text:
    No. 8696.
    Mrs. Ann Jamison vs. Patrick Smith.
    Ib. a petitory action whore the defendant sets up no title to the property in himself, nor outstanding title in another, but merely denies the title of the plaintiff, plaintiff is not bound to show a perfect title against all the world to entitle him to recover.
    This rule is subject to modification where the plaintiff offers evidence which shows an interest of the defendant in the property.
    An irregularity in the transfer of minors’ property may be ratified by him after his majority. And such ratification may be inferred from long, continued silence and inaction on his part touching the property.
    Where a person’s home was in this city, where his mother and nearest relatives also resided, and he left his home during the late war and joined the army, never returned and never was heard of afterwards, the lapse of time and absence under said circumstances are sufficient to create the presumption of his death.
    APPEAL from tlie Civil District Court for tire Parish of Orleans. Monroe, J.

      T. J. Semmes & Payne for Plaintiff and Appellee:
    ITo evidence admissible to prove title in defendant under general issue. Draper vs. Richards, 20 An. 306; Well vs. St. Dizier, 9 An. 120.

      Defendant who, though alleging title,, does not state its character or derivation, is considered as a mere trespasser, against whom plaintiff need only show an apparent title. 9 Rob». 215 ; 10 R. 510.
    From a possessor without title a Joint owner may recover the whole-undivided property. $ La. 134; 6 An. 232; 31 An. 74.
    Prom a possessor without title revenues should bo granted up to time plaintiff is put in possession. 28 An. 694.
    The sale of immovables belonging to a minor, though null and void, may be ratified by implication by the minor after majority, or be protected by prescription. 3' An. 328; 4 R. 8> 6 An. 606.

      JE. D. White and James Timony for Defendants and Appellants :
    1. In a petitory action the plaintiff must make out his title, otherwise the possessor, whoever he be, shall he discharged the demand. O. F. Art. 44.
    2. In such a case plaintiff must recover, not by the weakness of his adversary's title,, hut the» strength of his own. 11 An. 546; 15 An. 454.
    3. In such an action plaintiff must show title, and make it out satisfactory on all points, both as to title and identity. Murray vs. Bossier, 10 An. 293; Heraken vs. Britton, 12 R. 46 ; Carraby vs. LeBreton, 1 R. 242.
    4. Every transfer of immovable property must be in writing. C. C. 2275, 2440.
   The opinion of the Court was delivered "by

Todd, J.

This is a petitory action, in which the plaintiff claims to be owner of the following property in the City of New Orleans, viz :

“ A certain lot of ground witli all the buildings thereon, situated on Camp street, between St. Joseph and Julia streets, in the First District of this city, known as No. 200 Camp street, measuring 19 feet front on Camp street, by 175 feet in depth, and adjoining a lot of ground described in an act of sale from David Siddle and Samuel Ste.wart to Mrs. Rebecca Johnson, widow of Thomas Stackhouse, before Wm. Christy, Notary Public, on the 20th July, 1852.”

The defendant Smith, who was in possession of the property as lessee, called in his lessor to defend the suit. This lessor was John A. Turnell, who having died, the appellant herein, representing some of his minor heirs and other heirs of age, appeared and answered. They set up no title in themselves or their ancestor, Turnell, but pleaded the general denial.

There was judgment recognizing the plaintiff as owner of five-twelfths of the property, with proportionate rent up to the 1st of January, 1880, and from this judgment the tutor of the minor heirs of Turnell has appealed.

The plaintiff asks an amendment of the judgment, decreeing her to he the sole owner of the entire property and to be put in possession of the same, and to recover rent up to the delivery of possession.

The evidence establishes that the plaintiff’s father, Thomas Stack-house, died iu possession of the property in controversy. That the «ame was acquired during tlie existence of tlie community that resulted from his marriage with plaintiff’s mother. Thomas Stackhouse was twice married, and left at his death two children by his first marriage, and three by his second, and also a surviving widow, the mother of the plaintiff

Sometime after the death of Thomas Stackhouse, his heirs, some of them minors, acting through their tutor, and his widow and executors, entered into an act of settlement, by which all the property of his succession and of the community purports to have been conveyed to the widow, and all right thereto relinquished on the part of the heirs.

Under this act the widow asserted title to the property in controversy up to the time of her death, which occurred in 1864, and plaintiff in this suit claims to be owner thereof by inheritance from her mother, as her sole heir.

Her pretensions are resisted on two grounds :

1. That the property described and claimed in the suit has not been identified as property that ever belonged to the father and mother of plaintiff

2. That the act of settlement under which the conveyance was made to plaintiff’s mother, was without effect and void, as all the heirs of Thomas Stackhouse, who, at the time of such conveyance, were all, save one, minors, and to the extent of their interest passed no title.

The parties making this defense being the descendants of Margaret Stackhouse, a child of the first marriage, who married John A, Turnell.

1. The District Judge properly held that the property was sufficiently identified. It is unnecessary to give specifically the reasons justifying such conclusion.

2. We think that the Judge of the first instance was also correct in holding that the act of settlement mentioned was void, so far, at least, as to the interests of the then minor heirs of Margaret Stackhouse, attempted to be conveyed therein by their natural tutor, John A. Turnell. We do not think these heirs occupy the positition of trespassers in this suit. It is true that their answer was a general denial only, without averment of title in themselves, and under the general rule they might be precluded from attacking an apparent or prima faoie title opposed to them ; but in this instance the plaintiff offered in evidence, and relied on as the chief muniment of her title, an instrument which showed the original right of these parties to the property, and on its face disclosed that such right had not been divested, at least, by that act. Under these circumstances they could urge the nullities apparent in it. It gave a color of right to the character of their possession, and relieved them of the imputation of being mere trespassers. We think there is no room, under the evidence and pleading’s, to question their right to be considered as the descendants and heirs of Margaret Stackhouse. Of course, it needs no words to show that the attempt of a natural tutor, which was the capacity in which John A. Turnell acted at the time, to convey, without the authorization or order of a Judge, or the advice of a family meeting, the interests of his wards in immovable property is, as to them, without effect, and a nullity that could be urged by them at any time within the prescriptible term.

Whilst holding these views as to the heirs of Margaret Stackhouse, so far as relates to their interest in the property, we think the Judge erred in allowing these parties to invoke in their own behalf the nullities in the settlement or conveyance, as relating to and affecting the interest of Thomas Stackhouse, one of the children of the second! marriage, in the property, and permitting and providing by his decree that such nullities as to this interest should enure indirectly to their benefit, by permitting them to hold and possess this interest. This Thomas Stackhouse was a german brother of the plaintiff, a minor at the time of said settlement, and represented therein by his tutor, through whom a conveyance of his interest in the property was made to his mother. Although this conveyance was null, yet it was of that class of nullities that Thomas Stackhouse could have ratified. He lived many years here after lie attained his majority and never set up any claim to the property, and by his silence and inaction must be presumed to have ratified the settlement in question. He is no party to this suit, and there is no right in the parties defending the suit to champion his claims and oppose them to plaintiff’s demands. They cannot justify their possession of the property under the cover of such claim.

Thomas Stackhouse, were he living at the time of the trial of this cause in the District Court, would have been over fifty years of age. He left this city in 1863, and has never returned and never been heard from. We think the circumstances under which he left and the lapse of time since his disappearance fully justify the presumption of his death. It is true that time sufficient has not elapsed to give rise of itself, apart from attending circumstances, under the Articles of the Code, to the presumption of death. But the Code does not establish any arbitrary rule on the subject. It has been frequently held that the time for the establishment of the presumption of death, on account of absence, is not absolutely fixed and immutable, but is subject to be modified according to the circumstances attending such absence. The lapse of time is but a circumstance to be considered in conjunction with other circumstances. Thus, a disappearance for a time under peculiar circumstances might produce a conviction of death, where ordinarily no such conclusion would follow or exist. As formerly said by this Court, “it is essentially within the province of the Judge to draw the line of distinction, by the exercise of a sound discretion, founded on the facts of each particular case.” Suc. Vogel, 16 An. 139; 34 An. 848; C. C. 2288.

In this case Thomas Stacldiouse had lived in tin's city all his life, till past the age of thirty. It was the place of his birth, and his only home and that of his mother and nearest relatives. He left during the existence of the late war between the States, a war which continued for years after his departure, and wras attended with great destruction of human life. He joined one of the armies in the field. It seems absolutely certain that, had he survived the war, he would have returned to his home, or, at least, would have conveyed tidings to his expectant relatives that he still lived. He never came bach; he was never heard of afterwards. We must presume he is dead. Such is the moral conviction, and upon such conviction courts are authorized to act. 9 Barbour, 595; 31 Barbour, 527; 4 N. Y. 259; 18 Johnson, 141; 33 Ves. 362; Park, Ins., 644; 1 Keen, 238; 1 Rawle, 373; 14 Sim. 28, 277; 1 Hall, N. P., 242; Best, 59, 192, 238; 1 Hall, 550; 62 Mo. 26.

