author: Bermudez, C. J. Fenner, J.

text:
    No. 8022.
    Succession of Josephine Hale Ames, Wife of Hugh O. Ames. On Opposition to Tableau. H. O. Ames, Executor, Appellant.
    On Motion to Dismiss.
    Differently from an Administrator, a testamentary Executor can appeal officially as Executor, from a judgment rendered against liim and in favor of the succession.
    On the Merits.
    The Opponents, beiDg both forced heirs and assignees of some particular legatees, have the right to contest all the debts and charges on the Tableau, and are not limited to the contestation of such only as affect their legitime.

    An Executor is not entitled to favor in the assertion of merely technical pleas tending to exclude from judicial determination questions affecting the lawful distribution of the estate administered by him.
    The rule of exclusion of the husband’s testimony against his wife, C. O. 2281', applies only during the existence of the marriage. This question is settled by previous decisions.
    The husband cannot claim from the estate of his deceased wife, payment of a contract formed between her and him during marriage.

      Demand of delivery or payment of a special legacy, to entitle the legacy to interest, is expressly dispensed with when the legatee is himself the Executor. C. 0.1628-30.*
    The husband is not entitled against his deceased wife’s estate to remuneration for services rendered to her during marriage.
    A disguised donation'from the wife'to the husband,- is not reducible to the disposable portion, but is absolutely null and void.
    APPEAL- from the Civil District. Court for the parish of Orleans. Tissot, J.
    On Motion to Dismiss.

      Hudson & Fearn for the Appellees:
    It is only where a judgment is rendered by which a succession can he aggrieved, that a succession representative can, in his official capacity, appeal from the same.
    Wliere the judgment disallows a claim placed on the tableau as due to the executor personally, he should appeal in his personal capacity and, failing to do so, tbe costs of appeal taken by him in his official capacity should not he paid by the succession.
    Creditors, whoso claims have been disallowed, cannot make themselves parties to tbe appeal without taking an appeal in their own names and giving bond.

      D. C. & L. L. Labait for the Appellant:
    First — “The right of appeal is constitutional and will not be dismissed unless appellees are clearly entitled to dismissal,”
    Second — Tbe authorities in relation to the right of appeal by syndics and administrators do not apply to testamentary executors, because tbe latter represent tbe will of tbe testator and are bound faithfully to carry out bis desires, while tbe former are mere stakeholders and have no interest to disturb the order of payment made by tbe court; parties aggrieved have their right of appeal individually.
    Third — The will of a testatoris the law to govern a testamentary executor, and the succession is aggrieved by a decision which in effect annuls a provision of the will and diverts a part of the estate to a different party from those named by tbe testator, and deprives the executor of the power of executing it as therein directed.
    Fourth — Á1L parties interested, if not appellants are appellees, when by motion and bond filed tbe court grants the appeal.
    On the Merits.

      Hudson & Fearn for Opponents and Appellees:
    When parties who are forced heirs, and also the transferees of the residuary legatees, describe themselves individually by name, and as forced heirs, in an opposition to the executor’s account, praying for all “general and equitable relief,” and evidence is reoeived without objection, to show th'eir character as transferees of the residuary legatees, the law, pleadings and proof justify a judgment in accordance therewith, dismissing an exception to their want of capacity. 14 An. 864.
    Such a judgment dismissing the exception is fully sustained, when the evidence received without objection shows that the exceptor had full knowledge, personally and by participation in judicial proceedings of record, of the possession of the two capacities by the opponents, and had dealt with them judicially as such. For the object of pleading is notice, to prevent surprise, and to enable tbe party to meet tbe issue tendered. C. M. 650; 4 ÍT. S. 280; 7 ÍT. S. 354 ; 17 X. 238; 5 An. 531, 673 ; 23 An. 676.
    Tbe executor, v?hen ho presents his account and tableau, is simply a plaintiff against all the world having an interest to oppose it. Opponents are defendants, and their oppositions are in the nature of answers, requiring no special allegations to authorize the introduction of evidence tending to disprove the correctness of the account. 28 An. 607; 29 An. 521; 30 An. 270; 10 An. 80.
    Forced heirs, as such, have an interest to oppose all debts placed on the tableau, when not due or prescribed; for all such debts tend to diminish their legitime, which is measured, not to the entire estate without reference to its debts, but to a quantum fixed after deducting all the debts. 28 An. 607; 32 An. 303, State ex rel. Ames, Executor, vs. Judge of Second District Court.
    Residuary legatees, or their transferees, have also an interest to oppose debts placed on the tableau, when not due or prescribed; for all such pretended debts directly tend to diminish the residuum of the estate coming to them under the will.
    When the evidence shows that a claim in favor of the executor, individually, rests exclusively on his testimony to show a contract between his deceased wife, the testatrix, to pay him for services to another, the claim must be refected, because of the incapacity of husband and wife to make such a contract, and also, because the promise to pay the debt of another must be in writing, C. C. article 2278, -ÍTo. 3; C. C. 2446; 2 An. 484; 1 R. 219 ; 6 L. 349 ; 6 R. 276 ; 1 An. 303 ; 4 An. 71.
    A wife, having children by a former marriage, who contracts a .second marriage, is incapable, in law, of giving by testament to her husband, more, in any case, than the usufruct of one-fifth of her estate. Any disguised donation made to the husband of property in full ownership is absolutely and radically null and void. C. O. articles 1752,1754 ; 2 An. 42; 15 An. 287.
    Such disguised donations, being fraud on the law and contrary to public order and morals, is so absolutely null, that it will be treated as non scripium; and the nullity of the donation may be invoked both by forced heirs and any other parties in interest, as the residuary ' legatees or their transferees. C. C. article 1519; 15 An.-600; 16 An. 245.

      D. C. & L. L, Labatt for the Executor, Appellant:
    First — An opposition by forced heirs is not the proper form of proceeding to assail the administration of their ancestor’s succession. It can only be done where injury is alleged and proven, and by petition and citation.in a direct action.
    Second — Parties appearing as litigants, asserting rights flowing from a capacity disclosed under special allegations, and with a prayer for general relief, cannot be relieved from laches or neglect, in failing to set up other rights not disclosed, so as to evade the consequences of a final homologation of an account never opposed by and binding upon them, as to those rights.
    Third — Where the machinery for asserting legal right? are disregarded, and parties mistake the remedies to which they are entitled and are concluded by solemn adjudication of a competent court, they cannot, in another form, require the courts to relieve them from • the consequences of their own errors or mistakes.
    Fourth — A remunerative donation by one of the spouses in the last will, the payment of which is taken out of the disposable portion, is not within the prohibition against giving or bequeathing more than a usufruct of one-fifth to the surviving spouse. See 2 Rob., p. —.
    Forced heirs are nothing more than creditors of their ancestors’ succession, and if there is ample to pay them, are without legal interest to maintain a suit to annul, or to oppose an account or final tableau. Rachel vs. Rachel, 4th An. 501; 8 An. 21.
    The acquisition by forced heirs of the title of residuary legatees to the residuum, after full administration, confers no greater or other rights than those from whom they acquired.
    The prayer for general relief, applicable to particular pleadings, as forced heirs, cannot be interpreted to permit the presentation of other rights, derived from other parties, so as to open a final judgment of homologation and evade the consequences of the law as to such transferrors. 4 An. 216.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

A motion to dismiss the appeal taken by the executor of the deceased, is made by her forced heirs, on the ground : “that the judgment appealed from is one in favor of the succession, which is benefited and not aggrieved thereby, and that said executor cannot be permitted to use his official capacity for his individual advantage when he only is the one aggrieved by the judgment.”

The executor claims that the judgment affects not only himself, but also three other parties, a creditor and two legatees, and insists that he has a right to appeal from the judgment, both as concerns himself and those parties, in his official capacity and for their common good.

The authorities relied upon by the movers, 19 L. 278, 11 An. 177,12 An. 774, 82 An. 889, can receive no application in the case before us. It is evident from the very terms of the motion to dismiss, that it is based mainly on the ease in 32d A. R., in which the language used by the movers was employed by the Court.

The duties and rights of executors are in this respect different from those of administrators of successions.

The appointment of an executor by a testator is a mandate, anomalous in this, that it begins when other mandates, intended to be exercised at a different time, terminate; i. e., at the death of the principal. Marcadé; vol. 3, p. 104; Art. C. N. 1025. When it is accepted, it is a contract binding on the conscience of the executor, the effect of which he is not lightly to disregard. Mourlon, vol. 2, p. 444 (5); Art. 1034, C. N; Coin Delisle, p. 487, No. 11. By such an appointment, the testator constitutes the executor a mediator between the various parties who may have an interest in his succession, whether under the will, or under the law. Duranton, No. 390. The instructions of the principal to his agent in such a case are peremptory, when their execution infringes no prohibitory law. They generally are : You shall pay my debts, as well those existing before, as those arising after, my death. You shall next pay or satisfy my special legatees, and, otherwise, carry out my intentions. You shall next and last, deliver the residue of my estate to such person or persons as it accrues to, under my will, or under the law, or both.

The executor who has the seisin, represents the active and passive mass of the succession, all the assets, all the liabilities, the entire residue. Where he happens to be a creditor, a legatee, he represents himself as such, officially, as effectually as he is authorized to represent others similarly situated. His trust of executor, of confidential agent and mandatory, charged with the execution of the sacred behests of the departed one, and to be held as such as long as they contravene no prohibitory law, — derives from the testator and not from the law, and cannot place him in duriori casu. He cannot be required to distinguish himself, as a creditor, as a legatee, from himself, as an executor, 3 An. 174, representing as he does all the creditors, all the legatees, and eventually the heirs, be they legal or testamentary. Coin Delisle D. & T. p. 486, No. 3; Merlin Rep. Vo. Ex. Test. No. 2; Grenier, No. 327; Toullier, No. 577; Duranton, No. 390, 392; Dalloz, ch. 8, Sec. 1, No. 1; Ricard, part 2, No. 66; Pothier, Disp. Test. Art. 2, ch. 5, p. 360; Furgóle, Nos. 20, 21, 23; C. N. 1025; R. C. C. 1658, 1659, 1660, 1661, 1672; C. P. 123; 3 An. 172; 10 R. 194; 1 An. 92; 4 An. 571; 7 L. 389; 26 An. 312; 23 An. 369; 12 An. 611.

