text:
    No. 11,124.
    Succession of John Nelson vs. Mrs. Ellen Clark.
    Only ciuestions of fact are involved.
    APPEAL from the Civil District Court for the Parish of Orleans. VoorhieSf J.

      O. IP. Buck and Dinkelspiel & Hart for Plaintiff and Appellant.

      Ohas. S. Bice for Defendant and Appellee.
   The opinion of the court was delivered by

Fenner, J.

The defendant is sued on three mortgage notes and three ordinary notes aggregating in principal the sum of $5317.78, on which it is admitted that defendant is entitled to a credit of $820.

Her answer denies the validity or consideration of the three ordinary notes, two for $1000 each and one for $317.08, and pleads payments in an amount sufficient to extinguish the mortgage notes.

The ordinary notes are all dated November 1, 1890, are undoubtedly signed by defendant, were held by John Nelson, and were running to maturity at the date of his death. Notwithstanding her denial of their validity and consideration, it is proved that on the 1st November, 1890, the day of their date, Nelson rendered to Mrs. Olark a statement of accounts between them, showing a balance then due to him of exactly the sum for which the notes then given call, and the admission was extorted from defendant herself that the statement thus rendered was, at its date, correct.

It is moreover proved that in November, 1891, after the death of Nelson, a conference was held between his executors and the defendant, at which all matters were gone over between them and a settlement reached corresponding to the claim now made by plaintiff, and corresponding entries made on the notes, which were not then signed by defendant only because it was on a Sunday.

This testimony is contradicted by defendant; but it is a significant fact that her son, who was present and participated in the interview, though put on the stand, was asked no question on the subject, and said nothing to corroborate his mother’s denial.

In these interviews she said nothing about theadditional credits now claimed, but when the notes were again presented for her signature to the entries thereon as agreed, she declined to sign.

Her claims rest on nothing bub her own testimony, which, at best, would be insufficient, but which is rendered utterly valueless by her own attempt to aid it by writings flagitiously false.

She produces the statement rendered to her by Nelson on November 1, 1890, and which she admits to be correct. The statement, as rendered by Nelson, was written in ink, but it now contains sundry pencil additions which the defendant persistently swears were written by Nelson in her presence and under her eye. The testimony overwhelmingly demonstrates the falsity of this statement, and we have moreover had the opportunity of scanning the instrument itself, which is brought up in the original. Inspection of it convinces us, beyond a doubt, that the entries were not and could not have been made by Nelson, and that her statements to that effect can not be believed.

Her whole testimony is a mass of contradictions and inconsistencies, which charity prompts us to pass over with the simple statement that we can not credit it.

If the written promises to pay of a person could be destroyed by such evidence, they would be worthless.

The judge a quo gave no reasons for his judgment and, with all our respect for the determinations by courts of first instance, on disputed questions of fact, we find it impossible to approve the large reduction he has made on the plaintiff’s demand.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by adding thereto a further judgment in favor of plaintiff and against the defendant for the sum of twenty-three hundred and seventeen dollars and eight cents ($2317.08), with 6 per cent, interest on each of the ordinary notes from their date until their respective maturities and with 8 per cent, interest after maturity, subject to a credit of $820 with like interest from the dates on which the payments comprising the same were made; and, as thus amended, that the judgment appealed from be affirmed, defendant and appellee to pay costs of appeal.

Judgment amended in favor of’ plaintiff.

On Application for Rehearing.

The rehearing applied for by defendant is refused.

Counsel for plaintiff, however, calls attention to an error in the judgment appealed from as to the date from which interest is allowed on the mortgage notes. Our failure to amend in this respect was a mere inadvertence, and may now be made without necessity of rehearing.

It is therefore ordered that our former decree be amended by so amending the judgment appealed from as to allow interest on the mortgage notes from November 1, 1890, instead of March 27, 1891, and that, as thus amended, our former decree remain undisturbed, and the rehearing applied for by defendant be denied.


source: Caselaw Access Project

author: Breaxjx, J.

license: Public Domain

text:
    No. 11,224.
    The State ex rel. Henry L. Garland, Jr., Custodian of Notatarial Records, vs. Charles J. Theard.
    The original Jurisdiction of inferior courts must be construed with reference to Art. 11 of the Constitution, which ordains adequate remedy in the courts for all legal rights.

      The plaintiff in this action, the importance of the issues involved, and the character of the suit are within the jurisdiction of this court.
    It is made the duty of the custodian of notarial records to collect and safely keep in his possession the records of notaries who have ceased to be such.
    An acknowledgment can not be invoked to maintain the custody of public records which the statute provides shall be delivered to the custodian of notarial records.
    A notary’s records, after his term of office, are a part of the notarial records and should he delivered to the State to be safely kept for the convenience of the public.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

    The Relator in propria persona and Appellant.

      W. S. Parkerson for the Respondent and Appellee.
   The opinion of the court was delivered by

Breaxjx, J.

The relator, custodian of notarial records for the parish of Orleans, sues the defendant for notarial records, consisting of three bound volumes and other copies.

He sues in the name of the State, with the consent of the Attorney General.

No objection is taken to the form of the action.

He avers that they were the notarial records of the late Hon. Paul Emile Theard, late a notary, and prays that they be delivered to the State of Louisiana.

The defendant in his answer alleges that he is a notary public, that these records were at Ms father’s death, and since, in his custody as notary; that he was associated with and a full partner of the late Paul E. Theard, in the exercise of the profession of notary, as well as in the practice of law.

The respondent avers that the notarial department of their office was particularly and almost exclusively under his control.

That the acts passed in their office were executed before either notary indifferently.

That he wrote much the greater number of the acts.

That the notarial work of the office was performed interchangeably — that is, at times one notary acted for the other.

That the records were as much his property as they were deceased.

That they are safely and carefully kept, and contain valuable information concerning the business of his clients, and almost daily he has use for them.

It is ádmitted that the facts alleged are true.

The record comes to us without a note of evidence or statement of facts.

The case is submitted on the allegations of facts; one of these allegations, on the part of plaintiff, is that these records should be placed in the public office where they belong, “ as well as a matter of public convenience as in consideration of their greater safety from destruction or loss.”

On the part of the defendant it is claimed that there is a central office for the preservation of notarial records, such as the law contemplates, or that in the rooms now used notarial records are not safely kept or carefully preserved.”

The defendant and appellee argues that the appeal should be dismissed because the interest of the plaintiff in the matter in dispute does not exceed $2000. The defendant also questioned the jurisdiction of the District Court.

The plaintiff and appellant has filed his affidavit in this court that by law he is entitled to fees for copies of all notarial acts in his possession, as custodian of notarial records; that his right to obtain possession of such notarial records, where lawfully entitled thereto, exceeds the value of $2000; that he makes the affidavit to establish his appealable interest and to bring this case to the Supreme Court; that it is a test case and the rights involved exceed $2000. The District Court maintained its jurisdiction.

Judgment was pronounced for the defendant dismissing plaintiff’s suit at his costs.

Jurisdiction: This suit is not brought to recover fees of office; the amount of fees which the custodian of the central office may recover for copies does not represent the jurisdictional amount, though it may be incidentally considered in determining the question of jurisdiction. The possession of public records is involved, which the defendant alleges contain information of value.

They are claimed by public officers; each contends that they are part of the archives of his office.

The State has an interest in these recoi'ds, also the general public.

They are the evidence of title — a perpetual memorial of important facts. Their loss or destruction is not appreciable in money.

The custody and control of public records and security in title to property are among the most important concerns of government.

Their value can not be increased by a pecuniary standard.

In reference to another right, that of voting, this court said:

“It would be absurd to say that the Oonstitution intended to de•prive courts of jurisdiction of all matters not susceptible of distinct pecuniary valuation except those expressly mentioned.” State ex rel. Mayor vs. Judge, 35 An. 639.

If the cause is not within the jurisdiction of the District Court, no court has jurisdiction.

The question presented would have to remain undetermined, though the Constitution ordains that all courts shall be open and justice administered without unreasonable delay.

Another affidavit would not make the importance of the issue more manifest.

It is questionable if any one could take ar oath to fix a pecuniary standard of value.

The public interests are involved, in comparison with which the fees of the officer are as naught.

This .court has in exceptional eases exercised jurisdiction, although the matter in controversy was not appreciable in money or did not consist in a money demand within the minimum limit. Rowley vs. Rowley, 19 La. 340.

The mens legislatoris: Prior to the enactment of any law upon the subject, the governor, as resulting from the duty incumbent upon him to care for and preserve the public property and records when a notary died or resigned, appointed another notary and gave him charge of the vacant office in the commission, and it necessarily followed of the record. Kelly vs. Gilly, 5 An. 534.

The act was justified summa necessitate by the immediate urgency of the occasion and a due regard to the public convenience.