The conveyance under which his mother and plaintiff’s mother acquired his interest in the property, being held valid from implied ratification on his part, effect should have been given to it. If Thomas Stackhouse survived his mother, then he inherited equally with the plaintiff, his german sister, their mother’s entire interest in the property, and that interest therein, at his death, passed to the plaintiff and the descendants of her half sister Margaret Stackhouse, Mrs. Turn ell, who inherited such interest with the plaintiff, in the proportions determined by the law adjusting the respective rights of brothers and sisters of the whole blood, or of the half blood, or their descendants.

Whilst the lapse of time and the circumstances mentioned justify the presumption of the death of Thomas Stackhouse, they do not establish the presumption that he died before his mother, and the lack of such presumption legally fixes his death after that of his mother.

When Mrs, Stackhouse, plaintiff’s mother, died, the respective interests of the parties, according to the estimate made by the District Jndge, which we have examined and found correct, was as follows:

Ann., (plaintiff) share..................................5-32

Thomas Stackhouse, share.............................5-32

Heirs of Margaret, (defendants) share...................3-6

Upon Thomas’ death the plaintiff, as his sister of the whole blood, inherited one-half of his share, equal to 5-24, and an equal portion in the other half, that is, the half of 5-24, equal to 5-48. This added to plaintiff’s 5-12, held by her at her mother’s death, would make her entire share or interest 35-48 of the whole property.

The descendants of Margaret Stackhouse, the defendants herein, at the same time (at Mrs. Stackhouse’s death) owned, according to the same estimate made by the lower Judge, 1-6 of the property. To this must be added 5-48, their interest in the share of Thomas Stackhouse, the half brother of their ancestress, Margaret, which make,their entire interest 13-48 of the property.

There must be a corresponding change made in the proportion of the rent to which the plaintiff is entitled. There was rent owing by the defendant and lessee, Smith, when the suit was instituted, $140 ; of this amount, according to the interest of the plaintiff in the property now recognized, plaintiff would be entitled to recover $101.85, instead of $46.66 allowed by the Judge a quo. She is not entitled to recover rent from a subsequent period to the one mentioned, because the rent is recoverable from the possessor, and it is not shown that Smith’s possession continued after the suit was brought. A proper reservation for any additional rent than that allowed was made in the judgment of the District Court.

We think the plaintiff is entitled to be put iu possession of the property to the extent of her interest in the same now recognized. The possession to this extent and, in fact, the entire possession, has been in the adverse party, and there is no reason why this possession, at least to the extent of plaintiff’s rights, should not yield to her superior claim.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended by decreeing plaintiff the owner of 35-48 of the property in controversy, and that she be put in possession of her said interest, and recover rent therefor to the amount of $101.85, with a reservation of her claim for further rent from and after the date to which it is now allowed, and as thus amended the judgment is affirmed, defendants to pay costs of both Courts.

Bermudez, C. J., reeused, having been of counsel.


source: Caselaw Access Project

author: Fennek, J.

license: Public Domain

text:
    No. 8730.
    Jacques Levy vs. The Louisville & Nashville Railroad Co.
    Plaintiff shipped fomr carloads of mules from St. Louis to 2Jew Orleans, on the Iron Menutain Railroad and its connecting lines, consigned to Marx Levy. Defendant received the mules, as common carrier, at Mobile. Being unable to forward over its own line, owing to interruption, defendant forwarded the mules ría Meridian and .Jackson, in its own name and consigned to itself, received the mules in Bow Orleans, made delivery to the original consignee, and collected the freight and charges as due to itself, and in all respects dealt with the consignee as if it had hcen the actual earlier. By such conduct defendant made the lines, over which the mules were transported pro Ilccc vicey its own, and subjected itself to the responsibilities of an actual carrier for damages suffered by the mulos en route. Although defendant, on paying, may have its recomse against the actual carriers, it seems not to be a case for call in warranty, within the meaning of Art. 379, C. P. j and, at all events, there is failure of proof fixing the fault on the particular carrier called in warranty. ,
    APPEAL from the Cíyü District Ccnrt for the Parish of Orleans. haearus, J.

      Wm. F. <k J). O. Méllen and Julius Aroni for Plaintiff and Appellee :
    1. The manner in which defendant received and detained at Mobile the property in question gave rise to an implied contract between plaintiff and defendant, that defendant would, as a common carrier, transport that property to LTew Orleans and there deliver it in good condition to plaintiff’s consignee. Bank of Kentucky vs. Express Co., 93 TX. S. 174.
    2. The employment by defendant of the Mobile and Ohio Bailroad Company, the Vicksburg and Meridian Bailroad Company, and the Chicago, St. Louis anil Kew Orleans Baihoad Company, to cany the property by way of Meridian and Jackson, Mississippi, to Kew Orleans, and there deliver it to itself (defendant), as its own consignee, those lines of road looking to defendant only for compensation, and defendant paying them for the carriage of the property, created the relation of principal and agent between defendant and the carrying lines. Ib.
    3. There was no privity of contract between plaintiff and those carrying lines; they had no claim on plaintiff for compensation, and plaintiff had no right of action against any of them for damage. As to them, defendant was the contracting party and the owner of the property.
    4. Defendant received the property for transportation, kept it a week in its control and possession, paid the feed and stable bills meanwhile, employed the Mobile and Ohio, the Vicksburg and Meridian, and the Chicago, St. Louis and Kew Orleans roads, to carry the property from Mobile to Kew Orioans, consigned by itself to itself, instructed the last of the three lines (the Jackson) to hold it until orders from defendant were shown, and presented its bills in favor of itself alone, on its own bill heads, to plaintiff’s consignee, in which it charged for transportation of the property, refused delivery until paid in currency, received the currency, gave the order on the Jackson road for delivery to plaintiff, paid the Jackson road for its services j and when plaintiff suggested that the property be brought from Mobile by one route, defendant replied that it knew its own business, and sent the property off by another route, without the consent or knowledge of plaintiff, it is estopped from its effort to make the three carrying lines agents of the plaintiff* and from denying that they were its own agents.
    5. Even if, as claimed in defendant’s brief, that it acted only as a forwarding agent of defendant, its liability was not thereby lessened or changed, Eor, “unless forbidden by its charter, a railroad company may contract for a shipment over connecting lines, and having done so, is liable in all respects upon them as upon its own line.” Railway Company vs. McCarthy, 96 IT. S. Reps. 258.
    6. 'Che facts show that the actual carriers employed were not competent for the purposes of the employment, and were guilty of the most culpable aud cruel negligence, and therefore such employment of such agencies does not absolve defendant from its liability in the premises.
    7. The property was received and taken away by plaintiff only after protest. Payment of charges was made under protest. The cause of action had already arisen.
    8. The only object of a notice to defendant of the injury would have boon to enable the party responsible to prevent loss. In this case notice was given within a reasonable time: but no nobieo could have prevented the loss that did occur. Tardos vs. Chicago, St. Louis and New Orleans Railroad Company, O. B. 57, pp. 278 and 270.

      Bayne- & Denigre for'Defendants and Appellants :
    1. The defendant cannot he held liable to plaintiff in such a case as this, whore there is no contract with said defendant, nor auy actual carriage of the property.
    2. The evidence shows that four cars were engaged -in St. Louis from the St. Louis, Iron Mountain and Southern Railroad Company, aud twenty or twenty-one mules were placed in each cat, destined to Now Orleans; but there is no evidence of any contract for trans - portatiou by any particular lines of railroad; but it is shown that the mules were transported in the same cars over the St. Louis, Iron Mountain and Southern Railroad to Columbus, Kentucky, and from there over Mobile and Ohio Railroad to Mobile; then returned on this road to Meridian; on the Vicksburg aud Southern to Jackson, Miss., and on the Chicago, St. Loáis aud New Orleans Railroad to New Orleans. The Louisville and Nashville Railroad never assumed the relation of carrier to plaintiff, and is not liable to him. The Company only acted as forwardiugagent for plaintiff, aud this agency resulted from plaintiff’s request to have the mules forwarded, aud from the law and necessity. Hutchinson on Carriers, Sec. 643, p. 376 ; Story on Agency, Sec. 118.
    3. The defendant having selected a proper carrier, fully responsible, and in all respects competent for the service, has discharged any obligation upon them, and plaintiffs recourse, if any, is upon the actual carriers. Pratt vs. Railroad Company, 95 United States Reports, 43; Michigan Central R. R. vs. Myriclc, Supreme Court of United States, January, 1883, Central Law Journal, vol. 16; Tardos vs. Chicago, St. Louis and New Orleans Railroad, La. Supreme Court, not Vet reported.
    4. When property is received and taken away by the consignee without objection, it is conclusive evidence of Ills being satisfied. He ought to refuse to receive the property till it has been examined, and inform the carrier. In this case he takes the property without objection, and gives no notice of sickness or injury to the mules for several days, and under such circumstances shonld not recover damages. Monro vs. Owners of Ship Baltic, 1 Martin Rep. 196.
    5. If there is any liability for damages it must be on the part of the Chicago, St. Louis and. New Orleans Railroad Company—the actual carrier. Under Section 4386 of Revised Statutes of the United States, this Company is chargeable with the time the mules may have been on connecting lines, and the failure to perform the statutory duty imposedis negligence. Thomson on Negligence, vol. 2, p. 1232, notes.