It is & personal mandate, intransmissible in principle, but which, under special legislation in this State, can be, in certain cases, provisionally delegated. R. S. 2349. The powers which are conferred upon him, even where the heirs have taken away from him the seisin of the estate, by furnishing him funds to pay the debts and legacies, continue and last during all the time which is necessary to ¡wind up the estate and to execute the will of the deceased, which is to him, the law. Bicat testator et exit lex. O. P. 123 ; R. C. 0.1658,1676,1680,1673; O. N. 1051; R. S. 1471.

He gives no security, but can be required to do so, not only by the creditors of the deceased, or of his succession, by persons claiming property in kind, found among the assets of the succession, but also by the forced heirs of the deceased, when their legitime may be affected. R. C. G. 1677-, 1673; Succession Turnell, and authorities there cited. 32 An. 1218.

The functions of administrators are not at all of the same origin and of the same duration as those of executors. They are conferred by law and are restricted to a liquidation of the estate, and to the application of its funds to the payment of its creditors. That result once accomplished, their duties are at an end; they turn over to the heirs of the deceased what may remain in their hands, after payment of the liabilities. They do not represent the mass of the succession; they have no mandate of the deceased to execute. Where they are individually concerned as creditors, and their claims are not admitted, the authorities are that, if they appeal, they must do so in their individual capacity. This case in the 32d An. p. 889, was one of that description. Code Practice 123.

Upon a motion to dismiss, which involves the right of an executor to appeal from a judgment which modifies an account of his administration, we' cannot be expected, particularly in a case the transcript of which contains no less than 823 pages, to go behind the motion of appeal and inquire into the correctness of the judgment complained of, in order to ascertain the effect of such an appeal. It may, however, happen that, on the trial of the case on its merits, if we find that the executor should not have been permitted to appeal as he has done, we may summarily dispose of the case. As at present advised, and in a succession in which the assets have been appraised at more than $150,000, we do not feel authorized to dismiss the appeal. 26 An. 312; 1 An. 414; 2 An. 387; 4 An. 534.

It is, therefore, ordered that the motion to dismiss herein be accordingly overruled.

On the Merits.

The opinion of the Court was delivered by

Fenner, J.

The will of Mrs. Josephine Hale Ames contained the following provisions:

“ My name is Josephine Hale Ames, widow by first marriage of the late Thomas Hale, and now the wife of Hugh O. Amesl
“I am aged fifty-two years and have four children,issue of my first marriage; the eldest is named Mary Hale Porteous; Anais Amelia Hale; the third is a boy, called Edward John Hale, and the fourth is Patrick Julian Hale.'
“ There is no children by my marriage with Mr. Ames.
“ I own property and effects in no other places than in New Orleans, Louisiana, and at Bay St. Louis, Mississippi.
“ I owe to Judge Sones and his wife a note given to them in December, eighteen hundred and seventy-one, for two thousand dollars, reduced to nineteen hundred dollars.
“I owe to my husband, Hugh O. Ames, ten per cent on my share of all the collections which he has made for account of the property and succession of Thomas Hále, from the first day of October, eighteen hundred and sixty-nine, until the date of settlement, or his relinquishment of the collection thereof; and I make him executor of my estate, without security and with seizin, or full charge of the property and effects belonging to my estate, wishing and desiring that he should receive full compensation for his services as such executor.
“ I wish to give and bequeath unto my husband the sum of one thousand dollars as a special legacy, outside of, and independent of, his commissions as executor, or of any other indebtedness due to him.
“I wish to give and do bequeath to my brother, Edward Jones, a resident of the city of New York, a legacy of one thousand dollars, to be paid out of the third or disposable quantum of my estate.
“ I wish and bequeath to my two sisters, Marie Antoinette Morrow, and' Mrs. Anais O’Hara, of Cincinnati, the piece of property and improvements, at the corner of Dauphine and St. Peter' streets, acquired by me from my mother’s succession.
* * * * * * *.* * *
“ I give and bequeath the large silver pitcher which I received from the orphans’ fair,” a pair of large solitaire diamond earrings, a solitaire diamond ring, and a cluster diamond brooch to my daughter Anais Amelia. . .
“ The silverware which I had in my charge, of my two sisters, and two pair of diamond earrings, and two brooches (small) also their property, I wish returned to them.
“ The donations of one thousand dollars each, to my husband and Mr. Sones, and of the property to my sisters or their heirs, is to be computed as part of the disposable portion of my estate. And all the rest or residue of the disposable portion, or third of' my estate I am allowed to dispose of, I give and bequeath in equal portions to my two sisters, Marie Antoinette Morrow, and Anais O’Hara; and if I should outlive either or both of them, then and in that case, I give the share herein donated to each, to the children of the said Mrs. Morrow and O’Hara, so that the children of Mrs. Morrow will have her half or share, and the children of Mrs. O’Hara will have her half or share.
“ The other two-thirds of my estate, by the laws of this State, belongs to my four children.
“ I revoke all other wills I may heretofore made or codicils of wills.”

H. O. Ames qualified as executor, and in that capacity administered the estate.

On the 8th of July, 1879, the executor filed his “third provisional account.” This account comprises (1st), a detailed statement of his receipts and expenditures on account of the succession, and (2d), a “ list of the debts due by the succession of Mrs. Josephine H. Ames, unpaid.” Under this last heading were placed the following items:

" No. 10. D. O. Labatt:
1876. Eor commission in going security to January 29, stay ■ execution on judgment in favor of Slidell, in suit No. 4335, in S. C. of La. vs. Est. Thomas Hale, in order to appeal to S. C. of U. S.
.Amount of $5000 do. same in suit No. 4336, in S. O. of La.. samé parties on similar appeal to S. C. of.U. S., amount____$5,000 00
a 2J per cent, on $10,000 with interest at 5 per cent, from February'7, 1877, until paid.................................. 250 00
“No. 11. B. Sones: Balance of note, according to provisions of will probated, with interest after December 12,1879, at 8 per cent........ 1,800 00
“No. 12. H. O. Ames: Legacy, according to provisions of will probated, with interest at 5 per cent, from February 7, 1877, until paid............ 1,000 00
“No. 13. Edward Jones:
Legacy, according to provisions of will probated, with interest at 5 per cent, from February 7,1877, until paid, Transferred to Morgan L. Smith........................ 1,000. 00
Forward..........................!...............$12,329 85
“ No. 14. H. O. Ames:
For ten per cent, on her share of the collections from community property in succession. Thomas Hale from October 1, ’69, to February 7, according to provisions of will probated—
1st account filed.......................... $27,273 89
2d “ “ 59,650 82
3d “ “ 27,779 32
4th “ “ ....’...................... 33,832 05
5th “ “ 33,377 54
6th “ “ 8,896 86
7th “ “ 9,957 60
$200,768 08
\ thereof..................................$100,384 04
a 10 per cent........................... 10,038 40
“No. 15. H. O. Ames:
For commissions on going security to stay execution on judgment favor Slidell heirs in suit No. 4335 in S. C. of La. vs. Ex. of Thos. Hale, in order to appeal to S. C. of U. S., amount $27,000. Do. same in No. 4336 in S. C. of La., same parties on similar appeal to S. C. of U. S., amount $20,000.
2¿ per cent, on $47,000, with interest at 5 per cent, from February 7,1877, until paid........................... 1,175 08

The children by first marriage, and forced heirs of Mrs. Ames, filed their oppositions to items Nos. 10,12, 14 and 15 of the account.

Prior to the filing of the account, these children had acquired, and had become the undisputed transferees of, the entire interests of the residuary legatees under the will; so that, at the time of filing their opposition they combined, in their own persons, the qualities both of forced heirs and of residuary legatees. This transfer was fully known to the executor, and, indeed, appeared on the record in prior proceedings had in the succession contradictorily with the executor. Their opposition, however, begins as followsThe petition of opposition of Mrs. Mary Hale Porteous, of Miss Anais A. Hale, Edward J. Hale and Patrick J. Hale, all of the city of New Orleans, and forced heirs of their late mother, Josephine H. Ames, respectfully shows,” etc., proceeding to oppose items Nos. 10,14 and 15, as “ not due in whole or in part,” and item No. 12, as far as it allows interest on the legacy.

To this petition the executor filed an exception that it disclosed no cause of action, for the reasons (in substance): 1st, that opponents, appearing only as forced heirs, are without interest to complain of the proposed payment of debts, legacies and expenses, because, over and above the same, there is ample property in the succession to satisfy their legitime; 2d, that forced heirs can only complain of donations or legacies, or expenses and costs of administration, when the same exceed the disposable portion, and then only on proof of such excess, and by direct action.

This exception was overruled in the lower court, the oppositions were tried and sustained, and from the judgment the executor has appealed.

On the Exception.

