanks, the opponent, are to be decided precisely as if the steamer still remained in the custody of the sheriff.
    Third — They contend that the paper (Record, 139-139), relied on by Blanks as an act of sale from himself to McElroy & Mclangon never conveyed title, because, (1) It was simply an agreement to sell; (2) It was never recorded in the office of the collector of the customs, as required by law.
    See U. S. Revised Statutes, secs. 4192 to 419G, inclusive.
    3 An. 88. C. C. 2796. 8 N. S. 390 ; 17 La. 85; 4 La. 110 ; 2 Rob. 182„ 229.
    Fourth — The appellees next contended that, if there was a salo and transfer of title as claimed by the opponent, then the retrocession of that title could not be made by McElroy & Melangon to their prejudice,. or in disregard of the rights they had acquired as fur-nishers of supplies in good faith, even if there had been no seizure-made under this judgment by the sheriff. The Code in positive terms prohibits individuals from renouncing what the law has established in their favor, when the rights of others are affected therelnj.

    O. 0. art. 11. 6 An. 2. C. C. 1989 (1984). 28 An. 739. 2 Rob. 180. 4 La. 198. 23 An. 355. 4 La. 198 ; 9 Rob. 306 ; 3 N. S. 466.
    ' Bentinck Egan and Singleton & Browne for Opponent and Appellant :
    First — Plaintiffs had no privilege on the boat at the time the seizure waa made. Their claim was prescribed. C. C. 3277 — 3237.
    Second — Defendants were not commercial partners, and one of them had no right to confess judgment for the other. C. C. 2997. 1 An. 147. C. P. 206. 3 An. 34.
    Third — The nullity of a judgment may be alleged, even collaterally, in any form of proceeding, by any one having the least interest to have the nullity pronounced. 30 An. 691; 1 N. S. 9 ; 21 An. 26 ; 11 An. 761; 24 An. 252; 8 N. S. 145.
    Ifourth — The retrocession, by virtue of the resolutory condition, put the parties back in the same position they occupied previous to the sale, and the opponent took his property back free from all charges ■created by the 'purchasers or resulting by the operation of the law from his possession as owner. O. C. 2046. 19 La. 28; 6 An. 2; 8 La. 83; 12 An. 699 ; 7 An. 135, and Stevenson vs. Brown, not yet aioported.
   The opinion of the Court was delivered by

Fenner, J.

On October 12th, 1876, E. A. Blanks, by private agreement, sold to McElroy & Melangon the steamboat “ Ouachita Belle,” for ihe agreed price of $34,000, of which $15,000 was paid in cash, and the balance was to be paid by stated installments. The vendor subsequently received, ou account of the price, $1750, making in all $16,750 paid toy the vendees. McElroy & Melangon received possession of the boat •as owners and ran her as such, McElroy acting as captain and Mel-iingon as agent and financial manager. While so running her, they became indebted to plaintiffs in the sum of $5700 for supplies of coal Surnished to, and actually used by, the boat.

In May, 1877, Wilmot & Co., plaintiffs, brought this suit, for above debts, against McElroy as captain, and McElroy & Melangon, as owners of the boat; and McElroy acting for himself as captain and for both the owners, appeared and made a confession of judgment as prayed for, «pon which judgment for the amount claimed, and with special privilege «pon the boat, was rendered.

The testimony makes it clear that this action of McElroy was taken ■with the knowledge of Melangon, and was approved and ratified by him, and he urges nothing against it. Subsequently, Plaintiffs issued execution on this judgment, and on the 2ith of August, 1877, the boat was actually seized thereunder.

On the 25th of August the following act of retrocession was executed :

“We purchased from Captain F. A. Blanks the Steamer Ouachita Belie, on the 12th of October, 1876, for the price of $14,000, and we paid •cash on account of the price about fifteen thousand dollars ($15,000), and "have had possession of the said boat ever since the day we purchased. We are absolutely unable to pay the balance of the purchase-price, or any part thereof, and we hereby cancel and annul the sale, and return ■the boat to Captain E. A. Blanks. We, the purchasers, make no claim for the cash paid by us on account of the price, and Captain Blanks.; makes no claim for the use of the boat, one to offset the other.

"New Orleans, August 25,1877,
“ (Signed) JAMES P. McELROY...
“E. O. MELANgON,.
“F. A. BLANKS.”

Blanks thereafter filed his opposition claiming’the dissolution ol' the seizure and that he be decreed the owner of the boat and that she-is, in no manner, liable to be seized under plaintiffs’ judgment.

