text:
    No. 10,812.
    Succession of F. Andrieu.
    When aperson has been discharged in bankrupt proceedings, and afterward gives his note to a creditor for a claim on his schedule, the moral obligation to pay-is a sufficient consideration for the note.
    Where a person deals with another who furnishes him supplies under an agreement to make monthly statements of the condition of his business, and he omits to place in said monthly statements a debt due his book-keeper, which was created before he became his employee, and which is no way connected with the business, this is not such evidence of fraud on the part of said book-keeper as to prevent his participation in the funds of the succession of the deceased employer equally with all the other ordinary creditors, including the merchant who furnished the supplies and to whom the monthly statements were made.
    APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      Buck, Dinkelspiel & Hart for the Administrator, Appellee.

      E. J. Wenck for Opponent and Appellee.

      Aug. Bernau for Opponent and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The administrator of the succession of F. Andrieu filed his final account, without placing the claim of Rene Dumestre thereon. He filed an opposition to the account, opposing the account generally, but afterward restricted his opposition to the claim of P. Thormahlen, who was placed on the account as a creditor for the sum of $30,239.69.

Thormahlen also attacks the validity of the claim of Dumestre.

Dumestre is the owner and holder of a note, executed by the deceased April 4, 1887, payable to his order twelve months after date, for the sum of $2636.76, with 8 per cent, interest thereon.

Andrieu previous to his discharge in bankruptcy owed the opponent a certain sum of money. The amount was placed on his schedule, and the opponent voted for his discharge. After his discharge, Andrieu gave Dumestre his note for the amount, and renewed the same from time to time, the last renewal note, with accumulated interest, being the one now held by Dumestre, and upon which his opposition is founded.

There is no doubt of the execution of the note by Andrieu. The moral obligation resting upon him to' pay the note was a sufficient foundation for the new promise to pay, and the consideration of the note.

It is, therefore, a valid claim against the succession.

Thormahlen started Andrieu in the shoe factory business many years ago. He entered into an agreement with the deceased Andrieu, that he should purchase supplies only from him, and that Andrieu was to furnish him monthly statements as to the condition of his business. Dumestre during the existence of this agreement became the book-keeper for Andrieu. In the monthly statement furnished Thormahlen, the note of Dumestre was omitted. Dumestre states that this omission was in consequence of instructions from his employer, who told him if the note appearedinthe statements, it would cause Thormahlen to break him up. The fact of the omission of the note from the monthly statements is urged by Thormahlen as a reason why Dumestre should not be allowed to participate in the funds of the succession to his injury.

The decree of the lower court took this view of the case presentéd by Thormahlen, and ordered that Dumestre’s claim be allowed, but not to conflict with the claim of Thormahlen.

From the statements in the record as to the agreement, we infer it related exclusively to the factory business conducted by the deceased Andrieu. In the monthly statements there are some items for house rent, clothing and some other outside transactions, but they seem to be exceptional, and were paid from funds derived from the business, and were entered in the cash book.

Dumestre’s note was an outside transaction, and had no reference to Andrieu’s business. There was no reason why it should have appeared in the accounts of the factory business. It does not appear that Thormahlen required any statement as to Andrieu’s outside indebtedness.

It is in proof that Andrieu did purchase from other parties, to which violation of his agreement it does not seem that Thormahlen made any opposition. The monthly statements showed that Andrieu was insolvent from the time he was furnished with materials by ’Thormahlen until his death.

Dumestre, when he was employed by Andrieu, was a creditor of the deceased. He was the creditor and holder of a note which had been afterward renewed when Thormahlen was furnishing Andrieu. He became his clerk, and by direction of his employer omitted to place’ the note on the monthly accounts.

It had not been placed there before- he became the clerk and book-keeper of Andrieu.

Had the indebtedness of Andrieu to Dumestre been disclosed in the monthly accounts, and Thormahlen had proceeded against his debtor Andrieu, he would have been in no better condition than at the time of Andrieu’s death.

The indebtedness of Andrieu to him kept at pretty much the same figures during their business engagement. The claim of Dumestre being a legal and valid one against the succession, there is no law which provides for giving Thormahlen’s debt a privilege prior to it. They are both ordinary claims.

Dumestre did not intentionally deceive Thormahlen, and we can see no reason why his debt should not share equally with that of Thormahlen, both being ordinary claims against the succession.

Four of the notes held by Thormahlen were executed by Andrieu’s son during his father’s absence. The notes were given to balance accounts, and were for goods already sold and delivered to Andrieu. The accounts are fully proved, and the claim of Thormahlen is a just one. It does not rest exclusively on the notes for the evidence of the indebtedness.

It is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, so far as it directs the payment of the claim of the opponent Dumestre after the satisfaction of the claim of Thormahlen, and it is now ordered that the claim of Dumestre be paid proportionally and equally with all ordinary claims in the distribution of the funds in the succession of F. Andrieu. In other respects the judgment is affirmed, appellee to pay costs of appeal.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 10,940.
    The State of Louisiana vs. James Lyons et al.
    After the testimony in chief for the State and the defence has been taken, and a witness for the State had testified in rebuttal, the defendant did not have the legal right to offer witnesses to rebut the testimony given in rebuttal by the State, unless in exceptional cases.
    It is a matter in the discretion of the judge.
    It was a privilege asked which the court could refuse.
    PPEAL from the Thirteenth District Oourt, Parish of Acadia. Lewis, J. _

      W. H. Rogers, Attorney General, for the State, Appellee.
    Defendants and Appellants unrepresented in the Supreme Oourt.
   The opinion of the court was delivered by

Breaux, J.

James Lyons, Moses Wilson and Scott Wilson were indicted for robbery.

Scott Wilson and James Lyons were convicted, and from a judgment sentencing them to seven years’ imprisonment in the peniteniary, they prosecute this appeal.

The case comes up on one bill of exceptions.

During the progress of the trial a nolle prosequi was entered as to Moses Wilson. Subsequently he was called to the witness stand as a State witness and testified in chief, that he was not present at the robbery charged in the indictment, and did not participate in the crime charged.

After this witness had been examined,' the accused in rebuttal of said testimony called the prosecuting witness — the one upon whom it was charged the robbery had been committed — for the purpose of showing that Moses Wilson was present and aided in robbing the witness and that he had sworn falsely.

The witness was not permitted to answer the questions propounded.

The defendant, through counsel, reserved a bill on the ground that the testimony was admissible, as it was in rebuttal. '

The trial judge’s statement shows that the State had closed its case in chief against all of the accused.

That the accused had testified and closed their case.

That it was at that time the District Attorney entered a nolle prosequi as to Moses Wilson, one of the defendants, and placed him on the stand as a witness for the State in rebuttal of the evidence given by the other two defendants.

That after he had testified, the defendants called the prosecuting witness for the purpose of impeaching the testimony of Moses 'Wilson.

That this witness had stated three or four times in his examination in chief that Moses Wilson was present and took part in eommiting the robbery.

That the contradiction was plain, and the witness was questioned,' says the trial judge, for no other purpose than to make him repeat a declaration he had previously made several times before the jury, and that it was notin rebuttal, but a useless repetition of testimony.

The defendants had no legal right to examine witnesses for the purpose of rebutting the testimony given in rebuttal by the State.

The trial judge properly exercised the discretion with which he is entrusted.

The defendants have not been deprived of any of their legal rights by refusing to hear evidence already heard.

The accused have not shown any ground upon which they can be relieved.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,869.
    Hyman, Lichtenstein & Co. vs. Schlenker & Hirsch. Mrs. C. Schlenker vs. Wm. Robb, Sheriff, et al. (Consolidated).
    1. A dation enpaiement between husband and wife can only be made by authentic act, and when the consideration is explicitly stated in the act, the parties are bound thereby and can not make proof of other and additional consideration, unless upon allegation and clear proof of error in the confection of the act by the notary.
    2. The same tests are applied in establishing change of domicil from this to another State, as from one parish to another. These tests are: (1) Actual residence in the new place; (2) the intention to fix there the principal establishment. These tests applied to thej.facts establish Schlenker’s domicil at Natchez, Miss., since 1888.
    8. Marriage creates a civil status which is governed and controlled by the. law of the domicil of the parties.