Considering that the terms of their opposition do not expressly confine opponents to their quality as forced heirs exclusively, but that they describe themselves both as individuals “ and forced heirs; ” considering that in their said opposition they assert, not only objections to the account which concerned them as forced heirs, but also some objections which would be appropriate only to their capacity as tranferees of the residuary legatees ; considering that the executor’s full knowledge of their double capacities prevented all danger of surprise to him from any vagueness in the pleadings ; considering that the executor, in presenting his tableau and seeking its homologation, stands as plaintiff 'against all the world having an interest to oppose it, that the burden of proof is upon him to establish its correctness, and that opponents stand as defendants and their oppositions as answers. 28 An. 607; 29 An. 521; 30 An. 270. Considering that, under such answers, they had the right to prove their interest in defending, if denied; considering that, on trial of the exception, it was fully proved that opponents were interested both as forced heirs and as transferees of the residuary legatees, and also that the exceptor was fully advised thereof before oppositions were filed, we are of opinion that the judge did not err in overruling the exception.

We have less hesitation in announcing this conclusion, in the present case, because the exception was interposed by the executor alone and exclusively in his capacity as such. He is not entitled to favor in the assertion of merely technical pleas tending to exclude from judicial termination questions affecting the lawful distribution of the estate administered by him.

We may add, moreover, that even if we were to hold opponents exclusively to their capacity as forced heirs, no purpose favorable to the desires of appellant would be thereby accomplished. Conceding, argument gratia, that forced heirs, as such, have no interest or consequent right to contest legacies or expenses and costs of administration, when the same do not trench upon their Ugitime, yet it is elementary that .debts due by the deceased at the moment of death are to be deducted from the mass of the succession, and that the proportion due the forced heirs is to be calculated only on the residuum left after such deduction. It follows, therefore, that, in the settlement of successions in which they are concerned, forced heirs have a vital interest in resisting the allowance of debts of the character above stated, unless the same are legally due and owing. Their right to oppose accounts of .executors and administrators admitting such debts and seeking judicial sanction thereof, is one commonly exercised and never questioned by any authority brought to our notice.

So far, then, as items 10 and 15 are concerned, they are, if due at all, unquestionably debts due at the death of Mrs. Ames, and, therefore, fully open to opposition by the forced heirs. Nor is the case altered by the proposal of the executor, in a scheme for final distribution presented by him as a witness on the trial of the case, to pay these debts out of the disposable portion. It is the law, and not the mere will or wish of the executor, which fixes the fund out of which debts are to be paid ; and the law directs that such debts, if allowed, shall be paid out of the mass of the succession.

So with regard to item 14, we consider the issue tendered by the account on its face, is whether it is a valid debt due by Mrs. Ames. By reference to the extract from the account presented above, it will be seen (1st.) that “the list of debts” included debts and legacies indiscriminately; and (2d ) that while items Nos. 12 and 13, are distinctly placed on the.tableau as “ legacies ” under the will, items Nos. 11 and 14, which are equally referred to in the will as debts, are not classed on the tableau as legacies, but are both set out as sums due, for considerations stated, “ according to the provisions of the will probated,” those provisions distinctly declaring that the testatrix owed the sums set down to the parties mentioned.

The effect of the homolagation of the tableau would, therefore, have been the judicial recognition of these claims as debts due by the decedent, and to be paid out of the mass of the succession. The forced heirs, then, even if confined in their opposition to’their rights as such, would have had an evident interest to oppose; and, in that case, the only question presented would have been debt vel non. .If held not to.be a debt, item 14 must have been stricken from the tableau. This would not have prevented the executor, however, from placing it on a new tableau as a legacy or donation, if he had so chosen. In that case, however, the residuary legatees (or their transferees) would have had the undoubted right to contest the same. Their failure to oppose the claim when placed on the tableau as a debt, and as such payable out of the mass of the estate, could not preclude them from opposing it when sought to be allowed as a donation payable exclusively out of the residuum coming to them.

Hence, we say that, even if the exception had been so far maintained as to confine opponents to their capacity as forced heirs, it would have proved of no ultimate advantage to any party in interest, except possibly in regard to the insignificant item No. 12.

Holding the exception, however, to have been- properly overruled ' in toto, and thus admitting opponents’ right to urge their opposition in both capacities, we find the issue so enlarged by the pleadings, evidence and argument, as to present all questions involved and argued in the case in proper shape for final determination; and we shall now consider them seriatim.

Item No. 10.

We think the judge erred in rejecting this item. It rests upon the testimony of Mr. Ames, the surviving husband; and it is objected that he is an incompetent witness under C. O. 2281, providing that “ the husband cannot be a witness for or against his wife, nor the wife for or against her husband.” The objéction is untenable. We consider it settled, that the rule of exclusion prescribed in this article, applies only during the pendency of the marriage, and ceases, as against the survivor, after the dissolution of the marriage by the death of one of the spouses. Succession of Reilly, 28 An. 669; Lehman vs. Levi, 30 An. 749; State vs. Ryan, id. 1176.

Mrs. Hale’s agreement to pay, individually, the commission charged is sufficiently proved. Her personal interest in the succession of Thomas Hale, for which the security was given, was a sufficient consideration to support her personal obligation, and the service rendered in becoming security, was one for which compensation might be lawfully stipulated.

Item IS.

The charge, however, by Mr. Ames for his own service in becoming security on appeal bonds for the succession of Thomas Hale, cannot be sustained, for two reasons, viz.: (1st.) The claim, exceeding $500., is not sufficiently proved by his own uncorroborated testimony under C. C. 2277, and we find no corroborative circumstances whatever; (2d.) the claim can only be supported on the basis of a contract for its payment between him and his wife, and such contract falls within none of the exceptions to the general rule of law rendering husband and wife incapable of contracting with each other.

The judge a quo, in his reasons for judgment, distinctly disallowed this item, but, by evident clerical error, his direction to. that effect was not carried out in the judgment as written up and signed. Under the prayer for amendment of appellees, we must amend the judgment accordingly.

Item No. 12.

The opposition to this item is confined to the allowance of interest on this particular legacy from the probate of the will. It is unquestionably the general rule that particular legatees are only entitled to interest from the date of'demand of delivery of the legacies. C. C. 1626. But the necessity of this demand is expressly dispensed with when the testamentary executor, having seizin, is himself the particular legatee. C. C. 1628-30. Such is the exact case here.

How, and why, should he make demand upon himself?

The cases referred to in the opinion of the judge a quo (13 An. 88, 28 An. 603, 24 An. 125) are all cases where the particular legatees were distinct persons irom the testamentary executor with seizin. They do not, therefore, apply to the instant case, which falls under the authority of Succession of Boone, 7 An. 127.

Item li.

This important item is based upon the declaration contained in the will of Mrs. Ames heretofore quoted, viz: “ I owe to my husband ten per cent on my share of all the collections which he has made for account of the property and succession of Thomas Hale,” etc.

Much reflection has failed to indicate to us any category of valid claims against the succession in which this item could be placed except that of a- debt due by the deceased or a donation mortis causa:

The intention of the testatrix appears, conclusively, from the face of the will, to have been the acknowledgment of a debt due by her, to be paid, as a debt, out of the mass of her estate, as shown by the following circumstances:

1st. Such is the plain import of the language used, “ I owe,” etc.

2d. The same language is used with reference to the note due to Judge Sones and wife, indicating that she regarded the two dispositions as standing on the same basis.

3d. In the succeeding clauses she makes two money bequests, one to her husband and the other to her brother, using therein the usual dispositive terms “ give and bequeath,” showing the distinction to be present in her mind between debts, and donations.

4th. She directs the “ donations of $1000 each ” to her husband and brother, “ to be computed as part of the disposable portion ” of her estate-suggesting the inevitable inference that she did not intend the debts acknowledged in favor of Judge Sones and her husband to be so paid, but expected them to be paid, as debts, according to law, out of the mass of her estate.

5th. After directing, as above, the donations mentioned and certain others to be paid out of the disposable portion, she proceeds to “ give and bequeath” “all the rest or residue of the disposable portion or third of the estate I am allowed to dispose of,” to her sisters.

In view of these provisions, it is difficult to discover any principle of testamentary interpretation, which would justify the executor or the Court in allowing this charge, under any circumstances, otherwise than as a debt due by the testatrix, and payable out of the mass of her succession.

Thus allowed and thus ordered to be paid, it is manifest that it would trench upon the légitime of the forced heirs, whicn is carved, in proportions fixed by law, not out of the entire mass of succession property, but out of the residuum thereof left after payment of the debts of the deceased. The rights of forced heirs, as such, result from the law, and are independent of the will of the deceased, who was powerless to diminish or affect them by any testamentary disposition whatever. Her acknowledgment of this sum as a debt, and her implied direction that it should be paid as such, not out of her disposable portion, the whole of which she expressly disposes of otherwise, but out of the only other possible source, the mass of estate, are in no manner conclusive upon the forced heirs, who have the absolute right to test the genuineness and validity of the deb.t so acknowledged, before permitting their légitime to be diminished by the allowance thereof. It is only actual, legal debts which can be charged upon the mass of the estate to the prejudice of the forced heirs. If a testatrix, besides disposing of the whole disposable portion, could create other recipients of her bounty by simply writing in her will, the words “ I owe,” instead of “ I give,” and could thus fasten them as creditors upon the mass, the rights of forced heirs would be deprived of the protection which the law assures them.

The question of debt vel non, as to this item, is, therefore, properly raised by the forced heirs, and must be determined independently of the testamentary acknowledgment, which could not make that a debt, which, in law, was not such.

The solution of this question is free from difficulty. It is clear, upon elementary principles, that in the relation of husband and wife subsisting between them, the services of Mr. Ames referred to in the will could not, either by contract or by the operation of law, be the source of any civil obligation on the part of his wife to him. R. C. C. 1760,1790; 6 La. 349; 1 Rob. 218, 220; 6 Rob. 276; 1 An. 302; 2 An. 483; 4 An. 65.

See, also, Williams vs. Hardy, 15 An. 286, where it is held, that after marriage, services, however meritorious, of one spouse to the other, can give no claim against the latter.

Under the construction of the will which we have suggested to be the proper one, we might rest our decision on this point alone.