He bases his demand upon the ground that the foregoing retrocession was simply a voluntary enforcement of the resolutory condition,, the effect of which was to operate a complete revocation of the original: sale and to cause the property to revert- to him, free from any charge; or encumbrance created by the purchaser.

The doctrine, that the rights of bona fide encumbrances, upon the-property in the hands of purchasers who have not paid the price canbe-cut off by any thing but a judicial rescission of the sale for non-compliance under the resolutory condition, was'not adopted by this Court, without grave consideration of the injustice likely to result therefrom.< in particular cases, and without a recognition of the nicely balanced-conflict of authority which existed on the subject; and, at last, it received only the diffident assent of Judge Slidell and encountered the.positive dissent of Chief Justice Eustis — all of which appears from the.opinions in the case of Chretien vs. Richardson, 6 An. 2, upon which authority alone the principle rests.

While recognizing the authority of this case, we are not disposed; to extend its application one whit beyond the terms which it prescribes^ Those terms are tersely expressed in the following extract, viz.: “ Whenever a necessary cause of resolution exists, the purchaser may do voluntarily what he can be compelled to do by suit.”

It is perfectly clear that McElroy & Melangon could not have been: compelled, by suit, to do that which they have done by this act of re-trocession. Nothing is better settfed than that the party who demands.. the rescission of his contract must restore his adversary to the situation, in which he was before the contract, and, in cases of sale, must restore-whatever portion of the price he may have received.

23 A. 355, 28 A. 739, 2 Rob. 166, etc.

It follows that Blanks could not have compelled McElroy & Mel— angón to rescind this sale without first returning to them the $16,750.. which, as heretofore shown, had been paid by them on account of the-price. If he had done this, it would have furnished them a fund out of.' which the -debt of plaintiffs might have been, and should have been.., paid. If the parties desired to substitute the voluntary for the judi— cial rescission, and to give to the former the extraordinary effect of revoking the contract ab initio and of obliterating all claims and privileges of third persons against the property which may have been acquired during the possession of the purchasers, we are satisfied they were bound to comply, in their voluntary act, with all the requirements which the law would have imposed in the judicial proceeding. The purchasers had no authority to abandon, or even to compromise, the rights secured to them by law, to the prejudice of a creditor who, by seizure or otherwise, had acquired a privilege on the property.

Civil Code arts. 11, 1989.

George vs. Knox, 23 A. 354.

For these reasons, we agree with the learned judge of the District Court that the retrocession did not have the effect sought to be attributed to it. It operated merely as a conventional reconveyance of the property, binding the parties thereto according to the terms of their stipulations, but not obliterating the antecedent ownership of the purchasers during the interval between the sale and retrocession, nor affecting privileges acquired under said' ownership.

Taking this view, we consider it as disposing of the case. We cannot recognize the right of Blanks to dispute the validity of the judgment against McElroy & Melangon, in absence of any imputation of fraud or any question as to the reality and justice of the debt, upon grounds affecting merely the modus procedendi not raised or desired to be raised by defendants. Melangon does not dispute the authority of his partner to confess judgment for them both ; but, on the contrary, admits his authority and confirms and ratifies his act. But we think, at all events, the judgment was valid. It is not denied that, after the purchase of this vessel, McElroy & Melangon were associated together for the purpose of carrying personal property for hire, and were actually so engaged with this very vessel at the time when this debt was incurred. They were therefore commercial partners.

Kimball vs. Blanc, 8 N. S. 390.

Black vs. Savory, 17 La. 85.

David vs. Eloi, 4 La. 110.

2 Bob. 182,129.

1st. A. 147.

There is no evidence of any express dissolution of this partnership, nor is such dissolution to be implied from the mere fact of a temporary laying up of their vessel.

