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

text:
    No 9091.
    Catherine Shields, widow, etc., et. al. vs. Arthur Shiff.
    Under the effect of a sale in proceedings for the condemnation and confiscation of an offender’s property conformably to the Confiscation Act of Congress, of July 17, 1862, and to the joint resolution explanatory thereto, the offender is absolutely stripped of all rights, titles and claims to the condemned property, and hence he can make no valid disposition of the same, either by deed or mil. *

    The purchaser at such a sale acquires nothing more than a life-estate. The fee simple of the property is then vested in and held by the United States in trust for, and for the benefit of, the heirs at law of the offender, who thus become owners of the fee in expectancy, during the life-estate.
    The heirs succeed to the offender by virtue of the laws of nature and descent; and not by operation of the confiscation laws, which merely recognize pre-existing rights.
    The heirs of blood of the person whose property has been confiscated, are not third parties, quoad such property during the life estate, hence they are affected and bound by the foreclosure of a pre-existing mortgage oh said property, and by the divesture of the title

      to the fee operated by such proceedings. Hence they cannot be heard to "urge the nullity of such proceedings, on grounds -which the expropriated party could not be allowed to set up, if he were living and restored to all his former rights.
    PPEAL from the Civil District, Court for the Parish of Orleans. Tissot, J.

      Breaux <£ Hall for Plaintiffs and Appellants.
    1. The Federal Statute must be interpreted according to common law principles, the common law being a part of the Government itself. Story on the Constitution, § 157, vol. 1; Journal of Congress, October, 14, 1874, p. 27; McCool vs Smith, 1 Black Rep. 465; Mayo vs. "Wilson, 1U. H. 55; How vs. Beckham, 6 Howard, Practice Rep. 229.
    2. Words and expressions having a well known and definite meaning at common law must be given that meaning. Dwarris on Statutes (Gould & Son’s Ed.), p. 186.
    3. And words in a statute must be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged. Martin vs. Hunter’s Lessee, 1 Wheaton, 326.
    4. The language and purpose of the Confiscation Act of 1862. was to divest the offender of the fee and all interest in the confiscated property; this, upon decree of forfeiture, it did absolutely and unqualifiedly; thus placing the property completely beyond the reach of the offender, so that he could affect its title or destination by no act of his. Bike vs. Wassel, 94 U. S. 714; French vs. Wade, 102 XT. S. 132.
    5. The fee to confiscated property, vested in the Government of the United States, subject to defeasance for the benefit of the heir apparent. . Blackstone Comm., vol. 2, p. 381; Wallach’s case, 11 Wallace, 209; Bike vs. Wassel, 94 U. S. 714; French vs. Wade 102 U. S. 132.
    6. The results of confiscation and forfeiture were two-fold under our law; in so far as the fee to the property was concerned, as in England, it vested in the sovereign or government; in so far as the heir apparent was concerned, a distinct and different result obtained ; the fee was held subject to reversion to the heir apparent, the beneficiary under the resolution explanatory of the act. Bike vs. Wassel, 94 U. S. 714; French vs. Wade, 102 U. S. 132.
    7. At common law, when the word heir, or its equivalent is used, the heir apparent is meant, he upon whom the law devolves the estate at the death of the ancestors. Lockwood vs. Jessup, 9 Conn. 274; Leach vs. Cooke’s Lessee, Cook, Tenn. Rep. 252; Bouvier’s Law Dictionary, verbo Heir; Dwarris on Statutes, p.199; Cox vs. Beltshoover 11 Mo. 142;
    8. To so construe the confiscation Actas topermit to offender, to control the property by permitting him to institute as devisee or legatee for it, is to defeat the very purpose and intent of the Act, which is to prevent him from affecting its title or controlling its destination in any manner whatsoever.
    9. The confiscation Act contemplated only the reversion of the fee for the benefit of the parties in. me, viz., the heir apparent: and not to a variety of devisees and legatees, which under the different systems in the different States, could be instituted by the offen der. Such differences could not have been contemplated within the Act; the construction that admits them, is, therefore, erroneous.
    12. Where the foreclosure of property in third hands, is sought upon a prescribed claim and a mortgage lapsed for want of re-inscription, the title of such third person is not affected by such proceeding. State of Louisiana vs. Citizens’ Bank, 33 Ann. 708;
    13. The heir apparent in the instant case, is not bound by the proceedings invoked, because he takes through the Government and not through the offender,
    14. The reversion of the fee to the nekt of kin by the act of the Government has no foundation in law, depending entirely on its generosity, constitutes no basis for the action of any legal principle. It can neither he assigned, nor does it descend to the heir. Heirs of Emerson vs. Hall, 13 Peters, 413 ;

      T. Gilmore & Sons for Defendant and Appellee.
    1. In a sale of property confiscated under the Act of Congress of July 17, 1862, alL that could he sold was a right to the property seized, terminating with the life of the person for whose offense it was seized. Such proceedings, and the sale theieunder, do not effect the rights of mortgage in favor of third persons on the property, which goes to the owner of the property cum onerc. Avegno vs. Schmidt & Ziegler, 35 An. 585; Hay vs. Micou, 26 An. 18; lb. 18 "Wall. 162; Mercuard ot al., 20 Wall. 115; Bigelow vs. Forrest, 9 Wall. 339; Waples vs. Hays, Morrison’s Trans., vol. 5, p. 73;
    2. The death of the offender terminates the right of the purchaser, and the property goes to the person whom the local law recognizes as the heir of the offender. Collaterals who are excluded from the succession by testament acquire no interest in the property. Wallach vs. Tan jRiswick, 2 Otto, 212; Pike vs Wassell, 4 Otto, 711.
    3. The Act of Congress forfeited the property for the life of the offender, but for his life only. It ó id not forfeit his testamentary capacity, or introduce into the local law a new order of succesiou.
    4 • A mortgagee, under an act containing the pact de mon aliencmdo, can proceed against the mortgagor as though the latter had never been divested of his title. Avegno vs. Schmidt, 35 An. 585.
    ft. This is a petitory action. Plaintiffs must recover upon the strength of their own title, and not upon the weakness of their adversary’s. They cannot in this form of action assail the defendants’. Tregre vs. Baudry, 23 An. 18; Barbee vs. Perkins, Id. 331; Dele-spare vs. Warner, 14 An. 413; H’Orgenoy vs. Hroz, 13 An. 382; Collins vs. Collins, 10 h. 269; Haydol vs. Roussel, 1 An. 37; Winn vs. Elgee, 6 Rob. 102. Hor can they be hoard to say — claiming as heirs of Surget — that the inscription ó% the mortgage had lapsed. See authorities in body of brief.
   The opinion of tlie Court was delivered by

PochÉj J.

Plaintiffs sue as the sole heirs of blood of the late Eustace Surget, for the recovery of immovable property which he once owned in the city of New Orleans, and which was confiscated under the legislation of Congress, of July 17, 1862, generally known as the “Confiscation Act.”

They allege that under that legislation, the property in contest, which had been adjudicated under the confiscation proceedings to the defendant, Shift, reverted to them as the legal heirs of Surget, who died on the first of February, 1882.

For answer, the defendant pleaded a general denial, and asserted his ownership of the property under 'a title from the sheriff of the parish of Orleans, by virtue of a writ of seizure and sale, issued in June, 1880, in his suit against Eustace Surget, for the foreclosure of a mortgage securing the unpaid balance of certain promissory notes which he then held.

Plaintiffs have taken this appeal from a judgment rejecting their demand and recognizing the defendant as the lawful owner of the property.

The salient and undisputed facts in this case are as follows:

Eustace Surget acquired the property in April, 1860, and as part of the purchase price, he assumed the payment of notes secured by mortgage on the same, executed by his vendor, amounting in capital to $24,000.

The property was confiscated in January, 1865, and sold in April following for $22,000, to the defendant, Shiff, who had in the meantime become the holder of the notes assumed by Surget at his purchase. After deducting costs and taxes, the balance of the proceeds of the sale were paid over to Shiff, who had intervened in the confiscation proceedings, and who applied said proceeds to the satisfaction pro tanto of his notes.

As the mortgage which secured his notes contained the pact' de non alienando, Shiff obtained executory process in June, 1880, by proceeding against Eustace Surget directly, for the payment of the unpaid balance due on his notes; and the defendant being an absentee, the proceedings were carried on contradictorily with an attorney appointed by the court to represent him. The property was adjudicated to Shiff on the third of August, 1880.

Eustace Surget died in France on the first of February, 1882, leaving a last will, in which he instituted his wife, who survived him, his universal legatee.

Plaintiffs are shown to be the relatives of Surget in the nearest line, and to be his sole heirs at law.

Under our views of the controversy, in the light of the established jurisprudence on the true and correct meaning of the Confiscation Act, the pivotal issue in the case hinges upon the validity of the sale effected under the executory process instituted against Surget by the defendant, Shiff, in June, 1880. A proper solution of that issue involves a consideration of the question of the effect of the confiscation on the perpetual ownership or fee of the confiscated property.

In the recent case of Avegno et al. vs. Schmidt & Ziegler, 35 An. 585? we had occasion to consider some of the effects of proceedings instituted under that legislation.

Under the guidance of numerous decisions of the Supreme Court of the United States, we established in that Court the following propositions, which are, to some extent, involved in the present controversy, and which we shall, therefore, abstain from discussing in this opinion .

1. The act of Congress, of July 17,1862, generally known as the “ Confiscation Act” and the joint resolution of the same day explanatory thereto, must he construed together.