      L. JS. Simonds for the Chicago, Sfc. Louis aud New Orleans Railroad Co., called iu Warranty.
   The opiuion of the Court: was delivered by

Fennek, J.

The plaintiff shipped four carloads of mules from Sfc. Louis to New Orleans on the Sfc. Louis, Iron Mountain & Southern Railroad and its connecting lines. Over the first named road and the Mobile & Ohio road the mules were transported to Mobile, Ala., and there delivered to, and received by, the defendant, as the last connecting carrier. Owing to damage to its road by storm, defendant was unable to forward the mules over its own line. After several days detention in Mobile, defendant shipped the mules, in its own name and consigned to itself, to New Orleans, via Meridian and Jackson, Mississippi, over the Mobile & Ohio, the Vicksburg & Southern, and the Chicago, St. Louis & New Orleans Railroads.

On arrival at New Orleans, defendant notified the original consignee, Marx Levy; defendant collected the freight and charges from him; defendant delivered, or caused to be delivered, the mules to him. The consignee had no dealings with anybody but the defendant, which itself assumed to be exclusively charged with, and responsible for the mules.

The evidence satisfies us that the mules were received by defendant and left Mobile in good condition, and that, on the long trip of sixty-six hours to New Orleans, they were neither fed nor watered. Naturally, they reached this city in bad condition. They were then turned into a lot where they had access to unlimited water and, of course, drank excessively. Afterwards, they were delivered to plaintiif’s consignee. A number of them died; others were ill and greatly damaged; and plaintiff suffered heavy loss, for which he brings the present action.

He is' entitled to redress from somebody. From whom ? Defendant undoubtedly received the mules, in Mobile, as a common carrier, for transportation to New Orleans, and thereby incurred the duties and responsibilities of carrier in relation thereto. What steps the impossibility of forwarding over its own line, owing to interruption, might have justified defendant iu taking, as agent of consignor or consignee, it boots not here to discuss. In point of fact, defendant elected, in its own behalf and on its own responsibility, to change both the route and the consignment, to forward the mules in its own name, consigned to itself, to make delivery to and collect freight from the original consignee, and, in all respects, to deal with the latter as if it had itself been the actual carrier. Defendant must stand in the shoes whieli it has itself put on. Quoad the plaintiff its conduct made the lines over which the mules were transferred, pro Jiac vice, its own, and subjects it to all the responsibilities of an actual carrier.

Indeed, we are at a loss to discover any vinculum, juris connecting plaintiff directly with the actual carriers between this city and Mobile, in absence of any contract between him and them, and, in fact, of any dealing whatever between them. Defendant alone dealt with them and is entitled to hold them responsible for their faults.

We consider the amount of damage fixed by the lower Judge fully sustained by the evidence, and find no force in the defense of insufficiency of notice by the consignee of the condition of the stock after receipt.

The defendant called the Chicago, St. Louis & New Orleans R. R. Co. in warranty. In absence of all privity between plaintiff and the party so called in warranty, semMe that it is not a proper case for such a call, under the provisions of C. P. 379; 8 La. 37; 8 Rob. 27; 8 An. 136.

We agree with the District Judge, that while defendant has an undoubted claim upon the carriers between this city and Mobile, it has failed lo fix the responsibility upon the particular one called in warranty with sufficient clearness to authorize judgment.

Judgment affirmed.


author: Todd, J.

text:
    No. 8895.
    Raphael Rosenthal vs. His Creditors.
    "Where an appeal is taken from a judgment dismissing an opposition to the homologation of an account of a syndic of an insolvent, and granting a discharge to the insolvent, and neither the creditors of the insolvent nor the syndic are made parties to the appeal, the appeal will he dismissed.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Jos. B. JHornor and P. W. Bdlcer for Plaintiff and Appellee.

      Leovy & Kruttsehnitt for Opponents and Appellants.
   On Motion to Dismiss.

The opinion of the Coart was delivered by

Todd, J.

This appeal is from a judgment dismissing an opposition to the homologation of the proceedings of a meeting of the creditors of the plaintiff and granting him a discharge.

The appeal was by petition.

The ground of the motion to dismiss is, that the insolvent alone is cited, and that neither the syndic nor creditors are made parties to the appeal.

The motion must prevail. The syndic of the insolvent, as the representative of the creditors whose claims figure on the statements homologated, is certainly a necessary party to the appeal, and he has not been cited. 12 An. 774.

The appeal is, therefore, dismissed at the cost of the appellant.

Rehearing refused.


text:
    No. 8890.
    The State of Louisiana vs. Robert Mangrum.
    The employment of private counsel, and Ms assistance of the District Attorney in the prosecution of the offense, is not sufficient to set aside the verdict. Decision in State vs. Gus. Anderson, 29 An. 774, reaffirmed.
    Where jury commissioners accept a number of names found in the venire box, selected by their predecessors, after due examination into their competency and qualifications as jurors, and add to these names others to make up the prescribed number, the law is substantially complied witlL, and the drawing and the selection of the venire is not vitiated.
    Where a juror has been examined on his voir dire by counsel for the State and the accused, and the Judge has ruled that he was competent, it is too late for the counsel for the accused to reopen the examination upon the matter of his competency; and the further fact that the person objected to did not serve on the jury, leaves the accused without the least ground of complaint.
    Where the Judge charged “that the State was bound to introduce the best evidence attainable,” but refused to add that “the rule applies to the examination and analysis of the alleged blood stains,” there was no error, because the first was sufficiently comprehensive feo include all the evidence, and that refused, involved the assumption of the fact of an examination of blood stains and, therefore, trenched upon the facts.
    Where there is no written charge of the Judge to the jury in the record, and no exception was made thereto when delivered, and no request made for a charge upon a certain point, complaint of the omission to give the charge not asked for cannot be considered.
    APPEAL from, the Nineteenth District Court, Parish of Terrebonne. Goode, J.

      J. O. Bgan, Attorney G-eneral, for the State, Appellee :

      1. Private counsel may appear in court and assist the State officer in the prosecution of a case. 23 An. 774.
    2. The jury commission is not restricted to any one method of obtaining names of jurors. If their selection is made from the citizens and bona fide residents of the parish where the court is holden, the selection and action are valid.
    3. Ife is too late to examine a juror after he has been declared competent, particularly where he has already virtually answered the questions sought to be propounded.
    4. Defendant cannot be heard to complain of the action of the court in overruling Ms challenge for cause to a juror, when it is nob shown that he has exhausted his peremptory challenges.
    5. Pacts in the personal knowledge of a juror may he testified to by him. Waterman’s IT. S. Grim. Digest, See. 68, p. 652.
    6. The Judge properly refused to give to the jury a special charge requested, which would be an application of the law to the facts of the case, and thereby pass upon the effect of she evidence,
    7. The motion for a new trial, when nob embraced in or made part of a bill of exceptions, will not be noticed by this Court. 32 An. 844.

      Taylor Beattie for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was convicted of murder and sentenced, to imprisonment for life in the penitentiary, and has appealed.

He presents the following grounds for the reversal of the sentence :

1. “ That private counsel was permitted to aid the District Attorney in the prosecution.”

This question was settled in the case of the State vs. Anderson, 29 An. 774, where the prosecution was conducted exclusively by private counsel, the Attorney General and the District Attorney being absent and not participating at all in the trial, which was a much stronger case for the accused than the instant one. Yet, under the circumstances stated, this Court in that case refused to set aside the verdict. Here the District Attorney was present, conducting the prosecution, and private counsel merely assisted him therein.

2. The next ground of complaint is made to the refusal of the District Judge to quash the indictment, the motion to quash being founded on the alleged failure of the jury commissioners to select the venire in the manner required by law.

It appears that the commissioners found the names of 220 jurors in the jury box left over by their predecessors from a previous drawing.

These names were examined by the commissioners and approved, and eighty more added to these to make up the required three hundred.

In the language of the clerk of the court, who was sworn touching this matter : The jury commissioners examined the 220 names in the box, approved of their selection and accepted them, and had them to remain. The commissioners were very careful of the jury drawing) s * * they read the list of names of electors in the general venire box, and approved of them, * * * and added thereto eighty names, to make the box contain the names of three hundred, after which the juries were drawn.”

We see nothing in this sufficient to vitiate the drawing. It shows that the names selected were approved by two sets of commissioners. The law does not restrict the commissioners to any particular mode of making their selections ) and there is no reason why the jurors chosen in this way were not as good and competent as if some other plan of selection had been resorted to.

