author: Manning, J. Fenner, J.

text:
    No. 8727.
    Succession of John Burnside.
    The cardinal rule in the interpretation, of wills is to ascertain the intention of the testator, and to give effect to it when ascertained.
    A legacy of “thé residue of my property of every description'” is an universal legacy. Descriptive words of the different kinds of property composing that residue are not words of limitation, hut of illustration.
    An universal legacy carries the totality of the property owned by the testator at the time of his death, and includes property acquired after the date of the will as well as that owned at that date, and this is true even when the character or kind of property has been wholly changed in the interim between tbe making of the will and the death.
    Particular legacies which have lapsed by the death of the legatee before the testator, or from other inability of the legatee to take them, fall into the residuum, and go to the universal legatee and not to the heir.
    Tho universal legatee takes everything that has not been validly given away.
    Succ. Yalentine, 12 Ann. 286, and Lawson’s Case, Ibid. 603, overruled.
    APPEAL from the Civil District Court for the Parish of Orleans; Mom-oe, J...

      J. A. Campbell and T. Gilmore & Sons for tlie Executor and Legatee:
    The olographic will of John Burnside, written in April, 1857, and established after his death in 1881, was executed, that he might “ dispose of all his worldly estate,” by that, “his last will and testament,” after his death. He had no living ascendants nor descendants, nor kindred, to he objects of care.
    His bequests consist of $312,000 of money, and a square of land, distributed among twenty» six individuals or charitable institutions, in particular legacies to partners, employees, friends, children of friends and charities. The 15th article designates a sole executor “to carry the will into full execution ” as his last will.
    'The residue of his property, of every description,” he bequeaths to Oliver Beirne, his late partner, as a token of sincere regard for uniform kindness, and services rendered to him in early life, subject to legal charges. The bequests made he directs to be paid at the end of twelve months after his death.
    The will is, as he repeatedly declares in it to be intended, "his last will and testament.” Hone other has been found. He makes it with a remembrance of the uncertainty of life, and fulfils his declaration that it makes a valid, full and final arrangement of his property, to take effect after his death. C. 0.1606, 1607-8-0-10.
    The announcements of the testator that this was his plographic will, signed and dated at the commencement of the will; that he was of sound body and mind; that he was mindful of the uncertainty of life, and of his purpose to dispose of all of his worldly estate by that his last will and testament, furnish authentic evidence of his testamentary intentions. The methodical and exact arrangement of the particular legacies; the appointment of a sole executor to carry this, his last will, into full execution, without a bond; the bequest to him “of the residue of his property of every description,” with an expression of the motive and the final direction to pay the bequests at the end of twelvemonths, demon» strate that he fully appreciated and comprehended accurately all that he had undertaken to perform: the disposition of his entire succession.
    The words already quoted, “all my worldly estate,” the “ residue of my property of every description,” imply that the testator had a conception, an idea that he was the owner of an estate, of an aggregate of property of a various description, a sum of separate values which, in the ordinary course of his own life, would change their form or substance without material diminution or deterioration, and whatever substitutions or alterations, additions or subtractions, would take place, there would exist at his death, independently of all these, a worldly estate sufficient to answer all the particular charges at the end of twelve months after his demise, and of that worldly estate there would be a residue which would express his sincere regard for a friend and his early benefactor.
    The word estate is frequently employed in the Code. Its signification is property of every description. C. C. 448. It is frequently used as the equivalent of the word succession. C. C. 906, 921, 923, 1660 ; Shane vs. Withers, 8 La. 489.
    In a number of instances, it implies an aggregate of property consisting of various objects whose separate items and values constitute a totality. C. C. 472, 486, 543, 47, 52, 73, 223; 874, 2436.