The suit was brought against the “ Commercial firm of McElroy & Melanjon,' composed of James P. McElroy & E. O. Melangon.” The judgment is confessed by McElroy in behalf of said firm, and is ren-dered against “McElroy & Melancon & E. O. Melangon & J. P. Mc-Elroy:”

Unless it be shown that the partnership had been dissolved prior to the judgment, he had a right to confess judgment for the firm. It is not so shown. The ease of Hefferman vs. Brenham, 1. A. 147, relie.d on by counsel for opponent, has no application. That case only holds that in suits against a partnership which has no social name or title a cita-fon addressed to one partner will not bring the firm into Court, under Art. 198 of the Code of Practice. But here it appears the partnership had a firm name ; and, besides, it is not a 'question of citation. The power of a member of a commercial partnership to confess judgment against the partnership is not impaired by the want of a social name. 'The judgment was perfectly valid; and the seizure thereunder con-ferred an unquestionable privilege antedating the retrocession to Blanks. Under the doctrine of Balance vs. Wolff, 28th A. 942, even a judicial proceeding to enforce the resolutory condition could not be maintained to the prejudice of such a seizure of movable property, which is assimilated to a sale of movables ; and the Court there held that “the rights to and upon movable property are subject to rules different from those relating to immovables,” and, substantially, that a vendor could not dissolve the sale of movables “found in the hands of a second and third vendee.” We prefer, however, not to place this decision upon the ■doctrine of that case, because it is unsupported, and the questions involved are so important that we do not wish to follow it hastily, where it has not been discussed by counsel.

The rights of plaintiffs here are sufficiently supported by the position first taken.

It is therefore ordered, adjudged, and decreed that the judgment •appealed from be affirmed at appellant’s costs.

Behearing refused.


author: Todd, J.

text:
    No. 6521.
    Marie Clarkston vs. Vincent & Co.
    In an action for slander of title, the Defendant, l)y setting np title in himself to the property, stands in the position of a plaintiff in a petitory action and must malee out liis case.
    It has been often held that, when a party relies on a title acquired by a shoiifif’s sale, he must show, not only the sheriff’s Deed, lmt the writ and judgment on which the sale is based.
    APPEAL from the Fourth District Court, parish of Orleans. Campbell, J.
    Tobias Gibson for Plaintiff and Appellee.
    Bayne & Renshaw for Defendants and Appellants :
    In a petitory action the contending parties must claim the same property. Until the identity of the property be shown, the rules relative to petitory actions are inapplicable.
    As against one in possession claimant is not bound to show title in himself good against the world ; a fortiori is he not required to make such proof when the adverse party does not claim to be in possession. 8 La. 239-246 ; 8 An. 499.
    The rule that the party relying on title acquired by sheriff’s sale must show deed, writ, and judgment., not invariable ; he is only held to offer the best evidence he has, although not including the aforementioned. 16 La. 441; 17 La. 40.
    That he does not offer them is ground for objection only ; if there be no objection, the sheriffs deed is conclusive. 15 An. 389; 20 An. 242, 380 ; 10 An. 503.
   The opinion of the Court was delivered by

Todd, J.

This is an action for slander of title. The plaintiff charges the defendant with having slandered her title to a lot and improvements thereon in the city of New Orleans. She claims to be the owner of the property, and to have had the quiet and uninterrupted possession of it since January the 10th, 1861, under a purchase of that date from, one J. M. Green. She claims title also by prescription, by virtue of her alleged possession under a title translative of the property for more than ten years. Damages are claimed against the defendants for $1000, and plaintiff also asks to be quieted in her possession and for a recognition of her title.

The defendants pleaded the prescription of one year against the action, which was overruled, and also a peremptory exception denying that plaintiff’s possession authorized the action, which exception was referred to and tried with the merits.

In their answer the defendants -virtually admitted the acts charged! as slander, by setting up title in themselves to the property.

There was judgment for the plaintiff, and defendants appealed.

The plea of prescription was properly overruled. The plaintiff!’ brought the suit within one year from the time the claim of the defendants-to the property was brought to her notice and asserted against her, which-constituted the alleged slander on which the action is mainly based.

The defendant by setting up title in himself to the property stands in the position of a plaintiff in a petitory action, and must make out. his case. 9 M. 714. 2 B. 331. 12 A. 873. 27 A. 307.

The plaintiff has shown an uninterrupted possession of the premises?from the date of her purchase, on the 10th of January, 1861, to the institution of her suit, on the 23d of November, 1875. She has also shown-that her vendor Green acquired the property by act of sale from Mrs, H. J. Nicholson, widow of F. B. Conrad, and tutrix of his minor heirs, on 30th June, 1859, and that Conrad bought from D. J. Wicks on 1st December, 1846.

It is also in evidence that that lot was unimproved when bought by the plaintiff, and that she has erected a dwelling-house and made othervaluable improvements thereon.

