author: Bbeaux, J. Watkins, J.

text:
    No. 11,891.
    Adele R. Hays, Widow, Dative Executrix of the Late Harry D. Hays, vs. G. F. Lapeyre and E. H. McCaleb.
    There are circumstances which place the holder of paper in circulation upon inquiry, without direct notice of any infirmity of title.
    The policy executed on the life of the deceased was a valid contract, and, as such, was assignable to the defendants for the amounts held due.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Frank N. Butler foi’ Plaintiff, Appellant,
    cites: 104 U. S. 775-779; 15 Wallace, 643; 101 Mass. 564; 10 S. E. Rep. 241; 142 U. S. 664; 11 Fed. Rep. 573-577; 11 Atl. Rep. 780; C. N., Art. 160; 'Marcade, Vol. 3, p. 253; 21 Wallace, 448; 7 Wallace, 558; 11 Wheeler, 258; 1 An. 178; C. C. 1779, 1893, 1894.

      Saunders & Miller for Defendants, Appellees.
    Argued and submitted November 22, 1895.
    Opinion handed down December 16, 1895.
    Rehearing refused April 20, 1896
    (Wateins, J., dissenting).
   The opinion of the court was delivered by

Bbeaux, J.

In April, 1889, the late Harry D.Hays effected a policy of insurance on his life in the Equitable Life Assurance Society for the sum of fifty thousand dollars. A short time after the policy was issued, he became afflicted with a mortal disease. In his condition of ill health, and being without means, he applied on the 25th of August, 1889, to a practising attorney for money to pay the premium of insurance on said policy about to mature. The premiums paid, interest thereon and fees charged amounted to about five thousand seven hundred dollars. To secure this amount, the late Harry D. Hays made an assignment of the policy to the attorney, H. L. Lazarus, acting for a client who loaned the amount, and transferred notes, the latter amounting to more than thirty thousand dollars. He, Hays, became displeased and called at defendant’s office; sought their advice.

They prepared his petition in December, 1890, to the court for judgment to annul and set aside the assignment he had made of this policy and the ‘delivery of notes, in which he in substance alleged that being pressed for funds and his health not permitting him to work and support his family, he had applied to the attorney Lazarus in August, 1889, to whom he afterward assigned his policy, for an advance in money and for a monthly stipend of two hundred dollars to enable him to support his family. That he was, he says, imposed upon; the monthly allowance was not inserted as one of the conditions of the assignment, although he had been led to believe it was.

In the petition prepared for Hays by the defendants, in December, 1890, he alleges that the total amount advanced was only. $4150, for which the attorney received notes to the amount of $34,000, the deed of trust and the assignment of the policy of insurance; that Bright’s disease, from which he was suffering, was agonizing and torturing, impairing his health, enervating his mind and body and rendering him incapable of correctly understanding the nature and tenor of the documents and notes submitted to him for signature; that these assignees, Lazarus and Weil, had no interest in his life at the time of the assignment.

That the execution of the deed of trust and notes by said Hays for the excess beyond the amount actually advanced to him, to-wit: $4150, with interest from September 4, 1889, was a wagering policy, and said Weiss & Co. and said Lazarus were in equity and good conscience only entitled to the advances made thereon. The assignee, Judge Lazarus, attorney, prior to any suit, consented to cancel the assignment and surrender the notes, upon the payment of the sum already mentioned as claimed by him.

In December of 1890 the defendants advanced him the amount required to effect the compromise with the said assignee. The services of defendants here as attorneys for obtaining a relinquishment of all claims under this assignment and effecting the compromise was fixed at $5000.

In consideration of the advance made to enable him to pay Lazarus, attorney, and the fee of five thousand dollars due to defendants, the late Harry D. Hays transferred and assigned to the defendants his title and interest in the policy he held at the time.

Prior to this assignment he had executed a number of notes, payable on demand, amounting in the aggregate to nineteen thousand four hundred and seventy-two dollars.

They were placed by the maker, Hays, in the hands of several persons (his friends), and they were treated by him as if he had received consideration from them, although he had not. Under his instructions, these notes were placed by the respective holders in the hands of different attorneys for collection or sale.

They were acquired, by a practitioner at the bar, for less than fifty cents on the dollar of their face value.

Afterward, to-wit: on March 3, 1890, he, the maker, Hays, executed and delivered to the holder of these notes, Fergus Kernan, a document admitting their binding character, and assigning his life insurance policy to secure their payment.

In February, 1891, the said assignee of these notes was a party to an authentic deed fixing his interest in the policy securing the notes held by him at two-fifths and the remaining three-fifths to the defendants, and thereby Hays secured time after the transfer, and he, Hays, admitted that the notes were held, as just stated.

Another note was subsequently executed by Hays and placed in circulation. It found its way into the hands of an attorney, who threatened to bring suit and to seize and have sold the insured’s interest in the policy. This note, among the number, we identify as the Dar ton note.

On the 10th day of January, 1891, the defendants purchased these, the Kernan notes, for about [$11,175, and the holder surrendered to them the life policy of $50,000, and from that time the defendants were in full possession. With interest, the amount collected was $50,125.

The following are credits admitted by the plaintiff:

By cash paid first assignee.:. $5, <26 62

By cash paid for $19,472.18 of Hays’ notes. 11,1/6 00

Cash advanced to and for account of Hays. 14,770 00

Cash paid for the Davton note. 2,113 36

Cash deposited in registry of court to the credit of the succession of Hays 3,428 57

Total interest account admitted is. 4,373 55

Two items.. 25 00

Total credits...$45,674 19

Balance claimed as due at the time of statement. 4,550 81

The defendants claimed at least one amount, additional, paid by them, we do not find, and which, if not already credited, we think should be carried to their credit, viz.: five hundred dollars paid attorney’s fee in suit to collect the policy.

The facts, in regard to the assignment (the first in order of date), are, as already stated, that after the party (Lazarus) sued for the policy had expressed willingness to surrender the policy assigned to him for the amount the assignor, Hays, was willing to pay; he, Hays, did not have the amount required; it was then that the defendants made an advance which amounted with their fee, not contested, to more than eleven thousand dollars.

To that amount the plaintiff does not question the validity of the transfer.

The complaints relate principally' to the notes identified as the Kernan notes and the note held by Darton, all subsequently transferred to defendants by the respective holders.

As to these, it is alleged that they were issued without consideration; that defendants acquired them with full knowledge of all the circumstances under which they were issued.

The record discloses that a dissension arose between the defendants and the assignee, F. Kernan, Esq., the former, contended that the latter should pay forty per cent, and they sixty per cent, of the premiums. The defendants finally offered to sell their interest to Kernan; he stated that his means did not permit him to buy, and he in turn made a proposition to sell to them, which they accepted, and after some delay, the sale was completed.

They give as the reason for making this purchase of these notes, that that they had disbursed a large amount for Hays, some $11,100, and that their object was to get possession of the policy. They testified that the statement to them by Kernan, the holder, and by Hays and by Mordecai, who acted for Hays in negotiating these notes, was that they were notes representing debts which Hays had contracted while he was in some canning factory business, in which he failed, and that Kernan, the holder, had purchased these notes from different creditors who held them from Hays.

The transferror of these notes, Kernan, at the same time transferred to the defendants his interest in the assignment of the life insurance policy.

In these assignments no mention was made of premiums, or of the necessity of making provision for their payment. It was manifest that the insured was unable to pay them, and that to'keep the policy alive the assignee would have to pay the premiums as they became due.

During the life of the policy, from the spring of 1889 to March 30, 1894, five annual premiums, each two thousand four hundred and fifty dollars in amount, aggregating twelve thousand two hundred and fifty dollars, were paid by the assignees, not a cent was paid by the insured Hays.

It appears of record that the defendants were aware of the extreme illness of the insured Hays and of the mortal nature of his disease, and that he had no property or resource of any kind, save his life policy. Subsequently, his health improved, and it was reported that he had recovered from the severe attack which physicians had pronounced incurable. The improvement was temporary. In March, 1894, he died, leaving a will containing the following, “ There are some outstanding notes against which I request my wife to pay as the law directs.” These were the notes held by the defendants, regarding which one of the defendants testified as follows:

Question. “Was there any agreement between yourself and Mr. Hays as regards the amount that you should claim under the pledge of the policy to you on those notes that you acquired from Kernan? ”

Answer. “Well, we understood that we were to claim the full amount of the notes; and they were to be payable out of the policy after his death, an uncertain event, it is true. ”

Judgment was pronounced for the defendants, rejecting plaintiff’s demand. The plaintiff prosecutes this appeal.