      A. The statutes regulating the privileges and disabilities attaching to the status of married women are purely domiciliary in their character, and, unless otherwise expressly declared, do not affect married women domiciled in another State.
    [5. Personal property has no locality, and, as to the rights of husband and wife therein, is governed by the law of their domicil. Moneys of the wife domiciled in Mississippi, though received in Louisiana, belong to her as a citiz,en of Mississippi and do not acquire the character or incidents of paraphernal funds under Louisiana law. If converted by her husband, she has no mortgage on his property in this State for their restitution, nor can she receive from him a dation enpaiement to the prejudice of attaching creditors, citizens of this State.
    6. The “returning to the domicil where her marriage was contracted” which authorizes a non-resident wife to sue her husband for separation of property under Art. 2487 O. C.¿means a return for the purpose of living there under the protection of its laws.
    7. In such action, in any ease, the relief would only extend to the rights of the parties as they stood at date of return.
    APPEAL from the Seventh District Court for the Parish of Catahoula. Ellis, J. _

      J. N. Luce, Gus. Lemle, D. N. Thompson and Farrar, Jonas & Kruttschnitt for Plaintiffs and Appellants:
    1. The objection o£ plaintiffs to parol evidence to establish a consideration different from the consideration expressed and described in the dation enpaiement was well taken. That objection was: “Parol evidence can not be admitted against or beyond what is contained in the alleged dation en paiement of intervenor’s husband to her; nor what may have been said or done before, at the time of, or since making said act; nor to vary, contradict, explain, or modify the written terms, consideration or recitals of said act; nor to show a source or origin of consideration different from that expressed in the instrument. That such evidence, if otherwise admissible, could not be introduced by intervenor who has claimed under said act; that it is not admissible under the pleadings, there being no averments of such facts, and can not be introduced to affect .plaintiffs, who are third persons and can only be bound by the record.”
    («) On contradicting, altering, explaining, etc., written act: R. R. U., 2275 2428; 3 An. 280; 34 An. 690; 38' An. 736; 39 An. 387.
    (6) Not admissible under the pleadings. 2 Hennen, p. 1155 (c) No. 3; 5M. 623; 7 M. 221; 8 N. S. 264; 2 La. 401; 12 La. 105.
    (c) Having declared on a written act, parol evidence not admissible. 8 N. S. 346; Cohn vs. Levy, 14 An. 355; 40 An. 47.
    ((2)* Having claimed under dation, she can not assail or contradict it. 3 An. 280.
    2. Testimony not sufficient to establish intervenor’s claim as existing prior to or since 1878. R. C. C. 2277, 2282; 6 R. 36; 6 La. 22; 11 La. 559; 12 La. 302; 3 An. 142; 6 An. 735; 28 An. 531; 37 An. 95, 380, 857; 38 An. 750.
    (а) The Zenor plantation was purchased burdened with a mortgage, and was sold to satisfy such mortgage indebtedness of husband.
    (б) Intervenor can only claim real value of property sold plaintiffs and sreh amounts as were actually received by her husband.
    (c) Rents:
    (1) There being no separate administration, the rents fell into the community. R. C. C. 2435; 29 An. 335; 30 An. 552.
    (2) The wife was an ordinary creditor for any rental claim. 27 An. 552.
    (37 Rental claim barred, or husband not chargeable therewith nor accountable therefor under Section 1176, page 42, Miss. Code of 1880.
    (4) Claim for rents not established.
    (5) Any rents subject to deductions for taxes, insurance, investments, bank account, repairs, improvements, etc.
    3. The dation en paiement of i878 extinguished the wife’s alleged paraphernal claim, and the subsequent sale of properties acquired under dation of 3878, in settlement of her husband’s debts, would not revive or renew or constitute a paraphernal claim, and if a creditor therefor, she was but an ordinary creditor. 1 An. 303; 2 An. 483; 4 An. 65, 466 ; 21 An. 367, 466; 26 An. 375; 27 An. 550; R. C. O. 1790, 2446.
    4. The intervenors, husband and wife, being domiciliated in and residents of Mississippi since 1883, the receipt and conversion of the wife’s moneys in Mississippi would constitute the wife only an ordinary creditor therefor, and not being a paraphernal claim, the insolvent husband could not therefore sell to the wife to the prejudice of his domestic creditors.
    («) On domicil: R. C. C. 42, 46,11 La. 178; 2 An. 946; 4 An. 554; 9 An. 167; 29 An. 253; 32 An. 679; 33 An. 911.
    (5) On conversion in Mississippi: 2 R. 501; 4 An. 65; 10 An. 440; Eager vs. Brown, 14 An. 694; 6 An. 703; 12 An. 89.
    (c) On conflict of law: ArticlesR. C. C. 2390,2399, 2400, and kindred articles estabiisliing and regulating community property rights, are real and not personal statutes. Saul vs. His Creditors, 5 N. S.; 4 La. 190; 9 R. 443.
    5. Though intervenors’ claim should be found to be in its nature paraphernal, the intervenors being admitted non-residents at the time of the dation assailed, could not avail themselves of laws enacted for the protection of Louisianamarried women, especially as Mrs. Schlenker had unlimited capacity to contract under the law of her domicil.

      (a) On Mrs. Schlenker’s capacity to contract: Saul ys. His Creditors, 5 N. S. pages 590, 594,597, 603 and 604; 2 R. 501; 5 R. 475; 8 R. 416; 13 La. 182; 3 An. 417, 427; 5 An. 372; 11 An. 232; 12 An. 89; Mississippi Code of 1880, Sections 1667,1168,1169.
    (&) Our laws on rights of married women, enacted for protection of Louisiana married women: 29 An. 503, overruling 20 An. 383, and affirming 12 An. 89; 2 R. 501; 2 An. 2; 4 An. 570; 6 An. 437, 703; 10 An. 440; 12 An, 89; 30 An. 749, 750.
    6. Our courts will not sacrifice justice to courtesy and maintain a fraudulent sale of personal property situated in Louisiana to the prejudice of domestic creditors. 2 3ST. S. 93; 17 La. 591; 19 La. 589; 5 An. 678; 13 An. 280.
    The value of the property conveyed to wife should not exceed the amount due. 8 An. 485, Gardner vs. Thibodeaux; 14 An. 742 ; 30 An. 750. The sale as to the merchandise not divisible. 1 An. 305; 23 An. 441.

      Percy Roberts and J. L, Dagg for Intervenor and Appellee:
    1. A dation made by the husband in favor of his wife, can not be attacked by one who was not a creditor of the husband at the date of the dation. See 39 An. 780,
    2. One who purchases property from a wife can notassail her title to said property, See 15 An. 531 and 684; 30 An. 590.
    3. The use of the wife’s property by the husband to pay a debt due by the commercialfirm of which he is a member creates a debt against him in favor of the wife.
    4. It is not necessary to the validity of a dation made by the husband in favor of the wife, that the wife should have a privilege or mortgage on the property transferred by the dation. See 33 An. 584; 34 An. 995.
    5. It is not necessary for a wife to obtain a judgment of separation of property in order to justify a dation in her favor. Such a dation can be made before or after such a judgment, and may be made without such judgment. See 3 An. 485; 30 An. 750; 33 An. 534 and 821; 34 An. 995.
    6. The burden of proof is on the one who alleges a change of domicil, and in order to prove such change it is necessary to show not only a new residence, but also the intent to acquire another domicil. See 2 An. 946; 7 An. 395; 9 An. 165; 20 An. 312; 23 An. 1304; 26 An. 515.
    7. Where a husband and wife have been married in Louisiana, and the husband removes to, and resides in a foreign state, the wife retains the same rights and remedies, as against her husband, for the protection and the restitution of her paraphernal effects, as if she had continued to reside in this State. See Oivii* Code, Article 2437.
    8. The right of a wife who has been married in Louisiana to receive by a dation , from her husband the payment of adebt in her favor, arising from his appropriation in this State of her property, situated in this State or the proceeds of such property, is not affected by the laws of any foreign state in which she happens to be residing at the time of said dation.

      9. The courts of Louisiana will not enforce the law of another State in regard to the transfer of property situated in this State, when the effect of such foreign law would be to defeat a statute of this State, in favor of a wife who was married in Louisiana.
    10. The making of a dation by the husband in favor of the wife will not impair his right to make a subsequent dation in her favor, provided there exist, at the date ofjthe subsequent dation, a liona fide debt in favor of the wife.
    11. Parol, or other evidence aliunde, is admissible to show the real consideration of a written contract, although it may show a consideration other and different from that set forth in the writing. See Wharton on Evidence, pp. 540 and 1044; 26 An. 545; 32 An. 432; 36 An. 548; 45 An. 560; 38 An. 846.
    12. Where a certain consideration is expressed in an act of sale, and no other consideration is proved, it will be presumed that the consideration thus expressed is the true one.
    13. The testimony of one witness in regard to an alleged sale, and the disposition of its proceeds, accompanied by the act of sale, is sufficient to prove the same, although the sum involved is over $500. See 1 N. S. 614.
    14. The fact that the husband, at the date of the sale, or the lease of the wife’s property, was administering that property, either as head of the community or as the agent of the wife, raises a presumption that he received the proceeds of said sale or of said lease, and a consequent lindebtedness, to that extent, to the wife. See 4 N. S. 409; 6 An. 592.
    15. The act of the husband in buying property and taking the title to the same in name of the wife, without the proved knowledge of the wife, does not raise a presumption that the said property was accepted by the wife as a giving in payment, in discharge of a debt due her by the husband.
    16. The obligation of the wife to bear a portion of the marital expenses out of the income of her paraphernal property, when she has reserved the administration of the same, is a personal debt in favor of the husband, of which no third person can avail.
   The opinion of the court was delivered by

Fenner, J.

This appeal presents, for our determination, a contest between the attaching creditors of a non-resident debtor and the non-resident wife of the debtor, who claims the property attached by virtue of a dation en paiement made to her by her husband while they were both non-residents of Louisiana and domiciled in the State of Mississippi.