The defendants’ title is derived from a sheriff’s sale made under an? order of seizure and sale against one A. Ehrlich on the 29th of August,, 1874. Ehrlich bought from T. A. Bartlette on 4th November, 1871, and Bartlette at sheriff’s sale on 7th November, 1845, under alleged judgments against D. J. Wicks, thus both parties tracing their alleged titles-to a common author.

At the time the defendants purchased at the sheriff’s sale under their proceeding against Ehrlich, on the 29th August, 1874, and at the time of Ehrlich purchase from Bartlette, on the 4th of November, 1871, the plaintiff was in the quiet and undisturbed possession of the premises under a recorded title translative of the property. To recover against her, defendants must show a better title. They have failed to do so. They show a sheriff’s deed, based on an order of seizure and sale, and the proper writ under it in the ease of Vincent & Co. vs. F. A. Ehrlich, also an act of sale from T. A. Bartlette to Ehrlich, likewise a sheriff’s deed to Bartlette purporting to be under writs of fieri facias issued in the cases-T. A. Bartlette vs. D. J. Wicks and S. Sampson vs. D. J. Wicks, but we-do not find in the record either the judgments or the writs of execution under which the sale purports to have been made.

It has been often held that where a party relies on a title acquired by sheriff’s sale he must show not only the sheriff’s deed, but the writ, and judgment on which.;,the sale is based. 5 A. 584 ; 8 A. 138 ; 13 A. 4501 See, also, H. D., 1st vol., p. 586, sec. 9.

Even admitting, then, that the titles asserted by the parties to this; suit cover the same property which is disputed, we are satisfied that the-defendants have not established their ownership of the properly by sufficient proof.

The evidence does not authorize the amount allowed by the court:. a qua as damages, and in this respect the judgment appealed from most, be amended.

It is therefore ordered, adjudged, and decreed that the judgment o£ the lower court be amended by rejecting the damages therein allowed, and that it be affirmed in every other respect, the costs of the lower.* court to be paid by the defendants, and of this appeal by the plaintiff.

Rehearing refused.


author: Levy, J.

text:
    No. 6447.
    Mrs. Emma F. Weeks, Widow of Robert H. Weeks, Deceased, vs. New Orleans & Carrollton R. R. Co.
    Contributory negligence caused by the inclination of tbe party injured, will exonerate tlif party inflicting tbe injury, from responsibility, if there is no fault on bis part.
    The fact that tbe party causing the injury, under such circumstances, has paid the doctor^ hill of the party injured, is an. act of praiseworthy charity, and not an acknowledgment • of responsibility and estoppel from denying it in a suit for damages.
    i PPEAL from the Superior District Court, parish of Orleans, Lynch . A j.
    Cotton & Levy and Henry P. Dart for Plaintiff and Appellee :
    Although plaintiffs misconduct may have contributed remotely to the’ injury, if the defendant’s misconduct was the immediate cause of it,, and with the exercise of prudence he might have prevented it, lie is not excused. Redfield on Railways, vol. 2. see. 177 ; 10 An. 33; 17' An. 19 ; 23 An. 182.
    The doctrine of contributory negligence does not apply to this ease. * Defendants have acknowledged their liability by paying the doctors” bills, and are estopped from denying it. •
    The verdict of the jury, not being excessive, should not be disturbed.. O. C. 1934, sec. 3 ; 20 An. 27 ; 18 An. 26 ; 17 An. 20.
    L. E. Simonds for Defendants and Appellants :
    The evidence shows clearly that there was no fault on the part of Defendants, but, on the contrary, that the accident was caused by the > fault of the deceased alone. It is, therefore, a case- of contributory/ negligence on the part of the injured party, and he cannot recover damages. 2 Bedf. on Law of Railways, p. 262, taken from 11 Tr. Common Law Rep. 377. 11 An. 292; 23 An. 462 ; 27 An. 56; 27 An. 53 ; 3 An. 48 ; 6 An. 496 ; 30 An. 20.
   "The opinion of the Court was delivered by

Levy, J.

The plaintiff sued the defendant to recover damages- to ‘the amount of fifty thousand dollars, on account of injuries alleged to have been received by her husband, in being run over by the car belonging to the railroad company (defendant), which injuries, she alleges, resulted in the death of said husband. The case was tried by a jury, and ■there was a verdict and judgment in favor of the plaintiff for five thou•sand five hundred dollars, with legal interest from judicial demand and lor costs of suit, from which judgment this appeal is taken.