    The will of John Burnside, containing as it does, a disposition of ail his worldly estate, and providing a legatee to take all of that estate not included in particular, defined pecuniary legacies or a parcel of land, and this legatee, acquiring, by the terms of the will, property of every description, is a universal legatee under the Articles of the Code, and according to the jurisprudence of this Court. C. C. 1606, 1610; Shane vs. Withers, 8 La. 489; King vs. Woodhull, 3d Ed. Ch. 79; Succession of Eiske, 3 An. 705; Sitgreaves vs. Brewer, 15 Ch.D. 594; Preston vs. Clarke, 2 An. 580; Banks vs. Phelen, 4-Barb. 94; Shawvs.Tork, 5 An. 146; Archer vs. Deneole, 1 Peters, 588; Succession of Mylne, 2 Rob. 383; Given vs. Hilton, 5 Otto, 591; Compton vs. Prescott, 12 Rob. 57; Smyth vs. Smith, 8 Ch. D. 561; King va. George, 4 Ch. D. 627; Prevost vs. Martel, 10 Rob. 513; S. C. on appeal, 5 Ch. D« 627; Succession of Foucher, 18 An. 409; 2 Redfield on Wills, 117; 1 Jarman on Wills, 700 ; 2 Williams on Ex. 1251.
    The will of John Burnside is not affected by the existence of aqy heirs “ to whom a portion of the succession is reserved bylaw;” none such exist. It undertakes to make a full disposition of the entire succession. No disposition therein was illegal or void, ab initio. The only fact to affect its execution, as he made it, is, that before the death of the testator some of them had died. The provision of the Codeis, that these dispositions are without effect. C. C. 1697, 1703, 1704. But the will has provided that whatever property the testator has, shall go to the person instituted by the testator as the residuary legatee. The authorities cited from the jurisprudence of this State, the authority of the commentators on the corresponding Articles of the French Code, and the torreut of English and American authorities, sustain the proposition that this legatee takes the lapsed legacy. 17 Pothier Coutumos D’Orleans, p. 491, No. 142; 1 New Denizart, p. 38, § 32; Merlin Accroissement, II, 4; 5 Toullier, No. 2160; 4 Troplong, D. & T. 2160; 21 Domolombe, p. 476, Nos. 542, 543, 544; Coin de Lisle, D. & T. No. 2160, § 7; 13 Laurent, 558, 570; 7 Aubry and Rau, p. 461, No. 714.
    The intervenors make objections to the title of Oliver Beirne, that this last will and testament did not operate upon any worldly estate, save such as he then owned and possessed. But this is to contradict the plain declarations of the testator, and to annul the cardinal rule of interpretation to discover the intentions from the terms of the will. C. C. 1712; Theall vs. Theall, 7 La. 226.
    That there is a limitation contained in the 17th section of the will by a specification of certain articles of property. The authorities are full in their refutation of such an interpretation. O. Toole vs. Brown, 3 Ellis and B. p. 572; 2 Redfield on Wills, 117; Dobson vs. Bowness, 5 L. R. Eq., 404; 5 Allen, 466; Dean vs Gibson, 3 L. R. Eq. 713; 9 Paige, 94; Sitgreaves vs. Brewer, 15 Ch. D. 590.
    That the donation of $312,000 in particular legacies to twenty-six different legatees, separated that sum finally from the succession, and effectually precluded Oliver Beirne from any portion of that sum. This is not true. The legacy did not vest as property in any one of those twenty-six legatees, and no right accrued to any one of them, unless he were alive at the death of the testator. By the terms of the Code, the bequest was without effect, and that the testator knew and provided for. The residue of property of every description was bequeathed to Oliver Beirne, subject to the charges on his succession. Debts and incidental expenses, and the payment of bequests at the end of twelve months after his demise. This was to be the consummation of all of his dispositions of all of his worldly estate. The Article 1703 of the Code provides for the case of a rejection by an instituted heir or legatee. No rejection has taken place. Also, where either is incapable of receiving it. The incapacity spoken of is a legal disqualification, such as bequests to slaves, adulterine children or concubines. The rule of the Roman Law was, that caducity embraced all of those legacies, which being originally capable, failed ilaliqua ex causa non ceperiV' The cases of original incapacity were unavailable, and were pro non scriptis.