The dominant facts are the following:

Isaac Schlenker and his wife, Mrs. O. Schlenker, were married at their domicil in Trinity, Louisiana, in 1859. Between the years 1866 and 1874, while they were still domiciled in Louisiana, Mrs. Schlenker claims to have received from an uncle and from her mother certain paraphernal gifts of money and goods amounting to about $7600, which her husband took possession of and converted to his own use. In 1878, her husband executed a dation en paiement in her favor, by which he conveyed to her various pieces of landed property, including:

1. A tract of land known as the Elba or Zenor tract.

2. Sundry lots and buildings situated in the towns of Troy and Trinity.

The attaching creditors attack the consideration of this dation, and if proof thereof were required, that found in the record is certainly not as conclusive as it should be; but we think the creditors, having become such long after the dation, have no right to attack it. Lewis vs. Peterkin, 39 An. 780.

Subsequently Mrs. Sehlenker alienated several of these properties, and the sums are claimed to have been appropriated by her husband to the payment of his debts.

These alienations were as follows, viz.:

1. In June, 1878, she conveyed the Zenor tract for the price of $3500. •

2. In March, 1881, she conveyed the Oates or Rawlings lots in Troyville, on which the price actually realized was $350.

3. In 1888 she sold a storehouse and lots in Troyville and a residence and lots in Trinity for $2500.

She also claims to have sold another lot in Trinity to McCabe for $100, but the deed is not produced.

In December, 1890, Isaac Sehlenker made a second dation en paiement to his wife, from which we make the following extract:

“ Before me, J. F. Ellis, a notary public in and for Oatahoula parish, Louisiana, personally appeared Isaac Shlenker, who declared to me, notary, that he is justly and legally indebted to his wife, Mrs. Charlotte Sehlenker, in the sum of seven thousand two hundred and fifty dollars.

* * * “The said above amount being the proceeds of sale of one storehouse and lots in Jonesville (or Troyville), Louisiana; the Cates or Rawlings house and lots in Jonesville, La., and dwelling house and lots in Trinity, La.” * * *

It thus appears that the only paraphernal debts expressed in the act as intended to be extinguished are those arising from the appropriation by the husband of “the proceeds of sale ” of the particular pieces of paraphernal property therein mentioned.

As we have seen, these “proceeds of sale,” according to the wife’s own showing, did not exceed the sum of $2950, while the dation conveyed to the wife property estimated in the act itself at $6560, and claimed by the creditors to be worth much more.

On the trial of the case counsel for the wife undertook to eke out the consideration, by parol proof that the dation was intended to satisfy other paraphernal claims of the wife besides those expressed in the deed, including the sum of $8500 received as the price of the Zenor plantation, $1100 collected as rents of paraphernal property, and a balance due on the original claim, unsatisfied by the first dation, of $621.98. '

To such evidence objection was made on the following grounds, viz.:

“ Parol evidence cannot be admitted against or beyond what is contained in the alleged dation en paiement of infcervenor’s husband to her; nor as to what may have been said or done before, at the time of, or since making said act; nor to vary, contradict, explain, or modify the written terms, considerations or recitals of said act; nor to show source or origin of the consideration, different from that expressed in the instrument. That such evidence,if otherwise admissible, could not be introduced by intervenor, who has claimed under such act; that it is not admissible under the pleadings, there being no averments of such fact, and can not be introduced to affect plaintiffs, who are third persons, and can only be bound by the record.”

The judge overruled these objections, and admitted and gave effect to the evidence.

In this we are bound to hold that the judge was in error.

A dation en paiement by a husband to his wife can not be made otherwise than by authentic act. The extraordinary and highly exceptional effects given by the law to this contract, exempting it from the revocatory action and maintaining it as a preference over creditors, though made while the husbánd was insolvent, emphasize the necessity of holding the parties bound by the recitals contained in the act, and not permitting them to enlarge or extend its provisions by parol proof. The creditors, when they took[out their attachment, had no notice of, and were not affected by, any dation between this debtor and his wife, except that evidenced by the authentic act extant upon the records of the parish, and could not be bound by any agreements or understandings between the parties not embodied in that act. Moreover, the wife herself, in her intervention, propounded that act as her title, and made no allegation of any error therein.

The act specifically recites, as the only paraphernal claims satisfied by the dation, the moneys due by the husband for the price of particular properties therein stated. To hold that other and different paraphernal claims entered into the consideration and were satisfied by the dation, on mere parol proof, would be, to that' extent, to give effect to a dation by parol.

Even if proof of error were admissible, the proof found in this record is insufficient to establish it.

We dislike to speak with confidence touching the contents of this enormous transcript, wbich we have been left to eviscerate with hardly any references to pages by the counsel; but if there is any other evidence as to this error except the statement of Mrs. Schlenker herself, it has failed to attract our attention. She says that the intention of Mr. Schlenker and herself was to have the sale made in satisfaction of all her paraphernal claims, and, on the subject of the deed, she says: “I do not know if the deed properly recites the consideration, not having the same before me, but if it does not, there must have been some error in drawing it up.”

Of course, we have nothing from the husband on the subject because he was incompetent to testify. There is nothing to show that the notary who drew the act did not conform to the instructions given him, or that the parties who signed it did not read and know its contents, nor is any reason given why the alleged error escaped attention. Surely, it would be a dangerous precedent to allow the recitals by such an act to be varied by the unsupported declarations of error by a single party thereto. As the deed stood, undoubtedly, the paraphernal claims, outside of those mentioned therein, remained unaffected by the dation; and, in after years, might have formed a consideration for a third dation when the interests of the parties required it, in which case the statement of the wife as to her intentions might not have been accessible.

We consider the case fully covered by a former decision, where the dation having been made in satisfaction of a particular named paraphernal claim, which the court found to be invalid, the parties ought to sustain it by proof of other valid paraphernal claims, but we held them bound by the consideration stated in the deed. Chaffe vs. Schlen, 84 An. 688.

Having thus defined the meaning and extent of the act as embracing, for its consideration, only the paraphernal claims therein recited, we will next consider the important questions arising from the domicil of the parties.

The attaching creditors are citizens and residents of Louisiana.

It is conceded that at the date of;the dation Mr. and Mrs, Schlenker were domiciled in the State of Mississippi. It is claimed, however, on behalf of the wife, that the Mississippi domicil was only acquired in 1889, after the transactions here involved took place,, and that, prior thereto, their domicil continued to be in Louisiana.

No doubt, the presumption of law is in favor of the continuance of a domicil once established, and that the party who asserts that it has been changed carries the burden of proof. The evidence of Mrs. Schlenker herself, which is candid and unequivocal, establishes that in 1882 her husband, with his family and the whole of his household effects, removed from their former domicil in Trinity, 'La., to New Orleans, La., discontinuing the mercantile business which he had theretofore conducted in Trinity, and establishing his residence in New Orleans, where he kept house for a year. In 1888 Schlenker moved with his family to Natchez, Miss., carrying all his household effects, established his residence there, went into mercantile business there, has resided and kept house and transacted business there ever since, and has had no other residence. He has reared his children and married two of them in Natchez. There has been his home. It was not only his principal, but his only domestic establishment.

It appears that in 1881 or 1882 he commenced a mercantile business in Troyville, La., and that he was in the habit of frequently visiting that place to look after his affairs, but he never had a domicil in Troyville and kept no establishment there of any kind. His former residence in Trinity, La., was at first rented, and subseT quently sold.

There is proof that he voted at least once in Louisiana, while living in Natchez, and also that he was accepted as a surety on the bond of the sheriff of Catahoula parish. His wife and partner state that he continued to consider Catahoula parish as his home; but there is no evidence that he ever entertained intention of returning or resuming his residence, there.

The law is chiefly concerned with persons as the subjects of obligations, and, with the view of giving efficacy to their sanctions, one of its first tasks is to locate each person — to fix a place at which the person shall be considered as always present, actually or constructively, and where the law can reach him when it has occasion to deal with him — in other words, to establish his domicil.

The provisions of our code on the subject are clear and direct.

“Art. 38. The domicil of each citizen is in the parish wherein he has his principal establishment. The principal establishment is that in which he makes his habitual residence.

“Art. 41. A change of domicil from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there.

“Art. 46. Domicil once acquired shall not be forfeited by absence ■on business, but a voluntary absence of two years from the State, or the acquisition of residence in any other State of this Union, or elsewhere, shall forfeit a domicil within this State.’’

Applying these provisions of law to the facts of this case, we can not doubt that, from the date of removal in 1833, Natchez, Miss., has been the legal domicil of Schlenker and his wife.

Under a literal construction of the words of Art. 46 that “ the acquisition of a residence in any other State of this Union shall forfeit a domicil within this State,” the case would be too clear for discussion, since no one could doubt that Schlenker acquired a residence in Natchez. But we think the article should not be so strictly construed, and that the legislator meant the acquisition of such a residence as is mentioned in the prior Art. 41, i. e.,'one which combines “ the act of residing” with “ the intention of making one’s principal establishment there.” In other words, Art. 46 subjects the change of domicil from this State to another to the same tests which Art 41 applies to change of domicil from one parish to another.