The transactions whereby the defendants became the owners of these claims were open and direct; there was no disposition manifested to take undue advantage; they were endeavoring in a legitimate manner to protect their interest, and evidently believed that the maker of the notes, Hays, had received adequate value.

In the act of compromise annulling the first assignment made of the policy by the insured, there is reference to the claim here, general in terms it is true, yet sufficient to excite and put on inquiry.

Direct and express notice is not always indispensable to take notes out of the rule of commercial law and cut off the equities.

When the circumstances are such as to bring a particular case under the operation of that rule the maker of the note is legally entitled to insist upon its application regardless of the question of actual knowledge on the part of the purchaser of the note.

We pass to the next ground urged:

The defendants can not take-more than their investments from the life insurance' policy.

It is but justice to state that the transactions in regard to the policy were intended by the defendants to be fair and just.

Owing to favorable circumstances about twenty-nine thousand dollars have been realized by the succession, for which no actual value was paid by the insured.

There has been considerable discussion and diversity of judicial opinion upon the subject here involved. The defendants refer to several decisions holding that a valid policy of insurance effected by one upon his life is assignable like any ordinary chose in action, and they contend that, as holders of the notes of the insured prior to maturity, they had an interest in the whole policy. .

In regard to the first proposition, in our view, if a policy is invalid when taken out by one who has no interest in the life of the assured, the assignment, of a policy to one without interest is equally as invalid. The reason for holding the former invalid should invalidate the latter.

Mr. Justice Field, in Warnock vs. Davis, 104 U. S. 779, as organ of the court, upon that subject said:

“It is not easy to define with precision what will in all cases con- ■ stitute insurable interest,

“It may be stated generally, however, to be such an interest, arising from the relations of the party obtaining the insurance, either as creditor of or surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life. It is not necessary that the expectation of advantage or benefit should be always capable of pecuniary estimation; for a parent has an insurable interest in the life of his child, and a child in the life of his parent, a husband in the life of his wife, and a wife in the life of her husband. * * *' But in all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or affinity, to expect some benefit from the continuance of the life of assured.”

These principles have been re-announced in subsequent eases: Insurance Company vs. Luchs, 108 U. S. 503; New York Mutual Life Insurance Company vs. Lewis, 15 Wal. 643; Cammack vs. Armstrong, 117 U. S. 597.

In the last case, the learned justice said, “that an assignment of the policy to be valid, must be made for valuable consideration.”

In the following cases the decisions of the Supreme Court of the United States have been followed: Stevens vs. Warren, 101 Mass. 564; Cooper vs. Shaeffer, 11 Atlantic Reporter, 548; Roller vs. Moore, 10 Southeastern Reporter, 241, and authorities cited.

Reasoning from the premises of the defendants, these decisions do lnot apply ; they claim that they were creditors for the whole amount for which the assignment was. made, and plead the face value of their notes.

But, in our opinion, while they have a right to their fee, advances and interest, they are without the benefit of the law applying to negotiable instruments prior to maturity.

It is true that, technically, these notes were delivered prior to maturity, but they were payable on demand; the maker had informed the defendants that he was much pressed for payment by the holders; they were held for collection from the proceeds of the policy, and all the transactions were directed to the collection to be made from the policy, and it is conceded that this was all that the holders expected to realize.

Where a note is made for a special purpose, or taken to be collected exclusively from a policy of insurance under the circumstances of this case, we think it is taken out of the rule which governs negotiable instruments, in so far as relates to the equities.

The defendants are entitled to their fees and to all they have advanced, and all they have paid for the claim they hold and interest. Their demand for the remainder, after these will have been paid, is rejected.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed, annulled and avoided. It is further ordered, adjudged and decreed that plaintiff recover judgment for the sum of fifty thousand one hundred and twenty-five dollars, less all advances, also amounts paid as transferees of the notes, and fee and interest as already stated, and that the case be remanded to the District Court and a judgment entered in accordance with this decree.

The defendants and appellees to pay costs of both courts.

DISSENTING Opinion on Application por Rehearing.

Watkins, J.

Notwithstanding I concurred in the opinion and decree of the court when first rendered, more mature deliberation upon the questions-involved have influenced me to believe that the ends of justice would be best subserved by an affirmance of the judgment of the district court in favor of the defendants.

Two propositions are presented for our consideration in reaching a conclusion in this case, viz. :

1. Whether or not a policy of life insurance which is made payable to the insured, his heirs and legal representatives, is a good commercial collateral security.

2. And if it is not, whether the defendants acquired the Kernan notes under circumstances warranting their recovery of their face value from the succession of Hays as maker thereof.

If such a policy of insurance is a good commercial collateral, such as the deceased had a legal right to pledge to a stranger, defendants as third holders of his commercial obligations, necessarily occupy just as favorable a situation as the first taker: but if not, have not the defendants the right to recover from the succession of the maker the face value of those notes, independently of the pledge of the insurance policy, they being ordinary creditors of the deceased on that score?

The transaction simply stated is as follows, viz.:

In March, 1891, the defendants purchased from Fergus Kernan six notes which Hays had issued and theretofore placed upon the market, aggregating in amount $19,472.18, for the price of $11,175, whereby Kernan was fully reimbursed his outlay; and the defendants took his place in the contract with Hays — the policy of insurance on Hays’ life being thereto annexed as collateral security.

The defendants kept the premiums paid up and the policy in force during the lifetime of the insured, and at his death they collected the full amount from the company, and, on settlement with the plaintiff representing the succession, they claim the right to retain the full amount of said notes.

This demand of the defendants is resisted by the widow on the ground that the transaction between them and her deceased husband was of the character of a wagering contract, which is not enforceable in law beyond the limit necessary for their full reimbursement from the avails of the policy.

This theory was adopted by the court in its opinion on the authority of the following cases, viz.: Warnock vs. Davis, 104 U. S. 779; Insurance Co. vs. Luchs, 106 U. S. 503; Cammack vs. Lewis, 15 Wallace, 643; New York Mutual, etc., vs. Armstrong, 107 U. S. 597; Stevens vs. Warren, 101 Mass. 564; Cooper vs. Shaffer, 11 Atlanta Rep. 548; Raller vs. Moore, 10 Southeastern Rep. 241. And the opinion announces the conclusion of the court to be that where a note is made for a special “ purpose, or taken to be collected exclusively from a policy of insurance under the circumstances of this case, we think it is taken out of the . rule which governs negotiable instruments in so far as it relates to equities.

“ The defendants are entitled to their fees and to all they have paid for the' claim they hold and interest. Their demand for the remainder, after these will have been paid, is rejected.”

I have examined with care the cases of Warnock vs. Davis and Cammack vs. Lewis—the others I could not find by the references given — and my conclusion is, that they are not applicable to the case at bar. The distinguishing feature of the case of Warnock vs. Davis is, that the engagement between the party insured and the Trust Company antedated the issuance of the policy of insurance, and the insured assigned the policy to the Trust Company on the date of its issuance, less one-tenth which he retained; and the Supreme Court very correctly held that “ such a policy would constitute what is termed a wager-policy, or a mere speculative contract upon the life of the assured with a direct interest in its termination.”

The point made and decided in Cammack vs. Lewis was the same as shown by this statement of the opinion, viz:

“To procure a policy for three thousand dollars to cover a debt of seventy dollars is of itself a mere wager.”

It is quite evident that the court in those cases, exclusively, dealt with contracts entered into between the parties, antecedent to the issuance of policies of insurance; and, finding them to be circumstanced as stated, declared that the policies were wager-policies.

These opinions have, in my opinion, no application to contracts of the class we have under consideration, which were made long subsequent to the issuance and delivery of the policy to the insured.

And not only was the contract between Neman and the defendants made long subsequent to the issuance of the life policy to Hays, the insured, but the notes of Hays which the defendants took from Kernan, were the identical notes upon which Hays had previously realized over eleven thousand dollars on the faith of this policy, and in addition to the payment of the premiums which had been paid by others in order to preserve the the life of the policy, prior to defendants’ acquisition thereof.

The legality and binding force of such contracts have frequently been maintained by the New York Court of Appeals, and they have held that “ a valid policy of insurance effected by a person on his own life is assignable like an ordinary chose in action, and that the assignee is entitled, upon the death of the assured, to the full sum payable, without regard to the consideration given for the assignment or to his possession of any insurable interest in the life of the assured.” St. John vs. American Mutual Life, etc., 18 N. Y. 31; Vallon vs. National Loan Fund, etc., 20 N. Y. 32; Olmstead vs. Keys, 85 N. Y. 593.