The evidence on trial discloses the following facts : The deceased, Robert H. Weeks, on the evening of the 8th of May, 1875, between the •hours of seven and half-past seven o’clock, had been a passenger, in car No. 9 of the N. 0. and Carrollton Railroad Company, having gotten on the car at the stand on Jackson near Tehoupitoulas street. When he reached his destination, the car was stopped, near the crossing of Constance street on Jackson, and after getting out he afterward fell across the track. Car No. 14, driven by Johnson, an eriiployee of the Railroad Company, was coming behind No. 9, going in the same direction, and when No. 9 stopped was about a block behind it. It appears that the driver Johnson discovered the deceased on the track about the time he reached Constance street, the deceased being on all fours and endeavoring to rise, or in a stooping position making efforts to get up; the driver hallooed “Get off the track,” and about the same time put on the brake ; the movement of the car was checked and almost stopped, when the horse struck the man and he was thrown under the wheels, which passed over the man and rested on him. Several persons who were near the spot rushed to the car and succeeded in rolling the ear off the body, when the horse becoming unmanageable jerked the car forward .and the wheels again passed over the body. The persons who were rendering assistance then unhitched the horse, extricated the man, who ■was carried to a neighboring drug-store, where a physician was sent for, who discovered that one leg and an arm had been fractured and crushed. Shortly thereafter the man was taken to his home. On the next morning the leg was amputated, and on the 13th of May, 1875, five days after ithe accident, the man died. At the drug-store, he recovered conscious-mess for a while, and was also conscious while he was being carried from -.¡the drug-store to his residence, and during the time between the accident and the day of his death spoke intelligibly to one oí his physicians- and complained of pain and suffering.

The grounds upon which plaintiff seeks to recover are specially set forth in the petition as follows : 1st. That the company is liable for injuries done to persons through defective machinery or cars used in carrying passengers. 2nd. That, in this case the “brake” on car No. 14 was not secure and firm as on other cars used by other companies. 3d.. That the driver had not skill, strength, experience, and capacity to manage and run the car. 4th. That the horse was not a gentle and safe-animal for the work in which he was employed, and this was known to the company,.its officers, and employees. 5th. That the employee was-running the horse and car at a rapid rate of speed, in violation of the» charter and by-laws of the company and the ordinances of the city of New Orleans, limiting the speed. 6th. That at the time and hour of the occurrence the company has been in the habit of running their cars from the foot of Jackson street to their depot at a rapid speed of from ten to fifteen miles an hour, with the knowledge and sanction of the officers and employees of the company, and running at such speed before coming in collision with the body of deceased, by reason of such, recklessness and disregard of life and limb and gross neglect, her husband was killed.

Plaintiff relies upon Art. 2315, C. C., for the right to institute tha-suit; the right of action which her deceased husband had having survived solely to her, as widow of the deceased, who left no minor-children.

This article only subrogates the plaintiff to the right of action which the deceased, himself, had, and could only recover the damages suffered by deceased himself. Earhart vs. N. O. & C. R. R. Co., 17 Am. 243.

To entitle one to recover in a case like this, where it is claimed that the injury and consequent damages are caused by negligence, he must bring it within the operation and intent of the law, and it seems to be a., well-settled principle that, “negligence, whereby injury results to a party, generally belongs to ' that class of wrongs denominated torts; and the-general rule is, that for all injuries to a person, resulting from the negligence of another, and to which the party injured has not, by his own act. or negligence materially contributed, the party injured may recover alt such damages as directly and naturally flow from the negligence but “ if the party injured contributed to produce the result, he is in pari' clelicto, and cannot recover damages.” Such is a brief statement of the general principles of law in such cases. Field on Damages, 517. 11 An. 292 ; 27 An. 53 ; 30 An. 20. Redfield on Railways, 117. 23 An. 464; 3-An. 48.