These tests require two elements, viz: (1) Actual residence in the new place; (2) The intention to fix there his principal establishment.

The French law applies the same tests. C. N., Art. 103.

Says Laurent: “The principle that a mere transient cause which has induced a person to establish a temporary residence elsewhere does not give him a new domicil must not be extended so far as to hold that one who establishes himself in a new place, with the intention of returning to the old, preserves, by that fact alone, his former domicil. It is the nature of the establishment that decides the question; it must be the principal establishment in order to fix a new domicil. But if it be the principal establishment, that operates the translation of domicil, even though there be an intention of returning.” 2 Laurent, No. 79; 1 Mourlon, Nos. 325, 326, 827.

The French code does not define the words “principal establishment.” Our code expressly declares: “The principal establishment is that in which he makes his habitual residence.” ,

Said this court: “The law which fixes the domicil of each citizen at the place where his principal establishment-is situated means the principal domestic establishment.” Sue. of Franklin, 7 An. 400.

Again: “It is there he sleeps, takes his meals, has established his household, and surrounded himself with his family and the comforts of domestic life. His dwelling house there is emphatically his permanent home.” 4 An. 554.

The evidence in this case, as we have stated it, establishes, beyond a doubt, that Schlenker fixed and intended to fix his principal establishment, his habitual residence, his home, in Natchez — not for any transient purpose of health or convenience, but in permanence, as indicated by his entering commercial business there, and by his whole conduct. He had, in fact, already abandoned his domicil in Catahoula parish, when he removed to New Orleans with his family and household effects and established himself there. There is no pretence that he ever intended to return to New Orleans, his last domicil in this State. There is none really that he intended to return to Oatahoula; but if he did, he would» have had to establish a new domicil there, which could not be done without an actual residence.

This is not a case like Steele’s case, where the party preserved two establishments, and where the purposes for which he placed his family in Natchez were clearly shown, and the intention to preserve his domicil at the establishment which he kept in Tensas parish is fully proved.

We then said: “We do not wish to be understood as saying that, in order to have a domicil at a particular place, it is unnecessary there to have a residence, actual or constructive, with a representative living therein, at which and on whom, in case of absence therefrom, legal process can be served. However that may be, it is established that the defendant had such a residence in the parish of Tensas, at which service could have been legally made.” State ex rel. Attorney General vs. Steele, 38 An. 912.

The rules which govern the change of domicil from this State to another are the same which apply to such a change from one parish to another, and we think no one could doubt that, if Schlenker had established a home in another parish similar to that adopted in Natchez, it would be held to establish a new domicil.

It thus appears thait at the time when the dation was made, and also at the time when he received and converted to his use much the larger portion of the personal funds of his wife, which form the consideration thereof, both husband and wife were residents and citizens of the State of Mississippi, and not of the State of Louisiana, and the question is whether such a dation, made on such a consideration, is protected by the law of Louisiana, especially when conflicting with the rights of resident creditors.

Marriage creates a civil status. Each State attaches to this status such privileges and disabilities as it deems wise and proper, but these laws are purely domiciliary in their operation, and apply only, as a general rule, and when not otherwise expressly provided, to citizens of the State, or to acts done while they are citizens. When married persons remove to a different State their married status is governed and controlled by the laws of the new domicil.

The law of Louisiana attributes to the status of marriage certain peculiar privileges and restraints. It establishes a community of ac-quests and gains between the spouses; it gives to the separate property of the wife the character of dotal or paraphernal property; it protects such property from depredation by the husband by giving the wife a mortgage and privilege on all the property of the husband for the restitution of her dotal effects converted by him and a mortgage for the restitution of her paraphernal effects so converted; it authorizes the wife, in certain cases, to bring suit against her husband for a separation of property, wherein she may not only obtain a dissolution of the community and a protection of her future separate earnings; but may recover judgment for her paraphernal or dotal funds appropriated by him, which may be executed against all his property, and it authorizes the wife, with or without such judgment, to receive from the husband a dation en paiement in satisfaction of her paraphernal or dotal rights, which is valid against'creditors even though, when made, the husband was utterly insolvent. There is no greater reason why this exceptional privilege of dation should be enforced in favor of non-resident married women than there is to recognize their rights of mortgage and privilege, which are not more exceptional. Yet in dealing with the question whether there existed a legal mortgage for paraphernal funds on the husband’s property in this State, this court, after quoting the provisions of law, said:

“ These, and other provisions of the Code on the same subject, clearly apply only to persons residing in the State. They repel the idea that the law-giver ever intended to extend the same extreme favor to non-residents, wives andminors, whose rights ever remainamystery to our citizens.

“The removal of opponent, with her husband, into this State placed her under the protection of our law for the future. It entitles her to a tacit mortgage for all moneys her husband may have received since, for her account, but to extend back this mortgage so as to recover funds received by the insolvent in 1822, when he resided in Campeche, would be to declare at once that a tacit mortgage exists, even though the husband, the wife, the tutor, or the ward, never were in Louisiana. Such a mortgage we can not recognize, nor do we believe it was ever contemplated by our laws.” Prats vs. Creditors, 2 Rob. 501.

In considering the same question in a subsequent case, the court said:

“ But every law must be construed, not only with reference to the policy which dictated it, but in connection with similar legislation on the same subject. In imposing such incumbrances upon real estate as that which necessarily result from legal and tacit mortgages, the Legislature evidently contemplated the protection of a class of persons who were unable to protect themselves, and whom they were, therefore, bound to protect. For this reason they have subjected the rights of their own citizens to incumbrances which, though of doubtful policy, it can not be supposed were intended to operate in favor of those whom it was no part of their duty to protect.

“It is the duty of the State to protect its own widows and orphans, and those of its own people who are laboring under legal incapacities.”

Continuing, the court said:

“But from a review of the various articles of the Code, on the subject of legal mortgages, it appears to us they point conclusively, not only to the supposed residence in the State of the party whose property is sought to be subjected to their operation, but to the security of a debt originating in the State. The whole tenor of our legislation on this subject appears to us to repel the idea that it was in contemplation of the Legislature to extend the operation of our system of mortgages to cases where the debt itself originated out of a State at a time when the debtor was also a non-resident.” Stewart vs. Creditors, 12 An. 89.

Moreover, the right of the wife to enter into such a contract with her husband as this dation, is confined to the case where it is made for the restitution of her dotal or paraphernal effects alienated by him. And it can not be said that the consideration in this case was of that character. The consideration is for personal funds of the wife, received and converted by the husband, while he and his wife were residents of Mississippi. That these funds were personal property does not admit of question, and it is a well-settled rule that personal property has no locality, and is governed exclusively by the laws of the owner’s domicil as to its character, transfer, alienation, etc. 3 Am. and Eng. Encye. of L., pp. 574, 575, and authorities cited.

Mobilia ossibus inherent et personam sequuntur.

These funds, though accruing to the wife in Louisiana, were received by her as a citizen of Mississippi, and her rights thereto were governed by the law of Mississippi. They never acquired the character of paraphernality under the law of Louisiana, and the husband’s conversion of them subjected him only to the liability imposed by the law of the domicil.

It is urged, however, by the learned counsel for the wife that these general principles are controlled by the special provision of Art. 2437, of our Civil Code, which is as follows:

“ Whenever a marriage shall have been contracted in this State, and the husband after said marriage shall remove or shall have removed to a foreign country with his wife, if the husband shall behave toward his wife in such foreign country in such a manner as would entitle her, under our laws, to demand a separation of property, it shall be lawful for her, on returning to the domicil where her marriage was contracted, to institute a suit there against her husband for the purpose above mentioned, in the same manner as if they were still domiciled in said place. In said case an attorney shall be appointed by the court to represent the absent defendaiit. The plaintiff shall be entitled to all the remedies and conservatory remedies granted by the law to married women, and the judgment shall have force and effect in the same manner as if the parties had never left the State.”

We are of opinion that this article is inapplicable, for two reasons:

1. The wife here has not returned “ to the domicil where her marriage was contracted,” within any reasonable intendment of the law. It is true she came to Louisiana and accepted this dation and returned immediately to her domicil in Mississippi.

The law obviously means a return to the domicil for the purpose of living there under the protection of its laws, and was intended only to dissolve the community, which Arts. 2899 and 2400 O. O. extend in favor of non-residents, and to protect her property and her future earnings from control or interference by her husband. This is rendered more clear by reference to the origin of the article. It is taken from Act No. 9 of 1855, which is as follows:

“ That whenever a marriage shall have been contracted in this State, and the husband, after such marriage, shall remove or shall have removed to a foreign country with his said wife, and shall behave or have behaved toward his wife in said foreign country in such a manner as would entitle her, under our laws, to demand separation from bed and board, or a separation of property, it shall be lawful for her, on returning to the domicil where her marriage was contracted, to institute a suit there against her husband for the purposes above mentioned, in the same manner as if they were still domiciliated in said place,” etc.