Tne act of March 12, 185V, relative to the notaries for Orleans parish vacated the office of each and all notaries previously appointed, and provided for the appointment of not less than forty notaries.

It also provided that in making these appointments also in the event of the death, resignation or removal of any of the appointees under the act, “ the governor shall, by special order, under the seal of the State, designate the notary to whose custody shall be consigned the records of the notary or notaries so dead, resigned or removed.”

Under that law, many of the records were placed in the custody of other notaries than those before whom the acts were executed.

Under Act 147 of 1867, Sec. 1, a central office of notarial records was established in the city of New Orleans for the purpose of preserving the records of notaries “who have ceased to be such by death, removal or otherwise, whose records are not now in the custody of some other notary.”

Under the second section of that act: It is the duty of the custodian of notarial records to collect together and safely keep in his possesion the records of all notaries in the parish of Orleans “ who shall have ceased to be such either by death, removal or otherwise, except such records as are already in the custody of other notaries; he shall keep his office in a fire-proof building, which it shall be the duty of the common council to provide; he shall classify these records for public convenience.” (Italics are ours.)

We have seen that notarial records at the time of the enactment of the statute organizing a central office had been placed in the custody of certain notaries.

The words “ now ” and “ already ” of the statute of 1867 apply to the records anterior to the act, and not to those subsequent.

They have a distinct meaning at the present time and do not apply to records of notaries appointed under subsequent laws.

Admission: The relator has made admissions at variance with the allegations of his petition.

He sues to have records placed in the public office “where they belong as well as a matter of public convenience as in consideration of their greater safety from destruction or loss.”

The defendant states facts in denial which are admitted as true.

If the issues were between the relator exclusively and the defendant the admissions would bind him. As to the State a principle applies which the adix issions do not affect. The enforcement of a law can not be arrested as against the State by an admission that ceitain provisions of the law are disregarded.

Whatever negligence or acts of omission there may have been on the part of the common council in not securing an office “in a fireproof building, which it shall be the duty of the common council of New Orleans to provide,” and any other neglect must be remedied.

The official responsibility resting upon an officer in charge of valuable records is such that he can not consistently, with the imperative puty devolving upon him, permit them to continue exposed to loss.

His shortcoming in this respect does not relieve others, or offer good grounds of defence not to deliver public records.

The clerk of court, for instance, as the custodian of public records, can not excuse his neglect in not taking possession of public documents and papers by the admission that his office is unsafe.

He has his remedy relieving him from the necessity of such admissions.

An admission can not be invoked to maintain a condition in violation of laws prohibitive in their effect.

In Graves vs. Alsop, 25 Pacific Reporter, it is held that parties to an action can not properly stipulate what the law is that is to govern their case, and that courts should not regard such stipulations when made.”

The notarial records: It is not disputed that the notarial acts claimed were passed before the late Mr. Theard.

In his brief, the defendant states that he does not contend that a notary might possess himself of the records of other notaries, by forming a partnership with one or more of them. This eliminates the question of partnership right to these records.

We understand the defendant’s contention upon this point now to be, that, in view of the mutuality of interests in these records, the confidential business relations between him and his late father, and the fact that the notarial department of their office was more particularly and almost exclusively under his control, he has the right to retain the possession and control of the records claimed.

Notaries are public officers invested with certain powers and subject to certain responsibilities. The power and the responsibility are personal; that is, as to the State, it is not shared with any other officer.

Their acts are their separate independent acts as officers, and their records are not subject to any claims of ownership as against the statute, which provides that they shall in certain event be collected and kept in the central office. This was the condition of the appointment. It must be read as part of the commission under which he qualified and acted.

No exception can be made. The law includes all records. The late notary had no permanent proprietary interest in these records. They are not now subject to any equitable or other claim.

In State ex rel. A. Hero, Jr., vs. Laresche, 24 An. 148, this court briefly says: “ His being a notary public does not entitle him to any property in or control over the records of a deceased notary.”

The relator has admitted that these records are in the custody of the defendant and that they belong in reality to defendant as much as to the deceased himself.

The admission is general by relator and by counsel for defendant that all the facts stated by defendant or plaintiff are true.

If the relator were held strictly to this admission, the court could not decree that these records are the property of the defendant and that he is their legal custodian.

We quote the following from a decision of this court to which we have above referred:

“ An acknowledgment that one has sold his right of inheritance in a future succession can not be set np as an estoppel, because all contracts of such a nature are expressly forbidden, and can neither confer rights nor impose obligations.”

Again, an acknowledgment, however authentic, “ that title to real estate has been finally adjudicated upon by a justice of the peace could not be set up as an estoppel, because it is legally impossible that such final decision has been legitimately made, as justices of the peace have no jurisdiction over title to real estate.”

■ Conceding therefore that relator has admitted all'that is claimed, it by no means follows that these public records are owned by the defendant or that he is the legal custodian.

It is ordered, adjudged and decreed that the judgment of the lower court is reversed, and that plaintiff now have judgment compelling the defendant to deliver said records to the State of Louisiana through the said custodian of records and that the defendant pay the costs of both courts.


author: Nicholls, O. J.

text:
    No. 11,249.
    The State of Louisiana vs. Pierre McDaniel.
    1. The title of an act has legislative force only to a limited extent.
    2. Where the word “wilful” is to be found only in the title of a statute an in- • dicfcpient under the latter which follows the .exact words of the enacting clause, hut using the word “feloniously” in lieu of the word “wilfully,” complies with the law. ‘
    The former term has a more extensive criminal meaning, than the latter and includes it.

      APPEAL from the Eleventh District Court, Parish-of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      John N. Ogden for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, O. J.

The indictment returned against the defendant charged that “ he feloniously did strike one Joseph Lazario with a dangerous weapon, to-wit: a large club, with intent him the said Joseph Lazario then and thereby feloniously to kill and slay, contrary to the form of the statute, in such case made and provided.” The accused having been found guilty by the jury moved in arrest of judgment “ on the ground that the word ‘ wilfully is not used in the indictment, which was framed under Act 44 of 1892, which word wilfully ’ was sacramental, and that ¡no valid judgment could be rendered upon said invalid indictment.”

The motion was overruled, and the prisoner sentenced to imprisonment in the State penitentiary for the space of one year. He has appealed.

The first section of the act referred to is in these words:

“ Whoever shall shoot, stab, cut, strike or thrust any person with a dangerous weapon with intent to kill shall be deemed guilty of a crime, and on conviction thereof shall suffer imprisonment with or without hard labor for not less than three years.”

The title of the act is “An act to make it a crime to wilfully shoot, stab, cut, strike or thrust any person with a dangerous weapon with intent to kill, and prescribe the punishment therefor.”

It will be seen that the indictment follows the exact words of the enacting clause, adding thereto the word “ feloniously ” not found in the section.

Defendant complains of the substitution of the word “feloniously” for that of “ wilfully ” used in the tiílb.

He relies upon the decisions of this court in State vs. Williams, 37 An. 776; State vs. Watson, 41 An. 599, and State vs. Jackson, 43 An. 183.

The first of the cases cited was based upon the fact that a statute of the State expressly and directly dealt with the subject of an “ indictment ” in murder cases and declared what it should recite.

The second case was under an indictment based on Act No. 17 of 1888, entitled “An act to amend and re-enact Sec. 794 of the Revised Statutes,” which in its enacting clause declared “ that whoever shall wilfully and maliciously, with a dangerous weapon or intent to kill, inflict a wound less than mayhem, shall on conviction be imprisoned,” etc., in which indictment both the word “wilfully ” and the word “ maliciously” were left out and replaced by the word “ feloniously.” The court held that the word “ feloniously” did not cover those two terms.

The third case turned upon a point not involved in the present one.

In the case at bar the State followed, as we have said, the precise words used in the body of the act as to the animus with which the act was to be done — reciting that the blow was struck “ with an intent to kill” and inserting in the statement of the offenée the word “feloniously” in lieu of the word “wilfully,” which is found only in the title of the act, which has “ legislative import ” only to a limited extent. Lieber’s Hermenutics. Oh. 5, p. 117 and Note (3d Edition.)

If the word used is equivalent to that for which it was substituted we think the requirements of the law have been complied with, and the accused has no ground of complaint, particularly if the prosecution undertook to establish by evidence responsive to its charge an intent of a worse character than that which the statute required to be laid. And that is what the State has done.

We think the word “ feloniously” is stronger than the word “wilfully.”