The rulings of the New York court are in keeping with those of the highest courts of other States, as is instanced in the following reports: Ashley vs. Ashley, 3 Simmons, 149; Mutual Company vs. Allen, 138 Mass. 24; Eckel vs. Renor, 41 Ohio St. 232; Martin vs. Stebbins, 126 Ill. 387; Fitzpatrick vs. Insurance Co., 56 Conn. 116; Clark vs. Allen, 11 Rhode Island, 439; Rittler vs. Smith, 70 Maryland, 261; Murphy vs. Red, 14 So. Rep. (Miss.) 761.

Indeed, the Supreme Court in Warnock vs. Davis refer to some of the New York cases, and say:

“It must be admitted that they are sustained by many other adjudications.”

In those opinions, the courts had under consideration assignment of policies made by persons insured .to strangers; and such assignments were upheld and maintained as good and valid in law.

On the same principle, they would have undoubtedly held that a pledge of such policies as collateral security would have been equally good and valid.

The language employed by the Massachusetts court in the leading case can be appropriately cited here:

“In Mutual Life Ins. Co. vs. Allen, 138 Mass. 24, the Supreme Court of Massachusetts, * * * after referring to the dicta in Cammack vs. Lewis, 15 Wall. 643, and Warnock vs. Davis, 104 U. S. 775, and showing that it was not decided in either of those cases that all assignments for life insurance policies without interest are illegal, said, that the right to receive money on the death of another is assignable, at law or in equity, will not be questioned. It is true that every person who is in expectation of property at the death of another has an interest in the death, but it does not follow and it is not true that the law does not allow the possession and assignment of such expectations. * * * We see nothing in the contract of life insurance which will prevent the assured from selling his right under the contract for his own advantage, and the fact that the assignee has no insurable interest in the life insured is neither conclusive nor pirma facie evidence that the transaction was illegal. In the well considered case of Clark vs. Allen, 11 R. I. 439, the Supreme Court of Rhode Island used this language: “It is said that such assignment, if permitted, may be used to eircumvent the law. But it does not follow that such an assignment is not to be permitted at all, because if permitted it may be abused. Let the abuse and not the bona fide use be condemned and defeated. The truth is, it is one thing to say that a man may take insurance upon the life of another for no purpose except asa speculation or bet on his chances of life, and may repeat the act ad libitum; and quite another thing to say that he may purchase the policy as a matter of business, after it has once been duly issued under the sanction of the law, and is therefore an existing chose in action or right of property. There is in such purchase, in our opinion, no immorality and no imminent peril to human life. We should have strong reasons before we hold that a man shall not dispose of his own. Courts of justice, while they should uphold the great and universally recognized interests of society, ought, nevertheless, to be cautious about making their own notions of public policy the criterion of legality, lest, under the semblance of declaring the law, they, in fact, usurp the functions of legislation.” (My italics.)

In the recent case of Stuart vs. Sutcliffe, 46 An. 240, we have this identical principle affirmed.

In that case, as in this, the legal representatives of the deceased policy-holder sued Kline as possessor thereof under a contract of pledge securing the payment of certain notes of the deceased, claiming the proceeds which had been collected of the insurance company.

In the opinion it is said:

‘ ‘ Plaintiffs do not make claim as beneficiaries of said policy, but as the executors and heirs of deceased; hence, for all purposes of this case, they occupy exactly the same situation as that occupied by the deceased, and can invoke no other cause of nullity than such as he could have urged while living.”

Having announced the foregoing postulate the court states its conclusion to be, that it “ has for many years maintained the assignability of such policies of insurance, as that of an incorporeal right”— exactly in keeping with the State decisions we have quoted above.

In Succession of Hearing, 26 An. 326, the court distinctly and pointedly said:

“ A man may take out a policy of insurance on his life, in the name of any one, or having taken it out in his own name, he may, with the consent of the insurers, transfer it to whom he pleases.”

In Succession of Richardson, 14 An. 1, the' court gave effect to an assignment of a policy made by the insured upon the day of its issuance.

The court distinguished a policy which is made payable to the heirs and legal representatives of the insured, like the one involved in the case of Stuart vs. Sutcliffe and in this case, from one payable to some third person as beneficiary—citing Succession of Bofenschen, 29 An. 711; Putnam vs. Insurance Co., 42 An. 739, and other cases.

To my thinking the foregoing authorities are conclusive as to the assignability of the life insurance policy of Hays; and, consequently, defendants are quite as much entitled to hold and retain the full amount of the Kernan notes out of the proceeds collected as Klein was allowed to hold the proceeds of the Stuart policy, as such a policy is in all respects a good commercial collateral for the debts of the insured.

Entertaining "these views, I respectfully recall my assent to the opinion of the majority of the court and file this as my dissenting opinion.


source: Caselaw Access Project

author: Miller, J. Breaux, J.

license: Public Domain

text:
    No. 12,034.
    William Murray vs. James M. Sweeney.
    On Motion to Dismiss.
    The amount of the fund in the sheriff’s hands, the subject of the judgment distributing it, is the test of the right of appeal, and not the amount of appellant’s demand. Constitution, Art. 81; Amendment Acts 1882, p. 174; 40 An. 135; 34 An. 1140.

      On the Merits.
    where a demand exceeds flve hundred dollars for labor and materials in building addition to, and making repairs on house, there must be a written contract as against third persons, registered in the clerk’s office in time.
    If the property be sold without.separate appraisement, the privilege is lost.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Frank MoGloin for Plaintiff, Appellant.

      Farrar, Jonas & Kruttschnitt for Intervenor, Appellee.
    On Motion to Dismiss.
    Submitted on briefs February 10, 1896.
    Opinion handed down February 24, 1896.
    On the Meeits.
    Argued and submitted March 23, 1896.
    Opinion handed down April 6, 1896.
   On Motion to Dismiss.

The opinion of the court was delivered by

Miller, J.

The plaintiff obtained judgment against defendant for nine hundred and twenty-five dollars, with privilege on the building erected by him, seized and sold the property. The intervenor asserting a mortgage on the immovable, i. e. the.building and ground, filed a third opposition claiming to be paid her debt, exceeding the-fund in the hands of the sheriff derived from the sale four thousand! dollars. From the judgment of the lower court in her favor awarding her the entire fund and denying the plaintiff’s privilege, he appeals. The appellee, Mrs. Moore, moves to dismiss the appeal, on the ground that the claim of the appellant being only for nine hundred and twenty-five dollars, with interest, is not within the jurisdiction of this court. If the amount he claims is the test of jurisdiction, the appeal must be dismissed.

The appellant urges his right to appeal arises from the provision in the Constitution conferring on this court jurisdiction in all cases where the fund to be distributed exceeds two thousand dollars. Constitution, Art. 81. Amendment Acts 1882, p. 174, No. 125.

Under the, previous constitutions of the State the jurisdiction of the Supreme Court in eases where the appellant claimed less than the appealable amount, to be paid from funds exceeding that amount in the hands of the court, was the subject of frequent •contention. The jurisdiction in that class of cases was maintained, ■but the tests were difficult of application under the scant grant of appellate jurisdiction in previous constitutions; i. e. when the matter in dispute exceeded three hundred dollars. The. present Constitution, not only gives this court appellate jurisdiction where the matter in dispute exceeds two thousands dollars, but adds, or funds to be distributed whenever the amount claimed therein shall exceed two thousand dollars.” This addition was perhaps made to supply a fixed test of jurisdiction of incidental demands with respect to funds the court was called on to distribute to litigants, some of whose demands might be less than two thousand dollars. This intention is marked by the language, whatever the amount claimed therein. We think, too, that previous decisions have established the construction allowing an appeal where, as in this case, the fund exceeds two thousand dollars, though the claim of the appellant is less. The test may seem arbitrary in a case like this where the only judgment to be rendered is for or against the payment out of the fund of appellant’s demand of nine hundred and twenty-five dollars, still in view of the mandate of the organic law and previous decisions we think the appeal must be maintained. The cases cited by appellees from 33 An. 1085 (Loeb & Bloom vs. Orent); 39 An. 86 (Young vs. Duncan), and 43 An. 1041 (Katz & Barnett vs. Gill), have had our attention. The decisions in cases of funds in the hands of sheriffs contended for by parties with conflicting claims to be settled by judgments of distribution, in our view, have direct application and must guide our decision. Weil vs. Ins. Co., 40 An. 135; Renshaw vs. Stafford, 34 An. 1140. They affirm that from a judgment distributing funds exceeding two thousand dollars in the sheriff’s hands the test of the right of appeal is that amount and not that of the appellant’s claim.