The compilers of the Code of 1870, in distributing these provisions to their appropriate headings, separated the provisions relating to separation from bed and board and those relating to separation of property into two distinct articles, viz.: the above Article 2487 and Article 142. But these articles must still be construed together, and it is apparent that the same kind of removal to the former domicil is required to support an action for separation of property as to support one for separation from bed and board and consequent divorce. It would hardly be supposed that a married woman domiciled in Mississippi could run over into the State of Louisiana for a day, without any intention of remaining here or resuming her residence, institute an action for a separation from bed and board leading to divorce, return instantly to her Mississippi domicil, and claim a decree in such a case, that any court in Christendom would grant or respect. We, had occasion recently to consider the rights of a married woman in such a case and the limitations upon her right to invoke the jurisdiction of her original matrimonial domicil. Smith vs. Smith, 43 An.

No such case was contemplated by the law, which only intends to extend its protection to women married here, whose husbands domiciled in another country had so mistreated them as to justify them in leaving the matrimonial domicil and in returning to their former homes to live under and to receive the protection of its laws.

2. Even if the return to the domicil were sufficient, the statute would not cover this case. It is confined to an action for separation of property, and in such action the relief could only extend to the rights of the parties as they stood at the date of the return. It could not authorize a judgment against the husband for paraphernal funds based on claims for personal property converted by him, while husband and wife were both domiciled in Mississippi, and which, therefore, acquired no paraphernal character. It could not recognize a mortgage for such claims, nor would it support a dation in satisfaction thereof to the prejudice of creditors.

The only proper pertinency of this statute is to demonstrate that, outside of its exceptional provisions, the views we have herein expressed are correct, and that non-resident married women, though their marriage took place in this State, had not, independently of the statute, the right to bring an action for separation of property in this State, or to avail of similar relief extended by our laws in the protection of our own married women.

It is, therefore, adjudged and decreed that the judgment appealed from be amended by rejecting the demand of Mrs. O. Schlenker and dismissing her intervention, and by maintaining the attachment of the plaintiffs and recognizing their privilege on the property attached for the amount of the judgment in their favor, and that as thus amended, the same be now affirmed, appellees to pay costs of appeal.


text:
    No. 10,852.
    John T. Purves vs. Germania Insurance Company, and vs. Firemen’s Insurance Company, Consolidated.
    Tlie insured may either expressly or by implication waive the preliminary proof and the certificate of loss.
    There was an implied, if not an express waiver, of the defects of the certificate. The contract of insurance is one of indemnity.
    The insurer obligates himself to make good such loss or damage as may be sustained not exceeding the amount of the policy.
    APPEAL from the Civil District Court for the Parish -of Orleans. King, J. _

      Jos. N. Wolfson and B. B. Forman for Plaintiff and Appellee :
    When the proofs of loss by fire of property insured, sustained by expert and disinterested evidence, show the loss to have been at least $6383.50, the judgment should be for that sum, there being no suggestion of fraud or ill practice on the part of the assured.
    An exception of prematurity must be filed and decided in limine. Xoble vs. Martin, 7 X. S. 282; Howard vs. Columbia, 1 La. 420; Benedict vs. Williams, 4 B. 392: Pecquet vs. Pecquet, 17 An. 232.
    And when answer is filed and trial entered upon without a decision of the exceptions, it is waived. Lafon vs. Biviere, 1 N. S. 130; ICemp vs. Hunt, 4 L. 482; Gay vs. Andry, 14 L. 288; Tupery vs. Edmondson, 32 An. 624. Mix vs. Creditors, 39 An .624.
    When x>roofs of loss are retained by the insurer without objection, and the assured is examined before a notary on the demand of the insurer, any defect in the proofs is waived. Wood on Insurance, pp. 969-973. *
    Buck, Dinkelspiel & Hart, for Defendants and Appellants:
    The certificate of the notary required by the policy must be furnished; where defective and issued by an interested person it can not be considered. 19 Ind. L. J. 26; 20 Hun. 93.
    Where the plaintiff’s proof is defective and unsatisfactory as to the amount of loss in a suit on an insurance policy, he will be non-suited.
    An examination of the assured does not waive the proofs of loss, nor can a waiver be presumed when the whole course of the defendants is to insist on same. 4 Xevil, 102; 8 S. W. 630.
    Proofs of loss, if not accompanied by the notary’s certificate, are not made as required by the.policy; incomplete proofs are no proofs.
    A defence of over-valuation does not prevent the company from setting up that tlie proofs were defective.
    The sixty days before which suit can be brought commence to run^only from the time absolutely perfect proofs have been furnished.
    It is not necessary to except to the charge of a judge to the jury in a case appealable both on the law and the facts. 37 An. 81.

      The Supreme Court will remand a case when the jury apparently have not properly-considered it. 8 New Series, 167.
    This court will not examine figures and calculations not passed upon by the lower court.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff was the owner of generators, ferment tanks, mash tubs, vinegar tanks and such implements as are needful in carrying on the business of manufacturer of vinegar.

He also had vinegar in tanks and in store at his plant, one-half of which was - insured in the Germania Insurance Company, in the sum of $5000, and the other half, in a similar amount, in the Fireman’s Insurance Company, as follows:

On generators, ferment tanks, mash tubs and vinegar tanks, and such other implements usual to their trades, as vinegar manufacturers.........$»,»0U 00
On stock of vinegar in store and in tanks................................................... 2,300 00
On boiler, pump and machinery................................................'.................... 1,000 00
On stock of sugar and molasses in barrels...................................................... 930 00
On empty barrels............................................................................................ 200 00
On office furniture........................................................................................... 00 00
Total...........................................................................................................$10,000 00

The policy issued by the Fireman’s Insurance Company is dated the 13th day of December, 1888, and that issued by the Germania Insurance Company is dated the 16th day of November, 1889. At the end of the year they were renewed and continued another year.

At the time the policies were issued the property belonged to the Southern Vinegar Company.

In March, 1889, it was sold to plaintiff for $4000; the policies were transferred in due form.

On the 3d day of July, 1890, the plant was nearly all destroyed by fire. The following is a detailed list furnished by plaintiff:

Sixty-two generators, each containing thirty bushels of beech shavings.

Bach generator contained 8370 gallons of vinegar, also six gallons of ninety-grain vinegar and ten gallons of a lower grade.

Thirty large generators which contained each 120 bushels of beech shavings and eight barrels of eighty-grain vinegar, besides eighteen gallons also of a higher grade and twenty-five of lower grades.

Two tanks.

Appurtenances on tanks.

Six “knocked down” cisterns; vinegar on hand, 6550 gallons; 2 tanks with 3000 gallons low wines, $150,.and 3 tanks with 9000 gallons of mash.

The property is valued in the “ proof of loss” at.........................................$7,084 32
The property saved is valued...........................................................................1,514 11
$5,570 21

The generator is a vessel made of second hand (oak) wine cask. They are placed uprightly. They have a top and heading. The tops are perforated and placed in the vessel, resting on the shavings.

Beech shavings are placed in the vessel and pressed. Afterward the generator is charged with vinegar, which saturates the shavings.

Thus saturated they will last as many as fifteen years for vinegar' manufacturing purposes.

A preparation called mash” is the first process.

It consists of molasses, water and yeast fermented.

It is poured into stills and distilled into low wines.

It passes to a receiving tank, and from it to the generator where the vinegar is formed.

The vinegar is daily drawn from the generators.

The case was tried by jury; their verdict was for plaintiff.

EXCEPTION.

The defendant’s exception to the prematurity of the action presents the first question which arises for our decision.

It was referred to the merits by consent of all parties.

A few days subsequent to the fire the plaintiff sent his preliminary proofs to adjust the loss to the defendants.

They were returned as incomplete.

Others were written on the 16th of July, and a few days after were placed in defendant’s hands, and he acknowledged their receipt in writing, mentioned no defects and did not present any objection.

One of these was mislaid; on the adjuster’s request, another copy was furnished.

In the certificate appended to the proof the notary did not certify that he was the nearest notary to the place of the fire, and that he had no interest in the loss.

The plaintiff testifies that this omission was waived by the adjuster.

The adjuster testifies that-he only waived the clause of the policy relating to the notary’s residence.

On defendant’s notice, plaintiff produced his books, as required; he was also examined at length as to his loss, at which examination defendant’s adjuster was present and propounded such questions as he saw proper.

The adjuster wrote out his estimate of loss, which was not accepted.

On the 21st of August a certificate was made by another notary, setting forth that he was without interest or concern in the loss.

Plaintiff testifies, substantially, that it was intended as cumulative testimony and not as a waiver of the final proofs in possession of the defendants.

In September the defects of the original certificates were called to plaintiff’s attention, and he was notified that the 2d of that month was the date of proof.

Considering that the first proof was returned for correction; that the second was retained by defendants; that the assured submitted his books, and that he was examined as to his loss by defendants; that a second copy was furnished of mislaid copy, and a second certificate was prepared as additional formality; that no notice of any defect was given prior to September, after further attempt at settlement had been abandoned; the case will not be dismissed.

“If the adjuster’s conduct would induce an honest belief that the proof then being made were all the company required, and the assessed did so believe, the jury might find that formal proof were waived.” 47 N. W. Rep. 149.