2. In a sale of property confiscated thereunder, all that could be sold was a right to the property seized, terminating with the life of the person for whose offense it had been seized.

3. Such proceedings and sale do not affect the rights of mortgage existing in favor of third persons on the property which goes to the government or to the purchaser cum onere„

4. A mortgagee, under an act containing the pact de non alienando, can proceed against the mortgagor, after the latter’s expropriation through confiscation proceedings, as though the latter had never been divested of his title. Bigelow vs. Forrest, 9 Wall, 339; Day vs. Micou, 18 Wall. 160; Waples vs. Hays, Morrison’s Transcript, vol. 5, No. 2. Under the principles thus laid down, resting on the high authority of the first tribunal of the land, and which we do not understand to be contested by either party in the case at bar, we conclude that the following propositions can be considered as fully established in the present controversy.

1. That the title which Sliiff acquired at the confiscation sale in May, 1865, expired with Surget at his death in 1882.

2. That the mortgage rights of Shiff on the fee of the confiscated property for the security of the unpaid balance of his notes were not affected by that sale; but remained in full force, notwithstanding his acquisition of a life-estate in the property, and his possession and enjoyment of the same under his title; and that in this case there was no extinction of either the debt or the security by reason of confusion, as provided in our Code.

In this connection, we must here remark that we are in perfect accord with plaintiff’s counsel in their well supported argument that the “Confiscation Act”, a Federal statute', must be construed and interpreted in all its effects, under the rules and principles of the common law. To hold otherwise would be to run counter to all the decisions on this subject of the Supreme Court of the United States, the tribunal of all others so eminently, not to say exclusively, qualified to expound in the last resort all legislation emanating from the Congress of the United States, but above all to interpret a legislation so peculiar in its character, the outgrowth of a terrific civil war, and a relic of the feudal system once prevalent in England.

Hence we cannot consider with any favor, the contention of the defendant’s counsel in their advocacy of the proposition that after coniis- ■ cation, the offender had any right or interest, or remainder in and to the property thus wrested from him by the strong arm of the govern-, ment.

Under the common law the absolute ownership of the confiscated property was irrevocably vested in the sovereign. If the act of July 17, 1862, had not been immediately followed, and naturally modified, by the joint resolution explanatory thereto, it follows as a logical conclusion that its intended effect in the minds of its framers would have been to completely forfeit the property from the offender and to vest it absolutely in the government, with full power to transfer it to a purchaser under an absolute title. But, in our opinion, that intention would have been controlled by, and would have yielded to the counter check of that portion of the Constitution, which had its effect on the legislators and drew from them the restrictive declaration contained in their joint resolution. But the effect of that restriction operated only on the nature of the title which the government acquired under the confiscation, and not on the divesture of the offender’s title, which remained complete and final.

Hence, in treating of this subject in the case of Wallach et al. vs. Van Riswick, 92 U. S., p. 209, the Supreme Court of the United States uses the following strong and unambiguous language:

“It was not doubted that Congress might provide for forfeitures effective during the life of the offender. The doubt related to the possible duration of a forfeiture, not to the thing forfeited, or to the extent and efficacy of the forfeiture which it contained. It was to meet the doubt that did exist, that the resolution was adopted. * * * * * Plainly it should be so construed as to leave it in accord with the general and leading purpose of the act of which it is substantially a part, for its object was, not to defeat, but to qualify. That purpose, as we have said, was to take away from an adherent of a public enemy his property, and thus deprive him of the means by which he could aid the enemy. * * * * * The obvious meaning is, that the proceedings for condemnation and sale shall not affect the ownership of the property after the termination of the offender’s ‘natural life. After his death, the land shall pass or be owned as if it had not been forfeited. Nothing warrants the belief that it was intended that, while the forfeiture lasts, it should not be complete, viz: a devolution upon the United states of the offender’s entire right.” The same doctrine was announced in the case of Pike vs. Wassel, 94 U. S. 711, and was re-affirmed in the case of French vs. Wade, 102 U. S. 134; and in the language of that exalted tribunal we may hold that “It must now be construed as the settled rule of decision in that Court.”

The practical effect of that rule on the case now before „us, is that after the condemnation, the property was completely and absolutely wrested from Surget, who lost all control over or connection with it, to such an extent that a transfer of that property from Shiff under his confiscation titles, to Surget, would have vested in the latter nothing more than a life-estate. 102 U. S. 134.

Hence it is a safe, and in fact, an unavoidable conclusion that he could make no disposition whatever of the property which could bind the government, his presumptive heirs or any other party. Hence his honest intention in ratifying the title acquired by Shiff at the confiscation sale could produce no effect, and did not complete the latter’s title. Chaffraix vs. Shiff, 92 U. S. 214.

It is, therefore, clear that he could not dispose of the property by will, and that the status of that property was not, as it could not be, affected by his last will, made in France in the year 1872.

These considerations justify the conclusion that at the death of Sur-get, in 1882, the property reverted to plaintiffs, his legal heirs, unless the fee was divested by the executory process instituted by Shiff in 1880.

It will be noticed that in our decision of the Avegno case, we guardedly omitted to express any opinion as to the effect of the confiscation on the fee, which we intimated to have been vested either in the government or in the purchaser at the confiscation sale. The decision of that point was not necessary to the solution of the issues in that case but the necessities of this case require a discussion of that important question. As the Supreme Court of the United States has thus far eschewed that discussion, the task is hazardous and not free of difficulty.

But although that exalted tribunal has not yet undertaken to finally “determine where the fee dwelt during the life-estate,” we are not left without some guidance from the wisdom of its utterances in our search for light on the subject.

As we have shown above, the absolute forfeiture of the offender’s title has been held by that Court as the immediate effect of the confis- ‘ cation — and the Court has also settled that the second effect was “a devolution upon the United States of the offender’s entire right.” This certainly and inevitably includes the fee, but under the effect of the joint resolution, the fee in the government was not to be perpetual; its duration depended upon, and was limited by, the duration of the life of the offender, at whose death the fee reverted absolutely and forever to his heirs at law. Hence we conclude that during the life estate, the fee dwelt in the government in trust for, and for the use of, the presumptive heirs of the offender. This conclusion is fortified by the language of the Supreme Court in the case of Pike vs. Wassell, 94 U. S. 711, in which the presumptive heirs of the offender attempted, and were allowed, to regulate the administration of the property in some particulars by the life tenants. The Court said :

“It is true, as a general rule, that so long as the ancestor lives the heirs have no interest in his estate, but the question here is as to the rights which the Confiscation Act has conferred upon the heirs apparent or presumptive of one whose estate in lands has been condemned and sold. In Wallach vs. Van Riswick, without undertaking to determine where the fee dwelt during the life-estate, we decided that it was withheld from confiscation exclusively for the benefit of the heirs. They, and they alone could take it at the termination of the life-estate. The children of Albert Pike, as his heirs apparent, are also apparently the next in succession of the estate. Either they or their representatives must take the title when their father dies. ,If they do not hold the fee they are certainly the only persons now living who represent those for whose benefit the join resolution of Congress was passed. They, at least, appear to have the estate in expectancy. Under these circumstances, as there is no one else to look after the interests of the succession, we think that they may be properly permitted to do. whatever is necessary to protect it from forfeiture or incumbrance.”

We have made this copious quotation from that masterly opinion, not only because it amply bears out our conclusion that during the life estate the fee was held by the Government and owned in expectancy by the presumptive heirs, but for the additional reason that it effectually explodes the very erroneous theory advocated by plaintiffs’ counsel to the effect that the reversion of the fee to the next of kin by the act of the Government has no foundation in law, but depends entirely on its generosity. The very reverse is the truth •, the whole policy of the joint resolution was to restrict the effect of the condemnation so as not to affect the rights of the heirs of blood — hence it provided that no pxxnishment or proceedings under said act shall be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.” The next of kin, therefore, succeeds to his author, through the laws of nature and of descent, and not through the effect of the confiscation law, which was shaped and circumscribed so as not to suspend or interfere with the natural and legal preexisting rights of succession of the heirs of the blood.

The advocacy of this extraordinary theory by plaintiffs’ counsel was dictated by the necessities of their case; for under their system of attack against the validity of defendant’s executory process, it becomes urgent that during the life of the offender they should have occupied the status of third parties towards the property in litigation. For the purpose of attack they claim to be third parties, but for the purpose of realizing the fruits of succession they are transformed into heirs of the blood. The position is manifestly contradictory and absolutely untenable. If they are the donees of the United States and not the legal representatives or presumptive heirs of Eustace Surget, they are strangers in the cause — and there is no case before us.

But under their own allegations, supported by the best of evidence, they are the nearest living relations, and they were in 1880 the presumptive heirs of Eustace Surget; and, therefore, they were not third parties quoad the mortgage foreclosed by defendant in his executory process.

Hence, it follpws that they can draw no comfort or relief from the want of re-inscription of defendant’s mortgage, and hence it follows that they are concluded by the failure or refusal of Surget to plead the prescription on Shiff’s notes, which is now set up for the first time by them as a bar to the foreclosure of defendant’s mortgage in 1880.

Could they be allowed to set up the plea of prescription in bar of the exercise of a right which has been exhausted by judicial enforcement, a line of attack not sanctioned by our jurisprudence; this plea would be met and defeated by a codicil in Surget’s will, added thereto in 1879, in which codicil he solemnly charged his executrix with the noble mission of doing everything in her power to complete the title of defendant to the very property now in litigation, as an honest satisfaction of the very debt which his heirs at law now seek to avoid and defeat. Under the principles announced by the Supreme Court of the United States in the Pike case, these plaintiffs who were then, as they are now, the only presumptive heirs of Surget, could and would have been permitted to defend the seizure and sale of this property in 1880. Evidently they were not third or disinterested parties quoad that proceeding and they are bound by its effect.