But, supposing that we erred in this construction and that the provision might be considered in the light of a donation, and, if maintained as such, might be held payable out of the disposable portion, articles 1752 and 1754, Bev. C. C., oppose equally insuperable obstacles to the husband’s claim. They provide (article 1752)-, that “a man or woman, who contracts a subsequent marriage, having children by a former one, can give to his wife, or she to her husband, only the least child’s portion, and that only as a usufruct; and, in no case, shall the portion of which the donee is to have the usufruct, exceed the fifth part of the donee’s estate;” and (Art. 1754) “ husbands and wives cannot give to each other, indirectly, beyond what is permitted by the foregoing articles. All donations disguised, or made to persons interposed, shall be null and void.”

These articles, after learned controversy, have been held to apply to testamentary dispositions as well as to donations inter vivos. Depas vs. Riez, 2 An. 30.

If this claim be not a debt, as we think we have conclusively shown, it can be nothing else than a donation. As such, it falls distinctly within the prohibitions of the articles of the Code which we have quoted. The attempt to class it as a remunerative donation cannot have any effect upon the question. The law makes no distinction between different kinds of donations, but embraces, in its prohibition, all donations alike.. Where the services remunerated were of a character which might have been the subject of a lawful contract or of a legal claim founded on a quantum meruit, and where the party in whose favor the remuneration is awarded, might lawfully have been made the legatee of the entire disposable portion, such remunerative donations have received the following construction by the courts, viz; If the remuneration did not exceed the value of the services, the donation has been maintained, as a dation en paiement of a debt, even though it exceeded the disposable portion; if the remuneration was within the disposable quantum the donation has been maintained, even though it exceeded the value of the services; if it exceeded both the value of the services and the disposable quantum, it would be reduced to the value of the services, if that exceeded the disposable quantum, or to the disposable quantum if that exceeded the value of the services. In more general terms, the doctrine is that, to the extent of the value of the services, the donation is treated as a dation en paiement of the debt due for such services; and, as to any excess over the value, it is treated as a donation for which the services are merely regarded as the motive.

Such is the purport of the various cases quoted and relied on by appellant. 2 Bob. 292; 4 Bob. 397; 10 An. 212; 13 An. 87; 8 An. 262; 25 An. 371.

Manifestly, these authorities have no application to a case, like the instant one, where the relation between the parties was such as to render them legally incapable either to contract a debt, or to make the donation to each other. Husbands and wives render to each other, necessarily, many services equally worthy of remuneration with those presented here. If the spouse, having children by a former marriage, might confer bounty upon the second spouse, by simply acknowledging in the will a debt for such services, by simply, as heretofore said, substituting the words, “ I owe,” for the words, I give,” it is manifest the prohibition contained in Art. 1752, would be completely defeated. For these reasons, we are of opinion that, even if the provision under discussion could be treated as a donation, it could not, as such, be maintained.

It is urged, however, that, as a donation, it would not be null, but only reducible to the usufruct of one-fifth of the estate, which the law permits to be given to the second spouse. Such is not the ease. If a donation at all, it is unquestionably a disguised donation. It does not, by its terms purport to be a donation, but is disguised in the form of an acknowledged debt. Being a disguised donation, it is not merely reducible, but is struck with absolute nullity by the express terms of Art. 1751, which declares that “ all (such) donations disguised, or made to persons interposed, shall be null and void.”

If this were held to mean that they were reducible merely, the clause would be without any effect. Every donation exceeding the amounts permitted by law is necessarily reducible, and it would be useless separately to predicate that fact of a disguised donation. The law makes a distinction between avowed and disguised donations, and, while the former are reducible merely, it declares that the latter are null and void. The motive of the legislator is apparent — to prevent by such severe penalty all attempts to evade, or perpetrate frauds upon, the law. The point, however, has already been expressly decided by this Court. Thibodeaux vs. Herpin, 6 An. 673; Casanova vs. Acosta, 1 La. 179. The same doctrine existed in the Roman law and is maintained by the French courts and commentators. See commentaries on this article, of Toullier, Mareadé, Grenier, Troplong, Delvincourt and others.

Difficult questions which might arise as to whether this nullity is available to any but the children of the first marriage, and as to whether, , in a case like the one at bar, the nullity would enure to the benefit of those children or of the universal legatees, are shut out in this case by the confusion of the qualities of the children and the legatees in the same persons.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed so far as the same sustains the oppositions to items Nos. 10 and 12 of the executor’s account, and that as to said items the oppositions be rejected and overruled; that it be amended so as to sustain the opposition to item No. 15 of said account; and that, in other respects, it be affirmed; costs in both courts to be paid by the succession.

Rehearing refused.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 8289.
    The State of Louisiana vs. John McNeil.
    The deposition of a witness taken at the inquest before tbe Coroner, is admissible in evidence,, in behalf of tbe accused, on the trial of the case, when the witness has died since the inquest.
    APPEAL from the Criminal District Court for the parish of Orleans. Roman, J.

      J. G. Egan, Attorney General, for the State, Appellee :
    First — A juror is competent to serve where he has only an impression, and not a fixed and. deliberate opinion as to the guilt or innocence of the accused. 33 An. 1101 • 14 An. 462; 22 An. 43; 23 An. 148
    Second — Tbe testimony of witnesses given before tbe coroner’s jury is inadmissible in evidence on the trial of a case.
    Third — The evidence before the coroner’s jury is admitted for a restrictive purpose — to prove death, hut nothing further. 7 An. 84; 10 An. 456.

      Whitaker & Adams for Defendant, and Appellant:
    "Where the juror entertains a preconceived opinion, the only matter at issue in determining-the question of competency, is the actual condition of his mind, with respect to the case, at the time that be is tendered to tbe accused. A juror is disqualified, if bis mind be not free from prejudice and bias — if be do not stand indifferent between the State and the. accused — or if, because of anything that may operate upon tbe juror’s mind, for the purposes of the trial, the accused he at a disadvantage. Record, pp. 10 and 11; 32 An. 1098; 1 Archh. Pr. and PL 550, 626; 2 Smith. (U. Y.) 501; 13 Sm. and M., 189; 11 Leigh, 657; 5 Cal., 347. See Morris’s State Cases, 511-513; lb. 920.
    First — The duties of coroners, in England, with respect to the taking and return of depositions upon any inquisition for murder or manslaughter, before 1805 and at that time, were substantially the same as those required of coroners here, in Louisiana. 2 Hawk., c. 46, §§ 13 and 15 j 1 and 2 Philip and Mary, c. 13, § 5; R. S., 1870, §§ 651, 661, 662, 664, 665; 7 An. 84.
    Second — In this State, the method of trial, rules of evidenoo, and all other proceedings in the prosecution of crimes, must he according to the common law of England as it existed in 1805, unless otherwise provided. Acts of 1805 and 1855; R. S., § 976; 8 R. 545; 30 An. 847.
    Third — Unlike depositions taken before a magistrate, those taken before a coroner do not depend for admissibility upon the rikht of cross-examination. On the contrary, depositions so taken before tbe coroner are said to be evidence even though tbe party accused, be not present. And such was the English law in 1805. 1 Bish. on Cr. Proc. §§ 1093, 1094,1096; Archhold’s PL and Ev. 13th, Lond, Ed., 213, 214; 2 Hawk. ch. 46, §§ 13 and 15; 2 Hale’s P. C., 284; Peake’s Ev., 64 and n.; Gilbert on Ev., 138; 8 Cox C. C. 443; 2 Leach C. C. 770; 2 Starkie’s R. 208, 211; Bull. N. P. 242 ¡ 3 T. R. 707,713; Harrison's case, 12 St. Tr. 853 ; - Lord Morloy’s case, Kelynge 55; 2 Jones 53; Salkeld 281; 2 Keble -19; 1 Sfc. Tr. 265. See, also, remarks of Lord Kenyon and Buller, J., in R. v. Eriswell, 3 T. R,, 713. .
    Fourth — Tbe cases of State vs. Parker, 7 An. 84, and State vs. Johnson and Melville, 10 An. 457, are not in point. The question is not whether a person accused oi a crime has the right to meet the witnesses face to face, but whether depositions regularly taken before the coroner are admissible in evidence upon proof of the death of the witness.
    Fifth — If the accused cannot object to depositions thus taken and returned, by what right can the State, whose officer has summoned the witnesses and returned their testimony, in the manner prescribed by its law, oppose the receiving in evidence of such depositions, upon proof of the death of the informer ?
   The opinion of the Court was delivered -by

Todd, J.

The defendant was tried for murder and convicted of manslaughter. From the sentence imposing a fine of fifty dollars, and condemning him to five years imprisonment at hard labor in the penitentiary, he has appealed.

On the trial of the cause, the defendant offered in evidence the deposition of Michael Mallory, taken before the coroner upon an inquisition as to the cause and manner of the death of Augustus Burke, whom the accused was charged to have murdered — Mallory having died after his deposition was taken and before the trial of the accused.

The District Attorney objected to the admissibility of the evidence, upon the following grounds appearing in the bill of exceptions;

“ That the proceedings before the coroner’s inquest .are ex parte proceedings, and cannot be raised to the dignity or authority of an examination before a court of justice. The State ho more than the defence,' the defence no more than the State, is entitled to make use of any such testimony or written deposition before the trial court.”

This objection was sustained and the evidence rejected — to which ruling the defendant by his counsel excepted, and retained his bill, making the rejected deposition a part thereof, which comes up with the record.

The question to be determined is, whether this ruling was correct or not.

In this State, the forms of indictment, the method of trial, rules of evidence, and all other proceedings in the prosecution of crimes, must be according to the common law of England, as it existed in 1805, unless otherwise provided. Acts of 1805, R. S. 1870, Sec. 976; 8 R. 945; 30 An. 847.