In the case of State vs. Bush, 27 Pac. 834, Mr. Justice Valentine brings together a number of authorities as to the scope of those terms. We quote from his opinion: “ In Wong vs. Astoria, 13 Or. 538 (XI Pae. 295), it was held that to allege that an act was done wilfully and unlawfully was equivalent to alleging that it was done ‘knowingly.’” In Weinsorpflin vs. State, 7 Black, 186, 195, it is said, among other things, as follows: “ Feloniously ” is substituted for it (unlawfully) and is not tantamount to it, but is a word of far more extensive criminal meaning. The act complained of could not have been feloniously and not unlawfully done. In the ease of Calder vs. State, 17 Ind., it is said that the word “ feloniously” in the connection in which it was used was identical in its import with “ purposely.” In the case of Commonwealth vs. Adams, 127 Mass. 15-17, it is said: “But the allegation that the defendant maliciously and feloniously incited and procured the principal to commit the felony ex vi termini imports that she acted with unlawful intent.” In the case of Allen vs. Inhabitants, Wils. 318, it is said as follows: “ Here he (the prosecutor) has alleged in his declaration and has proved to the satisfaction of the jury that the same was committed and done feloniously, and that act which was committed feloniously was certainly done wilfully, unlawfully and maliciously, for doing an act feloniously is doing it malo animo, viz.: with malice.” Therefore ' Sergeant Burland concluded that the declaration was perfectly right and of that opinion was the whole court and gave judgment for the plaintiff.

In Webster’s International Dictionary it is said that the word “felonious” means “havingthe quality of a felony, malignant, malicious, villainous, perfidious, in a legal sense done with intent to commit a crime.”

The Encyclopedia Dictionary says that the word “felonious” means in law “ of the nature of a felony, done with deliberate purpose to commit a crime.” And the word “feloniously” means in law “ in a felonious manner with deliberate intention to commit a crime.” See the Imperial Dictionary and the Century Dictionary substantially to the same effect.

We are of the opinion that the indictment found sufficiently complied with the law.

Judgment affirmed.


author: Watkins, J.

text:
    No. 11,245.
    The State of Louisiana vs. Joshua Perkins et al.
    An assignment of error presents points of objection arising on tlie face of the papers, which must be examined and considered as a whole.
    Minute entries kept of the proceedings are intended to preserve a faithful and exaeth'ecord.of what happened at the trial, as well as of the facts and occurrences antecedent to the trial, and same will be accepted as the correct and proper evidence of what did happen in the lower court.
    APPEAL from the Twelfth District Court, Parish of Calcasieu. Fournet, J.

      M. J. Cunningham, Attorney General, and E. D. Miller, District Attorney, for the State, Appellee.

      W. G. McDonald and R. H. Ogden for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

The indictment charges two persons,¡namely, Joshua Perkins and Owen Ashworth, with stealing three yearlings, and on the trial they were convicted and sentenced to one year’s imprisonment in the penitentiary.

Notwithstanding there was a motion for new trial filed and overruled and a motion in arrest of judgment likewise filed and overruled, no bills of exception were noted or retained to these unfavorable rulings; consequently defendants’ counsel have filed in this court an assignment of errors, and rely upon it, exclusively, for relief.

The following are the points made in- the assignment of errors, viz.:

1. That the record does not show that the bill of indictment was presented in- open court.

The minutes of September 10, 1892, state: “Into court comes the grand jury, and through their foreman, reports the following * * State vs. Joshua Perkins et al. Larceny. A true bill.”

And on the back of the bill is this endorsement, viz.: “ Filed September 10, 1892. C. B. Richard, deputy clerk,” and it confirms the correctness of the minute entry.

2. That the verdict was not returned in open court.

The minutes state, to-wit: “Having heard all the evidence and arguments of counsel and the charge of the court they retire to deliberate upon the case. Having agreed to a verdict, they return into court, and, through their foreman, report their written verdict, which is as follows, to-wit: Lake Charles, Louisiana, February 14, 1893. We, the jury, find the accused guilty as charged. (Signed) A. M. Lindsay, foreman. Whereupon the jury was polled and the verdict verified and confirmed.”

3. That the verdict was never recorded in the minutes.

The quotation from the minutes made in the preceding paragraph is a complete answer to this objection.

4. That the expression of the verdict, namely: “We, the jury, find the accused guilty as charged,” is vague, indefinite and uncertain, and null and void.

Counsel’s argument is that the form of words “ the accused ” is uncertain, and places the matter in doubt as to whether one or both of the defendants were meant; but the objection is met and answered by the minutes of February 14, 1893, from which the foregoing,quotation was made.

They are as follows, to-wit:

“ Tuesday, February 14, 1893.
“ State vs. Joshua Perkins et al.
“ This ease being called for trial, and the district attorney being present in court, as also the accused, Joshua Perkins and Owen Ash-worth, with their counsel * * * the trial was proceeded with by drawing from the jury box the following named,” etc.

Omitting the method of procedure in drawing and empaneling the jury, as recited in the minutes wherein the previous quotation occurs, thus immediately connecting the two parts thereof and shows clearly that the two defendants were on trial and were convicted.

There is neither obscurity or uncertainty in the minute entry on the subject.

5. That there is nothing to show that the defendants were present at any time after the regular venire was exhausted and the tales jurors had been summoned and when the verdict was rendered.

The previous quotation from the minutes shows that the two defendants were present in open court when the trial began, and during the time the first nine jurors were empaneled and sworn. At this juncture the minutes declare that “ the regular venire being exhausted the court ordered the deputy sheriff in attendance on the court to summon tales jurors to complete the panel, which was done, and the following named three tales jurors were accepted and sworn upon the trial of this cause; ” and then the foregoing recital occurs.

From this quotation we must infer that no recess was taken during the time the three tales jurors were being selected and sworn. On the contrary it is more than likely that these tales jurors were chosen from among the bystanders, and that no intervening delay occurred, and that consequently the defendants were not removed from the court room during the time of the selection of the tales jurors.

6. That it is affirmatively shown that the persons were not both present, as the judge ordered the sheriff to take charge of the prisoner.

The minutes of the day and date specified are to the effect that “ whereupon the jury was polled and the verdict verified and confirmed, whereupon the presiding judge ordered the sheriff to take charge of the prisoner.”

This is but the concluding recital of the minutes of February 14, 1893, the day of trial, from which the preceding quotations have been made and the opening sentence of which declares that “ the accused, Joshua Perkins and Owen Ashworth,” were present, and as we have found that they were both convicted, the conclusion is irresistible that both defendants were remanded to the sheriff’s custody after sentence had been pronounced, and that the use of the singular noun “ prisoner ” was inadvertently and unintentionally employed instead of the plural noun “prisoners;” or else it was an error of the clerk in making up his minutes.

The defences urged are extremely technical and undeserving serious consideration.

Judgment affirmed.


author: Fenner, J.

text:
    No. 11,251.
    The State of Louisiana vs. Riviere Richardson.
    1. An indictment charging some but not all the elements of burglary, but containing a perfect charge of larceny, though bad as to the burglary, is good as to the larceny, and a verdict of guilty of larceny will be sustained.
    2. The insullicient averments of burglary may, either on trial or on motion in arrest, be treated as superfluous and disregarded. Whart. Or. Ev. Sec. 138; 35 An. 1059.
    APPEAL from the Eleventh District Oourt, Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, and E. B. Dubuisson, District Attorney, for the State, Appellee.

      E. P. Veazie and O. F. Garland for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The indictment charges that defendant “ did feloniously and burglariously and with force and arms break and enter the store of E. Lafieur etc., and then and there, being at said time feloniously in said store, did then and there feloniously steal, take and carry away twelve dollars in U. S. currency and 25 pounds of coffee of the goods and chattels of E. Lafleur, contrary,” etc.

After trial, the jury rendered a verdict acquiting him of burglary, but convicting him of larceny.

Defendant filed amotion in arrest on the ground “thatthe indictment against him contains but one count and that the same is radically defective on the face of the papers.”

The judge having overruled the motion in arrest and passed sentence, the present appeal is taken.

In this court the point is urged that the single count of the indictment is fatally defective in charging the crime of burglary, and that is true and conceded by the State, because it does not set forth that the breaking and entering were with intent to commit a felony, as required by the statute.

Nevertheless, as an indictment for larceny, it is perfect in all respects, and as the defendant is convicted only of larceny, no reason appears for his complaint. The charges of burglarious entering and breaking are, so far as the count for larceny is concerned, merely superfluous, and, as they are'not charged in such manner as to maintain the count for burglary, they might be stricken out or disregarded without affecting, in any manner, the charge of larceny. On the same point we have heretofore quoted and applied Mr. Wharton’s language, as follows: “ All unnecessary words may, on trial, or arrest of judgment, be rejected as surplusage, if the instrument would be good on striking them out;” Whart. Cr. Ev., Sec. 138; State vs. Brown, 35 An. 1059.

Our ruling, far from conflicting with, affirms and applies the authorities relied on by counsel for defendant, viz,: Whart. Or. L., Sec. 417; 30 An. 413; 34 An. 50. We hold that but one offence is charged and one penalty is inflicted.