All these considerations naturally lead to the legal conclusion that the fee was vested in the purchaser at the Shiff’s sale in August, 1880, and that the defendant, Shiff, is the lawful owner of the property claimed hy plaintiffs.

Judgment affirmed.

I concur in the decree, Todd, J.

CONCURRING OPINION.

Bermudez, C. J.

I concur in the opinion and decree just read, which appear to he in furtherance of the federal jurisprudence, as expounded hy the U. S. Supreme Court itself. I consider that it is necessary, in order to meet the issue presented, to ascertain and determine where the fee dwelt after the condemnation and sale of the property, and that the conclusion arrived at may he reached from another standpoint.

Writing on the right of property, civilians say, that ownership is perfect or imperfect. Ownership is the right hy which a thing belongs to some one in particular, to the exclusion of all others. It vests in him who has the immediate dominion of it and not in him who has a mere beneficiary right. It is perfect when perpetual, and when the thing unincumbered with any real right toward any other person than the other. It is imperfect, when it is to terminate at a certain time or on a condition.

It is of the essence of the right of ownership that it cannot exist in two persons for the whole or entirety of the same thing.

The ownership of Surget was áb mitio perfect, that is unqualified and therefore perpetual.

The forfeiture arising out of his aid to the rebellion deprived him of the full or absolute ownership for the term of his natural life from the time of confiscation and condemnation.

The decree of condemnation and sale vested an imperfect ownership in the United States which was to terminate when Surget should die.

It dismembered his perfect ownership into two imperfect ownerships, the one a complement of the other j both parts of one and the same whole. When this severance took place, the United States became the owner of the one; Surget remained the other of the owner. Nothing in the act suggests any other ownership; nothing in the opinions of the United States Supreme Court suggests any other individual as the absolute owner of the fee, until after the death of Surget.

In the case of Rankin, 6 Mon. Ky. 531, a similar question was presented and was solved in the same sense.

A person under sentence of death for murder made Ms will and died before the execution of the sentence.

One Court said : The validity or invalidity of the will depends upon the question whether, by the laws of the State, the testator forfeited the whole of his estate upon being convicted of the murder. If, on the conviction, the whole of his estate was forfeited, there was nothing he could transmit to others and the will would be inoperative; but, if notwithstanding, there was not an entire forfeiture of all his estate, he was capable of disposing of his interest not forfeited and as to that interest, be it what it may, his will can have an operation and must be adjudged valid.

The statute of the State disposed of all the estate forfeited to the Commonwealth, by directing it should pass and descend to his heirs. The question still remained, whether the whole estate of the offender was, upon his conviction of felony, forfeited to the Commonwealth. The constitution of the State contained this clause: That no attainder shall work corruption of blood, nor (except during the life of the offender) forfeiture of estate to the Commonwealth.”

Not the absolute fee simple estate of the offender in lands and goods that according to the Constitution was forfeited to the Commonwealth' on attainder or conviction of felony; but it was the interest or estate which the offender was entitled to during his life that by the law in force at the passage of the act, was forfeited. The reversionary interest, or in other words that part of the estate which remained after the death of the offender, according to those laws, resided in him after conviction, must still be understood to reside in the offender, though attainted or convicted.” See Borland’s case, 4 Mason, 174.

Under'the confiscation law, the fee, the perpetual ownership, could not be and was not forever divested. The explanatory or restrictive resolution of the original act is explicit on the subject, but in the absence of any such legislation, declaration or abridgment, the original act would have been impotent to have accomplished that object, because of the insuperable inhibition of the Constitution, which forbids forfeiture beyond the term of the offender’s life.

Had not the resolution been resisted by the Executive, or passed notwithstanding, the potent arm of the highest tribunal in the land would undoubtedly, at the proper time, have struck a fatal blow, branded the high-handed measure and denounced it as a lifeless form which should never have seen the light of day.

The fee then continued to dwell in the offender, hut barren of any profit, good or advantage to him; without any right on his part to make it available in any manner during his life, though it necessarily remained subject to claims upon it. It is incredible that lawyers, while providing for the confiscation of an enemy’s land, intended to leave in that enemy a vested interest he might sell and with the proceeds of which he might aid in carrying the war against the Government.”

It can only be upon the theory that the fee was not absolutely divested, that the creditors anterior to the law, whose claims were secured by lien or mortgage, and have been recognized the right of coercing payment by subjecting the property, notwithstanding confiscation and sale, and that at the offender’s death it passes to his heirs, who take as though no forfeiture had ever occurred.

It is true that the proceeding is in rem, but the law of the situs requires it to be conducted contradictorily with the owner, in order that the judicial sale may operate a valid divestiture of the title or fee, even if the defendant were not the owner of the fee at the date of the proceeding and sale following.

But even assuming and conceding that the offender Surget was actually divested of his entire ownership, perfect and imperfect, and that the fee vested in the United States, the divestiture would not be entitled to more effect than it would have if Surget had himself, in the absence of any condemnation and sale, voluntarily parted with his ownership of the property.

In such a case, under the terms of the contract of sale on which Shiff bases his claim, the alienation of the property by Surget could not have prejudiced him, as it contains the clause de non alienando, which under the laws of this State authorizes him to proceed in the enforcement of his debt against the original debtor and mortgagor regardless of the transfer, and ignoring it, — the property passing to the transfer-ree or pirrchaser, ewm onere, or subject to that clause.

From that standpoint, it is therefore immaterial whether the fee remained in Surget or passed to the Government. It was divested by the proceeding of 1880, and vested in Shiff.

Prescription is a means of defense created by the law for the necessity of things to which the individuals in whose favor it exists may have recourse or not as they may deem better. They a,re under no obligation to set it up. When, therefore, they are sued in a case in which they could urge it, and do not do so, they are deemed to have waived the benefit of it. Under such circumstances, those who take from them, their heirs and assigns,- are as equally estopped from pressing it as effectually as the debtor himself.

As Surget did not set up prescription or peremption, prior to the sale of the property, but on the contrary waived it and recognized title in Shiff, as is shown by his silence and his will, the claim of Shiff continued in existence, was legal and valid, and the expropriation became complete in his favor as creditor, purchasing as if there never was any prescription law.

Those and any other defenses which could have been and were not set up by Surget before the sale, the plaintiffs — who are Surget’s heirs and successors, and who have acquired no rights which he did not possess and could not have exercised — cannot be permitted to assert and urge after his death.

I, therefore, concur in the decree.

CONCURRING Opinion.

Manning, J.

One of the appalling consequences of attainder in England was the corruption of blood, whereby its heritable quality was destroyed, and the person attainted was incapacitated from taking lands or other hereditaments from his ancestor, or retaining those he already had, or transmitting them by descent to any heir. This consequence was forever averted from our country by the explicit constitutional declaration that while Congress shall have power to declare the punishment of treason, no attainder shall work corruption of blood nor shall any forfeiture extend beyond the life of the person attainted. And therefore an Act of Congress which should assume to confiscate the fee would be unconstitutional and null, and does not need an accompanying explanatory resolution to confine and restrict its operation.

Since then corruption of blood is not produced, and cannot be, by any proceedings for attainder or confiscation, the capacity to take, retain, and transmit lands is not affected, except by a forfeiture pronounced, and that cannot extend beyond life. Thus as the government cannot in any manner touch the fee, so it cannot for any purpose hold the fee.

The fee must therefore either remain in the obnoxious party with power to dispose of it by will, in which event the plaintiffs have no interest, and subject to a forced alienation of it by creditors, in which event the defendant acquired a good title, or it must be in abeyance during the continuance of the life estate. In either case, the proceedings taken by the creditor have divested and transferred the fee to the purchaser under the executory process, and his title is therefore unassailable.

I concur in the decree.

ConcurRing Opinion.

Fenner, J.

I think it desii able to avoid, as far as possible, any decision upon vexed questions arising under the confiscation laws, not absolutely essential to the determination of the instant controversy. Whatever inferences may be drawn from the expressions used by the Supreme Court of the United States in discussing the effect of those laws, that tribunal has not, as yet, explicitly decided whether or not condemnation and sale under them, operates to destroy the will-making power of the owner, as to real estate. I prefer not to anticipate the decision of that Court upon this purely Federal question. If we can decide this case upon the strength of defendant’s title, we need not concern ourselves about the weakness of that of the plaintiffs.

I am equally indisposed to vex my mind with the consideration of the metaphysical problem as to where the fee of this property resided during the life-time of Surget, the solution which has been, thus far, consistently declined by the Supreme Court of the United States.

For the purposes of this controversy, it matters not where the fee resided. Wherever it was, the Supreme Court has unequivocally settled the doctrine that it remained subject to prior mortgages and privileges in favor of third persons, which were entirely unaffected by the confiscation proceedings.

Neither did those proceedings affect the debt due by Surget to Shiff, which was secured by mortgage.

The object and effect of the pact de non alienando, under our law, are to secure to the mortgage creditor the right to foreclose his mortgage by executory process directed solely against his original debtor, and to seize and sell the mortgaged property, regardless of any subsequent alienations.

We make a long step towards eliminating irrelevant questions and exposing the real and pivotal question in this case, when we announce, as an indisputable proposition, that if the executory proceedings against Surget were regular; if, at the date thereof, the debt subsisted; if the mortgage securing the same were valid and had been preserved by proper inscription and re-inscription — the purchaser at the sale under those proceedings would have acquired a valid title against all the world, regardless of who owned the fee at the date thereof.