If, under the common law as it existed at that period .(1805), the testimony in question was admissible, it must be so' still, unless its admissibility is controlled by some constitutional provision or subsequent statutory enactment. '

The law in England and this country, relating to depositions taken before coroners, as to the manner of taking and the effect given them, and the purposes for which they could be used or applied, at and before the time mentioned (1805), is embraced and contained in the Act known as 1 and 2 Phil. & M., c. 13, Sec. 5, A. D. 1854.

This statute remained in full force in England until its provisions were to some extent modified, first by the statute 7 Geo. 4, c. 64, and afterwards by the 11 & 12 Vict., c. 42, passed long subsequent to 1805.

Archbold, commenting on these statutes, says: "Although the former statutes (Phil. & M.) did not contain any express enactment like the above (11 & 12 Vict.), it was yet determined in many cases and recognized as a rule of law, that, in all cases of felony under these statutes, where they were taken in presence of the accused, and he had an opportunity of cross-examining them, the deposition of any such witness might be read in evidence against the accused on trial in case the person who made the deposition were dead.” Archbold Pl. & Ev., 13 Lond. Ed., 213, 214.

“ Distinction whether taken before justice or coroner. In this respect there is a difference between depositions taken before a magistrate and before a coroner, for the latter are said to be evidence, even though the party accused be not present. The reason given for this exception is, that the coroner is an elective officer appointed on behalf of the public to make inquiry of matters within his jurisdiction, who is therefore presumed to take the' depositions fairly and impartially.” 1 Bishop Crim. Pro., § 1094; Ball N. S. 242; 2 Phil. Ev. 91.

We read from Bishop on same subject: “ How. in United States.” “ Such being the English law, and the two statutes of Philip & Mary being common law with us, the practitioner, by consulting the statute book of his own State, may readily determine how the matter stands there. The principle on’ which these depositions are, under statutes like those which prevailed in England down to a recent period, admissible, is, that being regularly taken under provisions of law, the common law accepts them, when it is impossible the personal presence of the witness can be had.” 1 Bish. Crim. Pro., 1096; Rex vs. Smith, 2 Sharkie, 208, 211.

The counsel for the State urges in his brief two considerations opposed to the admissibility of this evidence, the last of which particularly is not embodied in the objection made to the admissibility of the evidence on the trial.

. The first is, that the powers of coroners, under our State laws, are not' as extensive as under the ancient common law of England, and the same effect cannot be given to depositions taken under their authority; and the second is, that the question of their admissibility in trials before petit juries is controlled by the constitutional provision guaranteeing the right of an accused to be confronted by the witnesses.

In regard to the first suggestion, it is true that coroners, at the present day, do not possess the powers with which those officers were anciently clothed by the common law; and the office of coroner is now of less dignity and importance than formerly under the English system; but, nevertheless, their functions, as bearing on the question at issue, under the laws of England, were very much the same as now exist under our own laws. Thus coroners are declared conservators of the peace. Revised Statutes, 651. They are required to hold inquests over the bodies of those known .or suspected of having met violent deaths; to summon juries of inquest'and to swear them, “ to diligently inquire and true presentment make on the part of the State when and by what' means the person came to his death;” to swear witnesses and reduce their depositions to writing; to take recognizance for their appearance at court, to return the inquisition into court, and to arrest the person or persons charged by the inquest with the commission of an offense. Revised Statutes, 655, 657, 660, 661, 664, 665.

These duties, it must be admitted, are very similar to those prescribed by the ancient statutes of England referred to ; as will plainly appear from an inspection of them.

In regard to the second — the constitutional objection — urged, it is sufficient to say that, whilst it may operate to the exclusion of such testimony when offered by the State and the objection in question is urged by the accused, it is not applicable when the same testimony is offered by the accused himself. The constitutional provision mentioned was intended and designed to afford a protection to the accused,- — to guarantee him against the testimony of witnesses whom he had no opportunity to cross-examine, and whom, perhaps, he had never seen. It is a privilege granted him, but a privilege in his favor which he may waive ; and this has been expressly ruled. State vs. Hornsby, 8 R. 554; State vs. Palson, 29 Iowa,133.

We know of no statutory provision in this State changing the ancient common law rule with respect to such evidence.

From these considerations, we conclude that the evidence, in question was improperly rejected ; and in reaching this conclusion, we are governed, to some extent, by the character and wording-of the'objection made at the time to its admission, which we have reported above. That objection, under our view of the law, was certainly untenable and insufficient to exclude it.

Although we cannot fully judge of the character and probable effect of the excluded testimony, we are satisfied that it was an error commitfced to the prejudice of the accused, of which he may justly complain, and requires us to remand the case.

From the views expressed it becomes unnecessary to pass on another-bill of exceptions in the record, touching the competency of one of the jurors who tried the case.

It is, therefore, ordered, adjudged and decreed that the sentence and verdict appealed from are annulled, avoided and reversed, and the cause remanded to the lower court, to be proceeded with according to law, and the views herein expressed.


author: Poché, J.

text:
    No. 7248.
    E. C. Palmer & Co. vs. The Factors’ and Traders’ Insurance Company.
    The failure of the insured, to make certain returns of all -produce consigned to them and to pay premiums thereon, as stipulated by the underwriter, vitiated and avoided their contract of insurance in the premises.
    There was no waiver oí the right of forfeiture, on the part of the insurer under the circumstances of the case.
    APPEAL from the Sixth District Court for the parish of Orleans. Bightor, J

      Chas. S. Bice for Plaintiffs and Appellants:
    First — The defendant having with full knowledge of alleged breaches of open policy of insurance, received premiums earned thereunder, is estopped from setting up such breaches, to avoid a liability for a loss. Wood on Fire Insurance, pp. 832, 838, 839; 34 Iowa, 89 j 26 Iowa, 9; May on Insurance, p. 612; 5 Denlo (H. Y.) 154; 3 Hill (JY YJ 225; 56 Pa. State, 267 ; 19 Barb. (H. Y.) 441; 48H.Y.379; 28An.l9.
    Second — The contract of insurance sued on was voidable, not void, for breach of certain conditions mentioned therein; and voidable only at the election of defendant. The defendant was liable under such policy for losses occurring between the time it was possessed of such knowledge as authorized it to avoid the policy, and the time of its election to avoid the same. Such election affected future shipments only. 27 Ark. 539; Bouvier veri?. Yoidable; 26 Iowa, 9; 55 Mo. 172.
    Third — The defendant was liable, at all events, for the loss of the shipment in question, respecting which no default of any sort is alleged, and which occurred before the avoidance of the policy. 28 An. 22.

      Gibson, Hall & Montgomery for Defendants and Appellees:
    Pir9t — The payment of premiums of insurance under an open river policy that has been in force for a long time, accepted by the insurers, does not bind them on a cotton, and produce contract attached to the open river policy and issued a year subsequent to its date, where the insured did not sign the cotton and produce contract or comply with any one of its conditions. 6 ed. Parsons on Contracts, vol. 2, pages 367-8; Plahts vs. Ins. Co., 38 Mo. 248; Hartshorn vs. Shoe, 15 Gray, 240; Protection Ins. Co. vs. Wilson, 6 Ohio State, 553; 41 111. 295; Phillips on Insurance, vol. 1, 5th ed. page 464, Sec. 866, page 467, Sec. 870, page 439, Sec. 764 ; 36 Barb. ]Y Y. 372; 6 Wend. JY Y. 72, 270, 488; 21 Pick. Mass. 162; 12 Iowa, 371; Berwin vs. Ins. Co. Ho. 5881, H. B. Supreme Court of Louisiana; 28 An. 21, Powell vs. Ins. Oo.; 7 An. 244 ; 23 An. 459; 27 An. 695.
    Second — Estoppel can only "be enforced in matters of insurance where one of the parties has misled or prejudiced the other and caused him to believe that he had waived his right to plead a certain fact in defense. May on Insurance, 221-631, also, p. 626, Sec. 511; C. C* 2272; 15 An. 569; 23 An. 538.
    Third — The furnishing of blanks for monthly returns by an insurance company to its patrons does not imply a delivery to their place of business, and the custom of so delivering them if violated, does not relieve the insured from the express conditions of the contract to make monthly returns and pay premiums.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs have taken this appeal from a judgment of the District Court, rejecting their demand for $5000, as insurance on a shipment of sugar and molasses, made to them' on the 16th of December, 1875, on board of the steamer W. S. Pike, which, together with her cargo, was destroyed by fire at the port of New Orleans, on the night of that day and month: which demand is based on an open river policy taken from the defendant company on the 10th of July, 1874, and on a cotton and produce contract attached thereto on the 6th of May, 1875.

Among other grounds of defence, the insurance company urges that plaintiffs had forfeited their insurance for non-compliance with the conditions of the contract, by refusing or failing to make returns of, and to pay premiums on all produce consigned to them, as required by the express terms of said contract of insurance; and we shall rest our decision on that point alone.

The undisputed material facts shown by the record are: that an open river policy was issued to plaintiffs by the defendant on July 10th, 1874, and that on the 6th of May, 1875, a special cotton and produce contract was entered into by the parties and was attached to said policy, under which contract insurance was effected on all produce and merchandise shipped or to be shipped to the assured, for sale or for their own account, by all good steamboats, sail vessels or railroads, and that said contract contained, among other stipulations, the following condition:

“ And it is a condition of this insurance that the assured shall make returns of all produce and merchandise by each boat on which the risk ■ may have terminated, and monthly returns of all cotton on which the risks may have terminated, according to the printed form furnished the assured by this company, and the premium that shall have accrued thereon shall be paid in cash at the beginning of every month; and in case the assured shall neglect or refuse to pay the premium in cash that may have accrued, at the beginning of every month, this insurance may be declared void and of no effect by the insurer!”