A careful perusal of tlio evidence and consideration of all the facts proven on the trial of this case iead us to the conclusion that there was no defect in the machinery of the car No. 14 which in any manner contributed to the fatal accident which befell the deceased Weeks. The testimony of Ahern shows that it was “in perfect order, as good as new.”. It is also proven that the driver Johnson -was not wanting in ■ skill, strength, experience, and capacity to manage the car. On the contrary, lie is shown to liavo been engaged in driving an express wagon for ■ten years and performing the duties of receiving and delivering packages, and for more than a year previous to the accident in driving street cars ; his lameness did not interfere with his efficiency as a driver. It is also proven that the liorse drawing the car was a “gentle and safe animal.” The witness Ahem, who was in charge of the car-station of the railroad company testifies that the horse had been under his charge for nearly two years ; ho was a perfectly gentle horse ; witness had “ employed him in every conceivable manner; he had no bad habits.” George Jenkins, in charge of the company’s stables, testifies to same effect. The horse manifested no wildness, and did not become unmanageable until ho came suddenly upon the deceased or in contact or collision with him, and afterward when the body was under the wheels and the persons were endeavoring to roll the car back. It is not dedu-ciblo from the evidence that the accident was attributable to wildness of the, horse. When rehitchod to the ear, after the body had been removed • and lie was out of the crowd, he proceeded on his route in his accustomed quiet manner. As to the rate of speed at which the car was moving, Hie witnesses do not fully agree. We gather, however, that the cars on Jackson street were in the habit of going faster than on some of the • other streets. The rate of speed of the cars of this company is limited by city ordinance to six miles per hour. We think that there was no unusual speed of the car at the time of the unfortunate occurrence, and the weight of testimony is to the effect that it was moving at the ordi•■nary rate, and we fail to see that the accident was attributable to any ; unusual speed.

Mr. Lewis testifies that in his opinion the rate of speed was about :seven miles. Mr. Jeter thinks about eight or nine miles ; Mr. Brutnell ;about eight or nine miles ; thinks it was going at the speed they usually drive, and that the cars were about 300 feet apart. Mr. Swan says that the ear was going at common speed. Mrs. Baldwin says : “ The car •was going at a very moderate gait; it was not going at an unusual gait.”

Mr. Hebert testifies that he saw a dark figure or object in the street, ■which he thought was either a man or boy, and about the same time saw a car approaching from the direction of the river; that the man was not then on the track; that the object stepped on the track and seemed to him. to be stooping as though applying his ear to the rail; that the car .got nearly within twenty feet, when the driver hallooed three times to the man to get out of the track, and the driver put on the brake ■ and stopped the car almost still, and would have stopped it, had not the horse, who saw the object on the track, backed aside and toward the ear •and afterward jumped over the man and pulled the car on him. Mr. Hebert also states that the horse was going at an ordinary trot; that ■when he saw Weeks he was off the crossing and near the track. The evidence satisfies us that the deceased did not use that proper care and prudence, the exercise of which would have prevented the accident. It matters not that he may have been under the influence of liquor ; that would afford no excuse for his own negligence, and if negligence, neglect, or recklessness had been shown on the part of the employees or officers of the company, without contributing negligence on the part of Weeks, the fact of his drunken or sober state should neither have mitigated nor aggravated their offense ; and if while in a state of intoxication or under the influence of liquor his own acts of negligence and imprudence tended to bring about the disastrous injury of which complaint is made, no greater care could be required of the company, its •employees and agents, than it would be bound to take as to one perfectly sober. In this case, however, the knowledge of the inebriated condition of Weeks is not brought home to the driver, and we think he used all the eare, diligence, and exertions in his power to prevent an accident which would not have occurred if the deceased had not blunted his faculties by the excessive indulgence in drink on that evening; and the evidence shows that ■while the deceased was not unable to walk, he was considerably under the influence of liquor, having during the whole afternoon indulged very freely in the use of ardent spirits. On his first recovery of consciousness, at the drug-store, when a suggestion was ■made in regard to the arrest of the driver, Weeks, the deceased, said I am to blame; don’t arrest himthus exculpating him in the matter.

The plaintiff contends that the corporation, defendant, is estopped ■from denying its liability for this death, after confessing a partial liability by paying the doctor’s bills. We cannot take this view of the company’s action, and are of the opinion that the doctrine of estoppel cannot be applied, as insisted by the plaintiff. The employment of physicians and surgeons to attend on the injuries sustained by Mr. Weeks, and payment for their services, was an act of humanity most praiseworthy and creditable to the officers of the company, and the evidence discloses that this is generally done in instances where accidents -occur and injuries are sustained on its road. The generous exercise of. ■eJiarity and prompt relief extended to the suffering, without solicitation, can hardly be construed into an assumption of liability and acknowledgment of wrong in this case.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled, avoided, and reversed, the verdict of the jury set aside, and plaintiff’s demand rejected at her costs in both courts.