Indeed, I do not understand that the learned counsel of plaintiffs would dispute this proposition. They claim that the title is invalid, as against plaintiffs, on two grounds, viz:

1. That, at the date of the foreclosure proceeding, the debt of Shiff had been extinguished by prescription.

2. That his mortgage had lapsed, as to them, by the failure to re-inscribo it within tiie term prescribed by law.

At this point we encounter other elementary propositions, too plain for dispute, establishing that, whatever forcé the above objections might have if urged by third persons, they have none in favor of the mortgagor or his heirs. As to prescription, the mortgagor having failed to plead it, its effect is forever lost as to him and his heirs. As to the want of re-inscription, neither inscription or re-inscription is necessary-to preserve the mortgage as against the mortgagor and his heirs.

By this process of elimination, we reduce this controversy to a single question, viz: are the plaintiffs, heirs of Surget, claiming title by virtue of inheritance through him; or are they third persons as to him, deriving title from the bounty of the United States conferred upon them under the merely descriptive quality of heirs of Surget?

They have their right upon the latter hypothesis.

If we confine ourselves to the plain language of the Acts of Congress, it is difficult to discern any foundation for suplí a theory. In the Act of July 17, 1862, and the explanatory joint resolution, taken together, Congress provided for the seizure and condemnation of enemies’ property, and declared that, when condemned, it should “ become the property of the United States, and may be disposed of as the Court shall decree, and the proceeds thereof paid into the Treasury for the purposes aforesaid; but no punishment or proceedings under this Act shall be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.”

This is precisely what Congress has said, and all that it has said, on this subject.

It has not assumed to say who should take the property after the offender’s death. It has not declared that, at his death, the property should vest in the offender’s next of kin or in the persons who, under the lex loci rei sitai, would be his heirs. If such were the case, the contention of plaintiffs might find strong support. But Congress has simply declared that the proceedings shall not operate upon the property at all beyond tbe period of the offender’s natural life. At tbat moment they cease to bare effect and are as if they had never taken place.

Suppose the provision had been that the proceedings should not “ work a forfeiture of the real estate of the offender beyond ” the period of twenty years from their date. At the expiration of that term, would not the offender, if still alive, resume the property ? If he were dead, would not his heirs take it ? And why would they take it ? Simply for the reason that he was dead, and that they were Ms heirs, and, as such, entitled to take whatever would belong to him, if living.

And so, under thé law as it is, Congress has not touched the property for any period beyond the offender’s life. However absolute the’ ownership of the United States, no property in the thing beyond that period ever passed to "the United States. Congress has never said a word about the estate after the death. At that moment the ownership of the United States ended. The “forfeiture of the real estate of the offender ” ceased to have effect. Nothing disturbed or divested the offender’s ownership except the forfeiture and that divestiture could only continue so long as the forfeiture had effect. A forfeiture for a term cannot extend beyond the term; and when the term expires, the estate divested thereby revests in the original owner, if living, in his heirs, if dead.

We are not concerned here with questions which might arise as to whether, under the common law of real property, the fee is susceptible of dismemberment or of being in abeyance, or in gremio legis or m rrnbi-bus. We are dealing here with a statute, the exercise of legislative power, which modifies and changes existing laws according to its will. If Congress had power over the subject-matter, it could dismember the fee, or place it where it chose. The word fee, in its ordinary use, embodies a composite idea. Discarding the feudal characteristics of the English System, Mr. Abbott gives the following definition: “ In American law, a fee is an estate of inheritance without condition, belonging to the owner and alienable by him or transmissible to his heirs absolutely and simply.”

Such an estate existed in Surget, as to this property, prior to its condemnation. Now, the Act of Congress, as interpreted by the Supreme Court of the United States, destroyed certain elements of Surget’s fee. It annihilated his ownership during his life. It destroyed absolutely his power of alienation. We may concede, for the sake of argument, that it destroyed even his testamentary capacity in relation to this property. But it unquestionablj' left in him the faculty of transmitting to Ms heirs absolutely and simply, because that is a faculty coming into play only at the moment of his death, and when the forfeiture terminated and ceased to have any effect whatever on his rights.

This case is ponding on a writ of error in the Supreme Court of the United States.

Reporter.

Plaintiffs cannot claim title to this property after Surget’s death, as derived from the United States, because the United States never took or held any such title. They cannot claim that the United States, in the exercise of legislative power, transferred the estate directly from Surget to them, irrespective of their right of inheritance, because no such transfer is found in the statute, and no language susceptible of any such construction.

^ Their only title rests upon their right of inheritance from Surget— upon their being his legal heirs — the beneficiaries of the right, vested in him and never forfeited, to transmit this property to his heirs.

Conceding the destruction of Surget’s testamentary capacity, the utmost they could claim would be the position oí forced hews under our law, whom the ancestor could not disinherit. But even such heirs, though treated in our law in many respects as creditors, could not oppose to the title of defendant herein the defenses of prescription of the debt or lack of reinscription of the mortgage.

The learned judge of the court á quá rejected the demand of plaintiffs on the ground that Surget’s testamentary capacity was not affected by the confiscation proceedings and that his instituted heir succeeded to his rights at his death.

Without intimating any opinion on that question, I have preferred to avoid it and to reach the same decree on different grounds.

For these reasons, I concur in the decree.

Rehearing refused.


source: Caselaw Access Project

author: Todd, J. Manning, J.

license: Public Domain

text:
    No. 8370.
    Victor Adema vs. Lafayette Fire Insurance Company.
    “Where there is not a condition in the policy of insurance requiring the true title of the insured to he stated, and there has been a misrepresentation of interest, that misrepresentation will not he fatal to the policy if knowledge of the true ownership of the property would not hare enhanced the premium or have deterred the underwriter from taking the risk at all.
    But when the policy contains the condition requiring the true title to be set forth, failure to comply with it vitiates the policy.

      A PPEAL from the Civil District Court for the Parish of Orleans. JjL Houston, J.

      Armand Filié for Plaintiff and Appellant:
    1. "When one having no personal interest in a property, insures it in his owu name, lie will he presumed to have acted in "behalf of the true owner, and the insurance will insure to the heneñt of the latter, upon his subsequent adoption of it, even after a loss has occurred. Angelí on Fire and Life Insurance, p. 124, Sec. 79 ; Schooler on personal property, p. 684; Quénault des assurances terrestres, Ho. 142, p. 115.
    2. The same rule governs when one having only an undivided insurable interest in a property insures the whole of it in his own name, instead of insuring his proportional share therein, eo nomine, and the policy will protect all the co-proprietors. Thus, the insurance of community property in his personal name by the husband will inure, for the one-half thereof, to the benefit of his co-owner, the other spouse, on her acceptance of the community at its dissolution. Quénault, Ho. 315; Pardessus, Ho. 592; G-rum and Jolial, p. 85; T. P. Leathers vs. J". 'W. Cannon, not yet reported.
    3. The avoidance of policies for misrepresentation or concealment is made to depend upon the materiality of the disclosure or concealment, to be submitted to the jury as a question of fact. "Wood, p. 350, note 1, and sec. 86, p. 163; 10 Peters, 516; Curry vs. Comm. Ins. Co. 10 Pick. 535; (1 Bennett’s Eire Ins. cases, p. 333); Hough vs. City Eire Ins. Co. 29 Conn. 10.
    4. It is not in all cases, where the legal or absolute title is not vested in the insured, that the policy will be void if he does not so state it, as required by the condition, for if he really has an insurable interest in the property, and the entire loss falls upon him, the policy will be enforced. "Wood, sec. 86, p. 168; Hough vs. City Eire Ins. Co. 29 Conn. 10. So, a tutor who insures his ward’s property, in his personal name, without communicating particulars as to title, will be entitled to recover.
    5. “When the policy provides that if the interest of the insured in the property be not truly stated in said polio}', or his interest in said property bo any other than the entire, unconditional and sole ownership thereof, or that his title thereto be not absolute, it must be so stated in said policy, or the latter shall be void, if the insured possesses and owns the dominium, or full ownership of the subject of the contract, he is not within the preceding conditions, and therefore not called upon or bound to malee any declaration, Qui didt de uno negat de altero,

    6. By the death of one of the parents, the other becomes tutor, of right, and is not only empowered to insure his ward’s property, but held responsible for its loss by fire on his failure to do so. Bev. C. Code, Arts. 248, 250, 301; 1 H. S, 54; 5 H. S. 625; 5 A. 565.
    7. To constitute double insurance, the policies should cover the identical interest, and that of a mortgagor being distinct from that of a mortgagee, an insurance taken by each on the same property will not create double insurance, even though co-existing together. Griswold, secs. 758. 994; Quénault, Hos. 38 and 39.
    The procurement of a void or voidable policy is not a breach of the condition against further insurance without notice, so as to avoid a previously existing policy, even though the insurer who made such void policy should compromise and pay the loss. Griswold, secs. 758, 994, 995, 998; "Wood, sec. 348, et seq.

    8. The performance by a tutor of an obligation, or the payment by him of a debt, contracted by the ancestor of the minor, is an act of simple administration, requiring neither the advice of a family meeting, nor the sanction of the judge.

      9. A pledgee ia authorized to receive the amount of the credit pledged, and payment to him is valid and discharges the debtor, Rev. Civil Code, Arts. 2140, 3170.

      Albert Yoorhies on the same side.