3. A juror called was challenged by the accused for cause. He was examined on his voir dire, both by the counsel for the State and the accused, and the Judge ruled that he was competent. After such ruling the counsel for the accused attempted to reopen the examination and to interrogate the juror about another matter affecting his competency, and was refused the privilege of doing so. This new matter sought to be investigated, which appears in the bill, of itself, and in view of his answers to questions on his examination, did not show the incompetency of the juror, or justify the Judge in discharging him. We note also, that this juror did not serve on the jury, and, therefore, must have been challenged by the accused peremptorily. In any light Are vieAY tlie ruling, it affords no sufficient ground to set aside the verdict.

4. The Judge refused to sustain another challenge for canse, directed against a juror who had made a plot or drawing of the Jocks in quo of the alleged homicide, and AYas summoned by the State as a witness, to testify respecting it, and when challenged, the District Attorney stated that he was summoned for nothing else, and that he would not call him at all, and the juror stated that he had formed no opinion. He was ruled competent.

We do not find his name among the juroTS who tried the case, and Avhether he Avas challenged for cause, or peremptorily, and if challenged peremptorily, that the peremptory challenges were thereby exhausted. It is quite certain that the matter affords no such serious ground of complaint as to set aside the conviction, even admitting that the objection to his competency was Avell founded.

5. The counsel for the accused asked the court to give the following charges: 1st. “The State was bound to introduce the best evidence attainable, and none other Avill supply its place.” 2d. “This rule applies to the examination and analysis of the alleged blood stains on the boots, as well as other evidence.”

The Judge charged the first, and refused to charge the second. He was right. The first was comprehensive enough to embrace the entire evidence before the jury. The second was not only unnecessary, but inadmissible, because it assumed as a fact that there had been an examination and analysis of blood stains on the boots of the prisoner, and the statement by the Judge that such a fact had been proved would haAre been improper.

6. The Judge failed to charge with respect to manslaughter and to instruct the jury that a verdict for manslaughter was one of the verdicts they could render.

The charge of the Judge was not delivered in writing; it is not to be found in the record. Whatever it was, there was no exception taken to it and no bill retained. It furthermore appears, from the admission of counsel, that lie never even requested the Judge to give the charge which he now complains was omitted. It is manifest from this statement, that there is nothing presented in this connection or on this point for the consideration of the Court. If there was any omission or irregularity in this respect, it has not been brought up in such a shape that we can consider it. This completes the review of all the objections urged to the proceedings by the accused, and we find none of them sufficient to afford him relief.

Judgment affirmed.

Rehearing refused.


author: To»», J.

text:
    No. 8894.
    The State of Louisiana vs. Rick Murphy.
    In an information for an assault with a dangerous weapon with intent to murder, the words “make an assault,” are not sacramental. The word “ commit” may be used instead of “make,” where the facts are' averred that make np the offense charged. The word “ commit,” in such connection, does not merely declare a conclusion or opinion.
    Where the charge of the assault is followed by the words, “ with intent in so doing, feloniously, wilfully and of his malice aforethought, to kill and murder,” the words “ in so doing,” supply the place of “then aud there,” as they sufficiently show that the intent charged accompanied the assault.
    APPEAL from the Criminal District Court for tlie Parish of Orleans. Lueenberg, J.

      J. 0. Egan, Attorney General, for the State, Appellee.
    IF. L. Evans for Defendant and Appellant:
    1. Am allegation that defendant did commit an assault, etc., is an allegation of a conclusion of law. State vs. Mnrráy et alM 41 Iowa, p. 531; 1 Bish. Cr. Pro., 3d ed., Sec 331.
    2. “It is not enough to state a mere conclusion of law.” Wh. Pro. of Ind. and Pleas, 4th ed., p. 23; TJ. S. vs. Cruikshank, 92 U. S. 554; State vs. Ricord, 56 Ind. 107; 1 Roll. R. 79; 2 Hawk, c. 25, S. 59.
    3 “Time and place must be attached to every material fact averred." 1 Whe. Pro. of Ind. and Pleas, 4bh ed. p. 13; R. vs. Holland, 5 T. R. 607; R. vs. Haynes, 4 M. and S.; State vs. Baker. 4 Reding, 52; 39 Me. 337; 6 Park C. R. 363; 19 AIa.526; 14 Mo. 398; 26 Ter. 119; 30 Ter. 354; 5 Cal., 355 ; 8 Ra. R. 591.
   The opinion of the Court was delivered by

To»», J.

The defendant was convicted of an assault with a dangerous weapon upon one John Sullivan, with intent to commit murder, and was sentenced to one year’s imprisonment at hard labor in the penitentiary, and has appealed.

His counsel moved an arrest of judgment upon the following grounds, (quoting):

1. That the information fails to charge that the defendant did malee a felonious assault upon John Sullivan.”

2. “ The information fails to charge that the defendant then and there entertained a felonious intent to murder.”

Tiie injunction charges as follows :

“ That one Rick Murphy, late of the Parish of Orleans, on the twelfth day of February, in the year of our Lord one thousand eight hundred and eighty-three, with force and arms in the Parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Court for the Parish of Orleans, feloniously did, with a certain dangerous weapon, to-wit: a pistol, commit an assault upon one John Sullivan, with the intent in so doing, feloniously, 'wilfully and of his malice aforethought, to kill and murder him, the said John Sullivan, contrary,” etc.

First. It would, doubtless, have been more artistic and formal to-have used the word “ make,” instead of “ commit,” so that the information should read, “ malee an assault,” instead of “ commit an assault.” And it is, doubtless, true, as a general rule, that an indictment or information that charges, generally, that an accused committed, such or such a crime, as larceny, or burglary, or an assault with intent to murder, without any specification of the facts that go to make up the offense, but simply embodying or setting forth an opinion or conclusion touching its commission, would be fatally defective; and to that extent the authorities cited by the defendant’s counsel go, but no farther.

Here, the time, the place, the dangerous weapon, the assault, the intent, are all specifically averred, and the word “ commit ” is simply substituted for “ make.” This substitution could not and did not cause the least doubt or obscurity in the charge that the defendant was called on to answer. As there used and in the connection used, it implied not a simple dednetion or opinion of an offense committed, but contained a distinct averment of an act done, constituting, with the other incidents recited, the crime for which the accused was tried.

In common parlance, the words commit an assault convey as clear a meaning as “ make an assault.” In ordinary acceptation, and in the connection shown, the words would be held as synonymous, and not without authority, since one of the definitions of the word “commit,” and its most usual meaning is, to “perpetrate or enact.” . Worcester, verbo commit.

The objection on this point is purely technical and without force.

Second. The words “ then and, there," in connection with the intent charged, are substantially supplied or covered by the words “in so doing.” The meaning then becomes clear, that in charging the accused with assaulting John Sullivan, the information charges substantially also, that “ in so doing,” or in thus assaulting, that it was with the intent “then and there to kill and murder,” etc.

In other words, no one, on reading this clause in the information, could entertain the slightest doubt that the intent to murder was charged as accompanying the assault.

The sole complaint of the defendant is, that these grounds for the arrest of the judgment -were improperly overruled by the trial Judge. Upon this alone he bases his appeal.

Binding no error in this ruling, the judgment and sentence appealed from are affirmed with costs.


author: Poems, J. Todd, J.

text:
    No. 8817.
    Lehman, Abraham & Co. vs. McFarland & Dupré.
    In order to justify an attachment of his debtor’s property, under the provisions of paragraphs 4 and 5 of Art. 240 of the Code of Practice, the attaching creditor must prove that the sale or disposition which the debtor is about to make of his property is with the intention of defrauding his creditors, or of giving an undue preference to some of them.
    Proof that tho debtor is offering his property for sale, in order to realize funds for the payment of all his debts and liabilities, accompanied by a declaration of such purpose to the attaching creditor himself, will not justify an attachment.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Praughn, Bucle & Dinlcélspiél and JS. I). White for Plaintiffs and Appellants:
    An attachment sued out on paragraphs 4 and 5 of Art. 240. C. P., should be maintained, when defendants, who are sued upon an undisputed debt, are on the eve of disposing of all their property, and are paying by preference certain of their creditors. 24 An. 258.
    The denial by defendant, as a witness in his own behalf, that he intended to dispose of his property to defraud his creditors, and the proof being that although having in hand money sufficient to pay the claim—pressed to payment—but refusing and at the same time paying other creditors, is just cause for the issuance of the writ. 24 An. 128; 29 An. G35.
    A payment made to one creditor, well knowing the inability to meet when due claims of other creditors, is a preference entitling other unpreferred creditors to the attachment. 29 An. 635.
    Whilst a suit of this character is always deemed a harsh remedy and the laws relative to attachments strictly construed, yet under certain circumstances and conditions the writ to creditors is an absolute essential to protect them from loss; and when creditors have good reason to feel or believe themselves entitled to this remedy, the Courts will protect them iu the exercise of the same. Baldwin & Co. vs. Mumford & Co. (not yet reported).