Judgment affirmed.


author: Nicholls, C. J.

text:
    No. 11,256.
    The State of Louisiana vs. Elijah Powell.
    1. Where the terms ol court in a parish in which an accused has been indicted and tried are conformable to law he has no legal concern in. those in the other parishes of the judicial district, which in no way affect his rights.
    2. The action of a district judge in fixing the terms of his court under legal authority so to do can not be collaterally drawn in question after verdict on a motion in arrest of judgment. That action should have been made the subject of a direct attach at an earlier stage of the proceedings.
    APPEAL from the Sixth District Court, Parish of Richland. Ellis, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.
    Robert Whetstone for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant urges before us that the verdict of the jury and the judgment of the court thereon rendered againse him “are illegal, the illegality being patent upon the face of the record.”

The reasons upon which he grounds this claim are embodied in a motion in arrest of judgment which the District Court overruled and are as follows:

“ That he was tried out of term time; that when he was tried therwas no legal term of the court; that under Act No. 22 of 1892, the district judge of each district shall by order, in open court or in chambers, fix the subsequent terms of the court, and shall cause the order to be entered on the minutes, and a copy thereof shall be sent to the clerk of the District Court in each parish, and shall be by him recorded in the minutes book of the court, and shall be posted on the door of the court house; that under Act 78 of 1892, to amend and re-enact Section 3 of Act No. 7 of 1880, entitled ‘ An act to fix the terms of the District Court under the Constitution of 1879, and to regulate the fixing by the district judges of subsequent terms,’ the district judge of the Sixth District Court, composing the parishes of Pranklin, Richland and West Carroll, has fixed his terms as follows, which the minutes of the court will show:
“ Notice.
“ State oe Louisiana,')
“ Parish of Franklin, V “ Sixth District Court. J
“ It is ordered that the terms of this court be fixed to convene in each year as follows:
“For the Parish oe Franklin.
“ Criminal Terms — On the first Mondays of January and August.
“ Civil Terms — On first Mondays of April and October.
“ For the Parish of West Carroll.
“ Criminal Terms — On third Mondays of January and August.
“ Civil Terms — Third Mondays of April and October.
“ For the Parish of Richland.
“ Criminal Terms — On second Mondays of February and September.
“ Civil Terms — Second Mondays of May and November.
“ Done and signed in chambers this 11th day of July, 1892.
“ CAREY J. ELLIS,
Judge 6th District Court.
“ As shown above, the terms as fixed are contrary to law. It is clearly shown that the defendant was tried contrary to law, and that the judgment should therefore be arrested and set aside.”

Whilst the motion declares it to be clearly shown that the defendant was tried contrary to law, it nowhere specifies (as t should) in what particular the illegality consists.

We have to look to counsel’s brief for an explanation of defendant’s position. His contention is that the law prescribes that in districts where there are three parishes the terms shall begin at least three weeks apart, and that in the Sixth District “ the judge has fixed his terms in contravention of the express law, when he should give three weeks from the opening of his court from one parish to another, he only gives two weeks. ’ ’

An examination of the terms as fixed shows that the first term of court for Richland parish was the second Monday of February, whilst the term of court immediately preceding it in another parish was that of West Oarroll, on the third Monday of January.

There was therefore, in point of fact, an interval of three weeks between the beginning of those two terms.

The accused had and has no legal interest in the interval between the terms of court of the parishes of Franklin and West Carroll.

Apart from this the motion was not well taken. The district judge was clothed with authority to fix his terms, and did fix them. If the accused conceived that he was aggrieved by those terms he should have taken action at a eai-lier stage of the proceedings than after verdict, and his objections should have been leveled directly at the judge’s order. He can not be permitted through a motion in arrest to collaterally attack that order after he has pleaded to the information, and gone to trial without objection.

Judgment affirmed.


text:
    No. 11,268.
    The State ex rel. J. Benjamin Chandler Praying for Writs of Habeas Corpus, Certiorari and Prohibition.
    1. Where subsequently to verdict and prior to sentence doubts arise as to the sanity of the person convicted the court has the right, upon the suggestion of the district attorney, to cause an investigation to bo made on that subject.
    2. Authority to that effect can be found in Sec. 1768 of the Revised Statutes, if direct authority for that purpose be necessary.

      3. The judge is authorized to engraft upon the criminal proceedings in his court, not yet closed, the proceeding provided for in that section, and in the absence of a direct mode of procedure being exacted, to mould it to correspond with the analogous methods of proceeding resorted to for the purpose of the trial of special issues.

      Thomas F. Maher for the Relator.

      John J.,Finney, District Attorney, for the Respondents.
   The opinion of the court was delivered by

Nicholls, C. J.

Relator avers that he was indicted by the grand jury of the parish of Orleans on the charge of libel, and tried before a jury of the panel in Section “A” of the Criminal District Oourt for the said parish and found guilty of the crime of libel on the 5th ■day of August, 1892. That relator, through his attorney, appointed by the court, made a motion for a new trial, which was taken under advisement. That after his conviction, upon the suggestion of the assistant district attorney, a commission of medical experts was appointed by the court to examine into the mental condition of relator, who made a report, a copy of which he annexed to his petition. That the report caused all further proceedings to be suspended, and relator was released on bond furnished to the criminal sheriff in the sum of $500. That.relator was notified to appear before the said Section “A” of the court on the 29th of March, 1892, at the suggestion of the law officers of the State to again have his mental condition inquired into by a jury of the panel. That the attorney representing relator filed an exception to the aforesaid proceedings, which was overruled by the court, and thereupon he filed a bill of exceptions to the ruling of the court, which was granted, and relator on the verbal suggestion of the assistant district attorney to the judge of Section “ A,” without any proof, either oral or written, that the going at large of relator -would be dangerous to the safety of the citizens of the State or the peace of the State, relator was placed under a $10,000 bond, in default of which he is now confined in the parish prison of the parish of Orleans under a capias issued to the criminal sheriff of said parish. That the bond of $10,000 fixed by the judge is excessive and in violation of Art. 9 of the Constitution of the State, and that the suggested inquiry into the mental condition of relator before a jury of the panel is illegal and not authorized by any law of this State.

In view of the premises he prayed that a writ of habeas corpus issue to the criminal sheriff of the parish of Orleans, in whose custody as keeper of the paiish prison relator now is, commanding him to bring relator before this court with the cause of his detention and commitment, and that a writ of certiorari issue directed to the judge of Section “A,” commanding him to send to this court a certified copy of the proceedings in the case of the State of Louisiana vs. J. Benjamin Ohandler in order that their validity may be ascertained, and that the said judge be enjoined from proceeding any further in that case until the judgment of this court in the premises; that the writ of habeas corpus be made absolute, and that he be discharged from custody and for general relief and for such other relief as this court is competent to give him.

The criminal sheriff produced the body of the prisoner and returned that he detained him under the capias referred to in relator’s petition.

The facts of the case are conceded.

The report of medical experts mentioned in the petition was to the effect that being unacquainted with the antecedent history or habits of the defendant they base their opinion solely on a protracted personal interview with him. That they found his mental tone good — conversation tranquil and in no way disturbed by mention or discussion of litigation in which he is involved. That the marks or evidence of definite mental disease they did not clearly discern. Prejudice and all kinds of extravagant opinions and conceptions which he has not the power to reject, of injuries and injustice which he has sustained at the hands of others, are so persistently and deeply fixed upon his mind, producing morbid irritability of feelings and mental worry to that degree that he is morally irresponsible for his acts and expressions. That he is a monomaniac on the subject of his wrongs, real or imaginary.

The exception filed by relator was to the effect that an inquiry by a jury of the panel after conviction and after the report of the medical commission on file and of record is irregular, illegal and not authorized by any law of this State; that the court is without jurisdiction rations personas; that such an investigation before a jury of the panel, who are not medical experts and therefore not competent to pass their opinion on the mental condition of the defendant, is unauthorized and contrary to law; that the investigation sought to be had by the law officers before the jury of the panel is violative of Art. 6 of the Constitution of 1879, and is an attempt to deprive him of his liberty without due process of law; that the Civil District Court is the only competent tribunal to pass on the mental condition of the defendant, as provided by Arts. 389 and 393 of the Civil Code; that after the conviction of the defendants for libel before Section “B” of the court, and during the pendency of a motion for a new trial, and before the court had passed on that motion, the assistant district attorney suggested to the court that the mental condition of defendant be inquired into, and thereupon the court ordered the motion to be granted, and appointed, according tp law, a commission of medical experts to pass on the mental condition of the defendant, and the report is in writing, ard forms part of the record in this case; that the State is estopped by the acts of its legal officers from entering into any further investigation as to the mental condition of defendant, as the written report is conclusive proof as to said mental condition, and can not.be contradicted by any evidence other than expert testimony, and is presumed to be correct; that the medical commission appointed are officers of the court, and are presumed to have done their duty until the contrary is shown: that the report of the medical commission is res judicata; that insanity is a special plea and resorted to by a person charged with a crime or misdemeanor in order to protect himself from the punishment provided by law for the commission of the act; that on the trial of the case for libel before the petit jury it was their province to acquit the accused by reason of his insanity or mental derangement, as it was also in the power of the grand jury not to indict the accused for the same cause, and that the-suggested inquiry as to defendant’s mental condition by a jury of the panel be declared illegal, null and void, and the court annul and set aside this proceeding brought by the law officers against him.