      Henry P. Hart for Defendant and Appellee:
    1. A tutor cannot assign or transfer the rights or property of his ward without the advice of a family meeting and the approval of the judge. 26 A. 459; 16 A. 98 ; 28 A. 427; 27 A. 443; 15 A. 148; 22 A. 296; C. C. 353.
    2. A natural tutor cannot administer without taking oath as such. Until betakes the oath he is not responsible to the minor, or legally in possession of the minor’s property. 12 Rob. 637; 19 A. 64; 3 A. 563; 11 R. 503.
    3. ‘WTiere clauses of the policy require a statement of the nature of the insurer’s title, or interest in the property, under pain of nullity, the failure to disclose strikes the policy with nullity. Any concealment of or failure to disclose the real interest, is a fraud on the company, and the policy null under such a clause. "Wood on Ins. 9, 252, 273, 293, 345, 381, 423 * 2 La. 246; 17 Barb. (IT. Y.) 275; 10 Cush. 466 ; 11 Gray, 163 ; 2 Ret. XT. S. 48; 42 Barb. 457; 11 Ohio, S. 477; 2 Grant’s case (Pa.), 326; 5 Call, (Ya.) 517.
   The opinion of the Court was delivered by

Todd, J.

This is an action on a policy of insurance issued by the defendant company, of which the plaintiff is the transferee, for $1500, the property insured having been destroyed by fire.

The plaintiff appeals from a judgment against him. The policy was taken out by one Jean Poméz, who owned only one-eighth of the building insured, the remaining seven-eighths belonging to his minor child. The policy issued in favor of Poméz alone.

Among other grounds of defense against the action urged is that the insured concealed and failed to disclose the true ownership of the property, in violation of one of the conditions of the policy.

Section 4 of the policy provides:

“ Sec. 4. If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, it must be so represented to the company and so expressed in the written part of this policy, otherwise the policy shall be void.”
Sec. 14. Whenever the insured does not enjoy the full ownership of the property insured, he is required to disclose to the company the nature of his insurable interest and to cause the same to be inserted in the policy, otherwise the insurance shall be null and void.”

These conditions were part of the contract between the assured and the company.

As expressed by an eminent writer on the subject of insurance: policy, although, not referred to therein. So where the policy is in terms made subject to the terms and conditions of the application for insurance, they are to he construed together as forming the contract; so where the policy is in terms founded on the application.” Wood, p. 273;

When the policy is printed on one half, and the conditions on the other half, of the sheet, the conditions are to be treated as a part of the

And again: Where the conditions are written or printed on the face of the policy, the assured by accepting it becomes bound thereby, and is estopped from denying that he assented thereto.” Wood,'9; 2 La. 399.

The concealment or failure to disclose his interest in the property cannot be regarded as an immaterial circumstance and of no legal significance in its bearing on the contract, for the reason that the guarantee for the preservation of the property is dependent chiefly upon the extent of the assured’s interest in it. *

On this point, we quote the following language from a decision of the Supreme Court of the United States, rendered by C. J. Marshall:

Generally speaking, insurances against fire are made in the confidence that the assured will use all the precautions required to avoid the calamity insured against, which would be suggested by his interest. The extent of this interest must always influence the underwriter in taking or rejecting the risks and estimating the premium. So far as it may influence him in this respect, it ought to be communicated to liim. Underwriters do not rely so much upon the principles as on the interest of the assured, and it would seem to be always material that they should know how far this interest is engaged in guarding the property from loss.” Insurance Company vs. Laurence, 2 Peter, 48; see, also: 10 Cushing (Mass.), 446; 11 Gray (Mass.), 163; 42 Barb. 457; 11 Ohio S. 477; 5 Call (Va.), 517.

As stated, though the minor child of Poméz owned seven-eighths of the property, the application of Poméz for the insurance is entirely silent as to that fact, as well as the policy itself. Under the authorities cited above, this circumstance alone would avoid the policy.

It is argued by the plaintiffs’ counsel, with great ingenuity, that under the system of laws prevailing in this State, no such result would follow; that the insurance effected on the application of Poméz and in his iavor would enure to the benefit of his minor child, it being claimed that Poméz was the natural tutor of the child at the time the application was made and when the policy issued.

It has been shown that by the express terms and conditions of the policy that the disclosure of the child’s title to the property was imperatively required to Mud the company, that it was ail essential part of the contract, and such terms and conditions do not, in our opinion, contravene any article of our Code or any law of the State; and, therefore, full effect must be given them.

This view of the question renders it unnecessary to consider the other issues presented by the pleadings and discussed by the counsel.

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

Oh Rehearing.

Manning, J.

There can be no doubt that Pómez could have insured the property of his minor child, of whom he was the natural tutor. Our law compels him to insure wli#n the property is a house in New Orleans, as was this, and imposes upon him responsibility for failing to insure. Rev. Ci. Code, art. 355. If he had taken the policy, one-eighth for himself and seven-eighths as tutor, no valid objection could have been made.

It has been strenuously urged that the concealment of his child’s interest was not material, and a number of decisions and many texts from the books have been cited to shew, if the true ownership would not have enhanced the premium, then the concealment or misrepresentation is not fatal to the policy. Indeed in the case cited by us from 2 Peters when it went up again, it was said; — whenever the nature of the interest would or might have a real influence upon the underwriter, either not to insure at all or not to undertake the risk except at a higher rate, it must be deemed material and the concealment or misrepresentation of it will avoid the policy. And the decisive test of the materiality of the concealment or misrepresentation was there said to be to ascertain whether if the true ownership had been known, it would have enhanced the premium. If it would, then the concealment or misrepresentation would be fatal to the policy. Columbia Ins. Co. v. Lawrence, 10 Pet. 516.

The converse of this ought to be equally true, viz that when knowledge of the true ownership of the property would not have enhanced the premium or have deterred the underwriter from taking the risk at all, then the concealment or misrepresentation is not fatal to the policy.

But this case is not governed by the law concerning representations of interest. There was an express stipulation in this policy that whenever the insured is not full owner of the property insured he must disclose the nature of his insurable interest and have it inserted in the policy, and if he does not, the insurance shall be null and void. This was a condition of the contract to which he assented, and thereby warranted that he was full owner. Now a representation is not like a warranty. A representation must be shewn to be false in a material point or it will not make void the policy, while a warranty must be strictly complied with. Marshall on Insurance, 335. The rule seems to be inexorable that a failure to set forth truly the title will avoid the policy, whether the failure resulted from design or mistake, whenever the policy requires the real title to be stated. Wood on Ins. §§ 202, 218. Such requirement is a vital part of the contract, and a non-compliance with it forfeits all rights under the contract. Palmer v. Fact. & Trad. Ins. Co. 33 Ann. 1336 and authorities there cited on p. 1340. But unless the true ownership or interest in the property is required by the conditions of the policy to be specifically and particularly and accurately set forth, it will be in general sufficient if the insured has an insurable interest under any status of ownership or possession, in cases where no inquiries are made at the time the application is presented or the policy executed. Ins. Co. v. Haven, 5 Otto, 242; May Ins. § 284; Wood on Ins. 398.

So that in the absence of any condition in the contract requiring the insured to state his interest, it will be sufficient if he have an insurable interest, but otherwise if the policy requires the real title to be stated. Wood on Ins. § 202. And this is not an infringement of the doctrine broadly announced that a person who has the care, custody, or possession of property for another may insure it in his own name although he has no pecuniary interest therein, and the insurance will enure to the benefit of the owner. Ibid. §§ 278-9, 284. For that has application and relevance to cases wherein rules are formulated to define what is an insurable interest. The fact that one has possession, exclusive as to all but the owner, and therefore a right to protect the property from loss, gives him the right to insure, and so Pómez who had this possession and the right consequent thereon, with the duty superadded of insuring, could unquestionably insure, but in making his contract he ignorantly and unwittingly assented to and came under the dominion of a condition which struck his insurance with absolute nullity because he did not state and set forth the real title to the property.

It is a hard case, but courts must enforce contracts, and those who make them should look to the conditions of them before they bind themselves.

Our former decree must remain undisturbed.


author: FENNER,, J.