      Percy Roberts for Defendants and Appellees.
   The opinion of the Court was delivered by

Poems, J.

On the 2d day of November, 1882, plaintiffs, as commission merchants, sold to the defendants, owners of a rice mill and dealers in rice in this City, a lot of rice for the sum of $2,878.05, payable in ten days. As the 12th day of November was a Sunday, the bill matured the next day; on which day demand of payment was made by plaintiffs, but without success, aud on the next day they brought suit on their bill, accompanied by attachment, which was executed on the defendants’ rice mill and other property.

The grounds urged for their attachment were, substantially, that the defendants “ have mortgaged, assigned or disposed of, or are about to mortgage, assign and dispose of t.lieir property, rights or credits or some part thereof, with intent to defraud their creditors or give an unfair preference to some of them, and that they have converted or are about to convert their property into money or evidences of debt, with intent to place it beyond the reach of their creditors, and that a writ of attachment is necessary to protect the rights of affiants’ firm in the premises.”

. The record contains no evidence in support of,plaintiffs’ allegations, or shows any state of facts to justify the harsh remedy of attachment against these defendants; hence their motion for the dissolution of the same, on the alleged untruth of the averments on which it was issued, was properly maintained by the lower court.

The record shows that the defendant firm, owing to heavy losses sustained in speculations in rice, had become financially embarrassed and so badly crippled, that their business could not longer continue. The partners, therefore, concluded to sell their mill for the purpose of meeting their obligations, and this intention was at once commuuicated to their heaviest creditors, including the plaintiffs in this suit.

To the end of accomplishing their purpose, the defendants called on their largest 'creditors, to whom they exhibited a statement of their financial condition, asking for a few days’ extension on their maturities so as to realize on the proposed sale. The extension was granted by all the large creditors with the exception of plaintiffs, who pressed their debtors for an immediate settlement of their claim, or for security, such as an endorsement or a lien or privilege on the defendants’ mill. After vain and unsuccessful efforts to raise the needed funds or the security required by plaintiffs, the defendants declined to give the lien and privilege asked, unless plaintiffs agreed to accept said lien concurrently with the house of Bush & Levert, and the firm of Maxwell & Peale, the other heaviest creditors of the defendants. Without formally declining this proposition, plaintiffs instituted these proceedings.

The record not only fails to show any fraudulent design of the defendants, but it proves conclusively an honest, honorable and persistent intention on the part of these unfortunate debtors to make any sacrifice necessary to the payment of all their debts and liabilities.

Had they followed the suggestion made by plaintiffs, and had they given to the latter the lien or privilege which they demanded, their conduct would then have made them liable to attachment on the part of their other creditors.

The Court can have no concern with the use which the defendants made of the proceeds of the rice which they had bought from plaintiffs, or of other funds in their possession at the time that plaintiffs’ bill matured.

The prohibition of the law only contemplates the sale, mortgaging or otherwise disposing of their property by debtors, with the intention of thereby defrauding their creditors. The proposed disposition of their property by these defendants was in the interest of their creditors, whom they proposed to place on a footing of equality and fairness, and hence, the attachment against them was absolutely unjustifiable. Hornsheim & Bro. vs. Levy, 32 An. 340; C. C. 1986; 9 An. 535, Feche vs. Barriere.

Judgment affirmed.

Dissenting Opinion.

Todd, J.

The following are the facts and circumstances attending the issuing of the writ of attachment as I find them in the record.

The defendants are the proprietors of a rice mill in this city. They buy rough rice, and by a milling process prepare the marketable article, the clean rice, for sale and consumption. The plaintiffs, having on consignment to them as commission merchants a lot of rough rice, sold it to the defendants for $2,878.05, payable in ten days from the sale. When the debt matured they, defendants, Tefused tp pay the price or sum stated, or any part thereof. It appears from the evidence, and mainly from the testimony of the defendants themselves, who were sworn as witnesses on the trial, that the rice bought of the plaintiffs was, in a few days after the purchase, prepared for market and sold and the cash realized therefor before the debt to plaintiffs matured. That the defendants used the funds, derived in part from the sale of this rice, to pay, on the very day that plaintiffs demanded their money, $2,042.68 to one party, and $1,000 to another, and $234.05 to another. After paying these, they had in cash, the same day, $1,785 left, partly derived from the sale of plaintiffs’ rice, yet they refused to pay this amount to plaintiffs, or any part of it, although plaintiffs agreed, if part of the debt was paid, to give an extension of time for the residue. It appears, moreover, from the testimony of one of the defendants, that their excuse for not paying plaintiffs out of this fund was, that they wanted to keep it to pay another debt, which was not then due, but which they, preferred paying to plaintiffs’. At this time their stock of rice was wholly exhausted, and the only means to pay plaintiffs’ debt, as they said, was out of the mill when sold, and which they stated they were endeavoring to sell. On the next day after their refusal to pay plaintiffs, the $1,785 cash to their credit in the bank was withdrawn. Three days thereafter plaintiffs filed their suit, and other creditors followed. Plaintiffs’ suit was defended and payment of their demand resisted. The other suits defendants let go by default, although on the witness stand they acknowledged that plaintiffs’ claim was a just one.

I think, from this state of facts, that after being denied any participation in the fund partly derived from the sale of their own property, and that entire fund having been paid over in part to others, and retained in part by the defendants themselves, plaintiffs might reasonably conclude that they had no guarantee whatever that, when another fund was created by the sale of the mill, granting that such sale was desired and would be effected, they would fare any better with respect to that fund than they had with the previous one, and doubtless believed that like preferences over them would again be shown, and like refusals to pay them be repeated.

So, concluding, they were fully justified in their apprehensions respecting their debt, and justified, too, in my opinion, in resorting to an attachment as affording the only reasonable hope of realizing their claim.

The acts of the defendants, respecting this transaction, should be taken as better evidence of .their real intentions than the declarations of their good intentions declared on the trial of the case.

The law, under whieh the plaintiffs proceeded, purports to have been enacted for the protection of creditors against attempts on the part of the debtor to plaee his property beyond their reaeh, or to give unjust and illegal preferences. If it is not available to creditors, under like circumstances as shown in this case, but is to be turned to their detriment and loss, however honestly and in good faith they may seek the remedy, then, instead of proving a protection, the law becomes a delusion and a snare. I think the attachment was improperly dissolved.

I, ¡therefore, dissent.

Rehearing refused.


author: Fenner, J.

text:
    No. 8652.
    The City of New Orleans vs. The Jefferson Gas Light Co.
    Assessments of property made by sworn officers in execution of their legal duties are not to be disturbed, unless it be clearly shown that hey are excessive.
    \ PPEAL from the Civil District Court for the Parish of Orleans. A Lazarus, J.

      -J. Ward Gurley, Jr. for Plaintiff and Appellee.

      Frank W.- Butler for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.


author: Bermüdez, C. J.

text:
    No. 7968.
    Alphonse Walz vs. The New Orleans, Lake & Spanish Fort Railroad Company.
    An order dismissing an appeal, by consent of opposite counsel, will not be disturbed by this Court on tlie complaint of one of the litigante that his attorney had no authority to give such consent, where there is presented an issue of facts, by affidavits and counter affi, davits, requiring the exercise of an original jurisdiction.
    APPEAL from the Sixth District Court for the Parish of Orleans. Biglvtor, J.

      Albert Voorhies and June. Meunier for Plaintiff and Appellant.

      Chas. S. Bice for Defendant and Appellee.
   On Motion to Reinstate Case.

The opinion of the Court was delivered by

Bermüdez, C. J.

The order which was made, discontinuing the appeal in this case, was rendered on the motion of counsel for defendant, consented to by counsel for the plaintiff.

The plaintiff himself now comes in this Court and asks, by rule, the rescission of the order, on the ground that the consent given by the counsel representing him was unauthorized.

Affidavits and counter affidavits are filed on behalf of each party to the rule.

With such contradictory proof this Court has nothing to do. The order was made with the consent of one who, at the time, represented the plaintiff, and had authority to give such consent in a.judicial proceeding.

The plaintiff had not notified this Court, prior to the date of the consent, that the attorney had ceased to represent him. Until a litigant so does, courts of justice are fully justified to consider and treat the attorney as his legal representative.

The relief of the complaining client is surely notin this Court when facts are disputed. 32 An. 663; 2 An. 430.

We have no application to refer before us.

Motion to rescind dismissed.

Rehearing refused.

Fenner, J., concurs on different grounds.


text:
    No. 8610.
    Mrs. C. Dougherty vs. The Hibernia Insurance Company.
    The Judge of the late Second District Court for the Parish of Orleans was competent to exercise the functions of authorizing married women to contract loans, etc., under C. C. Arts. 126, 127, 128.
    It is now settled that in loans made under such judicial authorization, the lender is not bound to look behind the Judge’s certificate, and is not concerned with the actual use to which the money loaned to the wife is put.
    4 PPEAL from the.Civil District Court for the Parish of Orleans. Itiylitor, J.