It is therefore ordered, adjudged and decreed that the motion to pismiss be denied.

On the Merits.

Breaux, J.

The proceeds of the sale of the property, upon which there existed a mortgage and vendor’s privilege, were not sufficient in amount to satisfy the mortgage and vendor’s privilege of the intervenor, and the privilege of plaintiff for repairs upon the building constructed on the property thus mortgaged.

The plaintiff claims a preference over the proceeds to the amount of his claim, to which he would undoubtedly have been entitled if his privilege had been recorded in time.

The intervenor alleges that the contract claimed by plaintiff was not reduced to writing and recorded; that plaintiff did not apply for a separate appraisement, and as a result the land and the improvements were sold together without regard to any privilege.

The District Court recognized the intervenor as the owner of the two notes she holds, secured by vendor’s privilege, and ordered the sheriff to turn over to her the proceeds of the property and to retain in his hands sufficient to satisfy only the costs of sale.

From the judgment the plaintiff prosecutes this appeal.

The amount of intervenor’s claim and the date of her privilege are not contested.

With reference to the privilege claimed by the plaintiff as entitled to preference, it is radically null against third persons, for no agreement was reduced to writing and registered, as required by the article of the Code. The amount claimed is over five hundred dollars. In express terms a written contract is made a prerequisite to the privilege.

The following is the language of the Code:

“No agreement or undertaking for work exceeding five hundred dollars which has not been reduced to writing and registered with the Recorder of Mortgages shall enjoy the privilege above granted.” O. C. 2775.

Interpreting this article, this court, many years ago, announced that there are two requisites to secure a privilege. Taylor vs. Crain, 16 La. 220, 292. The utterances of the court were equally as clear in Spence vs. Brooks, 6 An. 63, 64, in which case no agreement had been reduced to writing and registered. In Charity Hospital vs. Stickney, 2 An. 550, 551, the court held that the amount due, or to become due, to entitle one to the benefit of a privilege similar to the privilege claimed here, must be fixed in the contract when the amount exceeds the sum stated.

A similar question was at issue in McRae vs. Creditors, 16 An. 306.

Passing from the question of the written contract needful to secure a contractor’s privilege, the registry of plaintiff’s claim in time vel non is the issue next in order for our consideration.

No privilege has preference over pre-existing mortgages and privileges unless “ the act or other evidence of the debt is recorded within seven days from the date of the act or other obligation of indebtedness.” Act No. 46 of 1877.

It is suggested in behalf of plaintiff, claiming a preference, that the “obligation of indebtedness here stands, by clerical or typographical error, for evidence of indebtedness,” and that the penal term (if there was a clerical error or an error in printing committed) was seven days from the confection of the original act, or from the date of other evidence of indebtedness.

It must be conceded that the language of the act, at this point, is peculiar. It is not at all manifest that the error, which plaintiff asserts, was committed. The legislator used the word “obligation;” as interpreter of his will we are not authorized to substitute the word “ evidence.”

It is reasonable to presume that it was intended to ñx a time of recording in order to secure a privilege; that is, from the “date of the obligation;” the rule has certainty in that case, but if it were fixed from “the evidence of the indebtedness” the privilege would become extremely uncertain, and frequently depend upon the mere consent of the debtor contrary to the well settled principle that privileges are independent of the convention of the parties.

As a fact, we have stated that the obligation dated from the 6th of a month and was recorded on the 14th.

The next objection in order: a separate appraisement is urged by intervenor to plaintiff’s claim. It is a fact that the sale was not preceded by an appraisement.

Interpreting Art. 3268 this court held that the furnisher is not “entitled to a privilege if he allows the building and the lotto be sold without a separate appraisement.” Succession of Cox, 32 An. 1035, 1036.

In Hoy, Tutor, vs. Peterman, 28 An. 289, the claim had been recorded in time, and yet the court held that it was lost by permitting the sale of the house without a separate appraisement.

There are a number of decisions upon this point; we will not discuss the subject further, for we rest our conclusion on the ground of failure to reduce the contract to writing and register the claim in time.

In the matter of costs, we do not understand that there is any material difference between the plaintiff and the intervenor. The costs include those, it is claimed by the plaintiff, should be deducted from the proceedings for the sale.

The judgment appealed from is therefore affirmed.


author: Miller, J.

text:
    No. 12,046.
    D. J. Flagg vs. Parish of St. Charles.
    The plaintiff, alleging he is the holder of claims for services of parish officers,"witnesses’ and jurors’ fees, and other items of parochial expenses,the claims duly acknowledged and warrants therefor issued and averred to be entitled to be paid, will be concluded by the judgment dismissing his petition without reservation, from renewing the suit on the claims; it being apparent in the first suit the liability of the parish on the'claims and warrants was at issue, that proof was admissible to sustain such liability, and “ the thiug adjudged” applies to the demand and to all grounds available to sustain the demand. C. 0., Arts. 2285, 2286 ; 2 An. 494; 8 An. 6; 40 An. 646; 94 U. S. 352 ; 32 An. 898.
    warrants or orders on the parish treasurer by the police jury without power to issue notes or other similar instruments, avail as acknowledgments to interrupt prescription, but do not change the character of the debts for which the warrants issued or the prescription applicable to such debts.
    A PPBAL from the Twenty-first; Judicial District Court for the Parish of St. Charles. Host, J.

      Gus. A. Breaux and Hiddleston Kenner for Plaintiff, Appellant.

      Gus. V. Soniat, St. Maurice Berault and J. L. Gaudet for Defendant, Appellee.
    Argued and submitted February 24, 1896.
    Opinion handed down April 6, 1896.
    Rehearing refused April 20, 1896.
   Opinion of the court-was delivered by

Miller, J.

This appeal is by plaintiff from the judgment dismissing his suit as the assignee of claims against the parish for the services of the parish officers, witnesses’ fees, jurors and others, evidenced by warrants on the parish treasurer. The defences are, res judicata based on the judgment in the suit of plaintiff against the parish, brought in 1874, and decided by this court in 1875 (Flagg vs. Parish of St. Charles, 27 An. 319), and the prescription of one, three and five years.

The plaintiff’s previous suit, in 1874, it is claimed, was on warrants for a part of the claims now sued upon. It is insisted that suit was different from this, brought on the claims, the warrants being referred to in the petition in the instant case, merely as acknowledgments by the parish. There is a difference in the phraseology of the petitions in these suits. In the instant case, the petition alleges the services and other parochial expenses for which the warrants issued, and describes the plaintiff as the holder of the claims against the parish for such services and parish expenses. But the allegations of the petition in the previous suit, not materially different, in our view, describe the petitioner as the holder and owner of the claims and acknowledgments issued to divers persons and for various amounts for services rendered the parish, “ which claims, acknowledgments and accounts,” it is averred, have been acknowledged by the police jury of the parish, and ordered to be paid; there are also allegations that the orders on the parish treasurer were given to liquidate the claims after settlement had;” that the claims, certificates and acknowledgments issued according to law, and that the orders drawn on the treasurer for the amounts are to be used by him as vouchers for his credit in the settlement of his accounts etc., which claims, certificates and accounts, together with the evidences of the same,” it is alleged, have been transferred to petitioner, and in other parts of the petition there occurs the reference of the claim against the parish held by petitioners. The orders on the parish treasurer, the certificates of indebtedness and acknowledgments, as we appreciate the petition, are treated as the evidences of the claims. Under the decisions of that period, suit could not be maintained merely on warrants issued by parishes with no power to issue notes or evidences of debt. Breaux vs. Parish of Iberville, 23 An. 234; Marionneaux et als., and other cases, vs. Police Jury of the Parish of Iberville, 23 An. 251; Sterling vs. Parish of West Feliciana, 26 An. 59. We think the petition in the previous suit would have stood this requirement of the decisions.' It is quite certain under the allegations, the- plaintiff could have offered proof of any and all claims he held. We can not . perceive the basis on which we can hold that the previous suit is to be deemed brought on; warrants only, or not on claims or debts of the parish. In all essential respects the demand in the previous and instant suits are of the same nature, save that some of the claims now sued on were not embraced in the previous suit.