text:
    No. 8755.
    Morgan’s Louisiana and Texas Railroad and Steamship Company vs. The Board of Health of the State of Louisiana.
    The fees and charges imposed on vessels by the quarantine laws of the State, are exactions in compensation for services rendered, and are not taxes, duties or imposts, within the prohibition of the Federal Constitution.
    The Supreme Court of the United States has never decided that the States have not the power to exact such fees in execution of their quarantine laws, but, on the contrary, has intimated that the power does exist as incident to the power to establish quarantine
    . ’ ■ regulations. The power has been long and uniformly exercised by the States, without question.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Leovy & Kruttsclmitt for Plaintiff and Appellee.
    1. The statute of 1882, (No. 69) entitled “an act to fix and regulate quarantine charges at the Mississippi Hver station,” etc., is a local and special law, and is null and void, because prohibited by Article 48 of the Louisiana Constitution As to local and special laws see 19 Iowa, 43; 4 Kansas, 124; 23 Md. 503.
    2. It is null and void because it contravenes Article 30 of the Louisiana Constitution, being an amendment of the last paragraph of section 3042 of the Revised Statutes, (originally Act 1858, p. 186) and it omits the first and last sentences of the section. The section amended is not “re-enacted and published at length.”
    3. The act of 1882, No. 69, entitled “An Act to fix and regulate quarantine charges at the Mississippi river station,” etc, and all other acts of the State legislature, imposing charges on vessels to maintain a quarantine system, are null and void, because violating paragraph 3, section 10, article 1 of the United States Constitution, which declares that “no State shall, without the consent of Congress, lay any duty of tonnage.” 6 Wall. 31; 12 WaH. 218; 19 Wall. 581; 20 Wall. 580; 92 U. S. S. C., p. 259; 94U S. S. C., p. 238; 95 U. S. S. C., p. 80; 100 U. S. S. C., p. 423; 105 U. S. S. C., 166; 31 An. 65; 32 An. 1293; 34 An. 703.
    4. The Act of 1882, No. 69, fixing and regulating quarantine charges is null and void, because in conflict with paragraph 3, Section 8, Art. 1 of the United States Constitution which gives to citizens the power “to regulate commerce.” 9 Wheaton, 205 ; 6 Wall. 31; 19 Wall. 581; 92 U. S. S. C., pp. 259 and 275; 94 U. S. S. C., p. 246; 100 U. S. S. C., p. 443‘ and the case of New York vs. The Compagnie G-eneral Transatlantique, just decided by United States Supreme Court; (Supplement to Federal Reporter, Vol. 2, p. 87); 31 An. 65; 32 An. 1293; 34 An. 703.
    5. The power to regulate commerce is vested exclusively in Congress; it is no longer an open question. U. S. Constitution, Art. 1, Sec. 8, §3 ; 9 Wheaton, 186 ; 12 Wheaton, 414 ; 12 Peters, 72; 6 Wall. 31; 92 U. S. S. C., 259 and 275 ; 94 U. S. S. CM 246; 100 U. S S, C., 434.
    6. The Act of 1870, (Rev. Stat., Sec. 3042) which declares that “ any steamship from Florida, Alabama, Mississippi or Texas, shall pay ten dollars; any steamship from other ports shall pay twenty dollars,” is in conflict with Art. 1, Sec. 9, § 6 of the United States Constitution, which declares that “no preference shall be given by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels bound to or from one State, be obliged to enter, clear or pay duties in another.” 94 U, S. S. C., p. 243; 100 U. S. S. C., p. 434.
    7. The duty imposed on vessels br the act of 1882, No. 69, and the other statutes relating to quarantine is not an “inspection” law. 9 Wheaton, 1, 203; 1 Kent, 439; Story on Consti-tntion, § 1017; 8 Cowan. 45; 13 Reporter, 326; Hew York vs. Compagine Transatlantique; Supplement to Federal Reporter, vol. 2, p. 87.
    8. The Acts of 1882, Ho. 69, and 1870, (R. S;, sec. 3042) are null and void, because they violate the prohibitory act of Congress of 1799, which declares that no State shall, for vuarantine or health purposes, collect any duty of tonnage or impost.

      Bhmtmgton <& Dufour, Amioi Ourice, on the same side.

      Jb’. 0. Zachcm'ie and JE. D. White for Defendants and Appellants.
    1. The quarantine law of Louisiana, like the quarantine laws of other States, is neither a regulation of commerce nor a duty on articles imported from one State to another, such as is prohibited by the Constitution of the United States. Burroughs on Taxation, p. 97; 9 Wheaton, 1; 5 Otto,’ 472; 2 Otto, 270; Burroughs, 105; 7 Howard, 414.
    2. Hor does the law impose a duty of tonnage prohibited by the Constitution of the United States. Burroughs, 89; 12 Wallace, 204; 29 Grattan, 419, 422; 20 Wallace, 577; 19 Wallace, 581; 6 Wallace, 31; 12 Wallace, 205; 95 United States, 81; Parkersburg & O. R. R. Trans. Co. vs. City of Parkersburg, (United States Supreme„Court not reported in volume,
    3. The inspection fees are in the nature of compensation for services. Baker on Quarantine, 343, et seq; 13 Howard, 312; 13 Wallace, 241. 242; 9 Wheaton, 205; Pilot cases United States Supreme Court, 2 Wallace, 457.
   The opinion of the Court was delivered by

FENNER,, J.

The Act No. 69 of 1882, of the General Assembly of the State of Louisiana, provides that “ The resident physician at the quarantine station on the Mississippi river shall require for every inspection and granting certificate, the following fees and charges: for every ship, thirty (30) dollars; for every bark, twenty (20) dollars; for every brig, ten (10) dollars; for every schooner, seven dollars and fifty cents (7 50); for every steamboat (towboats excepted), five (5) dollars; for every steamship, thirty (30) dollars.”

By virtue of other provisions of the quarantine laws of the State, it is made the duty of the resident physician, or his assistant, to visit and inspect every vessel entering the port of New Orleans through the Mississippi river.” If he finds the'vessel “free from disease, not in afoul condition, and not from an infected district,” he is required to furnish her with a “ certificate of health,” and allow her to proceed to the city. Vessels “in a foul condition,” or having on board persons suffering or who have suffered during the voyage from “contagions, pestilential or infections diseases,” he is required to detain for such time, not less than ten days, as he may deem necessary; and “to employ such means of purification of the vessels as may he directed by the Board of Health,” and to require payment therefor from the vessel. “Vessels out ten days from infected ports, presenting clean hills of health, not having nor having had sickness on board, and which are not in foul condition, shall be permitted to pass to the city after thorough fumigation by disinfecting agents.” Revised Statutes, §§ 3042-3-5.

The practice under these laws is to visit and inspect every vessel and to require, in every case, the fee prescribed therefor; and in cases where, under the law, the service of disinfection by fumigation is rendered, to require therefor an additional fee of twenty or twenty-five dollars as the estimated expense thereof.

Plaintiff is the owner of a number of vessels plying between the port of New Orleans and various other ports of this and other countries. The object of the present suit is to perpetually enjoin the collection of the fees and charges above mentioned and to restrain the defendant from detaining the plaintiff’s vessels because of their non-payment; on the ground that the laws authorizing the same are null and void, because they contravene:

1. Article 1, sec. 8, par. 3, of the Constitution of the United States, which provides that “ Congress shall have power * * * to regulate commerce with foreign nations, and among the several States and with the Indian tribes.”

2. Article 1, sec. 10, par. 3, which provides that “No State shall, without the consent of Congress, lay any duty upon tonnage.”

We shall, at the outset, disembarrass the case of several questions upon which we heard much learned argument, by laying down certain propositions which we consider clearly settled by the Supreme Court of the United States, to whose opinions on such subjects we yield our firm adherence:

1. The laws in controversy are, in no sense, “inspection laws,” and can derive no support from that clause of the Constitution of the United States recognizing the right of the States to pass such laws, and to levy duties and imposts in execution thereof. Thq “inspection,” “duties,” and “imposts” intended by that provision referred exclusively to arti-ticles of merchandise and not to vessels. Gibbons vs. Ogden, 9 Wheat. 1, 203; People vs. Compagnie, 13 Reporter, 326.

2. So far as the exclusive power of the Congress to “ regulate commerce” is concerned, that power is not infringed by the laws under consideration, unless the fees and charges imposed thereby are in the nature of a “duty on tonnage,” in which case they would doubtless violate both the general reservation to Congress of the exclusive power to regulate commerce and also the special prohibition to the States to “lay any duty on tonnage.” In other respects, the right of a State to provide for the health of its people by establishing quarantine laws, and to subject vessels entering its ports to proper regulations as to inspection, detention, purification, etc., although necessarily affecting commerce, is, nevertheless, undisputed; subject, possibly, to the power of Congress to interfere and control it, in its discretion. Gibbons vs. Ogden, 9 Wheat. 203; Passenger Cases, 7 How. 414; Peete vs. Morgan, 19 Wall. 581.

3. If the fees and charges complained of be of the nature of a “duty on tonnage,” the fact that they are levied under quarantine laws would save them from the prohibition of the Federal Constitution. Such duties cannot be levied, without the consent of Congress, and Congress has never consented, but, on the contrary, in its Act of 1799, recognizing the existing quarantine laws of the States, it interposed the expressed proviso, “that nothing herein shall enable any State to collect a duty of tonnage or impost, without the consent of the Congress of the United States thereto.”

4. If the fees and charges be in the nature of a “duty,” the fact that it is laid on the whole ship and not at a rate of so much per ton, would not, of itself, exempt it from the Federal prohibition. Steamship Co. vs. Port Wardens, 6 Wall. 31; State Tonnage Tax Cases, 12 Wall. 218

This elimination leaves open, on this branch of the case, the solitary question: Whether the fees and charges here involved are “duties” in the sense of the Constitution.

It is the well-established jurisprudence that there are many forced contributions which governments may exact from persons and property which are not considered as taxes, duties or imposts within the meaning or control of constitutional restrictions upon the power to levy the latter. Such are contributions provided for the construction of public works for the advantage of particular districts, like levees, drainage, pavements, etc., levied on property with reference to the supposed benefits derived by the property from the works; contributions provided to defray the expenses of building bridges, erecting causeways, or removing obstructions in a water-course, .and like the light duty paid by all nations to the Danes; to be paid by such individuals only who enjoy the advantage; and fees or charges for services lawfully rendered, like wharfage, pilotage and port warden fees, to be paid by those who receive the services. State vs. Nav. Co., 11 Mart., O. S. 324; Crowley vs. Copley, 2 A. 329; Lafayette vs. Orphan Asylum, 4 A. 1; Wesley vs. Municipality, 9 Bob. 330; Draining Co. case, 11 A. 370; Levee Commrs. vs. Lorio, 33 A. 276; Matter of Mayor of New York, 11 Johns. 80; Gibbons vs. Ogden, 9 Wheat. 235; Pilotage cases, 12 How. 312; Port Warden cases, 6 Wall. 31; Cannon vs. New Orleans, 20 Wall. 577; Packet Co. vs. St. Louis, 100 U. S. 423; City vs. Wilmot, 31 A. 65; Ellerman vs. R. R., 34 A. 703.