    The Article 1709 defines three cases: 1st, the case where a person dies intestate as to any portion of his estate, where he has not disposed of it by his will. This case has nob arisen, for the will was made to dispose of all of his estate, and the words are adequate to convey it. The second case in'Art. 1709 is, that when the heir or legatee is incapable to take the legacy. In this case there is intestacy. Cases of the kind have been decided in the courts of Louisiana—cases of legacies to slaves or incapable persons. Turner vs. Smith, 12 An. 417; Deshotels vs. Soileau, 14 An. 745.
    The property in these cases was turned over to the legitimate heirs. The Court in both cases decided that the testator had expressed his entire testamentary purposes by those bequests; that he made no bequest over, in respect to these, and the law had not annexed to the bequests any condition in favor of any other person who was named in those particular wills.

      The case here is one where every section of the will was valid and operative in respect to the persons and in respect to the property. There was no incapacity nor illegality.
    An event occurred iu the order of nature, intelligible and within the prevision of testator. He knew the import of his words 5 and the words he employed were sufficient to carry to Oliver Beirne all of the succession not needed to pay debts and expenses incident to succession and to all living legatees. He was charged to pay these and no more.
    The appointment of attorneys to represent absent heirs, where no absent heirs are shown to, exist, or where, if they do exist, they are excluded from participation in the succession by the will of the testator, is a nullity. C. C. 1661, 1210; Mix vs. Mix, 15 L. 66; Rabouan vs. Rabouan, 12 L. 89 : Lacy vs. Newport, 3 An. 226; Linton vs. Moore, 4 L. 434; Succession of Harris, 29 An. 746; Addison vs. Saving’s Bank, 15 L. 528.
    The intervenors have, in the case shown by the record, no standing to call in question the disposition in favor of Oliver Beirne.

      Itobert Mott, B. F. Jonas and Henry B. Kelly, Attorneys of Absent Heirs:
    The law presumes every person to be acquainted with its rules of interpretation, and conquently to use expressions in their legal souse. The language of the courts, when they speak of the intention of the testator as the governing principle, must always be understood with this limitation, that here, as in other instances, the judges submit to be bound by precedents and authorities in point, and endeavor to collect the intention upon grounds of a judicial nature, as distinguished from arbitrary occasional conjecture. The Courts must proceed on known principles and established rules; the rules of construction established by statute are binding upon the Courts. Jarman on Wills (5tb Am. ed. by Bigelow), vol. 1, p. 838; Allen’s Ex’r. vs. Allen, 18 How. 391; Clayton vs. Clayton, 3 Binney, 481; Mudge vs. Bligbt, Cowp. 355; Von Kleck vs. Reformed Dutch Church, 6 Paige, 600; Puinn vs. Hardenbrook, 54 N. Y. 85 $ Lynes vs. Townsend, 33 N. Y. 558 ; Doe vs. Frelkinson, 2 T. R. 209 ; Doe vs. Dring, 2 Mann, and G. 448 ; An Act for the amendment of of the laws with respect to Wills, 1 Vic. oh. 27; (Appendix to Jarman on Wills, vol. 2, p. 885). General Rules for the Interpretation of Legacies, C. C. Arts. 1712,1722.
    In England, prior to 1 Vic. ch. 26, the rule of construction of wills recognized and followed by the courts, was, that as to devises of real estate, the will spoke from its date, and that as to bequests of personalty, it spoke from the time of the death of the testator. By Section 24 of the Act of 1 Vic. ch. 26, a statutory rule of interpretation was established, by which every will is required to “ be construed with reference to the real estate and to the personal estate comprised in it, as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” Jarman on Wills, vol. 1, p. 326.