      K. 0. Kelly and Albert Voorhies for Plaintiff and Appellant:
    1. A married woman cannot mortgage her property for a loan made in her name, but in reality for her husband.
    2. The burden of proof is on the creditors to show that the contract enured to the benefit of the wife, unless they exhibit strict compliance with C. C. Arts. 126-128.
    3. The Second District Court had no other but probate jurisdiction. Its Judge could not authorize a married woman to borrow money.
    4. Under C. C. 2229 (2226) a legal tender is not required as a condition precedent to bring the action of nullity or rescission.

      T. Gilmore <& Sons for Defendant and Appellee :
    1. A married woman authorized by certificate of the Judge (R. C. C. Arts. 127, 128), must allege fraud on the part of the creditor or complicity in the unlawful acts of the husband before she can be permitted to question the mortgage. The lender is not bound to look beyond the Judge’s certificate, on faith of which he contracts. 15 An. 54 ; 28 An. 494 ; 32 An. 1197; lb. 1103.
    2. The wife, separate in property and authorized by the husband, is bound on a contract affecting her separate property without proof that it enured to her individual benefit. 33 , An. 1168; R. C. C. 2436.
    3. Where the wife denies having received the money, she will he estopped from attacking the sale on other grounds.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff, a married woman, sues to annul a.judicial sale of her property made in foreclosure of a mortgage granted by her to defendant, under the authorization of the Jndge of the late Second District Court for the Parish of Orleans, acting under Sections 1713, 1714 and 1715 of the Revised Statutes (O. C. 126, 127, 128). The pivotal foundation of plaintiff’s case rests in the proposition that the Judge of the Second District Court, which was a court of limited powers, had no jurisdiction to exercise the powers conferred by the law referred to.

This point is disposed of, adversely to plaintiff, by the authority of Rainey vs. Massey, 26 An. 232, which is fully in point and satisfactory in principle.

8ublato fundamento, cadit opus.

Objections founded on the irregularity of the proceedings before the Judge, and on the use made of the money loaned and the like, in absence of fraud or complicity on the part of the lender, have no force.

The jurisprudence is now well settled that, in such case, the lender is not bound to look behind the Judge’s certificate, and is not concerned as to the actual use made of the money after it is paid to the wife, or according to her directions. Pilcher vs. Pugh, 28 An. 494; McLellan vs. Dane, 32 An. 1197; Henry vs. Gauthreaux, Ib. 1103.

Judgment affirmed.


author: Poché, J.

text:
    No. 8780.
    Mrs. Anastasia Powers, Widow, etc. vs. Executors of Robert Y. Charbmury.
    Iu tbe absence of primary evidence to prove marriage, it may be proved by secondary or circumstantial evidence.
    Reputation and long cohabitation will create a presumption of marriage; but such presumption can be rebutted by negative testimony.
    Acts of the parties, showing their own coiiception of their mutual relations, are the best test of tbe legality of a marriage, of the celebration of which no proof has been, or can be adduced.
    The reputation which gives rise to a presumption of marriage must be general and consistent, and must rest on proof showing that the relations between the parties began with a free consent to enter the state of matrimony.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      James Lingan and L. E. Simonds for Plaintiff and Appellee.

      T. O. W. Ellis, Jos. P. Rornor and F. W. Baker for Defendants and Appellants:
    1. The general rule of law iu all civil cases, is that the burden of proof is upon plaintiff, who must make his case not only probable but certain. Hennen Dig. Evidence, xiii (a), 2To. 1.
    2. A suit involving the question of marriage vel non, is no exception to this rule. 15 An. 410 ’ 20 An. 98; 15 An. 46.
    3. Marriage in Louisiana is considered in no other light than as a civil coutract, which must he established as conclusively as any other fact. C. C. Art. 90; 15 An. 410 ; 30 An. 1398.
    4. Such marriages only are recognized by law as are contracted and solemnized according to the rules it prescribes. C. C. Art. 88.
    5. Agreeing to live together as man and wife does not make a marriage; the law does not sanction voluntary cohabitation, nor elevate concubinage of whatever duration to the dignity of marriage. Bishop on Marriage and Divorce, §§218, 220, 224; 30 An. 1398.
    6 A marriage should be proved by the best evidence, which is, first, the marriage certificate, or proces verbal of its celebration, or a certificate of its recordation. C. C. Art. 97 to 105.

      7. Iu the absence of the best or official evidence of the marriage, secondary and parol evidence may be admitted, such as: first, the testimony of the officer or minister who performed, or the witnesses who were present at the marriage; second, the testimony of the parties that they were married at such a time and place, by such an officer; and third, if the parties are not living, evidence of general reputation, declarations and conduct of the parties: but all to the same end, to prove the actual performance of marriage ceremony. 30 An. 2398.
    8. In a case of marriage vel non, where no direct evidence of an actual marriage is produced, all the presumptions are against the marriage. 15 An. 410.
    9. ^Reputation, conduct and declarations cannot constitute a marriage or takejihe place of v the forms prescribed by law, hut simply serve as a basis from which to draw the presumption that a marriage has been actually celebrated according to the forms of law.
    10. Nothing less than strong evidence of a constant matrimonial cohabitation and a general, uniform, and uninterrupted reputation of marriage, is sufficient to base a presumption of • the actual performance of the marriage ceremony upon. Bishop, §438; 18 Am. Law ¿T. 642, Note; 73 Penn. (St.) 207 ; 9 Paige, 611; 1 House of Lords Sc. 182; 1 Appeal Cases, 686 ; 2 An. 945.
    11. Proof of cohabitation alone, is insufficient to base a presumption of marriage upon. ' lb.
    12. Population is the opinion generally entertained in regard to the character or condition of a person by those who knew him or his family. Bouvier’s Dictionary, Yerbo, Beputation ; Starkie on Evidence, p. 43.
    13. The facts must be general, not particular, to form reputation. Ib.
    14. Where there is conflict in the reports, it will not establish the marriage. Bishop, §438.
    15. The conduct and appearance of the parties is to he looked to at home, among their relatives and friends, where they are known, not abroad or among strangers.
    16. Evidence as to visits, and their treatment of each other, is to he weighed by the number, respectability and character of the witnesses; the degree of intimacy of the friends. 2 An. 945; 15 An. 410; 20 An. 97; 9 Paige, 611.
    17. Yerbal declarations and admissions of the parties, though deceased, are legal evidence, to show that the intercourse between the parties was illicit and dishonorable: that they were not married. 15 An. 46, 410 ; 20 An. 97; Bishop, §439: 9 Paige, 611; 3 Halst. 249; 9 Smedes&M. 9and56; 2Dow,482; 2 Nott&McC. 114; 31 Miss.367,547; Cowper (K. B.} . 593; Greenleaf on Ev. §200.
    18. A witness proved to have sworn falsely as to a fact about which he cannot he mistaken, is entitled to no credit. Falsus in uno, falsus in omnibus. 7 Wheat 339.
    19. The declaration of the parties, to the effect that they have never been married will, nnder certain circumstances, outweigh the presumption of marriage arising from the fact of the parties having lived together as man and wife, and having been publicly recognized as such. 15 An. 46.
    20. None but weighty, precise and consistent presumptions should be drawn. The known fact should draw with it the unknown fact, as an almost necessary consequence. If the facts or circumstances are so indefinite as to Justify either of two presumptions, inconsistent and fatal to one another, no presumption should he drawn. Civil Code, 2288; 3 An. 203; 38 N. Y. 303; 20 An. 98.
    21. Where the cohabitation is illicit in its origin, unless there is some evidence that the character of the relation has changed, it is a necessary presumption that the connection continues meretricious. When a particular status is proven, its continuance will he presumed. Bishop, §506; 63 Mo. 501, 514; 2 Dow. 483; L. B. 2, Sc. Ap. 494; 75 Penn. St. 207; 53 Penn St. 132: 2 Brewst. 202; 48 How. Pr. 1; 42 Md. 251; 38 Md. 93; 45 Mo. 144; 70 111. 484 ; 53 Miss. 37; 49 Miss. 751; 18 Am. L. J. 639, 641; 30 An. 1398.
    22. One who claims as the wife cannot recover as the concubine.
   The opinion of the Court, was delivered by

Poché, J.

Plaintiff, alleging that she is the sole heir of her sister, Julia Powers, who was the wife of Robert Y. Charmbury, claims the rights of her sister in the community which existed between her and her alleged husband, Charmbury.

The defense is, that Charmbury was not married to Julia Powers, and that he was never married at all.

This appeal is taken by the defendants from a judgment recognizing the existence and validity of the alleged marriage between Charmbury and Julia Powers, and turns upon the issue of marriage vel non.