In the first of the cases above quoted, Chief Justice Martin said that the words, impost, tax or duty, as used in constitutions or laws, “must be confined to the idea which they commonly and ordinarily present to the mind; exactions to fill the public coffers, for the payment of the debt and the promotion of the general welfare of the country” — and not to contributions as the supposed equivalent of benefits conferred or services rendered, like those above indicated.

It is apparent from the face of the laws here attacked, that the fees and charges complained of are demanded as compensation for labor performed, expense incurred and services rendered, directly in connection with the vessels, the necessity for which arises solely from the fact that such vessels, in the exercise of an undoubted right, yet voluntarily and in the pursuit of their own interests, choose to seek the port of New Orleans, well knowing that they cannot enter said port without first being inspected and, if necessary, purified in conformity with laws to that extent unquestionably valid. Can it be said that the rendition of these services, by virtue of which alone the vessel is enabled, lawfully, to proceed to the destined port, is not a service to the vessel?

It is said that it cannot be considered as a service, because the vessel does not regard it as such, but rather as a burden, and because she does not voluntarily seek or avail herself of it. As to the first point, the question would seem to be, not whether the vessel regards it as a service, but whether it is a service and whether she ought to regard it as such. It seems the plainest development of the primal duty, “sic títere tuo, ut alterimi non Icedere, that a vessel should seek and desire the performance of services, the object of which is to prevent the chance of her spreading disease and pestilence amongst large populations. She is under the plain obligation, moral as well as legal, to do everything to avoid such risk, and the service which enables her to perform this obligation would seem to be a service to her.

As to the second point that the services are forced and not voluntary, the reliance placed upon the decisions of the United’ States in the Wharfage and Port Warden cases seems not well founded. In those cases, there was no legal duty imposed on vessels to land at the wharves or to receive the services of the port wardens. They had the perfect right to decline these benefits and services, and the Court properly held that a State law exacting contributions for them, whether used or not, was unconstitutional. But bad it been tbe legal duty of vessels to land at a particular place in tbe port of New Orleans and had tbe city provided expensive wharves at such places, is it supposed that she would not have had the right to exact compensation for the use of the facilities thus afforded, although vessels landing at the port would have had no option as to accepting the use of them ?

Finally, it is claimed that the services rendered under these quarantine regulations are for the benefit of the people of the city and State and not for that of the vessel. No doubt that is true. It is equally true that the object of the city in, building wharves was to benefit its own people, trade and commerce.

We deem it unnecessary to consider more at length the objections which have been forcibly urged against the theory that the services in question are rendered to the vessel in such manner as to justify the exaction of compensation therefor. What we have said sufficiently expresses our views on the subject; and while the question is not free from difficulty even to our own minds, we are confirmed in our course by the reflection that it leaves the avenue open for correction of any error which we may commit, by appeal to the Supreme Court of the United States; whereas, if we should err in the opposite direction, the defendants would not be entitled to that, remedy.

The broad proposition of plaintiff that, in the exercise of the right to establish quarantine systems, the States are bound to bear all the expenses thereof, and cannot throw the burden in any manner, or to any extent, upon commerce, lias certainly not yet received the endorsement of the Supreme Court of the United States.

In the Passenger Cases, Mr. Justice Wayne, summing up, in his separate opinion, his view of what the entire Court meant to decide, included, amongst other propositions, the following: “That the States may, in the exercise of their police power, pass quarantine and health laws * * * and may impose penalties for the violation of the same * * * and may, in the exercise of such police power, without any violation of the power in Congress to regulate commerce, exact from the owner or consignee of a quarantined vessel * * * such fees as will pay to the State the cost of detention and of the purification of the vessel, cargo and apparel of the persons on board.” Nothing in any of the several opinions rendered in the case clashes with this statement or indicates any dissent therefrom. Passenger Cases, 7 How. 414.

In the case of Peete vs. Morgan, strenuously relied on by plaintiff, the Court, after recognizing the right of the States to pass quarantine laws, said: “It is evident that the power to establish quarantine regulations cannot be executed without the State possesses the means to raise a revenue for their enforcement, but it is equally evident that the means used for this purpose must be of such a character as the restrictions imposed by the Federal Constitution upon the taxing power of the State authorized.”

It cannot be doubted that the Court meant to sanction the right of a State, in its quarantine laws, to “raise a revenue for their enforcement,” in some way connected with their execution. To suppose that “the means to raise a revenue” referred to as implied in the power to establish quarantine, meant only the ordinary powers of taxation of the State’s own citizens and property, would be to accuse the Court of uttering a mere inanity. We can conceive of no other means which could have been in view, except just such exactions of compensation for services as are provided in these laws of Louisiana.

As far as appears from the statement and opinion in Peete vs. Morgan, the charge there in question was a clear and simple duty on tonnage, levied by the State without any reference to services rendered, and we think it has no application to the instant case except in the clause above quoted.

We find nothing inconsistent with the foregoing views in the proviso inserted in the Act of Congress of 1799. That was an act empowering and directing the officers of the General Government to conform to and assist in the execution of the quarantine laws of the States. All or most of the seaboard States had such laws, the nature and mode of execution of which must have been known to Congress. Those laws contained provisions authorizing the exaction of fees and charges for inspection, disinfection, etc., entirely similar to those in the laws of Louisiana. For instance, the law of South Carolina, passed as early as 1759, forbade vessels bound for Charleston from infected ports, from passing Fort Johnson until visited, inspected and certified by one of certain named physicians, and obliged the owner or master “ to pay such physician a fee of £7 10s, current money, and moreover, the expense of the boat and hands to carry down such physician to visit the said vessel and to bring him up again to Charleston.”

Nothing in the Act of Congress reprobates such charges, and it must be supposed that the proviso forbidding the levy of “ any duty of tonnage,” did not refer to charges for service of this character, but was intended to shut out any implication of a consent by Congress to the imposition of tonnage duties proper.

Tliis case is pending on a 'Writ of Error in the Supreme Court of tlie United States.

Reporter.

There is nothing in the laws of this State or in their execution as disclosed by the evidence indicating the purpose of levying a forbidden tonnage duty under the guise of charges for service.

The services are shown to be actually rendered and the charges are not excessive to a degree sufficient to authorize judicial interference. It is proved that the revenue derived therefrom is devoted exclusively to quarantine purposes, and, in no year, has it been sufficient to defray the quarantine expenses.

The suggestion that the recognition of the right of the State to lay such charges, leaves the power without limitation and thus endangers commerce, is unfounded. The charges must be proportioned to the services, and, if excessive, may be. subjected to judicial control, and, moreover, Congress may at any time intervene and control the entire matter,

We, therefore, hold that the plaintiff is not entitled to the relief asked.

As we maintain the validity of the Act 69 of 1882, the constitutional objection to the act of 1870, (Rev. Stat. 3042), on the ground of discrimination between the ports of different States, does not arise, the law in that particular being repealed by the act of 1882.

The claim that the act contravenes Articles 48 or 30 of the Constitution of the State, is without foundation.

The act is neither local nor special, but is of the most general character, intended for the benefit and protection of the entire people of the State.

Neither does it revive or amend any prior law. It is an original and independent statute, repealing such portions of prior laws on the same subject matter, as are inconsistent with it.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now adjudged and decreed that the injunction herein granted be now dissolved and that plaintiff’s demand be rejected at its cost in both courts.

Rehearing refused.


author: Bermudez, C. J.

text:
    No 9198.
    The State of Louisiana vs. Cummings Nelson.
    The caption of a record is a notification from an inferior to a superior court, of the title of a case, its origin, progress, and determination, showing time, place and authority. ■Where a record discloses those particulars, it is such condition as authorizes the appellate court to consider and pass upon the matters presented. It is not necessary that it should show, where the cause was decided, or that the term at which it was determined, was a legal one, where the law fixes the place where the court holds its sessions and regulates the terms for the trial of cases. Objections on that score, where there are grounds therefore, should be urged below and if overruled, reversed by bill.
    Entries in the minutes {all in presence of accused) in a capital case, suificently indicate the presence of the accused, in person, in open court, although the fact might have been made to appear in a more explicit and better form.
    A PPEAL from the Nineteenth District Court, Parish of Terrebonne /'\ Goode, J

      J. G. Egan, Attorney General, for the State, Appellee.

      O.. II. Luzenberg for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused appeals from a sentence of death, on a conviction of murder.

He assigns as error:

1. That there is no caption in the record.

2. That the record does not affirmatively show that he was present at the trial.

I.

The caption of a record is a notification from an inferior to a superior court of the title of a case and whence it came, to enable the latter to determine the matters presented. It is also that part of a legal instrument as a commission, indictment, etc., which shows when, where and by what authority it was taken, found or executed. Bouvier, L. D., Vo. caption.

The transcript, brought up by the appellant appears.to be complete on its face. It contains documents and minute entries bearing the title of the cause; the time at which filed or made; that the accused was duly indicted; that the grand jury came into open court and through their foreman presented the indictment on which they had found a true bill, endorsed and signed thereon; that the court ordered the same to be filed and recorded; that the accused was formally arraigned; that the petit jury was regularly drawn, empanelled and sworn; that the trial was legally proceeded with; that the jury rendered their verdict of guilty; that the accused moved for a new trial, which was refused; that the judgment and sentence of the court were passed upon him; and that he appealed to this Court.