It is urged that in similar controversies between other parties, the: Supreme Court expressed the view, that dismissing suits on parish warrants would not preclude subsequent suits on the debts for which the warrants issued. But the previous suit of this plaintiff presented, as we think, a demand on the claims evidenced by the warrants. It is clear that the judgment in such a suit is res judicata as to the claims or warrants, whether or not proof was offered of the claims. In the spirit of the authorities, the res judicata applies to all grounds available to sustain the demand. In the decisions cited by plaintiff from 26 An. 59 (Sterling vs. Parish of West Feliciana), and 28 An. 80 (Mathe vs. Parish of Plaquemines), the court reserved the right of plaintiff to renew his suit on the claims. The reservation is suggestive of the force the decree, without the qualification, would have carried. Without that reservation, the decree, unless one of non-suit, we think, is res judicata of the demand, and as to all grounds controverted or susceptible of being urged in support of the demand. We think the judgment in the previous suit concludes plaintiff as to all the claims or warrants sued on in that suit. C. B., Arts. 2285, 2286; Osburn vs. Bank, 2 An. 494; Megget vs. Lynch, 8 An. 6; Ludeling vs. Chaffe et al., 40 An. 646; Cromwell vs. County of Sac, 94 U. S. 352; Grange vs. Singleton, 32 An. 898.

The claims against the parish not concluded by res judicata are resisted by the pleas of prescription of one, three and five years. Civil Code, Articles 8534, 3538, 3540. The warrants are relied on as acknowledgments, but viewed merely as such, they did not change the character of the debt, but only gave a new date to the prescriptions applicable to the claims. C. C., Arts. 3516, 3551, et seq. These prescriptions are one, three and ten years (C. C., Arts. 3534, 3538,’ 3544), not five years, as held by the lower court. That of one year applies to fees of justices and constables; that of three years, to recorders’ sheriffs’ and clerks’ fees; that of ten years to all other items of plaintiff’s list of claims, unless on accounts or other character subject to prescription by the Code or Revised Statutes. The record does not enable us to determine the character of the items in plaintiff’s schedule of claims attached to the petition, and there is no testimony on the subject. Announcing our conclusion as to the prescriptions applicable, and adding that, in our view, prescription interrupted, first by the issue of warrants, and later by the suit, the last interruption giving a new date for prescription, beginning with the end of that suit, we will remand the case in order that with the requisite proof the lower court may finally close the controversy. The inquiry for the lower court will be as to the claims not included in the previous litigation, prescribed before the present suit was instituted ; and to the claims not thus prescribed, the lower court will apply the prescriptions indicated in this opinion.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be and it is hereby affirmed so far as it maintains the plea of res judicata; in other respects it is annulled and reversed, and the case is remanded for further proceedings in accordance with the views herein expressed, the defendant to pay costs.


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    No. 11,956.
    Crescent City Seltz and Mineral Water Company vs. The City of New Orleans.
    The making of soda, seltz and similar diinlrs is not within the constitutional exemption of property employed in manufacturing chemicals. Constitution, Article 207, as amended hy Act No. 92 of 1886, p. 120.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Horace E. Upton and Anatole A. Ker for Plaintiff, Appellant.

      E. A. O’Sullivan, City Attorney, L. O’Donnell, George W. Flynn, Assistant City Attorneys, for Defendant, Appellee.
    Argued and submitted March 27, 1896.
    Opinion handed down April 6, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiff claims an exemption from taxation on property alleged to be employed by the company in the manufact-uré of chemicals. The appeal is by plaintiff from the judgment denying the exemption.

The plaintiff, with the necessary apparatus and appliances, makes ■soda water, vichy, seltzer and similar drinks. To support their contention, they must maintain these drinks are chemicals. Constitution, Article 207, as amended by Act No. 92 of 1886.

The process of manufacture of these waters is to subject carbonate of lime or bicarbonate of soda to the action' of sulphuric acid; this results in freeing carbonic acid gas, and sulphate of lime is formed; the gas is absorbed in water and the product is the carbonated drink ready for use. We can not appreciate the reasoning by which these carbonated waters are to be deemed chemicals. The plaintiff’s witnesses state that muriatic acid is produced by a process of similar character applied to different ingredients, and as muriatic acid is deemed a chemical, therefore he reaches the conclusion that carbonated drinks are to be deemed chemicals. The exemption is property employed in the manufacture of chemicals, and we are asked to hold that soda and similar drinks are chemicals because the making of such waters depends in part on the result of a chemical process.

The plaintiff attempts to sustain his contention by one of the definitions he finds in the Century Dictionary. There is also another in that, as well as in Webster and Worcester. We. are not called on to construe the meaning in its fullent extent of chemicals, as used in the Constitution. But it is clear to us, the framers of the Constitution never intended, by exempting property employed to manufacture chemicals, to exempt all compositions or mixtures derived in part from the result of any and all chemical processes. That would be straining language, and a wide departure from the rigid interpretation applied'to all tax exemptions. We think we are entirely safe in holding that soda, seltz and similar drinks are not chemicals, and if it had been the intent to exempt the making of such waters from taxation, it would have found plainer expression than can with any reason be deduced from exempting property employed to manufacture chemicals.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


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    No. 12,076.
    State of Louisiana vs. Joseph Goodbier.
    The rule that statements of the witness out of court contradictory to his testimony cannot be proved unless he is first afforded the opportunity of denial, admission or explanation, is enforced whether the imputed contradictions are offered to impeach the credit of the witness or to show his malice to the accused. 1 Greenleaf on Evidence, Secs. 475,476,477; Sfcarlrie on Evidence, S.P 289, 210; notes at foot.
    If the witness admits the contradictory statements the accused can offer no proof of the contradictions thus admitted, although such proof is proposed to be given to show .the falsity of the explanations of the witness why he made the statements contradictory to his testimony. Wharton’s Criminal Evidence, Sec. 488; Rapalge,Law of Witnesses, Sec. 204.
    Although a defence witness has been cross-examined and dismissed without being questioned as to contradictory statements out of court imputed to him, and although other defence witnesses have been cross-examined and dismissed, yet the State, not having commenced rebutting, may be permitted to recall and examine the defence witness to lay the basis for contradicting him and to prove such contradictory statements; it appearing by the bill that the District Attorney learned of the statements after the cross-examination of the witness, the recall operating no delay and causing no denial of any right of the accused. 8 Bob. 562; 29 An. 716; 88 An. 982; 47 An. 886.
    APPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. Voorhies, J.

      M. J. Cunningham, Attorney General, R. F. Broussards, District District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Ap-pellee.

      James Simon and James E. Mouton for Defendant, Appellant.
    Argued and submitted February 29, 1896.
    Opinion handed down April 6, 1896.
   The opinion of the court was delivered by

Miller, J.

The accused, sentenced for assault with intent to commit rape, appeals.

The first bill of exceptions relied on is to the exclusion of proof of statements out of court by the prosecuting witness, contradictory of her testimony. The objection was that the witness had not been questioned in reference to such statements, and afforded an opportunity of denial, admission or explanation. The argument for the accused concedes the rule exacting this preliminary basis for proof of such contradictory statements, but insists there is an exception when the statements are offered to show the malice or ill will of the witness to the accused, the purpose in this case. If this qualification is admitted the proof should have been permitted. The witness is the daughter of the accused, and had testified to the crimes charged. The contradiction imputed was that she had stated “this is not so,” referring to the rumor of the offence, but that she would avail of it as a pretext to leave her father. On a charge of this nature it is extremely unfortunate the accused should be denied any testimony tending to his exculpation. The excluded statements, with any accompanying denial or explanation from the witness, might still have weighed with the jury in favor of the accused, tried on a charge so serious. The question therefore, raised by this bill, with a natural appreciation of its importance to the accused, has received our careful attention. When it is proposed to assail the testimony of a witness by proof of variant statements claimed to have been made by him out of court, it is but fair that he should have been afforded the opportunity of explanation or denial. With that denial or explanation, the party, whether the State or the accused on whose behalf the witness testifies, is, at least, in some degree fortified against any attack on the testimony, and the effect of the testimony is, in the same degree, maintained. Hence, the rule that the witness against whom alleged contradictions are to be arrayed must be first afforded the chance of denial or explanation is necessary for the protection of the witness, and is also essential to the proper administration of justice. The reason of the rule would seem to apply whether the imputed contradictions are offered to impeach the character, motives or credit of the witness. His testimony, given for any purpose, is entitled to its effect, and if assailed by alleged contradictions, should be accompanied with the denial or explanation the witness may give, and to this end the opportunity must have been afforded him. In our view this reason and scope of the rule is borne out by the authorities. 1 Greenleaf on Evidence, Sec. 462. Wharton’s Criminal Evidence, Secs. 475, 476, 477, 485, 488. Starkie on Evidence, S. P. 239, 240; notes at foot. Much as we regret the possibility that the accused has not had the benefit of exculpatory testimony on so grave a charge, we must hold that there was no error in the ruling of the lower court presented on the first bill of exceptions.