We have copied this exception in full for the purpose of ascertaining the precise grounds of complaint urged by the relator and the counsel appointed by the court to represent him.

Taking it as a whole we understand that the action of the court in appointing a medical commission at the time and under the circumstances it did is conceded to have been rightly taken, for the report of the commission is declared to be conclusive and in the nature of res adjudicata.

Had the court given the final force and effect to the report which relator contends for, it seems its eourse.would have been satisfactory. It is because of the fact that it did not do so but proposes to pursue the investigation further, and because by reason of the additional fact that the judge has increased the amount of the bail bond from $500 to what relator asserts to be an excessive amount, $10,000, he has been, pending the examination, committed to prison, that objections have been urged to the proceedings below and to the jurisdiction of the court.

We are not called upon to say whether the judge would have been justified in considering the report as conclusive and acting upon it at once, nor do we know what his action would have been had he felt authorized to do so; but it does not admit of a doubt that it was entitled to no such weight as is attributed-to it. The court evidently felt that something more was required as to relator’s mental condition than the mere suggestion of the assistant district attorney, to serve as a foundation for an investigation, and this report, which relator conceives to have been th.e ending of the examination, was in fact its basis or beginning. There is a manifest inconsistency between urging on one side that the judge’s action up to and inclusive of the receiving of the report was strictly in accordance with the law and his powers, and asserting on the other hand that the whole subject matter is beyond the jurisdiction of the Criminal District Court and entirely within that of the Civil District Court, under proceedings to be based upon Arts. 289 and 293 of the Civil Code.

We are clearly of the opinion that the judge was authorized to pursue the course he did. The proceeding is not one, as relator seems to construe it to be, adverse and hostile to him, but one essentially for his good and his protection, and dictated by feelings of humanity. A system of law which would cause punishment to be inflicted forcedly upon a person whose mental .condition was such as to render him nob responsible for his acts, because no remedy was at hand to avert such a wrong, would be glaringly defective.

It is fortunate we do not entertain the same views on this subject that relator does, for the effect of holding his views would carry with it as a necessary result his punishment under the verdict of the jury heretofore rendered.

The ease of relator was within the jurisdiction of the Criminal Court at the time the action c&mplained of was taken — the proceeding was an incident of that case. The issue of sanity or insanity was one entering essentially into the question of the guilt of the accused and his punishment — for the purposes of the particular case the subject was nob being investigated with reference to property rights or civil interdiction, but as a possible shield to the person convicted himself. The proceeding is one well known to the laws of England and of our sister States, and if direct authority were needed to authorize it in this State we think that authority can he found under the terms of Sec. 1768 of the Revised Statutes.

We think that the judge was authorized under that section upon the report of the physicians to direct an investigation as to the mental condition of relator and to engraft the proceedings for that purpose upon the case of Chandler, then in his court. We think the judge authorized in the absence of a direct mode of procedure being exacted by that section, to mould the proceedings to correspond with the methods of proceeding resorted to for the purpose of the trial of analogous issues and we see no just ground of complaint that the issue should have been submitted to a jury instead of to the court.

What the proceedings will eventuate in we can not anticipate. Should any illegal action be taken or wrong and injury result relator ■will have ample time and opportunity to remedy it. As matters now stand we see simply a proceeding which has been checked at its beginning, having in view not the injury, but, as we have said, the protection of relator, in which proceeding up to the present time we see nothing illegal or objectionable, and in which therefore we can not interfere.

The second branch of relator’s ease, however, presents a question of a different character. Relator claims that in violation of Art. 9 of the Constitution excessive bail has been demanded as a condition of his regaining his liberty until his case is finally disposed of; that he is unable to give a $10,000 bond and that there is nothing to justify the exaction of so heavy a bond.

Art. 9 of the Constitution declares that “ excessive bail shall not be required, nor excessive fines be imposed, nor cruel and unusual punishment inflicted. All persons shall be bailable by sufficient sureties unless for capital offences, where the proof is evident or the presumption great, or unless after conviction for any crime or offence punishable with death or imprisonment at hard labor.”

What reasons the district judge had, after having subsequently to the rendition of the verdict of the jury, fixed relator’s bail bond at $500, to increase the amount of that bond to $10,000, we are not informed. No intervening act appears to have occurred. The judge’s ruling evidently recognized relator’s right to bail. There is no reason before us to show why it should be denied.

We understand that bond to have been given under the indictment brought against relator for the particular crime charged. As said in Ike Williams, 23 Pacific 118, the determination of what is disproportionate to the offence involved depends upon the moral turpitude of the crime, the danger resulting to the public from the commission of such offences, and the punishment imposed or authorized by law therefor.

In Louisiana the punishment prescribed for libel is fine or imprisonment, or both, at the discretion of the court.

We think the amount fixed by the judge for the amount of the bond which relator is required to furnish, $10,000, is excessive, and that it should be reduced, and that a bond conditioned according to law for the sum of $1000 is sufficient.

It is therefore ordered, adjudged and decreed that the writ of habeas corpus sued out in this case be granted to the extent of permitting the relator to obtain Ms liberty after he will have furnished a bond to the satisfaction of the judge of Section “A” of the Criminal District Court, with all the required conditions, in the sum of $1000, thereby reducing the amount from $10,000 heretofore required to $1000.

In every other respect the said writ is denied, and the demands under it are rejected. The prisoner is again placed in the custody of the sheriff. It is also adjudged and decreed that the writ of certiorari and prohibition be denied and dismissed and that the original papers produced by the Criminal District Court be returned to that court.


author: Nicholas, C. J.

text:
    No. 11,262.
    The State of Louisiana vs. Wright Stephen.
    1. Where the instrument which is charged to have been falsely altered is ill its character an order for money or for the delivery of goods at the option of the holder it must in order to conform to the fact of necessity be so described in the indictment.
    2. Sec. 833 of the Revised Statutes does not make it necessary in an indictment under it to charge that the accused “ sought to obtain money ” up on the altered instrument.
    3. When an indictment in its recitals complies with the legal requirements of the statute under which it is drawn ail additional statement of facts to supplement the recitals need not be set forth with technical precision.
    4. It is the duty of the court to pass upon all questions as to the admissibility of evidence — that of the jury to judge of its sufficiency.
    5. It is not necessary for the purposes of a prosecution under Sec. 833, Revised Statutes, that the order for the payment of money or for the delivery of goods should be full and complete on its face. It is sufficient if it be shown to be such by the known and accustomed dealings between the parties.
    ■6. The mere names of the crimes given in the heading of a series of sections in the Revised Statutes do not cause the statutory crimes found in the sections to fall and be governed by all the rules applicable to the crimes as technically named in the headings.
    APPEAL from the Nineteenth District Court, Parish of Iberia. Voorhies, J.

      M. J. Cunningham, Attorney General, and B. F. Broussard, District Attorney, for the State, Appellee.

      Todd & Todd and A. & Chas. Fontelieu, for Defendant and Appel lant.
   The opinion of the court was delivered by

Nicholas, C. J.

The defendant, sentenced to imprisonment at hard labor in the State penitentiary under Sec. 833 of the Revised Statutes, has appealed.

The indictment charges him with having for the purpose of obtaining money and with intent to defraud Felix Patout, the owner of the Hope plantation, feloniously, falsely and corruptly altered a certain plantation ticket, which plantation ticket so falsely altered he presented' to Felix Patout, well knowing the same to be falsely altered.

The indictment describes with some particularity the plantation ticket and its purport — describes the condition of the ticket prior to and also subsequently to the* alteration and how the latter was accomplished. It shows also how and to what extent the change could be productive of fraud on the owner of the plantation. In referring to the ticket it mentions it as an order in favor of Wright Stephen (the defendant) from the overseer of the Hope plantation, to-wit Miles Hacket, on Felix Patout, owner of said Hope plantation, for the payment of money, or on the clerk of the Hope plantation, the property of the said Felix Patout, for the delivery of goods.”

Defendant through his counsel moved to quash the indictment ‘ ‘ because the same is void. ’ It does not state whether the defendant is charged with forging an order for goods or an order for money. It does not describe the act with such a degree of circumstantiality or state facts sufficient to indicate what has been done by defendant to constitute a crime as purports to be alleged against accused; because it is not charged that defendant sought to obtain money on said cheek, document, ticket, etc.”

The court overruled the motion.