Plaintiffs admit that in the month of November, 1875, they did fail to make return on certain shipments of produce consigned to them, which, under the contract, should have been returned to the company for entry on the policy, but they urge that they are protected from the .consequences of this infringement by the following considerations:

1st. That the company failed to furnish them the printed forms for making such returns, as it was bound to do.

2d. That their omissions to make returns as admitted did not avoid or annul the contract of insurance, but made it only voidable at the option of the insurer.

3d. That the insurer, well knowing of the consignments thus received by plaintiffs and not returned, did not avoid or annul the policy, but on the contrary continued to recognize it in full force, insuring plaintiffs’ property thereunder, and receiving premiums on such insurance, long after it had acquired full knowledge of piaintiffs’ omissions.

1. As to the alleged failure of the company to furnish the printed blanks for returns, the record shows .that such blanks were kept at the company’s office for the use of its customers, whenever they desired any. But plaintiffs contend that defendant had established a custom of sending such blanks to the offices of all its customers, monthly or on the arrival of all consignments of produce to any of them, and that such a custom imposed a duty on defendant to deliver cuch blanks to them at their office, which the company had failed to do in their case.

A vast amount of conflicting testimony is to be found in the record, on the point, as to whether such blanks were delivered at plaintiffs’ office in the months of September, October and November, 1875. After carefully reading all that testimony, we think that the weight of the evidence supports defendant’s assertions on this point. But be that as it may, we do not agree with plaintiffs in their interpretation of the contract in this particular. The word “ furnish ” means to “ supply ” or “ provide with,” and a party engaging to furnish certain papers to another, could not be held to have bound himself to carry and deliver such papers to the person’s place, residence or business office. In this case, the main obligation in the clause is on the part of the insured, who binds himsell to make due returns of all shipments received by him, under a form suggested by the company, which incidentally agrees to furnish him the printed blanks necessary thereto.

It is not pretended that returns of such shipments in writing or in any other form, would not be a sufficient compliance with the obligation to make returns as required by the clause. Hence; it cannot be urged that the company having, for the greater convenience of its customers, with a view to secure régular returns, of a uniform shape, adopted the habit of sending and delivering such blank returns to customers would be at fault for neglecting, omitting or failing to deliver, or even to furnish printed, forms to these plaintiffs or any other customer in any given case.

2. The essential obligation.of the insured in all insurance contracts is to pay the stipulated premium. This condition is the sine qua non consideration, under which the insurer undertakes the risk covered by his contract.

Now, under the cotton and produce contract which was entered into by the parties in this case, and made part of the open river policy, the contract of insurance was hot completed between them before the return of produce to be made by the insured, and we, therefore, hold that the violation of this obligation on the part of the insured vitiated the policy, and avoided the contract. The very import and meaning of the language used, clearly conveys to the mind the conclusion that such was the intention of the parties, and thus must they be considered to have bound themselves. Plaintiffs’ counsel in his able brief, contends with great earnestness, that the admitted violations of the contract by his clients, rendered the contract voidable, only, and he relies, in support of his construction, on the last words of the clause which stipulated that for certain reasons, “this insurance may be declared void and of no effect by the insurer,” and he argues that the insurer having failed to declare such nullity previous to the loss, but having, on the contrary, continued to deal with plaintiffs under the policy, the company has waived the consequences of the omissions, for which it could have annulled the contract at its option. But a close inspection of the clause will show that the words relied upon have no reference to the omissions to make returns, but to other matters ; the full sentence reads: “ and in ease the assured shall neglect or refuse to pay the premium in cash that may have accrued, at the beginning of every month, this insurance may be declared void and of no effect by the insurer.” We construe this language, in connection with the preceding part of the clause, to mean that the insured, who has made due returns of all produce consigned to him, in compliance with his contract, and who may fail or refuse to pay the premium, as stipulated, runs the risk of having his insurance declared void, but the company may, at its option, indulge him for a time, in his neglect to pay such premium, and that such neglect does not absolutely forfeit the insurance. But, as to the obligation to make due returns of consignments on the part of the insured, the language of the contract is different, and the consequences of the omissions must of necessity be different, and thus we see that the obligation to make such returns is made “ a condition of this insurance.”

After a careful review of all the authorities on this subject, we find that, in all contracts of insurance, the conditions attached to a policy form part of the contract, and that they must be enforced, whence it follows that the violation of an essential or vital condition of such a contract vitiates the policy, and forfeits all the rights thereunder which the defaulting party could have derived. May on Insurance, 231; Phillips on Insurance, vol. 1, 464-467; Parsons on Contracts, vol. 2, page 367; 7 An. 244, Joseph Rafel vs. Nashville Ins. Company; 12 An. 259, Dowville vs. Sun Mut. Ins. Company; 14 An. 797, Shearer vs. La. Mut. Ins. Company; 27 An. 63, Mayers & Minhill vs. Germania Ins. Company; 29 An. 695, Prudhomme vs. Salamander Ins. Company; 28 An. 938, Epstein vs. Mut. Aid &c. Life Ins. Company.

3. We shall now examine the various acts and dealings of the defendant company under which it is charged that the admitted violation of the contract by plaintiffs had been waived, and the cotton and produce contract thus kept in full force up to the time of the loss sought to be recovered in this suit.

It is charged, and the record shows, that during the months of November and December, after the discovery of the omission to make returns of produce, the defendant had taken risks under the open policy, and received premiums on such insurance from plaintiffs.

Defendant answers to this, that the twenty-nine premiums shown to have been paid by plaintiffs were on their open river policy, and under the stipulations therein contained, and not under the cotton and produce contract under which not a return had been made, and not a single premium paid, from the date of its execution, on May 6th, 1875, to the date of its formal cancellation, on the 22d of December, 1875. The proper solution of this point requires an examination into the differences or modification operated to the open policy by the adoption of the special cotton and produce contract, which was attached thereto by the parties on the 6th of May, 1875 ; and we see that such examination discloses very serious and material differences between the original policy and the special insurance contract contemplated in the cotton and produce contract.

1st. In the first place, the .open policy includes in its scope, insurance on all merchandise or goods of every description, shipped to or from the insured, at and from and to all ports. While, under the cotton and produce contract, the operations are extended to all produce and merchandise shipped to and not from, the insured, and from all places to New Orleans alone.

2d. In the open policy, the insurance is the subject of a special and distinct contract for each shipment, to be approved in each case by the company, and to be entered in the book attached to the policy, and each insurance is endorsed on the bill of lading, together with the nature and value of the goods shipped and the rate of insurance.

Under the cotton and produce contract, the contract is a general one, and each insurance is operated merely by the return of the shipment to be received by the insured, and the value of the. produce, such as sugar and molasses is stipulated in the general contract, or to be determined by its market value, and in the case of cotton, the value being fixed by the river committee of the board of underwriters.

After appreciating the striking differences existing between these two contracts, the mind can easily conceive how the defendant could legally continue its insurance operations with plaintiffs under the open river policy without being thereby confounded with its rights and obligations under the cotton and produce contract, which plaintiffs were actively violating to the knowledge of the defendant company, whose knowledge and failure to notify plaintiffs of the existence of their own acts cannot be invoked or construed as a waiver of any of defendant’s rights flowing from plaintiffs’ serious omissions. This is the consideration which so clearly differentiates this case from that of Powell vs. this defendant, reported in 28 An. 19. In that case the defendant contended for a difference to be made between shipments of cotton and shipments of produce, to wit, corn, and the court properly held that the receipt of premiums on consignments of cotton, bound the insurer on consignments of corn, as both were endorsed by, and flowed from, the same contract.

Hence, that decision, so hopefully invoked by plaintiffs, can give them no relief.

Our conclusion is, that by their repeated omissions to make returns of consignments of produce, "to which they were bound under the contract, the plaintiffs did vitiate their insurance under the cotton and produce contract, that the evidence fails to show any acts or conduct on ’the part of the defendant company which could be reasonably or legally construed as a waiver of plaintiffs’ violation of the essential condition of the contract of insurance, and that, therefore, the insurance company cannot be held liable for the loss alleged to have been incurred by the plaintiffs by the burning of the steamer W. S. Pike and her cargo.

The judgment of the lower court is, therefore, affirmed with costs.

Rehearing refused.


author:
Bermudez, C. J.
     Poché, J.

text:
    No. 7209.
    Geo. M. Murrell vs. Jackson & Manson.
    The lessee must suffer necessary repairs to he made during the existence of the lease and is not justified in abandoning the premises on that score.
    APPEAL from the Sixth District Oourt for the parish of Orleans. Bightor, J.

      Singleton <& Browne for Plaintiff and Appellee:
    First — The defendants admit the execution of the lease sued on.
    Second — The buildings were old and the work necessary to make them strong, safe and suffi- . oient, for the purposes for which the defendants leased the same, was repairs. Caffin vs • Redon, 6 An. 487.
    Third — The plaintiff offered to make the needed repairs, and the defendants were bound under the law to allow the repairs to be made, which could have been done in less than fifteen days, without serious inconvenience to the defendaots; and the refusal of the deiendants to allow the repairs to be made and the abandonment of their premises, will not relieve them from the payment of the rent. R. G. O. 2693, 2694, 2700; Scudder vs. Paulding, 4 Rob. 420; Pesant vs. Heartt, 22 An. 292; Diggs vs. Maury, 26 An. 384; Wilham vs. Lang-ham, 28 An. 903.

      Lacey & Butler for Defendants and Appellants :
    First — The work required to be done to the leased premises in order to put them in a condition suitable to defendants’ business was not in the nature of repairs but of reconstruction.
    Second — The building rented to deiendants was not in a condition to be used for the purpose for which it was leased.
    Third — The leased premises were dangerous to life and limb.
    For these, or any of the above causes, defendants were legally justified in abandoning the property, and dissolving the lease. G. C. 2675, 2792, 2699, 2520; 6 An. 488; 14 An. 564; 26 An. 554.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit for rent, claimed under a lease, evidenced in writing.