The facts in the case of Daniel vs. Ins. Co., 35 An. 99, are similar in many respects.

The court held that the assured may waive preliminary proof, either expressly or by implication.

On the Merits.

The contract of insurance is one of indemnity.

The insurer obligates himself to make good such loss or damage as may .'be sustained, not exceeding the amount of the policy.

The defendants contend that the amount claimed exceeds the value of the property, and that part of the property destroyed was not covered by the policy.

In interpreting the contract, we will commence by charging up the value of the property, in regard to which there is less difference.

The thirty large generators are not over-valued at $22 each, $660. The witnesses do not materially differ about these, and the defendants substantially admit the correctness of the estimate. The records do not disclose that sixty-two generators at $8.50 is an overcharge. Total, $527.

The defendants admit that they are worth about $7 each.

One of the witnesses for plaintiff, who is one of the directors of the defendant company, the Germania, and who was president of the Southern Vinegar Company, from whom plaintiff bought the plant, testified that they cost a larger amount.

With reference to the vinegar shavings, this witness said that it takes about a bushel of shavings to every ten gallon capacity.

That he bought the shavings, and in buying them followed that proportion. That while he was connected with the management they took out about half the shavings and charged the generators with fresh shavings.

The witnesses differ materially respecting the number of bushels of shavings.

We have determined to adopt that proportion (a bushel of shavings to every ten gallon capacity), in establishing the quantity in the small generators, viz.: 1035 x 28c. = $289.80.

This proportion will not be followed in so far as relates to the large generators, for the reason that the companies have admitted a larger number, and one of their witnesses on the subject testifies that 100 bushels were placed in several of these generators, charged under his direction.

These large generators produced more proportionately than the small ones.

The number of 100 is taken as correct, making, total, 3000 bushels at 28e., $840.

The quantity of vinegar in the tanks has given rise to a number of estimates.

The vinegar could not be measured in the generators, at any time after they were charged, for the least handling would have destroyed them.

After weighing the conflicting testimony and endeavoring, as far as possible, to make it conform to a proportionate number of shavings used, we conclude that the sixty-two generators contained each 65 gallons of vinegar; 4030 gallons at 16e., $644.80.

We make a proportionate deduction from the quantity of the vinegar which was in the large generators, to the number of bushels of shavings found by us, viz.: five-sixths, $1440.

The witnesses have all testified that the vinegar is all used in saturating the shavings, except, possibly, comparatively few gallons at the bottom of the generators.

In throwing away parts of the saturated shavings, as was proven, some of the vinegar must also have been lost.

Of this we have kept account by making deductions as above.

There are amounts charged for vinegar in process of manufacture and vinegar manufactured in the generators at the time of the fire.

The total is $241.82.

Part of this is for the manufactured article, not yet drawn: amount, $95.90.

It was merchantable vinegar, which would have been drawn that day had not the fire occurred.

The remainder is for vinegar that settles at the bottom of the tank. This remainder, viz.: $145.92, is not sustained by the evidence.

The plaintiff claims the value of two tanks and appurtenances destroyed, $76.

This is covered by the policy.

The claim for “ knocked down ” cisterns is not within the terms of the insurance.

On statement two of the “proof of loss” claimed under the following reference to the property in the policy, viz.:

“ One stock of vinegar in store and in tank are mash and “ low wines.”

The mixture in process of manufacture is not vinegar and is not included within the terms of the policy insuring vinegar, nor is it included within the clause insuring implements of the plant.

It was not an instrument of the plant, nor a tpol, utensil or vessel, and, therefore, it is not an implement.

The president of the company who insured the plant originally so understood.

The insured testifying says:

“ I claim nothing out of the company, nothing but the loss of the vinegar and the generators.”

It' is proven that the plaintiff lost in addition 6550 gallons of vinegar worth $458.50, that is five barrels and seventeen and a half half-barxels of vinegar. Plaintiff admits in his testimony that there should be deducted an amount on statement three of $48.51.

An amount, it is claimed, should be deducted for depreciation in the value of the property.

The testimony to prove depreciation is conflicting.

We have appraised the implements of the plant and the vinegar separately at their value.

We did not consider the value of the plant as a whole.

Its life is at least ten years.

It was established not long since; it had been repaired and improved.

It was in good order.

Our conclusion will not admit of deductions for deterioration.

The value of the property destroyed amounts to $5032.10, from which we deduct the amount for which the property damaged sold, $148.26; vinegar saved, $48.51; balance $4835.33.

The fermentation and distillation of mixtures in the manufacture of vinegar was a new subject to us.

We have given it our best attention and conclude that the verdict should be reduced to said amount. There being two judgments in the case as consolidated, each judgment is amended and the amount reduced.

It is, therefore, ordered, adjudged and decreed that the verdict and the judgment appealed from in said case be amended by reducing the same from two thousand seven hundred and thirty-two dollars and ninety-five cents ($2732.95) to two thousand four hundred and seventeen dollars and sixty-five cents ($2417.65), with interest at the rate of 5 per cent, per annum on the last mentioned amount, from judicial demand. As amended judgment is affirmed. Plaintiff and appellee to pay costs of appeal.


text:
    John T. Purves, vs. Firemen’s Insurance Company, Consolidated.
   It is ordered adjudged and decreed that the verdict and judgment appealed from be amended by reducing it from two thousand seven hundred and thirty-two dollars and ninety-five cents ($2732.95) to two thousand four hundred and seventeen dollars and sixty-five cents ($2417.65), with interest thereon at 5 per cent, from judicial demand. As amended judgment affirmed. Plaintiff and appellee to pay costs of appeal.


author: Watkins, J.

text:
    No. 10,871.
    Isaac R. Adams, President of the Police Jury of the Parish of Catahoula, et al., vs. A. A. Forsyth and E. S. Robertson, Enumerators.
    Aet 107 of 1890 purporting to create a new parish called Troy is illegal and unconstitutional, because it increases representation in the House of Representatives beyond the maximum number fixed in the sixteenth article of the Constitution-.
    APPEAL from the Seventh District Court for the Parish of Catahoula, Ellis, J. _
    F. P. Poehé, J. P. Ellis, H. B. Taliaferro and D. N. Thompson for Plaintiffs and Appellees :
    1.By the restrictions placed to the power of the Legislature to create new parishes," the Constitution manifestly intends to subordinate the will of the-Legislature to that of the people of the parish or parishes to be affected thereby through their ballots. Act No. 39 of 1886.
    2.Section 14 of Act 107 of 1890 does not purport to create or appoint a board or committee of enumerators, but in terms it gives to three designated persons-jointly the power to mate jointly an enumeration of the inhabitants of the old and of the new parish.
    3.A special agency, delegated by an act of the Legislature for a particular purpose, must be strictly pursued, and when the power is eonferred.on three commissioners, jointly to do a certain act, they must all join in executing the duty there imposed. 31 Miss. 425; 4 English (Arh.), p. 320.
    4.It the purpose of a statute has a single object, to create a new parish, and some of its vital provisions are void, the whole act must fail unless sufficient remains to affect the object without the aid of the invalid portion. Cooley Const. Limitations, p. 211, 6th Ed.; 5 Ohio, 1497; 13 Wisconsin, 398. The administration of justice is the essential purpose of government in Louisiana. Any statute creating a new parish without providing constitutional means of administering justice within its limits is void. Constitution of 1879, Preamble, Art. 7.

      Luce & Lemle for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

Suit was commenced on August 13, 1890, by the police jury of Catahoula parish, duly authorized by ordinance, joined by sundry taxpayers thereof, alleging the illegality and uneonstitutionality of Act 107 of 1890, creating the new parish of Troy, and providing for the organization thereof.

Averring that said act provides for an enumeration of the inhabitants of said parish — that portion of which the new parish is to be formed, and that portion, also, that will remain after its formation— in order to ascertain whether there is the constitutional number in each; and designates three persons who are specially authorized to make said enumeration, and return to the Secretary of State the result thereof; and, further, averring the refusal and declination of one of said enumerators to act in the premises, and the apprehended illegality and nullity of any action that might be taken by the two remaining — petitioners prayed for and obtained an injunction restraining further proceedings by them pendente lite.

On rule taken by the defendants, in limine, the lower judge-quashed the writ, on the ground that it had been prematurely and' improvidently granted, and from that interlocutory decree the-plaintiffs appealed, suspensively.

On the trial of the merits, there was judgment in plaintiff’s favor, and the defendants, likewise, appealed.

Therefore, the case is practically consolidated — the two appeals being presented under a single number and title — and stands before us in precisely the same attitude it occupied, originally, in the court a qua.

The defendants prefaced their answer with several exceptions, the-chief of which are: 1. That the plaintiffs are without capacity or interest to stand in judgment. 2. That the subject-matter of this suit lies outside the domain of judicial power. 3. The defendants are incompetent to stand in judgment for the determination of the. constitutionality of the act; but, as it is apparent that these questions were decided, and definitely settled in litigation to which the defendants were parties, and settled adversely to prevent contention, there need be no further mention made of them. State ex rel. Forsyth et al. vs. Judge, 42 An. 1104.