The indictment charges the accused with having altered a certain plantation ticket, which plantation ticket at the option of the holder called either for money from the owner of the property or for goods at the plantation store belonging to the owner. This being the exact character of the ticket the State could not correctly describe it in any other manner. Which of the two uses of which it was susceptible it would be put to was a matter resting upon the choice of the accused. In the case at bar the indictment states that for the purpose of obtaining money he feloniously, falsely and corruptly altered the ticket with intent to defraud Eelix Patout, and that he presented the same to Eelix Patout, well knowing the same to be falsely altered.

We see .no force in the objection that the accused was not sufficiently advised of the nature and cause of the accusation against him.

Having in his possession a plantation ticket,” furnished him by the overseer of the Hope plantation, to indicate the number of days and half days he had worked upon the place, at the rate of seventy - five cents a day, and the amount the owner was indebted to him for the same, this indication appearing by a number of punches” on certain lines on the ticket made with an instrument bearing the letter “ H,” the initial of the overseer, he is charged with having feloniously, falsely and corruptly altered the ticket by adding to the number of these punches” in order to obtain money from the owner of the plantation and to defraud him, and with having presented this ticket so altered to him, well knowing it to be falsely altered.

These charges so plainly appear in the indictment that it was utterly impossible for him not to know exactly what accusation he had to meet.

The section under which the accused was indicted does not make it necessary to charge that the accused “ sought to obtain money on said ticket,” but had there been such a requirement, we think the indictment would sufficiently show that fact. When an indictment under a statute complies with the requirements of the statute itself, the statement of facts made to supplement the recitals of the indictment, as required by the letter of the statute, need not be set forth with technical precision.

During the progress of the trial defendant reserved the following bill of exceptions:

On trial hereof the attorney for the State was proceeding Co show that a plantation ticket’ offered in evidence, and which is hereto attached and made part of this bill of exceptions, was an order, etc., and was proceeding to show other facts regarding the punching of said ticket, when defendant’s counsel objected to said evidence, and to all evidence against the accused in the matter, on the ground that the document alleged on and produced could not be the subject'of forgery, and that the punching of same did not constitute forgery, etc., which objection was overruled by the court deciding that the jury must decide as to its efficiency, and evidence was admitted to show that said ticket could be presented for payment in money or goods.”

When defendant’s counsel objected to the introduction of the “ plantation ticket ” as being inadmissible because it was not an instrument of such a character as was essential to serve as a basis for a prosecution for forgery, it was the judge’s duty to have passed on that objection one way or the other, and he should not have remitted the whole matter to the jury.

It is the duty of the court to pass upon questions as to the admissibility of evidence, and that of the jury to pass upon its force and sufficiency.

The jury having by its verdict shown that in its opinion the ticket came up to all legal requirements as a basis for the prosecution in the case, and the ticket being attached to and brought before us as part of defendant’s bill of exceptions, we are in a position to know whether the action of the judge which is complained of worked injury to the accused in this particular case.

We are of the opinion that the ticket was of such a character as to furnish a proper foundation for the prosecution, and that had the judge ruled as he should have ruled upon the question it should have been permitted to have gone (as it did go) before the jury. No harm therefore has resulted from his error.

It is not necessary for the purposes of a prosecution under Sec. 833 of the Revised Statutes that the order for payment of money or the delivery of goods should be full and complete on its face. It is sufficient if, by the known and accustomed manner of dealing between the parties, the instrument as placed in the possession of the party altering and subsequently presenting it would entitle him to use and present it as an order for the payment of money or the delivery of goods, and such as the other party in the same known and accustomed course of dealing would receive, accept and act upon as such an order.

We are not called upon to say whether the ticket would or would not serve as a basis for a prosecution for forgery by that special name. What we are called upon to decide, and what we do decide, is that it is sufficient under the terms of Sec. 833' of the Revised Statutes. The mere names of the crimes found at the heading of the series of sections commencing with Sec. 833 do not canse all the statutory crimes found in these various sections to be governed by the rules applicable to the crimes as technically named in the heading.

Accused filed a motion in arrest of judgment on grounds identical with those embodied in the motion to quash and raised in his objection to evidence. The court correctly overruled the motion.

For the reason herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed.


author: Nichodls, C. J.

text:
    No. 11,137.
    Jacob Imhof vs. Amelia Imhof, His Wife.
    1. There is a difference between “ estoppels” which preclude the advancing of a claim at all, and “admissions by conduct,” or “presumptions arising from conduct,” which only render difficult of proof, pretensions inconsistent there- • with.
    2. Estoppels may be waived or renounced by permitting evidence covering the whole ground to be received without objection.
    3. * If a husband actually hold and possess as owner property at the date of the second marriage, the fact that ho may hold it unduly docs not preclude him as between himself and his second wife from claiming it as his own. The origin and source of the property does not concern her; it is enough that it does not belong to her and the second community.
    4. If a plaintiff have documents in his possession legally admissible perse in behalf of the defendant, it is no good ground for not producingthem that by reason of his incompeteney as a witness he may not be able to give his own testimony or explanation of them.
    5. A defendant who during the progress of the trial calls, for books or papers in possession of the plaintiff must conform to the requirements of Art. 130 of the Code of Practice.
    6. A writ of fieri facias having issued to enforce the payment of alimony for one month, under an order of the District Court that plaintiff shíuld pay defendant forty-five dollars per month, a rule was taken by plaintiff on defendant to show cause why the same should not be set aside. After hearing had the rule was made absolute and the writ set aside. The defendant appealed. Held, that the matter in dispute was below the appellate jurisdiction of the Supreme Court.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Chas. IP. Buck and Dinkelspiel & Hart for Plaintiff and Appellee.

      Sambola & Dueros for Defendant and Appellant:
    1. A party to a judicial record is precluded from disproving' a tiling’s value attested or acquiesced in by him. 33 An. 352; 40 An. 189, 763.
    2. This value is shown by evidence aliunde not to be incorrect in fact. /
    3. The trial judge erred in not allowing appellant $500 as a claim of hers against the parties’ community.
    4. The rent of community property accrued between the date of a suit for separation from bed and board and the day of the sale thereof, made to effect a partition, is a necessary asset of the community. R. O. 0,150,155,2432 ; 2 Duranton, No. 622.
    5. So-called debts of the community, not legally proved, should be disallowed on. appeal, though the lower court has not passed upon them. 8 N. S. 63; 11 An. 404; 13 An. 448 ; 24 An. 223; R. C. C. 2248; 15 An. 457; 19 An. 326.
    6. A debt contracted by the husband, since the date of the judgment of separation, is legally presumed to be his own personal obligation. R. C. C. 150,155 2432 ; 2 Duranton, No. 622.
    7. A wife separated from bed and board may, in proceedings tending to a settlement of the community, call for her husband’s boolts, papers and documents relative to his business. 16 L. 28; 34 An. 375,1176; 1 Marcade, p. 603 ; 2 Toullior No. 759.
    8. The destitute wife, suffered to starve by her husband, may legally sell community movables, to obtain the necessaries of life for herself and child, bo she plaintiff or defendant, and should be allowed to retain the proceeds thereof on account of that alimony to which she was entitled pendente lite, whether the final judgment be rendered for or against her. lOToullier, No. 95; 13 Duranton No. 454 ; 5 Larombiere, p. 212; R. C. C. 147, 148; 14 An. 731; 2 Duranton, Nos. 595j 596, 597; 3 Zacharite, p. 369; 19 L. 581; 15 An. 593.
    9. A provision for alimoné inserted in a final judgment of separation is strictly legal, and constitutes res judicata between the parties thereto, be the alimony decreed without or with their consent. 6 An. 196; 20 An. 277; 30 An. 522; 2 Duranton, Nos. 617, 633; 1 Marcade, p. 611; Pothier, Marriage, No. 522.
   The opinion of the court was delivered by

Nichodls, C. J.

The plaintiff in May, 1891, instituted, for reasons assigned, against his wife, to whom he was married on the 16th November, 1876, a suit for a separation from bed and board, and a dissolution of the community.

He alleged there were no children issue of their marriage. That he had in his possession and under his control some property, to-wit: his business and appurtenances thereto belonging, which the law would hold as community property — that he had not been prosperous, that in fact he was seriously embarrassed, and said community is insolvent and unable to refund bo him a Sum of |10,000, separate property, which he owned and possessed at the date of his marriage, but which J»e desired to have recognized as against his said wife. That he was residing with her at No. 550 Canal street, which, however, he uses also as part of his business, as a retail and wholesale grocery, keeping therein his wagon, horses and other appurtenances necessary in the business, and he can not remove them without great injury to his business and inconvenience in the management thereof. That it is necessary for him, pending the suit, to live apart and separate from his wife. That his wife is unwilling to accept a residence which he is ready to tender her and that an order of court is necessary in this regard, and for the purpose of furnishing her with a separate dpmicil and residence, and maintenance, he is ready and willing to pay an adequate alimony per month in proportion to his means, say, besides the dwelling, the sum of 885 a month, on condition that such separate domicil be assigned her and she occupy same.