As plaintiff has been unable to prove the celebration of the marriage, she was compelled to have recourse to evidence, parol and documentary, for the purpose of showing long cohabitation as man and wife, the birth of children from their union, and general reputation of marriage among their .neighbors, acquaintances and friends. To meet this evidence, the defendants have introduced testimony intended to negative the existence of such a marriage.

The record is, therefore, very voluminous and the evidence naturally conflicting. Heuce, our examination of the case has been laborious and painful, and the more painful from the fact than an exhaustive consideration of the evidence has led us to conclusions different from those of our learned brother of the District Court.

Although our jurisprudence fully recognizes the doctrine and the rule that marriage will be presumed from reputation and long cohabitation, we cannot lose sight of the fact, that under our law marriage is a contract, and that the best proof of that contract is the evidence of some act, as prescribed in the Civil Code, showing at least the consent or agreement of the parties to enter into the contract of marriage.

Marriage is a contract highly favored by the laws of all civilized nations, because it is the pure fountain and source of the family, and the family is the foundation of society and of nations. Hence, it is a subject which occupied the most serious attention of the framers of our Code, which contains very rigorous rules touching the manner of contracting or making marriages. Among other provisions we find the solemn declaration that such marriages only are recognized by law as are contracted and solemnized according to the rules which it prescribes.” C. C. 88.

In the interest of persons who were the issue of marriages of which no direct proof could be adduced, and in the interest of legitimacy, courts have somewhat relaxed the rigor of the precept and have sanctioned the rule which allows the proof of marriage by reputation, long cohabitation and by other circumstantial evidence. But such evidence must show that the beginning of the relations between -the parties must have been characterized by the free consent of the parties to contract the obligations and to assume the responsibilities of marriage ; and the evidence must exclVde the idea that the union began and that* the parties were drawn together merely through the promptings of sensuality. Such conditions, even when followed by long cohabitation, although openly or publicly acknowledged, can result in nothing but concubinage, the parent of bastardy, the immoral impediment to marriage, and the fruitful source of shame and dishonor.

Guided by these principles which are enunciated in our Code, and have been consistently maintained in our jurisprudence, we are driven, from our examination of the evidence in this record, to conclude that plaintiff has failed to prove the existence of a legal marriage between Julia Powers and Robert Y. Charmbury.

The undisputed facts in the record are, substantially: that about the year 1850, Robert Y. Charmbury, a young Englishman, about twenty-seven years of age, already a prosperous merchant in this City, met Julia Powers, a native of Ireland, about eighteen years of age, then employed in the sales’ department of a millinery establishment in this City. He soon became very attentive to her; to such an extent, that his attentions were observed by her employer, who was then her only friend and protector, and who did not look with favor on Ckarmbury’s designs. But, notwithstanding her opposition, he became master of the situation; Julia left her employment and was not seen by her employer for several weeks, at the end of which time she appeared at the store and informed her former employer that she had been married to Mr. Charmbury. Prom that time on they cohabited together down to the year 1873, when Julia Powers died ; and during which time three children were born of their union. Two of them died infants, the third lived to the age of thirteen or fourteen, and was recognized as his child by Charmbury, who brought him and the mother on a trip to Ireland and England in the year 1872, when the boy died and was buried in Liverpool.

Julia Powers died in this City in the house occupied by Charmbury and herself, and a notice of her death as “ Julia, wife of Robert Young Charmbury,” was inserted in one of the daily papers published in this City. Two years after her death, in compliance with her last and special request, her remains were disinterred by Charmbury, and sent to England for burial with the remains of her son, in Liverpool.

During their long cohabitation together, the couple were reputed among some of their acquaintances and friends as married; and among others Charmbury had the reputation of being unmarried, and Julia Powers was reputed to be his housekeeper and mistress. And in this connection we note the statement of plaintiff’s counsel, that Charm-bury led two lives,” in one of which, with his business acquaintances and friends and club associates, he passed for a bachelor; and in the other, among his employees, near neighbors, and friends of Julia Powers, he occupied the attitude of a married man, recognizing and introducing Julia as his wife.

In our view of the case and of the law of that general reputation which creates the presumption of marriage, this very theory is destructive of plaintiff’s claim, and it is on this point that begins our divergence from the conclusions of the District Judge. Bishop, Marriage and Divorce, §438.

The essential element in the circumstantial evidence is, that the general reputation and long cohabitation are the presumptive proofs of the free consent of the parties to live and to treat each other as man and wife. Now, under plaintiff’s theory, it is conceded that among the friends of his youth, in his business circle, and among his associates of the superior class of society, Charmbury studiously concealed his relations with Julia Powers; and that in the opinion of the large mass of his friends and acquaintances, he lived and died a bachelor. It therefore follows, that his reputation as a married man and as the acknowledged husband of Julia Powers was not general and consistent, but was, on the contrary, partial and circumscribed within a circle of a very limited number of acquaintances; nay, it was not even general and uniform in his immediate neighborhood, for the evidence shows that very few families of that vicinity had social intercourse with Julia Powers; and that two families, at least, the respective heads of which were personal friends of Charmbury, were deterred from calling at his house by the well circulated rumor that the lady of the house was not his legal wife.

Leaving aside the conflicting statements involving the declarations of the parties on the subject of their union, we have based our conclusions mainly on facts and other circumstances growing out of the conduct of the parties, which show, beyond a doubt, to our minds, that the relations between them did not have their source in a free consent of the two parties to enter the' state of matrimony, and that the circumstances of their union were well understood by themselves and by their nearest relatives and closest friends.

1. Plaintiff and Julia Powers, two sisters and orphans, never before separated, came together to this country in 1848, and were a short time after separated by force of circumstances, Anastasia remaining in New York, and Julia coming to New Orleans, where she is represented to have married Charmbury, without writing a word to her only sister. She says not a word of her proposed marriage to her brother, Patrick Powers, who then lived in this City, nor to her employer, her avowed protector. When, a few weeks later, she informs the latter of her marriage, not a question is asked, where, by whom, and in the presence of whom the humble millinery clerk was married to the thrifty English merchant.

It is only in 1853 that plaintiff hears of the marriage, through a letter of Patrick, who was not on speaking terms with Julia until his death. Plaintiff came to New Orleans in 1857, and began to visit her sister in her new role, but never asked her, and to this day has never been informed, when, by whom, and where Julia was married to Charm-bury. And in her testimony in this case she acknowledges that she has never made the slightest search for any paper or certificate of her sister’s so-called marriage. Nor does it appear that any steps have been taken to procure the certificate of registry of the birth of the boy, or of his baptism. In her attempt to account for her failure to produce any written evidence of her sister’s marriage plaintiff, in her zealous counsels’ brief, exclaims: “ With Charmbury himself and his sisters to destroy evidence for six years after poor Julia’s death, they can very safely defy us to produce records.” But to whose laches must we attribute this delay of six years ? Why did plaintiff wait during six years before asserting her rights under her sister’s marriage, and why did she institute these proceedings only after Charmbury’s death? We attach a great deal of importance to this delay, which finds its only explanation in a well founded fear of meeting Charmbury alive, and face to face, on an issue which plaintiff should otherwise liave had every motive to accelerate, rather than procrastinate.

, These acts, drawn from the conduct of Julia Powers and of her friends and relatives, conclusively support the conclusion that she herself deemed her position very equivocal, and absolutely negative the theory of a legal marriage between Charmbury and herself.

2. But on his side, the record is still more replete with acts and deeds pointing to the same conclusion.

At the time of the pretended marriage he had three sisters in England, living at his old home with his mother, for whom he is shown to have had the fondest attachment and the most ardent filial devotion ; and lie is held to us as having contracted marriage without sending a word to either the mother or the sisters. In 1851 he visited his native place, where he spent several months, dividing his time between his sisters and his mother, and he was unaccompanied by his bride, whose name he did not even mention to either sisters or mother. The latter would, doubtless, have taken such deep interest in the recent marriage of her only son and protector. The same silence concerning his pretended marriage and his wife marked his next visit to England, in 1859, on the occasion of his mother’s death. It would have been so natural to have filled the void in the family circle, grief stricken by a mother’s death, by the introduction there of a fond and faithful wife and her then bright boy, the future hope of the Charmburys.

In 1872, the mother and her child accompany him to England; death claimed the boy, and he was buried in Liverpool, but a short distance from the village where lied the remains of the mother, in a vault built by and at the expense of Robt. Y. Charmbury.

How natural to have brought the remains of a legitimate child for burial near his grandmother! A day or two after the new bereavement, Charmbury goes to London to visit his sisters, with whom he spends a week. Misfortunes and grief, ordinarily, draw family ties more closely, and generally heal bitterness between relations. The occasion to introduce his wife to his sisters was most propitious, but he leaves her in Liverpool alone, in a strange city, with no company but her tears for her lost child. But we are told that he was on bad terms with his sisters, and that this reason forbade his wife’s visit. Why did not that same feeling preclude his own visit? The additional fact that he took home from London to New Orleans, at his own expense, the son of one of his sisters on that occasion, is a circumstance which must be borne in mind as a test of his feelings towards his sisters.