The second bill is to the exclusion of the testimony of a witness for the defence, offered as stated in the brief to contradict the explanaiion of one of the State’s witnesses for contradictory statements, i. e., of his testimony on the stand. The witness whose statements out of court were proposed to be given in evidence, had admitted the contradictions on his attention having been called to the subject. The rule is that if the witness admits on the stand the contradictions imputed to him, the defence is under no necessity to sustain the contradictions, and is not permitted to offer the sustaining proof. Wharton Crim. Evidence, Sec. 483;Rapalge Sec. 404. The right of the party to offer proof of contradictory statements of a witness is restricted, and ceases altogether when the contradictions are admitted. Testimony to show that the explanation is false given by the witness of the admitted statements, it seems to us, is inadmissible as held by the lower court.

The last bill reserved was to the ruling permitting the recall by the State of a defence witness for the purpose of examination to lay a basis of proving his contradictory statements, and the objection extends to the proof of such statements. . This was allowed after the witness had been examined, cross-examined, dismissed, and after other defence witnesses had been examined, cross-examined and its case closed. The reason assigned by the prosecuting attorney for not cross-examining on the point is, that he only learned of the statements after he had dismissed the witness. He informed the court of his information and was permitted to recall the defence witness, examine him on the subject and prove the imputed contradictions. All this was done before the State entered on its rebutting testimony. Undoubtedly, the appropriate time for examination of a witness in reference to his statements out of court variant from his testimony on the stand is on his cross-examination.. Our jurisprudence has relaxed the rules as to the time and order of introducing testimony, whether for the State or defence. In this instance there was no delay, the witnesses being at hand, and there is no complaint of the denial of the right of the accused to sustain the credit of his witness. Under these circumstances we think there was no error in the ruling of the court. State vs. Duncan, 8 Rob. 562; State vs. Colbert, 29 An. 716; State vs. Rose, 33 An. 932; State vs. Nixon, 47 An. 836.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


text:
    No. 12,036.
    The National Water Purifying Company vs. The New Orleans Waterworks Company.
    1. The ease presents a question as to the performance o£ a contract.
    2. The articles of the Code that give to the buyer the right to claim a reduction of the price when the thing sold, though not of the character required by the contract, is susceptible of use.'cau not be extended so as to compel the party who has contracted for a filtering plant of fixed capacity as to quality, quantity and in other respects, to pay some part of the price for a plant not capable of accomplishing the purposes specified in the contract. O. C., Art. 2541, et seq-

    A PPEAL from the Oivil District Court for the Parish of Orleans, -t*- Monroe, J. '

      Denegre, Blair & Denegre, for Plaintiff, Appellant.

      Farrar, Jonas & Kruttschnitt, for Defendant, Appellee.
    Argued and submitted March 24, 1896.
    Opinion handed down April 20, 1896.
   The opinion of the court was delivered by

Miller, J.

This is an appeal from the judgment dissmissing . plaintiff’s demand for the amount claimed to be due under the contract to furnish a filter plant for defendant’s waterworks, and an additional pipe for the works. The defence is, substantially, that after two tests the plant, instead of demonstrating the capacity for delivering filtered water, as stipulated in the contract, proved entirely insufficient and unfit for the contract purposes. On the facts the court holds that the defendants failed to fulfil the obligations of their contract. The plaintiff asks us to apply the rule laid down in Oivil Code, Art. 2541, et seg., as to reduction of the price, on the theory of partial performance of the contract. The defendant’s engagement was to pay for a plant that would accomplish certain results and prove the capacity for the purposes thus explicitly defined. We do not perceive that there is any warrant in law to compel defendant to pay at a reduced price for a plant not that which plaintiff was to furnish and for which defendant was to pay.

Judgment affirmed.


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    No. 12,102.
    The State of Louisiana vs. Irvin Arledge et als. and A. M. Posey, Surety.
    The surety on an appearance bond is not released from liability because of the inexact language in the bond describing the offence, least of all when it contains the condition the accused will not depart the court without leave. 13 An. 268; 40 An. 722.
    4PPEAL from the Eighth Judicial District Court for the Parish of Catahoula. Dagg, J.

      M. J. Cunningham Attorney General, and D. N. Thomas, District Attorney, for Plaintiff, Appellant:
    Justices of the Peace have power to bail or discharge in criminal cases not capital or necessarily punishable at hard labor. Const. 1879, Art. 126; 44 An. 906.
    Where a Justice of the Peace takes a bond in a case in which he is authorized to act, there is no necessity that an order should have been made fixing the amount of the bond and authorizing its acceptance. 44 An. 906.
    The sureties on a bond which was given for and procured the release of a prisoner charged with a criminal offence can not gainsay its regularity, or the regularity of the proceedings in which it was allowed. 81 An. 628; 16 An. 141; 13 An. 298; 40 An. 719.
    There is not required in a bail bond the same accurate verbal statement of an offence that is required in an indictment. SO An. 852.
    Where the accused is bound not only to appear at court to answer a specific charge, but also not to depart thence without leave of the court, the bond, if violated, can be forfeited and the securities held to its payment. 12 An. '471; 21 An. 599; 30 An. 852; 13 An. 298.

      The obligations of sureties on a bail bond are not affected by the fact that the indictment was found for an offence of a higher grade than t hat expressed in the bond, and which higher grade includes the lower. 80 An. 852.

      R. E. Milling, L. A. Thompson and W. G. Roberts for Defendants, Appellees:
    An appearance bond taken by a person without authority is null. 6 An. 700; 12 An. 224; 10 An. 582; State vs. Bloize, 38 An. 542.
    An appearance bond taken by a Justice of the Peace for one when there is no criminal charge pending in his court against the party is a bond taken without authority, and is also null. State vs. Williams, 37 An. 200.
    A bond given to release the accused can not be forfeited, if it defines no crime known to law, of which the accused stands charged. State vs. Gibson, 23 An. 698; State vs. Sypher, 19 An. 71; State vs. Wooton, 4 An. 515; State vs. Smith, 8 An. 471; State vs. Ridgley, 10 An. 302.
    A bond which binds an accused to appear and answer to the charge of “ having in' the said parish between September 1, 1895, and January 1, 1896, did take and conceal, or did take, carry away and conceal from J. I. Holmes, merchandise and money of the value of $75,” etc., describes no offence known to the laws of Louisiana.
    Argued and submitted April 11, 1896.
    Opinion handed down April 20, 1896.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the State from the judgment setting aside the forfeiture adjudged against the surety on the bond of the accused to secure his appearance before the District Court to answer for the charge of taking, carrying away and concealing from J. H. merchandise of specified value, the bond conditioned also that the accused would not depart the court without leave.

The bond was given to discharge the accused from arrest on the warrant of the magistrate. At the ensuing term of the District Oourt, the accused was indicted for larceny and burglary and failed to appear. The surety resists the demand on the ground the bond sets forth no offence known to the law.

It was, we presume, the intention to bind the accused and his surety for the appearance of the accused to answer the charge of larceny. The bond surely fails in describing that or any other offence. Of course, it will not be maintained the affidavit on which the magistrate issues his warrant or the appearance bond he exacts shall be framed with the precision of indictments, and it seems to us that the defence of a' surety whose bond has obtained the discharge of the accused should be sparingly admitted when based on the inexact frame of the bond. The surety knew there was a charge pending which would come before the grand jury, and the surety also knew the object of the bond was to secure the appearance of the accused to answer the indictment that might be preferred. The bond, besides undertaking to prescribe the offence, plainly expressed the obligation that the accused would appear before the court and not depart without its leave. This part of the bond, at least, must have its effect. There is a line of decisions that bonds taken without legal authority create no obligation. State vs. Gilbert, 10 An. 532; State vs. Williams, 37 An. 200; State vs. Longineau, 6 An. 700. No question of that kind can arise in reference to the bond received by the magistrate. Constitution, Art. 179; R. S., Sec. 1010. We think, too, that while there have been decisions holding the surety discharged by defects in describing the offence, the reason and tendency of at least some of the authorities is to preclude such objections. State vs. Hendricks, 40 An. 722; State vs. Ansley, 13 An. 298. In our view the surety can not be allowed to escape liability in this case for the inexact language of the bond, especially as it contained the condition the accused would not depart without leave.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is further ordered, adjudged and decreed that the State of Louisiana do recover from Charles Arledge and A. M. Posey, in solido, the sum of two hundred dollars, with legal interest, and that the costs be paid by the ap-pellees.


author: Breaux, J.

text:
    No. 12,080.
    Wheeling Pottery Company vs. R. Levi & Co.
    A petition is part of the record, "when it is delivered to the proper' officer, in his office, and it is by him received to be kept on lile.
    A fi. fa. prematurely issued is a mere irregularity. If he suffers the delay to expire without any action, he waives the prematurity.
    The sheriff may return the "writ, nulla bona, under the instructions of the plaintiff, immediately after it has become evident that the debtor has no property which can be seized.
    The defendants having failed to point out property, the sheriff ivas not bound to seize property under attachment.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Ellis, J.