The same may be said of the prematurity and improvidence of the injunction, for, whilst not deciding the question, the logic and purport of our opinion in that case are conclusively against the ruling of the judge a quo. For it proceeds upon the theory that the enumeration contemplated by the statute was the first and fundamental step to be taken in the formation of the new parish, and a condition precedent to its consummation.

Had plaintiffs awaited the completion of the enumeration, and return made to the Secretary of State, an injunction would have been, manifestly, too late. It is our opinion that the injunction was timely and provident, and quashing it was error. It is, therefore, plain that the injunction should be reinstated at appellee’s cost, in both courts, without reference to our decision on the merits.

There are several grounds assigned by petitioners for the unconstitutionality of the legislative act creating the new parish of Troy, but we deem it necessary to take notice of only one, and that is the fifth, which is as follows, viz.: That the act is in violation of, and in conflict with, the provisions of Article 16 of the Constitution in this, that said article fixes the total number of representatives in the General Assembly at “ not more than ninety-eight (98) and not less than seventy (70) and that said act provides that the new parish of Troy shall have one representative — thus increasing the total number to ninety-nine (99), it being in excess of that limitation.

There is, in our opinion, no escape from the conclusion that the act is unconstitutional, on that ground.

It appears from the terms of the act that the territory of which the new parish is proposed to be formed, is to be taken from the existing parish of Catahoula exclusively; and as it has but one representative, under the constitutional apportionment of 1880, the formation of a new parish from part of its territory, which is entitled to one' representative, also, the necessary result is to increase the total number of representatives by one — thus giving to the next General Assembly ninety-nine, instead of ninety-eight, members, in violation of the Constitution.

The language of the Constitution is imperative: “Each parish shall have at least one representative. * * * * The number of representatives shall not be more than ninety-eight nor less than seventy.” Art. 16.

In Article 17 all the parishes of the State are designated by name, and to each is apportioned its representation in the General Assembly, the total number of representatives aggregating ninety-eight, the maximum that is allowed by the preceding article. Hence, if the new parish of Troy is given one representative, the number will be increased to ninety-nine, thus violating one of those constitutional requirements; and if the new parish be disallowed representation altogether, the other will be violated. For it would not do for us to say that a new parish could be formed by an act of the Legislature, without a representative being provided for, in the face of the constitutional declaration that it shall have one.

A further provision of Article 17 is that “ this apportionment ”— i. e., the apportionment that is made in that article — “ shall not be changed or altered in any manner, until after the enumeration shall have been taken by the State in 1890, in accordance with the provisions of Articles 16 and 17.”

Looking to Article 16 to ascertain the manner in which an enumeration is to be made, we find the declaration that it “ shall be made in 1890, and subsequent enumerations shall be made every tenth year thereafter, in such manner as shall be prescribed by law,” etc.

Now it is an admitted fact that an enumeration was made in the year 1890, in the manner required, but that no apportionment of representation was made by the General Assembly; it is, therefore, clear that, until some future General Assembly shall make an apportionment different from that designated in Article 17, it must remain in force. But Article 16 further declares that at its first session after each enumeration, the General Assembly shall apportion the representation among the several parishes,” etc., thus clearly indicating, in the most emphatic language, the duty of the General Assembly to take prompt and immediate action in making an apportionment. We need not say that this precept is mandatory, and that an apportionment could not be legally made at a subsequent session of the General Assembly; but it is quite sufficient for us to say that the General Assembly was fully authorized, and, at least, directed to make an apportionment at its first session after the completion of an enumeration, and failed to do it. The consequence is that the General Assembly of 1892-94 will remain just as that of 1888-90 was composed; and if the plaintiffs’ case fails, and the act creating the new parsh of Troy is held to be constitutional, its rep - resentative can not be permitted to take his seat in the House of Representatives at the next session of the General Assembly, without violating the plain and unambiguous terms of the sixteenth article of the Oonstitution — as he would evidently be the ninety-ninth representative.

It appears to our minds self-evident that the Legislature is powerless in this manner to increase the representation fixed in the Oonstitution ; and equally as much so to create a new parish which would ■be entitled to representation, but whose representative could not take any part in legislative proceedings, as such.

Under the express terms of the 16th article of the Constitution declaring that ‘ ‘ the number of representatives shall not be more than .ninety-eight,” etc., it would seem to be impossible for the Legislature to increase that number; as it seems clear that the only way in which new parishes, such as Troy, can be created, is by reducing the total number of representatives under a new apportionment, and thus leave a margin for their formation.

But those are contingencies that must be provided for in the future, and the instant case must be determined by the state of facts existing at the time the law under consideration was enacted. Por if it was at the time of its passage an unconstitutional law, circumstances subsequently arising could not rehabilitate it and make it constitutional.

A parish created without representation would be an anomaly. The Constitution declares that “representation in the House of Representatives shall be equal and uniform and shall be regulated .and ascertained by the total population.” Art. 16.

The new parish of Troy would be quite as much entitled to share in the representation as any other parish in the State; quite as much as the parish of Catahoula.

It is therefore as impossible to conceive of a parish without representation, as of one without the pale of any judiciary system. A parish is a complete political entity, possessed of judicial, political and ministerial functions; and no act of the Legislature creating a new parish can receive sanction as constitutional, which does not guarantee the right of representation. The guarantee of the act in question is nugatory, because it is repugnant to the Constitution.

That guarantee being read out of the act the new parish would be emasculated of all political power, the existence of which is essential to its existence. The act in question is null and void.

It is therefore ordered and decreed that the interlocutory decree quashing plaintiffs’ injunction be annulled and that said injunction be reinstated at defendant’s cost in both courts; and it is further ordered that the judgment pronounced upon the merits be affirmed.


author: McEnery, J.

text:
    No. 10,973.
    The State of Louisiana vs. C. V. Dennison.
    A charge to a jury in a criminal case in which the judge limits himself to instructing the jury to the law in the case, and refrains from recapitulating the evidence so as to influence them, and does not repeat or state the testimony of a witness, and does not give an opinion as to what facts have been proved or disproved, affords no ground of complaint.
    A charge in the following words is not error:
    And whilst malice and premeditation involved a prior intention to do the act in Question, it is not necessary that the intention should have been conceived for any particular time. It is as much premeditation if it be entered into the mind a moment before the act as if it entered years before.”
    A PPEAL from the Eleventh District Court, Parish of Natehi toches. Pierson, J. _

      W. H. Rogers, Attorney General, D. G. Scarborough, District Attorney and M. H. Carver, for the State, Appellee:

      W. H. Jack for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The accused was tried on a charge of murder, and convicted of manslaughter, and was sentenced to hard labor for a period of ten years. From the verdict thus rendered and sentence thus imposed, he has appealed on grounds stated in two bills of exception to portions of the written charge of the trial judge.

In the first bill it is urged that the district judge trenched upon the facts of the ease, and intimated his opinion as to the legal bearing of the evidence to the prejudice of the accused.

The part of the charge complained of is as follows:

“Although it may be the unwritten law of the land that a husband, father and brother may lawfully slay one who debauches or ■deflowers his wife, daughter or sister, no law, written or unwritten, justifies the settlement of other domestic troubles or infelicities by resort to deadly weapons.

“Therefore, even if you believe from the evidence that the deceased, Hazlewood, either persuaded the wife of the prisoner to leave his bed and board, or afford her shelter or protection (if she quit him of her own accord), in neither case would such fact excuse the killing. Such family troubles can not lawfully be adjusted by the deadly bullet. The extreme legal effect of such provocation would be to support the charge of malice.”

The following are the reasons, appended to the bill, by the judge for the charge:

“The defence set up by the prisoner was that the deceased, in conjunction with his father-in-law, had interfered with his domestic relations, and persuaded his wife to leave him and go to her father’s house. The prisoner had been married about two months to a girl of sixteen years of age, without the consent of her parents, and by elopement with the girl. The deceased had been married about six months to a sister of the prisoner’s wife, and was living, at the time of the killing, with G. W. Hawthorn, the father of both. The young wife of the prisoner left his bed and board about six days before the killing, for what reason it does not clearly appear, the prisoner claiming that it was on account of the persuasion of the deceased, and her father and the prosecution claiming that it was on account of ill treatment and dissipation of the prisoner, both propositions being supported by some presumption, but unsatisfactory evidence.

‘ ‘ In the fatal rencounter that took place, the prisoner was the aggressor, assaulting the deceased with a heavy cane, the deceased being unarmed, and offering such resistance as he could with his hands.

“ Upon the interference of three several bystanders, each endeavoring to prevent further violence, the cane was taken from the prisoner, the deceased retiring from the conflict, followed by the prisoner, who drew a pistol from his pocket, and fired the fatal shot, the parties being about twelve feet apart at the time.