The clerk’s certificate is in the usual form. It attests that the record contains a true and correct transcript of all the proceedings had, etc., in the case, wherein the State of Louisiana is plaintiff and Cummings Nelson is defendant, on the docket of the Nineteenth Judicial District Court, in and for the parish of Terrebonne, in this State. It is signed at Houma, where the court is by law required to hold its sessions. It is dated April 2, 1884, and bears the impress of the seal of the court there held.

Each and every instrument, document or proceeding establishes when, where and by what authority it was prepared, had or carried on.

The objection that the record does not state where the court was held by which the accused was tried, convicted and sentenced, does not seem to be well founded.

The court is one of general jurisdiction and competent to hear and try the case. It was unnecessary to show explicitly in the transcript where it was held, or that the term when the case was tried was a legal one, as the place (the parish seat) is fixed by law and the terms of the court are fixed and regulated under the provisions of the statute, which it will be presumed the judge obeyed. If the court had held its session at another place, or during a term not a legal one, objection should have been made below and if overruled, a bill reserved, which was not done. Bishop Or. Pro. secs. 1169,1170; 2d Zabr. (N. J.) 212. See, also, 1 M. 221; 8 K. 591; 2 Ann. 744, 921; 3 Ann. 154.

There can be no doubt that at each step of the proceedings the accused, assisted by counsel, appears to have had full information of the cause of the prosecution and of the nature of the action, confronted his prosecutors, and to have liad the benefit of a fair and impartial trial.

We, therefore, fail to see how the accused is injured by the record of the proceedings before. us.

II.

The transcript discloses seven distinct entries in the minutes, showing expressly and formally that the accused was present at the trial, ■in person, from the incipicncy throughout to the close of the proceedings in the lower court, even on the motion for a new trial, most explicitly during the whole of the trial, judgment and sentence. The minutes of the ,14th, 15th and 28th March, on which the same was begun, proceeded with and concluded, establish expressly that all the proceedings were regular and were had each day in the presence of the accused in open court.

Tiie objection is, that this important circumstance of his presence is deducible only from the use of the words {all in presence of the accused) which follow the proces verbal or recital of the proceedings in open court, and are embraced within brackets. Hence, it is claimed that the entries are not made in compliance with the exigencies of the law.

It is no doubt true that the clerk of the court, who should keep the minutes so as to show all material facts, might have seen to a better observance of the forms usual on such occasions, in such an important case, in which the life of a fellow being was involved, by having the essential fact of his presence more distinctly stated and embodied in a more formal manner, in a full, entire, grammatical and comprehensive sentence; but the irregularity, such as it appears, is so slight that no court of justice entrusted with the maintenance of public order and tranquillity, and vested with the duty of bringing offenders and criminals to its bar for judgment, sentence and punishment, can take upon itself to annul the proceedings and remand the case.

The record substantially and sufficiently establishes that all the main proceedings in the case, to notice of which the accused was entitled, were legally brought to his knowledge; that they were instituted, carried on and conducted contradictorily with him, in his presence, in th'e manner and form pointed out by law; and that he has no legal cause of complaint.

When the transcript was filed, the death of the counsel appointed by the lower court having been suggested by the district judge in a laudable spirit of characteristic humanity, we made it our duty to designate to replace the deceased another counsel of acknowledged learning, ability, experience and charity, who has discharged the functions assigned to him in a manner which reflects credit'on his industry, capacities and kindness, but which, however great, have proved unavailing to rescue the unfortunate criminal from the impending doom which he has voluntarily brought upon himself. •

Judgment affirmed.


author: Poems, J.

text:
    No. 9020.
    Mrs. B. Jolly, wife, vs. A. F. Weber, her husband.
    Tli© wife who has obtained an order of court assigning her a domicile during the pendency of her action for separation from bed and board, is not amenable to the legal consequences of the refusal of a wife to obey the three reiterated summonses issued to her at the instance of the husband, during the pendency of the suit, under the provisions of Arts 143,144 and 145 of the Civil Code. In such a case, her refusal to return to the matrimonial domicile is for a lawful cause, and is amply*justified by the order of the court which assigned her a special domicile during the litigation. The fact that she changed such domicile cannot defeat or suspend her action, unless such change is shown under an issue specially raised contradictorily with her, as directed by Art. 147, Civil Code.
    the Civil District Court for the Parish of Orleans.

      J. Q. A. Fellmoes and Albert VoorMes for Plaintiff and Appellant.

      Alfred Grima and IS. W. Huntimgion for Defendant and Appellee.
   The opinion of the Court was delivered by

Poems, J.

Plaintiff sues for a judgment of separation from bed and board against her husband, on the ground of habitual intemperance, cruel treatment, including blows and outrages, which render their liv" ing together insupportable. She also prayed for custody of a female child, issue of the marriage. Her prayer for the assignment of a domicile during the pendency of the suit was granted m limme.

The defense is a general denial, followed by similar charges of intemperance and insupportable excesses against the wife. Defendant further alleged the abandonment of the matrimonial domicile by the wife, and prayed for the service of the three reiterated summonses provided by the Code, ordering her to return to said domicile; and he prayed in reconvention for a judgment of a separation against his wife.

This appeal is taken by plaintiff from a judgment rejecting her demand, granting a judgment of separation in favor of the defendant, and ordering a family meeting for the purpose' of deciding which of the spouses is entitled to the custody of the child.

We are not informed on which of the grounds of the reconventional demand the district judge rested his conclusions. But we infer from statements of defendant’s counsel that the ground of abandonment evidenced by the summonses followed by a judgment sentencing the wile to return to the place of the matrimonial domicile, entered in the consideration of the case below; and the same course is pressed on us by counsel for appellee.

But the record shows that on the institution of her suit, on the 7th of July, 1881, plaintiff, who had left the matrimonial domicile, was assigned a dwelling by the order of the court., and that the first summons under defendant’s prayer was issued on the 12th of November following, only.

- We are, therefore, at a loss to appreciate the relief'which defendant could possibly claim, under his wife’s refusal to obey the summonses, in the face of the showing that her continued absence was justified in law by the order of the court allowing her another ana a different domicile. C. C. arts. 144, 147.

The production of the judge’s order assigning her. a house to live in during the pendency of the suit, and which is a matter of record, is unquestionably a sufficient answer and a justifiable showing to the summonses of her husband through the court, directing her to return to the latter’s domicile. The proceeding could not, therefore, give rise to a judgment sentencing her to comply with her husband’s request, and all matters connected with the alleged abandonment must bé eliminated from the cause.

We note the argument urged by defendant’s'counsel, predicated on 'the unauthorized change of domicile by the wife since the institution of this suit, but it cannot avail the defendant in the shape-under which that fact leaked out of the mouth of a witness during the trial of the case on its merits.

The article of the Code contemplates the investigation of that fact, through an order of court requiring the wife to prove her residence during the' pendency of the action; and'tho article further contemplates under its -very terms that the wife is to be heard on that investigation. The wife’s disobedience of the order, invoked in the shape of an argument, was not an issue in the case under the pleadings, and the testimony on that' point cannot,- therefore, be considered Under the issti.es presented by the'record. '

The issue is thus harrowed to the consideration Of the charges of cruel treatment, excesses and outrages, reciprocally made by the two spouses. As is usually the case in such causes, the evidence is distressingly conflicting. The record contains testimony which is damaging to both parties. But in' our opinion the preponderance of the evidence is decidedly favorable to the wife.

• An attentive examination of the evidence satisfies us that for several years the defendant has been addicted to intemperance, and that wdien under the influence of liquor, he is very violent to his wife, abuses and maltreats her to an insupportable excess, and that he has frequently and cruelly stricken and beaten her, and has several times driven her out of the house at night.

His counsel contend'that the ill-treatment shown by the evidence occurred several years ago; that it has been condoned and forgiven by the wife, who has since become reconciled to her husband. This argument is made in the face of the allegation that the wife has left her husband since the latter part of the year 1878. But in addition, we .find from the record that from the time that the defendant was driven from her home by her husband’s ill-treatment, she has never resumed her conjugal relations with him. Her return to that house in the year 1878, was for the purpose of nursing and comforting a son by her previous marriage, who was then stricken down by yellow fever; and that return did not operate a reconciliation with her husband, such as the Code contemplates.

As spón as he resumed his former treatment she left the house, and under the law she is authorized to make use of the former motives in support of her action. C. C. 153; Terrell vs. Boarman, 34 Ann. 301; Cass vs. Cass, 34 Ann. 611.

In our opinion, these two spouses can no longer live together in peace and the fault must be attributed to the defendant husband. Hence, the wife is entitled to a decree of separation.

As the record shows that the wife is not entirely blameless, the district judge has thought it wiser not to give her the custody of the child, and has relegated the matter to the action of a family meeting.

Without holding that he has not wisely exercised his legal discretion in the premises, we feel compelled to adopt a different course. On mature reflection in the interest of the minor, we have concluded to settle the matter in this judgment.

In view of the advanced age of the mother, and of the sex of the child, we think it safe to entrust the daughter to the care and custody of her mother.

The judgment appealed from is, therefore, reversed and set aside. It is now ordered and decreed that plaintiff do have and recover judgment of separation from bed and board against her husband, the defendant; and that she be granted the custody of the minor child, Amelia Weber, issue of the marriage, and that defendant pay the costs in both courts.

Chief Justice recused, having been originally consulted.

Rehearing refused.