      Ernest T. Florance for Plaintiff, Appellee.

      Bernard Titehe for Defendants, Appellants.
    Argued and submitted April 8, 1896.
    Opinion handed down April 20, 1896.
   The opinion of the court was delivered by

Breaux, J.

From a judgment ordering the defendants t© file a list of their creditors, defendants appeal.

The exceptions filed are: That no petition by plaintiffs or order of the court was filed; that the fi. fa. issued within the ten days after the signature of the judgment; that plaintiff had no right to proceed to execution until after ten days; that the writ of fi. fa. was returned before the required delay had elapsed; that plaintiffs are conducting proceedings in the United States Circuit Court, which, if successful, probably will provide for the payment of their entire claim;, that the order directing them to file a schedule of their assets is illegal and was improvidently granted.

The evidence shows that counsel for plaintiffs delivered the petition to the deputy to be filed; that the deputy docketed the petition, upon the docket of the Civil District Court, numbered it upon the-docket and endorsed the number upon the petition; that the ease, was allotted to Division A and was presented to the judge of that di~ vision, who signed the order that had been previously prepared by the deputy for his signature. It is not denied that the copy of the petition and citation and order issued were seived upon the defendants as affirmed by the plaintiffs. Prior to any pleading being filed by the defendants the deputy endorsed upon the petition the actual date of filing, nuno pro tunc.

The evidence sustains, in so far as relates to the fact, the second ground of exception that the fi. fa. was issued within the ten days.

The record does not disclose, however, that an appeal was applied for by the defendants.

In respect to the return nulla bona and the proceedings in the United States Circuit Court the facts are, that demand was made upon the plaintiffs and defendants to point out property subject to seizure under the writ. The defendants did not point out property, and the plaintiffs say they knew of none and so informed the sheriff. The writ was returned nulla bona two days after it had been placed in the hands of the sheriff.

As to the proceedings in intervention: There was under attachment in the United States Court property estimated as being worth about fourteen thousand eight hundred and ninety-eight dollars, as shown by an admission of record, and counsel for plaintiff adds: subject to the admission, that the claim of the first attaching creditor in the United States Court is for an amount exceeding seventeen thousand dollars. That there are attachments issued in the Civil District Court anterior to the judgment in this case of the Wheeling Pottery Company to an amount exceeding five thousand dollars to which no defence has been made. The defendants have not presented any defence in the proceedings before the United States Courts. The intervenor, plaintiff here, in the petition of intervention before that court charged that the attachment was fraudulent and collusive, and that the defendants were not indebted to the plaintiff for the amount claimed in these suits.

The exceptions were overruled, save that the defendants were ■ordered to file a list of their creditors, and were not required to file .schedules of their assets.

From the judgment overruling these exceptions the defendants prosecute this appeal.

As to the failure of the clerk to file the petition to compel a surrender, the consequence can not always be as fatal to the regularity of proceedings as claimed. It is the clerk’s duty to receive the petition, and immediately after endorse the date it was received. The order applied for to compel a surrender had been granted and there was no question as to the date the petition was received, for, in addition to the date of the order granted, there was an entry made by the clerk in the records of the court. The filing was overlooked by the clerk. It was handed to him in his office to be filed. It was received by him, acted upon and was to be kept on file, and it was a document of his office. Having been placed by the attorney in the hands of the filing officer in his office, to be filed, and it having been acted upon as already stated, and the contemporaneous facts rendering it evident that all was done in the utmost good faith, and that the omission was owing to a mere inadvertence of the officer, we think that the plaintiffs complied with the law to every intent and purpose. The absence of the “file mark,” under the circumstances, cannot operate to his prejudice.

“Piled” is the best evidence that the document is of record, but it is not always and under all circumstances the only evidence that will prove that a petition is of record, when owing to clerical error it is not expressly endorsed. The judge prefaced the order which follows the petition: “Considering the petition filed herein and the affidavit thereto annexed.” A few days after it was competent for the clerk ■nuno pro tuno to file the document that had been deposited and had remained in his office. There may be exceptional cases where the filing itself is of importance, but they can not apply when the facts are as in this case. This brings us to the question of the prematurity of the ft. fa. and the consequent irregularity claimed. This plea is purely technical. The decisions sustain the execution when no appeal has been taken.

The refusal of the suspensive appeal or prejudice to the judgment debtor in matter of the appeal would invalidate the execution. There is no such issue here. If prematurity of execution of a judgment by fi. fa. is not ground for an injunction, it is not good ground here.

The following shows that it is not cause for an injunction.

Refusing to perpetuate an injunction on the ground of prematurity of the fi. fa. the court said; “All that he can expect is to be relieved from the payment of costs and damages, as he had the benefit of all the delay he was entitled to.” Payton vs. Bank, 6 Rob. 17-20. See also Sowle & Ward vs. Pollard, 14 An. 285.

No attempt was made to impeach the validity oí the execution, in the case in which the judgment was obtained. If property had been sold and the defendants had remained silent the title would have been valid. The defendants chose to let the ft. fa. remain unchallenged until the order of the surrender of their property had been issued; it was then too late, under the authorities, to raise the objection of prematurity. Silence and inaction are, in effect, a waiver of objection to the issuance of the,#. fa.

Prematurity of the return is the next objection in order urged. When it is evident that a defendant has no assets subject to the writ, there is no reason for delaying the return and preventing recourse to other remedies. The due demand ” of the law had been made; it then became possible to institute other proceedings under the insolvent laws and the officer was justified in returning the writ unsatisfied. It was prima facie correct. ' No attempt was made to prove it was, in any particular, inaccurate.

The return of the writ, nulla bona, is evidence of the debtor’s insolvency or that he has no property within the court’s process. Lovell vs. Payne, 30 An. 511, 513.

LaBtly, it is urged that the plaintiffs was without right to prosecute the present proceedings while urging their claims in the Federal Court; if successful in that court, they would recover the entire amount of their claim.

The defendants are not in a position to successfully urge that de-fence. They failed to point out this property for seizure when demand was made of them by the sheriff. Moreover, we are not impressed by the admission of record as proving that the property attached was of sufficient value to pay the plaintiffs in attachment, and the plaintiffs in this suit. The amount claimed by the attaching creditors exceeds the value of the property by a number of thousands of dollars. The defendants in the attachment suit have not denied their indebtedness and have taken no steps to have the attachment dissolved.

Intervenor’s allegation of fraud and collusion would not justify the sheriff in making seizures of the property previously attached. The controlling fact was, in so far as he was concerned, that the property had been seized for a debt larger than its value.

The order rendered January 7, 1896 was modified by the judgment as required by the statute under which it was granted.

The judgment is affirmed.


author: Nicholls, C. J.

text:
    No. 12,111.
    State of Louisiana vs. Cornelius Campbell.
    When a bill o£ exception leaves this court uninformed as to the grounds upon which the motion complained of was overruled, matters are left just where the ruling of the judge left them.
    On an indictment (Act No. 8, 1870, Ex. Sess., Sec. 8) for “ shooting at any dwelling house, school house, church house or outhouse, any person or persons being lawfully therein,” it is not necessary to set out in the indictment the names of the person or persons alleged to have been lawfully in the house.
    PPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. . Voorhies, J.

      M. J. Cunningham, Attorney General, and R. F. Broussard, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      Edward Simon for Defendant, Appellant.
    Submitted on briefs April 11, 1896.
    Opinion handed down April 20, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant, indicted under Sec. 8 of Act. No. 8 of the extra session of the General Assembly of 1870, was convicted and sentenced to pay a fine of one hundred dollars and to an imprisonment of three years at hard labor. He appealed.

His counsel filed in the lower court on his behalf a motion for a new trial, and also a motion in arrest of judgment. They were both overruled and bills of exception were reserved.

The section upon which the indictment was based is as follows:

“Be it enacted, etc., That whoever shall shoot at any dwelling house, school house, church house or outhouse, any person or persons being lawfully therein, shall, on conviction, be imprisoned at hard labor not exceeding ten years and fined not exceeding two thousand dollars.”