“The counsel for the accused, in his argument, urged that by the higher law of the country, not found or sanctioned by the authorities, that the jury would be justified in excusing the act of killing, on account of the alleged interference by the deceased in the domestic affairs of the prisoner, as above recited. • Much discussion was had before the jury upon the question, and this discussion gave rise to the charge complained of. ’ ’

The second bill of exception is taken to the following charge:

“ And whilst malice and premeditation involve a prior intention to do the act in question, it is not necessary that this intention should have been conceived for any particular time. It is as much premeditation if it be entered into the mind a - moment before the act as if it entered years before, and when deliberate malice is shown and established its continuance down to the perpetration of the homicide will be presumed unless rebutted.”

In the parts of the charge complained of we fail to perceive where there is any violation of Section 991, Revised Statutes. The trial judge limited himself to giving the jury a knowledge of the law applicable to the case. He refrained from stating or recapitulating the evidence so as to influence their decision on the facts, and he did not repeat or state to them the testimony of any witness, nor did he give any opinion as to what facts had been proved. Revised Statutes, Section 991.

In the second bill it is urged that the trial judge erred in “assuming a condition of things wholly incompatible with the idea of premeditated malice, and highly prejudicial to the rights of the defendant.”

In the brief of counsel this objection is explained as referring to the time when the prior intention to kill was conceived. That when it was conceived a “moment” or an “instant” before the homicide, the time is “indefinite” and “indivisible,” and is “incompatible with the. idea of deliberation and premeditation.”

The defendant was charged with murder. The trial judge, by law, was compelled to charge as to malice. There is no time fixed at which the intention may enter the mind of the accused. As stated by the trial judge, it may be a moment or immediately before the homicide, and when so conceived is as much malice as if entertained a year or more.

Judgment affirmed.


text:
    No. 10,969.
    The Police Jury of the Parish of Lafourche et al. vs. The Thibodaux Bridge Company, in Liquidation.
    Where a corporation builds a bridge for a town and parish jointly, and the exclusive privilege is granted to the corporation to collect toll for a designated number of years, at the end of the franchise, unless there is an express agreement to the contrary, the bridge must be delivered to the parish and town without compensation. The corporations became the owners of the bridge when it was completed, and the corporation which built it only owned the franchise.

      The consideration for building the bridge for the political corporation was the franchise grained to the building corporation.
    APPEAL from the Twentieth District Court for the Parish of Lafourche. Beattie, J.

      L. P. Caillouet for Plaintiffs and Appellants.

      Knobloch & Moore for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

By Act 67 of 1855 the Legislature of the State authorized the police jury of Lafourche parish and the town of Thibodaux to construct a bridge across the Bayou Lafourche, within the corporate limits of the town of Thibodaux, and the two political corporations were authorized to contract with any person or corporation to build the same, and to grant to the person or corporation constructing the bridge the exclusive right and privilege to collect toll as the police jury or said town might allow for a term not to exceed twenty years. The privilege to collect toll was granted, and the schedule of prices for crossing the bridge fixed.

The defendant corporation was organized for the purpose of building the bridge.

The company built the bridge.

It was destroyed in 1862.

From this time to 1867, the town of Thibodaux operated a ferry for its exclusive privilege.

In 1866. the police jury of Lafourche and the town of Thibodaux were authorized by legislative act to reconstruct the bridge.

The defendant company under and by virtue of this authority reconstructed the bridge, with the exclusive privilege to collect toll until 31st December, 1891.

The fifth, section of the charter of the defendant company is as follows:

When the period has arrived for the liquidation of the affairs of this corporation, that liquidation shall be conducted by three stockholders to be elected by a majority of the stockholders in amount and shall be styled liquidating commissioners.

“It shall be their duty to sell and dispose of the entire property of the corporation (except the bridge that shall be abandoned to the police jury of this parish and to the mayor and trustees of the town of Thibodaux), on terms to be fixed by a majority of the stockholders in amount, at a general meeting; they shall collect all amounts then’ due this corporation, and after paying all its liabilities, divide the net proceeds of sale and collection among stockholders,” etc.

On the 15th of January, 1892, plaintiffs instituted this suit claiming the right of being putin possession, and without any compensation to defendant, of the bridge in controversy, basing their right on the above quoted article of the charter of defendant’s company. The answer of the defendant is that the plaintiffs can not go into possession without paying defendant for the value of the material and the cost of construction of said bridge, and they pray judgment in re-convention against plaintiffs therefor. The judgment of the District Oourt decrees plaintiffs entitled to the bridge, and awards judgment in favor of defendant in reconvention for $13,500, and plaintiffs appeal therefrom.

The stipulation in the written agreement signed by counsel herein is: “ That the sole question submitted for decision is whether or not the plaintiffs under the fifth article of defendant’s charter and the law in such cases made and provided are entitled to the said bridge and pier without paying or compensating the defendant company therefor,” and it is further stipulated therein that: “In the event of it being held that payment or compensation is due, then the court shall award judgment against plaintiffs for such sums as the evidence may establish, as being equal to the value of the materials and cost of construction of said bridge and pier.”

It is admitted that the bridge reverts to plaintiffs, and the question presented is whether they are compelled to pay the defendant corporation for the value of the material and the cost of construction.

There was no written contract between the parties. The bridge company having been organized for the special purpose of building and operating the bridge, it seems that the contract was embodied in its charter.

In the fifth section of the charter it is stipulated that the bridge, at the expiration of the life of the company, shall be abandoned to the plaintiffs. The word “ abandoned ” was qsed in the sense that the company intended to relinquish and surrender its rights of property in the bridge to the plaintiffs.

This is made evident by the fact that in said section five of the charter the company in process of liquidation at the expiration of the charter provided for the sale of all its property, except the bridge, which was to be abandoned to plaintiffs, and the distribution of the proceeds among the stockholders. No provision whatever is made for the sale of the bridge and the distribution of the proceeds; thus showing that no proceeds from its sale were ever intended to be realized.

In the legislative permission to authorize the plaintiffs to contract for the building of the bridge there is no power granted to the plaintiffs to buy the bridge. Without this authority conferred upon the plaintiffs by the Legislature of the State they are without power to purchase the bridge from the defendant corporation.

Under the general power conferred by statute to build bridges, the local authority may purchase a bridge, already constructed, along a highway, which it is necessary for the public to use, by private persons or a corporation.

But when the structure is of that character that it is intended to bridge a navigable stream, costing a large sum of money, and it is necessary to get legislative permission to build it, the local authority can not go beyond the power specially conferred by the act of the Legislature.

In a particular ease where the Legislature deems it necessary to grant the power to construct a particular bridge at a designated point, it withdraws the power in the particular case, to build the bridge, conferred upon the local subdivision generally to build bridges. The State issues a special mandate to build the bridge according to legislative will at the point located.

The bridge constructed by the defendant connected a system of public highways.

It continued a highway over a navigable stream. There is no way of vacating or extinguishing the highway except by due course of law. The highway was legally established when the bridge was built. It must remain so, and the defendants at the expiration of their franchise can not obstruct its public use.

The defendant corporation only had a right of franchise in taking tolls.

The bridge when completed became the property of the plaintiffs. There is no obligation on the part of the plaintiffs to pay for the material and cost of construction in the absence of an express agreement.

It has been held that where a canal company built a bridge partly for its own use and partly for the use of the public, the materials of the bridge after it had been swept away from the place, and after the abandonment of the canal, belonged to the county and did not pass to the purchaser of the canal under a ¡decree of foreclosure.” Elliott, Roads and Streets, p. 36.

The author above quoted in page 33 says: “If the corporation, in consideration of the grant of the franchise to gather tolls for a designated period, builds a bridge connecting with a system of public highways, the fair and just intendment is that at the expiration of the time fixed by law the bridge shall remain for the public. Nor is there any injustice in this rule, for those who accept the franchise must know, as a matter of law, that the bridge which once becomes a part of the system of highways so as to be necessary for the public convenience must so remain, although the period for reaping profit from it may have expired. It is, in truth, on this implied condition that such franchises are granted and accepted.”

In the case of Central Bridge Company vs. City of Lowell, 15 Gray (Mass.) 106, it was held that a bridge might be lawfully taken and appropriated to the use of the public by right of eminent domain and without compensating the proprietors for the actual value of the bridge as a structure, independent of their franchise, but only for the loss of the franchise.

The consideration for building]the bridge was the franchise to collect tolls for a designated number of years. The plaintiffs needed the bridge for the convenience of the public. The defendants agreed to build it for the franchise granted. The bridge as soon as completed became the property of the plaintiffs, and at the termination of this franchise they are compelled to deliver the bridge to plaintiffs.

They asserted their duty in their charter, when in the fifth section they agreed to abandon the bridge to the plaintiffs.

The defendants owned the franchise and not the bridge.

They had the use of the bridge during the existence of their franchise, and held it in trust for the public. The defendant corporation, under their charter, stood in the same relation to the public as the plaintiffs would have done had they built the bridge.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that there be judgment for the plaintiffs decreeing them to be the joint owners of the bridge across Bayou Lafourche built by the Thibodaux Bridge Company, in accordance with the prayer of plaintiffs’ petition, and that the liquidating commissioners deliver to the plaintiffs said bridge, with the piers, pilings and appurtenances belonging to the same, without delay and without cost.

And it is further ordered that the reconventional demand of defendants be rejected.