Rehearing refused.


author: Levy, J.,

text:
    No. 7865.
    State of Louisiana vs. A. W. Tompkins.
    This Court cannot, in a criminal case, consider either a statement of facts made by the Judge-a quo to explain his rulings, or one made by the Counsel of the accused, to explain his objections to the said rulings.
    An Indictment is not defective, in aprosecution for embezzlement, because it does not disclose-from whom the accused received the money charged to have been embezzled.
    A demand for the money or property embezzled, and denial by the accused, of its receipt or possession ; or a failure or refusal to account or rendition of false account after demand,, are not necessary and essential elements of the crime of embezzlement.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

    Kelly & Lazarus for Defendant and Appellant:
    The information should have disclosed from whom the accused received the money charged to have been embezzled. 2 Archbold (Pomeroy’s Ed.) p. 1338, 1341; 3 C. & Payne, 422 ; 5 C. & Payne, 300.
    The information charges the accused as agent, and not as a depositary or bailee, and there is a variance between the fact alleged and the fact attempted to be proved. The evidence on this point should not have been received, and Defendant is entitled to a new trial.
    Concealment or denial of the receipt of the property charged to have been embezzled, are essential elements of embezzlement. Archbold, p. 1953 ; 7 C. & Payne 833 ; ib. p. 834 ; 1 C. & Marsh man, p. 422 ; 3 C. & Payne, 422 ; 6 Gray (Mass.) 15 ; 9 California, 314 ; 8 Cal., 42 36 Texas, 647.
    J. C. Egan, Attorney-General, contra.

   The opinion of the Court was delivered by

Levy, J.,

The defendant, A. ~W. Tompkins, was tried and convicted on an information for embezzlement.

The information charges that the defendant, being agent of one O. G. Hannah, did by virtue of such agency, and while he was acting as agent, receive and take into his possession, for and in the name and on-the account of said Hannah, his principal, certain money and other articles, and the said money and property so received did fraudulently and feloniously wrongfully use, dispose of, conceal, and otherwise embezzle.

After conviction by the jury defendant made a motion for a new trial, and also made a motion for arrest of judgment, both which were.refused.

Bills of Exception were taken by defendant to the charge of the* Court: 1st, “ that if the jury should conclude that the accused is not. guilty of embezzlement, they may find him guilty of grand or petit-larceny, under section 1056 of the Revised Statutes of the State.” The ground of objection thereto by the defendant is “ that the provision of the statute referred to in the charge, allowing, in certain cases of embezzlement, an alternative verdict of larceny” does not apply to persons-charged in an indictment or information for embezzlement in the-capacity of an agent. In the reasons given in the bill by the judge tr quo it is stated : “ If the court erred in this charge, it did not affect the-verdict, which was, that the accused was guilty of embezzlementthe-accused was not damaged thereby. This reason is adopted by us, and. disposes of this exception.

2nd. On the examination of O. G. Hannah, the prosecuting witness,, the District Attorney propounded the following question : " Did you-, give the accused any money as your agent to take care of for you, or-did you deposit any money with him ? ” Counsel for the defendant objected to this question on the ground, 1st, that the information eharged' accused with having received the money from a person other than-Hannah, his alleged principal, and while acting as agent and in that. capacity, and that the accused received the money for and not from his-alleged principal, and that there was a variance between the fact as-charged and the fact as attempted to be proved.” The court held that this was part of the res gestee, and admissible, and it was afterward! shown by the State that the money was deposited by the accused for the-prosecuting witness with the hotel clerk, and by the clerk delivered to-accused, who did not return it, but concealed its possession.” 2d, that the information does not disclose whether the money alleged to have-come into the possession of accused, either from Hannah or from a third' person, was then unconditionally to be returned to his alleged principal' if entrusted by him, or to be transmitted or accounted for to said alleged, principal, if received as agent fora third party. The Oourt held that, this 2nd ground of objection could not be gone into by way of objection to testimony, and that this was not the proper mode for its presenta-tion.” 3rd, “ That the information charges the accused as ‘agent, and! ■not as a depositary or bailee, and there is a variance between the fact •alleged and the fact attempted to be proved. As to the third point, the •Court held that it was essential to prove the delivery of the money as •agent, and that the question objected to tended to elicit the facts in that regard.” We do not think there was error in the ruling of the lower ■Court. The jury was to judge as to the sufficiency of the proof to support the averment that the accused received the money and took into his possession as agent, and the question was directed to the elucidation of the facts of the receipt, delivery, and taking into possession, so that they might decide as to the character in which the money was held by accused.

The 3rd bill of exceptions is to the following rulings : Counsel for ■accused requested the Court to charge, 1st, “ That concealment was one of the essential elements necessary to constitute the crime of embezzlement, and if there was no concealment or denial of the possession or receipt of the money or property alleged to have been embezzled, the accused must be acquitted.”