He prayed for citation, for judgment decreeing a separation from bed and board, and dissolving the community and recognizing his claim against the community property for the sum of 810,000. He further prayed that his wife be ruled to show cause why she should not be ordered to leave the matrimonial domicil and have a domicil assigned her upon petitioner’s paying rent therefor and the sum of 885 per month or such other amount as the court might fix according to the circumstances of the parties, after hearing. This application was granted on the 19th June, and the wife ruled into court accordingly.

The defendant answered June 5, 1891. She pleaded the general issue, charged plaintiff’s petition to be a tissue of falsehoods and slanders, averred herself to have always been a dutiful and exemplary wife, and prayed that plaintiff’s demand be rejected. Assuming then the position of plaintiff in reconvention she attacked her husband’s conduct vigorously, and alleging that she and her husband are owners in common of some movable and immovable property in the city of New Orleans; that one of the properties was occupied by them as the matrimonial domicil, where she is entitled to reside; that she had inherited from her parents since their marriage 8600, which her husband had used in his business, and that she feared her husband would dispose of the community property under his control to defraud her; that, in fact, he had already burdened it and otherwise entangled the real estate with simulated mortgages to her detriment', and that it was necessary for the preservation of her rights that an inventory and appraisement be made of the movables and immovables in his possession; that an injunction should issue, restraining him from disposing of any part thereof in any manner to her prejudice; she prayed for the taking of such inventory; for an injunction restraining her husband and prohibiting him from!disposing of any of the property, except in the transactions of the commercial business in which he is engaged; that she have judgment decreeing a separation from bed and board, and condemning her husband to pay her the sum of $75 per month from the 1st of June, 1891, as alimony.

The court ordered an inventory to betaken, and that an injunction issue as prayed for.

By a minute entry of June 26 it appears the incidental rule to show cause of June the 19th was taken up on that day, both parties being represented, and that after hearing, pleadings, evidence and arguments the matter was taken under advisement. A minute entry of the 29thJune appears, to the effect that “the law and the evidence being considered, it is ordered that plaintiff’s rule be made absolute, and that plaintiff be ordered to pay to defendant, his wife, the sum of $35 per month alimony, to commence from the date she shall remove to the domicil hereafter assigned her. Further ordered that defendant be ordered from the house now occupied by her, being the matrimonial domicil,No. 550 Canal street, to such place to be hereafter definitely fixed, established and approved by the court — the plaintfff to pay rent therefor and expenses of removal, and that said judgment for alimony shall commence from the date of said removal.”

Defendant moved for a new trial on the ground that the evidence adduced did not justify the ejectment of defendant from the common dwelling to another domicil “ to be hereafter definitely fixed, established and approved by the court,” and the court erred in giving such an order, inasmuch as mover never declared her intention to leave the said common dwelling under Art. 147, C. C.; that the execution of the order will endanger the life of defendant, who is lying in bed in a most critical condition. That she is entitled to $75 per month as alimony under the evidence and that the small sum allowed her, “ to commence from the day on which she shall remove to the domicil to be hereafter assigned her,” will not avail her, as she is at the present time in necessitous circumstances, in immediate need and depending upon the charity of her neighbors, although her husband has $20,000 worth of property belonging to the community; that it was shown that her husband has never provided for her since the institution of this suit and since he abandoned the matrimonial domicil.

On the 11th March, 1892, the case went to trial, and in the note of evidence an entry appears to the following effect: “It is agreed in regard to alimony (the condition of the original judgment never having been fulfilled), that judgment be rendered condemning plaintiff to pay alimony from the first day of January, 1892, at the rate of $45 per month until the settlement of the community, on condition that she vacates the house.”

The judgment rendered by the court was in favor of plaintiff and against defendant. It decreed a separation of bed and board and a dissolution of the community, ordered the matter of the settlement of the community to remain open for future adjustment, referred the parties to Marcel T. Ducros, notary, for the purpose of settling the community and the adjustment of their opposing claims, and further ordered and decreed that the sum of $45 per month be paid by the plaintiff to the defendant as alimony from the first day of January, 1892, and that the cost of the proceedings be paid by the community. The parties to the suit were not personally present at 'the trial, but were represented by their respective attorneys.

On the 6th day of April, 1892, the parties and their attorneys appeared before Marcel T. Ducros, notary, for the purpose of settling the community and adjusting their opposing] claims, as directed in the judgment of the 11th March, 1892. The notary submitted to them an extract from the inventory which he had made at the inception of the proceedings under the order of the court. The parties then presented their respective claims and objections, of which the notary, as required by Art. 1368 of the Civil Code, made a prooes verbal, suspended the proceedings and referred the whole matter to the district judge for his decision thereon.

On the filing of the notary’s proces verbal in the District Court plaintiff’s counsel, suggesting to the court that the parties had been unable to agree before the notary, and that the claims of plaintiff were well founded and those of the defendant not well founded, and that the act of partition should be completed as contended for by him, obtained an order ruling the defendanCto show cause why the act of partition should not be so completed.

On the trial of this rule the court rendered a judgment, but on motion of defendant it was set aside and a new trial granted. On the second trial the court made plaintiff’s rule absolute in the following respects:

“Where not objected to or opposed by either party it is to be approved as correct — that accordingly the contents of the store or the business carried on by the plaintiff, with outstanding assets and liabilities, be decreed to be part of the community. That all real estate acquired in the name of the plaintiff as described in the inventory on file and embodied in the proces verbal be decreed to be community property. That the real estate acquired by Jacob Imhof on the 12th of July, 1875, fronting on Rampart street, in the square bounded by Julia, Rampart, Delord and Dryades streets, be decreed to be the separate property of Jacob Imhof. That Jacob Imhof be decreed to be a debtor of the community in the sum of $1500, part of the purchase price of said property paid after his marriage with the defendant. It is further ordered that Jacob Imhof do have judgment against the community and recognized as creditor thereof, to be paid out of the assets for the payment of all his debts as against his wife in the sum of $8000, being the amount owned and possessed as his separate property at the date of his marriage with the defendant. That the defendant be decreed to be owner of the piano claimed by her as her separate property, and that she have and recover judgment against the plaintiff, Jacob Imhof, or against the community, for the sum of $150, her separate property, entrusted to him and by him used for the benefit of the community. That her claim for $500 be rejected, and it appearing that she has been in possession of the household furniture belonging to the community, and which was stored in the matrimonial domicil, and that she has kept some or disposed of it for her own benefit, that she be made to restore the same or account for the value thereof in the final partition. It is further ordered that the notary proceed with the act of partition of the community property between the parties on the basis of this judgment, and that all costs be paid by the mass.”

From this judgment the defendant has appealed.

It will be remembered that on the judgment rendered on the 11th of March, 1892, the court ordered and decreed that the sum of $45 per month be paid by the plaintiff to the defendant as alimony, from the first day of January, 1892.

The plaintiff appears to have paid this amount monthly up to the 31st of May, 1892, but failing to do for the month of June, defendant through her counsel suggesting that fact to the district judge obtained an order from the judge that a fi. fa. issue to secure the payment of that amount. The writ which issued thereunder was satisfied through a seizure. The plaintiff having refused to pay the $45 which fell due on the 31sb of July, 1892, again applied for and obtained a writ of fi. fa. to force payment. Plaintiff’s counsel thereupon moved that the defendant show cause why the order authorizing the issuing of a writ of fi. fa. to collect alimony should not be rescinded and all proceedings under the writ issued thereunder should not be stayed and quashed for the following reasons :

1. That the judgment of separation from bed and board rendered between the parties is final and the wife is entitled to no further alimony.

2. Even if this were not so she is not entitled to alimony without proof that she has maintained a residence at a domicil assigned by the judge.

3. She is not entitled to alimony pending the proceedings for settlement of the community which she obstructs and delays.

On the 15th of September, 1892, the judge rendered a judgment in the matter of this rule in which he used this language :

“I have looked in vain in the record for a valid judgment to sustain the writ of execution issued herein to collect alimony for any time after the rendition of the judgment. It is true in the note of evidence there is a sort of statement that to a certain extent, as far as the property affairs of the parties are concerned, the judgment is based upon consent, and said note of evidence shows that the judgment was intended to be that the husband pay alimony until the settlement of the community, but I find no warrant in law for any such judgment based upon consent between the husband and wife, or for its enforcement, even it had been agreed to. I must therefore look to the scope of the judgment itself, and the only question that embarrasses me is whether or not, the judgment being subject to appeal, alimony may be recovered by the wife in any event pending the appeal or pending the delays allowed for prosecuting such appeal. The wife is the defendant in this case and it is a serious question, and in fact has been adversely decided by the District Court that the wife being defendant can not recover alimony at all. But waiving this point I am of the opinion that the parties having proceeded actively to settle the community of acquets and gains have thereby acquiesced in the judgment and no appeal will lie from it — it has become final by acquiescence, and being final all incidental or interlocutory proceedings except such as might arise out of the case of children are at an end. The separation of the husband and wife is complete, subject only to the probation of the law founded upon public policy, that neither shall be permitted to contract marriage until a full divorce shall have been granted. It is therefore ordered, adjudged and decreed that the rule taken in this case on the 24th of August last to set aside the order authorizing the issuance of the ft. fa. to collect alimony be made absolute and the ft. fa. quashed.”