In his last will, he expressed his desire to be buried by the side of his mother, and not a word was written for the gathering together of the ashes of the dead boy and his mother for final rest with him! The record also shows, that during the lifetime of Julia, Charmbury, in several acts of sale, and in sworn testimony given as security for a friend, described himself as unmarried; he did likewise in an official declaration of citizenship, during our civil war, made to' the British Consul, to whom Julia Powers was also described as an unmarried British subject. And, finally, when Charmbury felt the cold approach of death, which reminded him of his last act on earth, in making his will he again declared that he was unmarried and had never been married.

We might enumerate many other acts of both parties, strongly indicative of their respective Tinderstanding of their mutual relations, which would add to the weight of our conclusions as to the non7existence of this alleged marriage, but it would be work of supererogation.

Being reluctantly compelled to differ with the District Judge on questions of fact, we deemed it our duty to report our conclusions by a considerable detail of the circumstances which impressed us in this cause..

The case of McConnell vs. City of New Orleans, 15 An. 410, is more than authority for our conclusions herein, for, in that case, the evidence in support of the presumption of the marriage was much more pointed and difficult to overcome than the state of facts on that point disclosed by this record. Benavis vs. Barba, 32 An. 1264; Blasini vs. Blasini, 30 An. 1388; Succession of Wm. Hubee, 20 An. 97; Philorick vs. Spangler, 15 An. 46; Holmes vs. Homes, 6 La. 470.

The judgment of the lower court is, therefore, reversed and set aside; and it is now ordered that plaintiff’s demand be rejected and her action dismissed at her cost in both Courts.

Bermudez, C. J., recuses himself, having been of counsel.

Rehearing refused.


text:
    No. 8905.
    The State of Louisiana ex rel. The Mayor and Common Council of Donaldsonville vs. The Judge of the Twenty-Second Judicial District Court et al.
    The Articles of the Constitution defining the original jurisdiction of inferior courts are not subject to the rigorous construction applicable to those defining the appellate jurisdiction of this Court, but must be construed with reference to Art. 11 of the Constitution, which guarantees adequate remedy in the courts for all legal rights. Hence, Articles 829 to 836, C.P., granting, among other things, the remedy of mandamus to compel “corporations established by law to make elections required by their charter,” will not be held to be repealed by the Constitution, because the rights enforced thereby are not susceptible of pecuniary valuation; since the effect of such construction would be to leave the citizen without legal remedy to prevent violations of his legal right to vote.
    Refusal to grant delay for filing application for new trial, when sufficient time has been allowed, does not constitute such nullity of proceeding as to vitiate them.
    APPLICATION for a Prohibition and Certiorari.

      Ií. N. Sims and F. If. Pugh for the Relators.

      Fred. Duffel and J. A. Seghers for the Respondent.
   The opinion of the Court was delivered by

Fenner, J.

Certain citizens and voters of the town of Donaldson-ville, averring that the charter of said town required an election to be held on May 5th, 1883, under the auspices of the Mayor and Council, who were required under said law to issue proclamation, give notices and perform certain other defined duties in reference thereto; alleging, further, neglect to perform said duties; averring that they, relators were entitled to vote at said election, and, if said defendants were not required to perform their said duties, they would be deprived of said right; applied to the District Court for a writ of mandamus. The defendants in the suit excepted to the jurisdiction of the court rations material, because there was no amount in dispute exceeding fifty dollars, exclusive of interest, as required by Art. 109 of the Constitution.

The respondent Judge having overruled this plea, the relators apply for a writ of prohibition. If we were to apply to the clauses of the Constitution, defining the jurisdiction of the District Courts, the same rigorous construction which we have enforced in reference to those which define the appellate jurisdiction of this Court, it would be difficult, if not impossible, to answer the argument of relators’ counsel. But slight reflection will show that different considerations apply in the two cases.

If the District Court has not jurisdiction to enforce the rights claimed by the plaintiffs in the suit under consideration, no court has such jurisdiction, and we would have presented the case of a well recognized legal right without a remedy. Art. 11 of the Constitution provides that, “ all courts shall be open, and every person, for injury done him in his rights, lands, goods, person or reputation, shall have adequate remedy by due process of law and justice administered without denial or unreasonable delay.” In construing the constitutional definitions of the original jurisdiction of courts, we must be guided by this Article ; and when we find that, under our system of law, there has existed an ancient and established remedy for the enforcement of a recognized legal right, which is the only adequate remedy, we will not construe the jurisdictional provisions of the Constitution as having effect to take away such remedy and to leave the right remediless, by any mere implication, however strong.

Our Code of Practice confers upon courts, whose jurisdiction in civil matters exceeds $100, the power to issue writs of mandamus addressed'' to public officers or corporations directing them to fulfil duties, and specially, “to all corporations established by law, to compel them to make elections required by their charter.” C. P. 829 to 836.

It provides, that “ the object of the order is to prevent a denial of justice,” and that “it should be issued in all cases when the law has . assigned no relief by the ordinary means and where justice and reason require that some mode should exist of redressing a wrong.” C. P. 830. Thus, the case is brought within the precise protection of Art. 11 of the Constitution, and the question presents itseif, can we hold that other Articles of the Constitution have, by implication, taken away the jurisdiction of every court to enforce such a remedy and thus left the citizen without any mode of redress for such an “ injury to his rights ? ”

It is obvious that there is no express inconsistency between Art. 109 of the Constitution and these Articles of the Code of Practice, even when applied to cases involving no pecuniary amount in dispute. If the right of the citizen to vote, and, to that end, to have elections held as required by law, be not susceptible of valuation in dollars and cents, it is not because such right does not exceed in value, “ fifty dollars, exclusive of interest,” but, rather, because it is too precious to be measured by any mere pecuniary standard.

It would be absurd to say that the Constitution intended to deprive courts of jurisdiction of all matters not susceptible of distinct pecuniary valuation, except those expressly mentioned. If that were so, the Constitution would have failed to confer upon any court in this State original jurisdiction of suits for divorce or separation from bed and board, although Art. 81 confers on this Court appellate jurisdiction therein. We hold, therefore, that the respondent Judge did not exceed the bounds of his jurisdiction, and that the writ of prohibition must be denied.

We find no sufficient ground under the writ of certiorari to annul the proceedings. Although the judgment was signed on the day following its rendition, the court adjourned sine die on the same day, which ended the delay allowed by law. No rule for new trial was filed or offered, and the refusal of delay for that purpose and even the expression of opinion by the Judge, that application for new trial did not lie in such case, did not dispense the party from offering his application, which he had ample time to prepare. If he had prepared and offered his motion before signature of the judgment, non constat that the Judge would not have received and acted on it. The only application made and passed on by the court was one for delay, and the refusal is not such an irregularity as vitiates the proceedings.

It is, therefore, ordered that the prohibition and certiorari prayed for be denied at relators’ cost.


author: Manning, J.

text:
    No. 8887.
    Succession of Hattie C. Hamilton. John J. Plume, Opponent.
    They who have lived together in open concubinage are respectively incapable of making to each other a donation, either inter vivos or mortis causa, of movables exceeding one-tenth in value of their estate. A will, by which the whole estate of the concubine is given to her paramour, will be reduced, on application of her legitimate son, to one-tenth.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Jos. B. Hornor and F. W. Balcer for Plaintiff and Appellee.

      T. Gilmore & Sons for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

Hattie Hamilton had been married many years ago to one Plume, and the opponent is a child of that marriage. She was divorced by her husband for adultery, and afterwards led a lewd life. Finally she kept au assignation house in this city, and David Jackson kept her.

She died last Summer, and by olographic will gave Jackson all her property, which consisted of furniture and jewelry. After paying the debts and charges, there remained $719.20. Her son prays a reduction of the sum passing by the will to one-tentli part of the estate of the deceased.

Jackson, the universal legatee, insists that under our Code only those who have lived in open concubinage are incapable of making a donation of movables beyond one-tenth of their estate, and that he does not fall in that category because his concubinage with the deceased was not open, public, aud notorious. His counsel remind us that the translators of the Partidas have omitted the 14th Title, which treated of concubines, as not in force, adding in a note, that “a woman of the description here alluded to is in Spanish called Barragana, which word means a concubine whom a man keeps in his house unconnected with any other woman. It was necessary that such a concubine should not be a woman of debauched life, and that she should be possessed of other qualities mentioned in the title.” 1 Moreau & Carleton’s Partidas, 547.

Jackson’s living in concubinage was so open that several witnesses have testifiedto it. He did not keep her in his house, but visited her in hers every night. Their relations were notorious iu their sphere. However necessary it might have been among the Spaniards that a concubine should not be a woman of debauched life, no such conception prevails among us, nor is it inferrible, even from the record that this woman continued her indiscriminate debauchery after forming relations with Jackson. Her bequest to him must be reduced to that portion required by the Code. Rev. Civ. Code, Art. 1481.

Judgment affirmed.