In the motion for a new trial it was alleged defendant was entitled to the same “because the verdict was contrary to law and evidence, as there is error in said verdict injurious to defendant. It is contrary to the evidence adduced at the trial because ou the indictment against him (being for wilfully and feloniously shooting at the house of one George Johnson, under the statute No. 8 of 1870, the evidence elicited by the State Attorney, if true (which is denied), was that accused shot at said Johnson standing at the door of the house occupied, the ball taking effect inside of the house, having missed Johnson, which evidence fitted the case of shooting at another, as per Revised Statutes of 1870 or statute of 1855, page 130, the two of-fences being sui generis and distinct and substantive, one being an offence against the person and the other against the habitation, the striking of the ball shot at said Johnson, not intended for the house, being merely accidental and not intentional to the house. That the said verdict is contrary to law in this: the State, to make out its case, must be strictly confined to the proof of the offence charged in the indictment. Proof of another distinct offence not necessarily incladed in the offence charged will not” * * *

The minutes show that this motion was overruled, but no reasons were assigned by the judge for the ruling. Whether it was because the court did not accept as correct counsel’s statement of the facts, or whether, assuming it to be correct, it still considered the verdict to have been justified by the evidence, we do not know.

The bill of exception reserved states that “Defendant’s motion for a new trial hereto annexed on the grounds therein mentioned having been overruled by his Honor or the presiding judge on the grounds that” * * *******

Defendant excepted to the ruling and opinion of the court and reserved this his bill of exception, which, after having been submitted to the counsel of the State, was signed by his Honor the Judge, before judgment. The District Judge appended his signature to this bill as so written out. The bill leaves us still uninformed as to the grounds upon which the motion was overruled. Counsel contends that the signature of the judge to the bill is an admission by him of the correctness of the statement of the facts alleged in the motion for a new trial. We do not think so. The bill leaves matters just where the ruling left them, with the simple added fact that we are advised through the bill that the ruling, was excepted to.

As matters stand we are bound to affirm the ruling of the District Court.

The motion in arrest was based upon the contention that the indictment should have given the names of the persons alleged to have been lawfully in the house. It is difficult to see how the question of the crime or its commission or non-commission could be affected by the identity of the particular• individuals who were in the building. If they were there lawfully, it was immaterial who they might be. Who they were, and what the circumstances under which they were in the house, was a matter to be brought out by the evidence. We find no ground upon which to disturb the judgment.

It is hereby affirmed.


text:
    No. 12,008.
    Mrs. K. R. Bartels vs. Edmond Souchon.
    The presumption is that property bought during the community belongs to the community, and is the common property of the husband and wife.
    The declaration in a deed of purchase that the property was bought with the separate paraphernal funds of the wife is not sufficient in itself to prove title.
    This presumption, the court holds, may be rebutted, the truth of the declaration shown, and the title of the wife established.
    An absentee may be brought into court through a curator ad hoc in an action to quiet title.
    Costs are due to the one who recovers judgment.
    APPEAL from the Civil District Oourfc for the Parish of Orleans. Monroe, J.

      Harry H. Hail for Plaintiff, Appellee.

      Charles F. Claiborne for Defendant, Appellant, cites 85 An. 570; 42 An. 857.
    Argued and submitted on briefs March 12, 1896.
    Opinion handed down April 6, 1896.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff agreed with the defendant to sell him certain real estate in the city of New Orleans for the price of sixteen thousand dollars.

The plaintiff was married to the late J. O. Bartels on the 19th day of February, 1860, and he departed this life on the 19th day of September, 1891.

He was twice married. There were no children, the offspring of the marriage with plaintiff. At the time of his death his son was dead and left his children minors,

The property the plaintiff agreed to sell was bought by her from two different vendors in separate acts of sale, at different dates.

The first is dated May 28, 1884, the price was seven thousand dollars, cash paid, the notary recites in the deed, by plaintiff, duly .■authorized by the husband, J. O. Bartels, with her own separate and paraphernal funds, acquired by her by inheritance.

The second is dated August 2, 1887, and was a purchase by her for five thousand dollars cash, and contains, substantially, similar declarations in regard to the separate fuDds of the purchaser.

The proof of record is, that plaintiff’s husband, an old and infirm man, about 1879 became very much involved in debt, and that in consequence she retained the management of her funds, and never permitted him to have anything to do with her separate property.

Her attorney in the case here testified that, at the time she consulted him about the purchase of the several pieces of real estate which she bought and that he knows that plaintiff’s husband never had anything to. do with these purchases and was not even consulted in regard to the advisability of making them.

He states, as a witness that the affairs of the husband became more and more embarrassed. A valuable plantation he owned was sold by public auction. A suit was brought against him in the United States Circuit Court which resulted in a judgment of one thousand two hundred and fifty dollars against him.

By her assistance, with her money and the fragments of his fortune he paid his debts. The last years of his life, beginning about the year 1892, she supported him. He hadnothing. She gave him even pocket money. He never pretended to interfere with the administration of his wife’s paraphernal estate. He after 1879 or 1880 was not ia a condition, mentally or physically, to take charge and administer the affairs of any one.

The plaintiff testifies and produces evidence in corroboration of ¡her testimony, that she paid for the property out of her paraphernal funds, inherited by her from a maternal uncle and from his son in Germany.

Ten thousand dollars of this inheritance she received personally in that country in 1883 and the remainder was subsequently sent to her -after her return to the city. A notarial act and accounts were admitted in evidence, showing the amount of the inheritance thus received.

Upon this state of facts she brought suit to compel the defendant •to accept the title tendered. A curator ad hoo was, at her instance, appointed to represent the son of the late J. O. Bartels and the grandchildren of Bartels, minors — all absentees.

The defendant answered, pleading the general denial.

He admits having agreed to purchase the real estate as alleged in the petition, but questions the validity and legality of the title. The grounds are that a community of acquets and gains existed between Bartels and wife, and that in consequence she is not the owner of the property, in her own right, it being community property.

The judgment in the District Oourt was for plaintiff. The defendant appeals.

It is a well settled question that all property acquired during the -community is, presumably, community property; without dissent doctrine and jurisprudence sustain that principle. It has none the ■less frequently been decided that it is by no means a conclusive presumption; that it may be shown by competent evidence that it is the property of one of the spouses and not at all property of the ■community.

The spouses, parties to acts of purchase, have sometimes imagined •that the declarations contained in the act was sufficient to sustain the title claimed; in other words, if the declaration was in the act, property bought with the separate funds of the wife, it carried with it the title. In disapproval of this heresy, this court has said that the “ married woman must produce proof dehors the act of sale to •establish her title.” Bachino vs. Coste, 35 An. 570.

The plaintiff has complied with the requirement announced in this •decision and has proven by competent evidence that she bought the property with her separate funds. The evidence of that fact is abundant and conclusive; this being all that can be required in any -case to sustain the wife’s claim, we must conclude that it is the wife’s property, and that she has the absolute right to sell it to the defendant. She has produced the required proof, without reference to any declaration in the deed under which she became the owner.

In the second place and as another ground of defence, it is urged by the defendant: the heirs are absent, they are not properly represented by a curator ad hoc because no property was attached. It does not necessarily follow that an attachment should have issued and the real estate attached in order that the court, as relates to the title involved, may be seized of jurisdiction.

When proceedings are in rem, absent and unrepresented defendants may be cited through a curator ad hoc.

We repeat, in substance, the utterances of this court in Mason vs. Benedict, 43 An. 397.

The notice under the articles of the Code of Practice authorizing the appointment of curators, is ample when complied with by the attorney. We therefore held that the absentees could be made parties to the action here. This conclusion finds support in Duruty vs. Musacchia, 42 An. 367; Young vs. Upshur, 42 An. 362; Robbins vs. Martin, 43 An. 488.

In the case of Pennoyer vs. Neff, 95 U. S. 714, the proceedings should have been in rem and not in personam. A similar view was taken of the issues in Hobson vs. Peake, 44 An. 383. The former of the last cited ease was explained in Arndt vs. Griggs, 134 U. S. 316, 324. The court held that while it is true that the State can not bring the person of a non-resident within its limit, and (4) that its process goes not beyond its borders, it may provide any reasonable method of imparting notice. Notice through a curator ad hoe is the method provided in the article of the Code of Practice upon the subject and applied by this court when necessary, as in this case to> quiet the title to real estate.

Lastly the defendant urges that the plaintiff should.be condemned to pay the costs; that the suit was for her benefit and not for the benefit of her purchaser.

There is here no question of the possible benefit the suit may secure to one or the other of the parties. Oosts are not left to the discretion of the court. Statutes governing costs are imperative. “They are due to him in favor of waom the judgment has been rendered.” C. P.157.

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