The defense is that the building was dangerous to life and limb, and not in a condition to be used for the purpose for which it was leased.

' The lease is silent as to the destination or object to which the building was to be affected. The inference is that the parties intended that it should be used for one of the purposes to which it had previously been put, or such other as would not impair its character or form, and, in any event, endanger or affect its solidity; the question of destination to be determined according to surrounding circumstances. Laurent, vol. 25, No. 257; Troplong, Louage, 299, 306, 308, 312, 345; Delvincourt, v. 3, p. 192; Duranton, v. 17, p. 98; Duvergier, Cont. Toul. No. 396; Domat, liv. 1, t. 4, Sec. 2, No. 10.

It is proved that the building was old, was not constructed for, and had not the appearance of a warehouse; that, although it had been used before to store salt, yet, to the knowledge of both or one of the defendants, that article had not been previously stored in the third story— which had scarcely ever been utilized, and that the building was in appearance not fit for such storage there.

The evidence establishes that, by moving up for manipulation, a large quantity of salt in that upper story, the front wall and the third floor threatened to give way. The defendants, apparently alarmed, asked that the building be made secure, but when the lessor sent mechanics to put things in proper order, they interposed objections and subsequently vacated the premises.

, It is unnecessary to determine whether the work necessitated to place the building in a state of security, amounted to repairs or to construction. While the landlord had to maintain the building in tenant-able order, R. C. C. 2692,2695, the tenant was bound to enjoy it, as a good administrator; R. C. C. 2710, but the lessor is relieved from the obligation of keeping the building in good condition, or restoring it to the same, when it is made.to require' either by the fault of the lesseé volenti non fit injuria. Laurent, Cours élementaire, v. 2, p. 483, No. 825; 19 L. 341; 9 R. 205; 9 An. 527; 27 An. 125; R. C. C. 2695, 2711.

As the lessor was ready and willing, at the instance of defendant, to have done what work was necessary to render the building secure, either by repairing or by constructing, the tenants, who were in fault, were bound to submit to a work which they had (even if accidentally) rendered necessary, which they had asked and which, in a short time, with little or no inconvenience to them, would have made the building perfectly secure. 11 L. 194; 6 An. 279, 487, 569; 12 An. 823.

The tenant must use the property so as not to destroy it. It has been accordingly held, in an analagous case, that where the lessee of a magazine for storing grain observes the joists giving way under the pressure of oats, in the second story, he should diminish the weight, or support the floor by temporary girders, the furnishing of which is no part of the repairs for which the lessor is liable. The ease presents stronger facts than are shown in this instance. Durham vs. Adam, 9 An. 527.

Where the lessee makes another use of the thing than that for which it was intended, and if any loss is thereby sustained by the lessor, the latter may obtain the dissolution of the lease, 7 R. 205, and the lessee is bound to pay the rent until the thing is again leased out, 11 R. 101, 6 An. 74, 1 An. 421, and is liable for all the losses which the owner may have sustained through his misconduct. R. C. C. 2711; 27 An. 124; 28 An. 688.

It is, therefore, ordered and decreed that the judgment appealed from be affirmed with costs.

Poché, J.

I dissent from the opinion of the majority in this case, and reserve the right of giving my reasons in writing at some future time.

Rehearing refused.


text:
    No. 8269.
    The State of Louisiana vs. Thomas Fisher.
    Tn a trial for murder, proof of threats made by the deceased against the acoused, is not admissible when the threats were not communicated to the latter.
    The question of diligence in procuring evidence is essentially of the province of the court below on an application for a now trial, and this Court will not interfere with the discretion of tire District Judge in that respect.
    APPEAL from the Seventeenth Judicial District Court, parish of East Baton Rouge. Sherburne, J.

      J. O. Egan, Attorney General, for the State, Appellee :
    . First — Threats made hy the deceased towards the accused, aud not communicated to him he* •fore the hilling, is incompetent evidence. 21 An. 473 ; 29 An. 593.
    Second — This Court cannot review a judgment refusing a new trial which was ashed on the ground of newly discovered evidence, 21 An. 473 ; 22-An. 468.

      Burgess & Burgess and B. W. Knickerbocker for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was indicted for the murder of one Harman Matta, under which he was tried, convicted of manslaughter, and sentenced to ten years imprisonment in the penitentiary, and from this sentence has appealed.

There is no assignment of errors filed in this Court, but we find in the record two bills of exception which present the grounds, as we learn from the brief of defendant’s counsel, relied on for a reversal of the judgment.

The first bill was taken to the refusal of the judge a quo to admit proof of threats made by the deceased against the accused, but which were not communicated to the accused.

Under the authority of all the eminent writers on criminal law and the frequent adjudications of this Court, this evidence was properly excluded. Wharton, Homicide, 215; 21 An. 475; 22 An. 468.

The second bill was taken to the ruling of the judge refusing a new trial. The motion for a new trial was upon the ground of newly discovered testimony — that is, testimony discovered after the trial. It appears from the bill that the ruling of the judge upon this point was based mainly, if not exclusively, on his conclusion that due diligence had not been used to procure the evidence on the trial. This question of evidence was peculiarly within the discretion of the judge of the first instance, and this Court has invariably refused to review such ruling, involving merely the legitimate exercise of this discretion and presenting purely unmixed questions of fact. 11 An. 478; 21 An. 273; 22 An. 468. Besides, as far as we can gather from the bills, the evidence referred to was of the identical character with that which had been offered on the trial and properly refused as shown above.

We have closely scrutinized the entire record and we can find no ground whatever on which the accused can be relieved.

The judgment and sentence appealed from are, therefore, affirmed with costs.

On Rehearing.

A rehearing was granted in this case upon the application of the defendant suggesting that the record did not show that the indictment was presented in open court, in the presence of the accused, when the verdict was delivered, or that, before passing sentence, the accused was asked whether he had anything to say why the sentence should not be pronounced.

Since the granting of the rehearing the record has been corrected, under a certiorari granted by this Court, and the omissions suggested supplied. The record is now complete, showing an exact observance of all the required formalities and proceedings in the lower court in the prosecution of the accused under the indictment.

The case has been reargued in all the issues originally presented, and we have been particularly urged to change our previous ruling on the question of the admissibility of the evidence relating to the alleged threats made by the deceased. We cannot do so. A re-examination of the authorities on the subject,including those to which special reference was made in the last argument, only confirm us in the conclusion that the threats of the deceased, unless'shown to be connected with the res gestee, the acts of the parties at the time of, or immediately preceding the homicide, cannot be considered. 33 An. 1087. No such connection appears from the record; and, in the absence of such, it is a matter of no importance to ascertain what might have been the feelings of the deceased towards the accused. It will be remembered that the threats referred to were never communicated to the accused — at least no evidence of that fact is shown in the record.

Our previous decree must, therefore, remain undisturbed.


text:
    No. 7848.
    T. L. Airey & Co. vs. The Okolona Savings Institution.
    The evidence does not establish such contract and liability on the part of Defendant as charged by Plaintiffs.
    Plaintiffs having by their conduct led Defendant to believe that a certain party was their accredited agent, are estopped from denying the agency.
    It is elementary that a demand, not embraced in the pleadings and, therefore, not passed upon by the lower Court, cannot be urged on appeal.
    APPEAL from the Fourth District Court for the parish of Orleans. Houston, J.

      'William jF. Mellen for Plaintiffs and Appellants.

      Thos. J. Semmes and T. M. Gill for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs seek to recover $2490 63, alleged to be due to' them by the defendant, as a balance of a special deposit of $4990 63 placed to their credit at the defendant bank on November 1,1878, the latter having accounted for $2500 of said deposit, but having failed to account for the balance.

After answering by general denial, the defendant admits to have received the deposit as alleged, but avers that it has fully accounted to plaintiffs for the whole of said deposit, as follows: That said sum of money had been entrusted to defendant, for the purpose of being paid out for purchases of cotton, to be made in Okolona, Miss., by plaintiffs’ customers or agents, at the demand or order of the latter. That, in obedience to instructions received by defendant from plaintiflb’ agent and solicitor, Seymour, with whom arrangements for said deposit had been made, defendant had paid out the whole amount thus deposited, on the orders or checks of R. R. Ward, who had been represented by said Seymour as fully authorized to draw on said fund. That the amount of $2500, acknowledged as a credit on said sum by plaintiffs, had been paid out by defendant to the order of said Ward, by virtue of, and under the instructions of said Seymour, to the knowledge of the latter, and with the approval of plaintiffs, who are, therefore, bound by the subsequent payments made by the defendant, in the same manner, on the order of said Ward.

The judgment of the District Court rejected plaintiffs’ demand and they have appealed. The record shows that, as far back as the 5th of September of that year, the arrangement touching this deposit was made between the cashier of the bank and the duly accredited agent of plaintiffs, Seymour; but that, owing to the interruption of communication between Okolona and New Orleans, on account of the yellow fever quarantine of that year, it was not carried out before the first of November following. Beginning on that day, the bank commenced to pay and to debit to plaintiffs’ funds, the checks of R. R. Ward, who was then purchasing cotton at Okolona for consignment to plaintiffs, — and that by the 11th of that month Ward had drawn, and the bank paid, twenty' checks, aggregating $1500, — to cover which, Ward drew a draft on plaintiffs, to whom it was forwarded to its credit by defendant, and that said draft was duly honored by them; and that between, the 11th and the 18th of the same month, Ward drew, and the bank paid, out of the same fund, fourteen checks, amounting together to $1000, which amount was covered by another draft of Ward on plaintiffs, who received and honored it in due time. The record further shows that between the 18th of November and the 12th of December, the bank debited to that fund some twenty-eight checks of Ward, the last of which being for $300, and being by $106 41 in excess of the balance of the fund, was only partially charged to debit of plaintiffs, to wit: for $193 59. On the 26th of December Ward drew on plaintiffs for $2490 63, to cover the amount of checks drawn by him between the two dates last mentioned. But, on receipt of this draft, plaintiffs refused to allow credit for it to the defendant, to whom they returned it, and, oh the other hand, they drew in favor of their agent, Seymour, on the defendant, for that identical sum, as their balance in the bank, where the draff was duly presented and refused, whereupon it was protested by Seymour.