Thereupon the Court charged that concealment was one of the essential elements of embezzlement, and if there was no concealment the accused must be acquitted. 2d. Counsel for accused requested the ■Court to charge further “ that, to constitute concealment, there must have been a denial upon the part of the accused of the possession or of the receipt or of the custody of the money property, or a demand or something equivalent to a demand for the possession, or an account of the property, and a refusal to deliver or a denial of the possession or of The receipt of the property ; and, that, although the failure to account for the property within a reasonable time after its receipt may bo considered as a circumstance going to show a concealment, where accounts ■pass and are usual between the parties, and yet that fact independent ;and by itself is not sufficient to constitute concealment and a denial of the receipt of the property.” And the Court refused to deliver all the ■second charge referred to in this bill on the ground that, “concealment ■of the misappropriation of the property entrusted to the accused as •■agent was sufficient to constitute, with the other necessary ingredients, the crime charged.” The Court charged that the failure of the agent to account to his principal, if such failure had taken place, might be considered a circumstance going to show concealment, but declined to •qualify that instruction by limiting the ruling to those cases where accounts pass and are usual between the parties. There is embodied in the reasons given by the judge a quo for his rulings on this exception .■a statement of facts which, he states: "is made to’enable the higher -tribunal to judge of the applicability of the instructions requested to ihe facts of the case, to which this Court could not refer in dealing with the jury.” 3d. Counsel for the accused asked the Court to charge the jury: “that twelve hours after the money and property are entrusted to the accused, and which he is alleged to have embezzled, is not a xeasonable time within which to account without a demand or request for an account, even when accounts are usual between the parties, and there never having been a demand for the property nor an account asked for, from the time the alleged receipt of the property by the accused nor a demand nor a concealment of its possession or receipt, the accused is not guilty of embezzlement.” The Court refused to charge the jury as requested in this third part of the application.

Counsel for the accused disagreeing as to the correctness of the ■“statement of facts” of the District Judge, made out and filed in the record, with his exceptions, a “ statement of facts ” in accordance with his understanding and recollection of them, giving the same reason therefor as was given by the judge a quo'.

We can only conclude that the jury considered the testimony which was adduced before them, and as we cannot pass upon the facts of the case, we are not called upon nor can we consider either the statement made by the judge a quo or counsel of accused, or reconcile the differences in their statements.

We are of opinion that there is no error in the rulings of the Court ii qua and the charge as given.

Time within which there is á failure to account is not essential to constitute concealment, but all the circumstances and facts may be considered by the jury as establishing the intent of the party.

It is contended by the counsel for defendant, that the information is •defective because it does not disclose from whom the accused received the money charged to have been embezzled. Bishop on Criminal Law, I 347, says: “There is some difference in meaning, known to common use, between the word’s ‘clerk,’ ‘agent’ and ‘servant,’ but the cases •on embezzlement seem to employ them almost interchangeably, especially clerk and servant.” And we find it laid down in Wharton on Criminal Law, 11941, that “ it is not necessary in cases of servants and clerks to aver from whom the money was received.”

In regard to the necessity of proof of demand and denial to constitute concealment, and failure to account or denial after demand or refusal to account or rendition of false account as being necessary and essential elements to constitute the crime charged, we do not think that they are such essential elements as are required to make out this case. There may be “ wrongful use, disposition, and concealment,” and embezzlement otherwise, as charged in the indictment, without denial or demand being made and without refusal to account or false account. In «Commonwealth vs. Tuckerman, 10 Gray, 173, the Court held : “It may be embezzlement, although there has been no demand of the property alleged to have been embezzled, or denial of its receipt, or false account given of it, or false statement or false entry concerning it, or a refusal to account for it.”

And in Commonwealth vs. Hussey, 111 Mass. 432, it was held : “ The fiduciary relation essential in embezzlement is sufficiently expressed by the averment that the property was delivered to the defendant upon the trust and confidence that he would return it to the owner on demand. A fraudulent conversion to the defendant’s own use would be embezzlement, whether demand were made or not, and therefore such demand need neither be averred nor proved.” See, also, People vs. Dalton, 15 Wend. 581.

The reasons which we have herein given cover the grounds on which the motion for arrest of judgment was based, and we are of opinion that this motion was properly denied.

The judgment of the lower court is therefore affirmed.