From this judgment the defendant has appealed separately.

The first portion of the main judgment appealed from which defendant attacks is that recognizing the community to be indebted to the plaintiff in the sum of $8000.

On this subject she claims that the detailed inventory of the first community and of the succession of his first wife taken only fourteen days prior to the date of the second marriage, as well as his account of tutorship approved under the signature of the minor’s under-tutor and homologated by the court on the 13th of January, 1877, prove that the stock was then worth only $534, and that the appellee had no cash on hand and no outstanding bills against any of his customers, and appellee is estopped from impugning the verity of the facts of those judicial proceedings.

There is no doubt that the mortuaria proceedings taken in the matter of the succession of the first wife of the plaintiff are evidence tending to discredit and strongly discredit his present assertion that at the date of his second marriage he had property to the amount of $10,000, but there is a great difference between estoppels ” which preclude the advancing of a claim at all, and admission by conduct or presumptions arising from conduct which only render difficult of proof pretensions which are set up inconsistent therewith.

The defendant in this suit was not a party to the proceedings which she invokes, and her rights and her course here in no manner controlled, injured or affected them so far as the record shows. The mortuaria were admissible in evidence, but when so received they worked no estoppel.” Estoppel was not pleaded, and evidence covering the whole ground was introduced without objection. Estoppel resulting from the most solemn adjudications of courts may as such be waived or renounced, unless insisted upon when evidence adverse to them is sought to be introduced.

We are of the opinion from the evidence that the inventory and account in the succession of plaintiff’s first wife did not truly show the rights of parties at that time as between plaintiff and his children by first marriage, and the latter were not properly dealt with, but that fact by no means leads up to the result which defendant contends for. It in no wise follows that, because the plaintiff may have retained out of the property of the first community a large amount belonging to his children, the amount so retained fell into the second community. If in point of fact plaintiff had in his possession and holding as owner $10,000 at the time of his second marriage, the origin or source whence it was derived does not legally concern the defendant. It is enough for her to know it does not belong to her. He may have held it unduly, but that was a matter between himself and the person from whom it was withheld, and not between him and his second wife. His wrong doing, if such there was, did not, in law, enure to her benefit.

The witnesses vary greatly in their estimates as to plaintiff’s actual pecuniary condition at the date of the second marriage. We think it established beyond doubt that he was very well off at that time. The district judge reached the conclusion that he then owned property to the amount of $8000, exclusive of the real estate on Rampart street. We think he fixed the amount too high and that the judgment as to that item should be reduced to the sum of $5000. If the plaintiff in reality owned more than this, he must suffer the penalty of having left uncertain, that which should have been precisely fixed and ascertained, when it was not only easy, but when it was his duty to have done so. After the plaintiff had closed, (the trial being in progress, and defendant taking testimony in her own behalf) her counsel called for the production of plaintiff’s bank book from 1877 to that time, stating his object to be to prove the amount of money deposited by plaintiff during the community and what was his financial standing at the time the inventory was taken. Plaintiff objected to this demand on the ground that the books called for are equivalent to testimony of plaintiff, which can not be admitted in the case. The court sustained the objection, ruling that the books of plaintiff are nothing without explanations, and plaintiff can not be permitted to testify in regard to them.” In this connection it may be well to say that whilst proving up his own case plaintiff had offered himself as a witness on his own behalf, but on objection made by defendant he was not' permitted to testify. We do not think the particular reason assigned by the court tenable. If a plaintiff have documents in his possession legally admissible per se in evidence on behalf of the defendant, the fact that should he produce them he may not be able to give his own testimony in explanation of them would not justify their exclusion. (Williams vs. Goss, 43 An. 870.) In the case at bar the identical information which defendant sought to elicit through plaintiff’s bank book could have been procured directly through the testimony of the bank officers, and the fact that plaintiff might not be able to testify relative to the entries, would not be good ground for keeping the testimony out. The situation is not changed in this special particular by the defendant having recourse to her husband’s bank book for the information instead of to the bank; but we do not find reversible error in what happened. Instead of seeking the testimony of the bank officials, as she could have done, she thought proper to depend upon a call on her husband during the progress of the trial, and did so without laying the foundation required by law and without following out its requirements. O. P.140.

Defendant complains that judgment was not rendered in her favor against her husband for $500 over and above the $150 recognized by the court as having been received by her by inheritance and turned over to her husband. We think it clearly established that the only money received by her from that source was the $150 for which she has recovered judgment. The simple fact that pending the community $500 were deposited in her name in a bank, which she drew out and delivered to her husband, would not justify a judgment in her favor against her husband as for so much money belonging to her separate estate which he had received and converted to his own use. Without any explanation of the origin or source of the money it is presumed, in spite of the deposit in the name of the wife, that the funds belonged to the community.

A large part of the defendant’s brief is devoted to a discussion of the claims which the plaintiff presented as claims of the community. The persons who are stated to be creditors are not before the court, and we are not in a position to pass upon their claims even if their verity were a proper subject of inquiry in this proceeding.

Both parties are represented by counsel and we assume they will avail themselves of all the rights and remedies to which their respective clients will be entitled. The defendant will have the undoubted right to protect herself as against any attempt which her husband might make to get possession of, and fraudulently hold, the community funds under the pretext of paying claims which are merely nominal and purely fictitious, should she have good grounds for believing he intended doing so, and to see to it that she will be paid exactly what is due to her. The circumstances under which she could act and the method of action we do not here discuss.

Defendant claims that plaintiff since the institution of this suit has received a large amount from rents of community property and he should be held to account for them. In this she is right, but on the other hand the plaintiff will be entitled to any legal claim he may have for taxes, necessary repairs, etc., paid by him for and on account of these properties. Both parties are at liberty to set up claims they may have for matters arising since the institution of this suit.

The defendant has by a separate order of appeal appealed from the order or judgment of the District Court setting aside the fi. fa. for $45 tor alimony for the month of July, 1892.

No view which we can take of that order would justify our entertaining an appeal from it. (See Malony vs. Malony, 9 R. N. 116; Fletcher vs. Henler, 13 An. 150.) Whether we look at the direct and immediate issue raised and determined by the decree, which at that time only regarded a sum of $45, or whether we consider it from the standpoint of practically determining that the defendant was and Would be entitled to no further alimony, in neither case could,we find “ the matter in dispute ” to be one within our constitutional jurisdiction as to amount. The evidence in the record establishes that (rightly or wrongly) alimony had been paid from January 1,1892, to June 30, 1892, and the only question at the time before the court was in reference to alimony for one month, that of July.

It may be that the result of the view of the situation taken by the district judge will be to deprive defendant for months to come of What she evidently claims to be her right to alimony by express agreement until the affairs of the community are finally liquidated and closed, but we do not know nor is defendant able to say how short or how long that period will be. We can not assume that matters could be so long prolonged as to bring a determination of the question within our appellate jurisdiction.

There are additional reasons for not reviewing the action of the district judge.

In plaintiff’s original petition he offered to pay defendant $35 a month on certain conditions, designating the money so to be paid as “ alimony.”

In defendant’s reeonventional demand she claimed $75 a month, referring to it as alimony.” And on both occasions where the district judge dealt with the matter he also did so as “ alimony.'1'1

A claim for alimony ” is not only an incident of the suit for a separation from bed and board, but any order rendered on that subject is an interlocutory collateral order which in the very nature of things is indeterminate both as to duration and as to amount, changing with varying circumstances and shifting -with different conditions. It is an order under the control of the judge, and subject to a very great extent, if not entirely, to his discretion. The fact that the last order in this case touching that subject was inserted in the final judgment was purely accidental and did not change the character of the order from that which it would have had if rendered in a different manner. It was still an interlocutory order subject to modification or revocation by the judge. Elder vs. Rogers, 11 An. 606; Hennen’s Digest, p. 330, No. 3.

Eor the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be amended so as to reduce the amount for which judgment was rendered in favor of the plaintiff against the community from the sum of $8000 to the sum of $5000, and as so amended it is affirmed, and the case is remanded for further proceedings in accordance with the views expressed in this opinion. Appellees to pay costs of appeal.