The whole controversy turns upon the nature of the contract made ' by plaintiffs, through their agent, Seymour, with the defendant bank, in the beginning of September.

Plaintiffs’ theory is that their funds were deposited with the bank, with a view to facilitate purchases of cotton, at Okolona, for consignment to their house, through customers who were to be selected and controlled by the bank, and that the orders of such customers were to be honored by the bank, only upon satisfactory proof that the funds drawn were used only for the purchase of cotton for, and actually consigned to plaintiffs, and that the bank was responsible to them for any amounts paid by it out of that fund, and not properly accounted for, or misapplied by, any purchasing customer. Hence, they contend that Ward, having failed to ship to them any cotton to represent the sum of $2490 63, rbmaining to their credit after the draft of November 18th, the bank is responsible to them for that sum, whether it was paid out to him or not, for it was the duty of the defendant, under the contract, to see that the funds drawn by Ward were actually used in the purchase of cotton, to be consigned to them.

This theory is denied by the officers of the bank, who contend that the funds were thus deposited to facilitate the purchase of cotton at Okolona, by plaintiffs’ own agents or customers, who were to be selected by themselves, and after such persons were made known or accredited by plaintiffs to the bank, the latter was to honor the demand for funds emanating from the person or persons thus selected, and to charge the sums thus drawn to the debit of plaintiffs’ deposit. Hence, they charge that R. R. Ward having been represented to them by plaintiffs’ solicitor, Seymour, as a customer authorized to purchase cotton for them, and to draw on their fund, the bank recognized Ward’s orders for funds as binding upon both parties to the contract. The bank officers further charge that on the first of November, Ward, who had an account of his own at the bank, informed their cashier that, from the time he began to check on plaintiffs’ deposit in the bank, “ all his checks on the defendant were to be paid out of said deposit for investment in cotton to be consigned to plaintiffs ; ” and that all of said fund was thus drawn by Ward, who was the only person or customer ever referred to them touching said deposit by plaintiffs or by their agent Seymour. The testimony in the record, mostly parol, is unavoidably and painfully conflicting, and the witnesses being entirely unknown to us in reference to their veracity, we have been at great pains, in reading over and over their contradictory statements, to detect the truth, which is usually closely concealed in the rubbish of a discordant record.

Plaintiff’s theory is supported by the testimony'of their confidential agent, Seymour, and by a letter written by him, from Okolona, to his employers, dated the 5th of September, purporting to recite the contract or arrangement which he had made with Babbitt, the cashier of the bank, and which he claims to have read to Babbitt, who approved the same. Both of his statements are flatly contradicted by the cashier, and'by McIntosh, the president of the bank, who testifies that, in subsequent conversations with Seymour and Babbitt, the contract made was referred to and construed, without objection from Seymour, in the manner in which it was all through understood and executed by the defendant. Seymour denies that he ever authorized Ward to draw on plaintiffs’ fund, and that he ever represented him to the bank as thus authorized. But, on that most material point, he is flatly contradicted by McIntosh, the President, Babbitt, the cashier, by Ward himself, and by Moore, who was Ward’s clerk, who all state that Ward was thus represented and accredited by Seymour to the defendant.

In addition to those contradictions, Seymour’s testimony is greatly weakened by self-contradictions and other circumstances, which entitle it to very little weight in our opinion.

For instance, in his examination in chief, he fixes the 17th of December as the date of a very important and material conversation between Babbitt and himself at Okolona, and he subsequently admits that he was not in Okolona on that day at all.

Again, in his testimony on cross-examination, he emphatically denies that, in the early part oE September, communication between New Orleans and Okolona had been interrupted by reason of the yellow fever panic, and that there was any yellow fever excitement at Okolona. And in his letter of the 5th of September, which is the real basis and the whole groundwork of plaintiffs’ theory, we find the following language: “ As soon as communication is open with New Orleans, the house will send the bank here packages of currency of ñve thousand dollars each to supply the wants of our customers or any one who may ship us cotton from here.” * * * “ It is impossible to form any definite idea of what will be the condition of things fifteen days hence growing out of this fever panic, which threatens to stop the wheels entirely.”

His testimony being so contradictory and unsatisfactory upon matters of so grave a character as the interruption of communication between this metropolis and a section of country in which he was actually traveling, and upon other matters equally calculated to impress themselves upon the minds of men, owing, doubtless, to a defective memory, we feel compelled to give no weight to such testimony unless strongly corroborated. 26 A. 591, Cross v. Parent.

But his theory that a bank receiving a deposit, to be paid out in a short time for the purchase of cotton for its depositor, and receiving no compensation or other advantage, will undertake the responsibility of the disbursement of such fund by selecting customers or purchasing agents, or will undertake to disburse such fund to their depositor’s customers, upon proof made for every amount drawn, that a corresponding purchase and consignment of cotton have been made, is not only uncorroborated but it is contradicted by four witnesses, whose testimony is unimpeached, and is at variance with all the circumstances and equities of the case and with the custom of the country, as shown by the record.

It is shown that in all these towns on railroads in Mississippi, the cotton purchased, as it was contemplated in this contract, is brought to town in wagons by the farmers or their tenants or laborers, and bought on the streets by merchants, agents or speculators; that frequently one bale of cotton is the joint and undivided property of two or more laborers or other persons, and that the cotton must be paid for in cash before delivery. Other cottons, which are consigned to merchants or to factors at this or other markets, cannot be purchased at these small towns or shipping points, thus restricting the transactions carried on by the customers or purchasing agents to small lots of unengaged cotton, which is handled as above stated.

Under such a state of things it is impossible for the purchasers to obtain delivery of the cotton without cash on the spot, and hence it would be impossible for them to furnish to the bank, as a condition of their drawing money, railroad receipts or bills of lading, nor could a bank be expected to undertake to send to a distant depositor a written voucher, either in the shape of a receipt or sight draft, for every purchase made and for every amount drawn, when frequently the purchases from one individual do not cover more than one bale of cotton. Thus it is seen that the amount of $1500, covered by Ward’s first draft, was made up of twenty checks, the greater number of which were for less than $100, some being as low as $7 and $4.

But Seymour’s theory and testimony are not even supported by the very acts of his principals, who honored the drafts of $1500 and $1000, drawn by Ward, without requiring any other voucher of the defendant, and without inquiring into the manner of drawing their money by Ward.

The course of plaintiffs in dealing with these two drafts not only contradicts Seymour’s version of the contract, but it binds them for all of Ward’s subsequent checks on the fund in question.

The $1500 draft was enclosed in a letter from Babbitt, the cashier, who merely says: “I enclose for credit a S. draft of R. R. Ward, $1500,” without a word of explanation. If Ward had been selected by the bank and not by Seymour, a fact which certainly would have been known to the cashier, if not to the plaintiffs, the former would have explained Ward’s connection with the fund, or said some words in support of his right to draw on plaintiffs. But the cashier knew that Ward’s connection with the fund had been explained to plaintiffs by their solicitor, Seymour. After expressing an opinion on the limited means of Ward, Babbitt adds: “ The arrangement with him, however, was made by Mr. Seymour.”

Plaintiffs answer this letter, but they ask no questions about the arrangement, and say nothing, showing even astonishment at the information that Ward had been selected as a customer by Seymour. If the statement had been untrue or incorrect, plaintiffs would at once have protested, but they said nothing, and honored the second draft for $1000, drawn under exactly the same circumstances.

Their silence concludes them and estops them from subsequently denying the agency of Ward in the premises. Story’s Eq. Jurisprudence, § 385; 5 A. 107, Meux vs. Martin.

Plaintiffs contend that the money drawn by Ward after the 18th of November, was against his individual account, and that the bank subsequently altered the entries so as to debit them to their account. But this is not supported by the evidence, nor by the extracts from the books themselves, which are all satisfactorily explained by the cashier. The testimony of the President and of the cashier shows that the overdrafts of Ward on his individual account were subsequently reimbursed by credits, which balanced his account within ten dollars.

While it is plain to us that plaintiffs have mét with a serious loss in this venture, and that their confidence has been grossly abused, we fail to see how, under the evidence, this breach of confidence can possibly be brought home to the defendant, who has, as we believe, discharged every obligation imposed upon it by the contract, which was correctly understood by its officers, and cannot, therefore, be held responsible for the shortcomings of Ward, or for the misplaced confidence of plaintiffs either in Ward or in Seymour.

The claim of plaintiffs, urged in their brief for the first time, to a judgment on a sum of $500, acknowledged by defendant to be held to-the credit of plaintiffs, as a part payment made by Ward on the draft of $2490 63, of the 26th of December, which had been returned to defendant by plaintiffs, and which the bank held for collection, as stated in its answer to plaintiffs’ letter, cannot be entertained at this stage of the case. ,

It is elementary that a demand not embraced in the pleadings, and, therefore, not passed on by the lower court, cannot be urged on appeal. Nothing, therefore, in this opinion can affect their right to recover this amount, which, as we understand from the evidence, will be paid by the bank on their order.

The judgment of the District Court is, therefore, affirmed with costs.