    The rules for the construction of wills, established by legislative authority iu Louisiana, are as binding- on the courts of the State, as rules of interpretation established by Act of Parliament are upon the Courts of England. And those rules differ radically from the English rule, both as it existed anterior to 1 Vic. ch. 26, and as modified by that Act; and from the rule of testamentary interpretation followed by the courts of other States of tho Union, where the old English rule was recognized, and has been modified by statutes similar to 1 Vic. ch. 26.
    In Louisiana the rule of testamentary construction established by statute is, that the will speaks from the death of the testator, only when it is “ couched in the future tense; ” and that when it “ couched in terms, present and past,” or in terms “ which express no time, neither past or present,” it speaks only from its date. C. C. 1720,1721, 1722.
    Under the system of the Code Napoleon, followed in that respect by the Civil Code of Louisiana, every testamentary disposition is denominated a legacy. Demolombe, Don. et Test, vol. 4, No. 525. The general rules for the interpretation of legacies of our Civil Code, Arts. 1712-1723, and forming a distinct section of the Code, are not to be found in the Code Napoleon. No such rules for the interpretation of wills were ever established by statute in France, the only rules to be found in the French Code being, not general rules for the interprefcation'of wills, but particular for the interpretation of specific legacies of a certain kind, as Arts. 1019 and 1023, C. N., corresponding with Arts. C. C. 1637 and 1641 which are not included among the General Buies established by our Codes, but are to be found under the head of “Particular Legacies.”
    The general rules of interpretation of our Code, omitted etc industria, from the Code Napoleon, are of very ancient origin. They aro derived from the “Begles Genérales pour rinterpretation des legs ” of Pothier, who drew them from the Corpus Juris Civilis. They are applicable to the interpretation of testamentary dispositions of every character, and are not to be limited in their application, as was erroneously assumed in Shane vs. Whithers, 8 L. 489, exclusively to special legacies or to dispositions made by a testator of Borne determinate portion of his estate, designated in genus or species. C. C. 1721, (1714), 1720, (1713), 1722,. (1715). Bégles Générales pour Interpretation deLegs. Pothier Traite des Testaments, Yol. 7, p. 410, Begles XXX, XXIX, XXXII j Pothier, Pand. Yol. XI, p. 534, Trigésima Begula ; Id. Ib. p. 524, Trigésima Nona Begula; Id. Ib. p. 538, Trigésima Secunda Begula; Duranton, T. 9, No. 182, Coin Delisle, No. 9; Sirey Code, An. 1003, No. 2: Pothier, Pand. XI, p. 538; Marcadé, Yol. 4,p. 67; Mourlon, Yol. 2, p. 418; Austin’s Jurisprudence, pp. 448,171; Pothier, Pand. XII, p. 484; C. 0.1691(1684); Pothier, Testaments, Yol. 7, pp. 375, 382; 2 Williams on Ex’rs. p. 742; 1 Jarman on Wills, pp. 330, 751r 754; Timewell vs. Perkins, 2 Atk. 203; Pothier, Test. Yol. 7, p. 404; Pothier, Pand. XT, p. 590; Succession of Yalentine, 12 An. 287; Lawson vs. Lawson, 12 An. 603; Lebeauvs. Trudeau, 10 An. 165 j Succession of Foucher, 18 An. 1409.
    So, with regard to the rules of interpretation of wills in respect of lapsed legacies. The rules relating thereto, established by Statute in Louisiana, differ materially from the rule» in pari materia established in France, and radically from those established in England and the States of the Union, which have adopted the English legislation and jurisprudence . on the subject.
    By the 25th Section of 1 Yic. ch. 26, it-was enacted “that unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised, or intended to be comprised, in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of sucb devise, being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contaioed in such will.”
    The right of a legatee to take a legacy to another which has lapsed is termed, in the civil law, the right of accretion. The statutory enactments in Louisiana, regulating that right, differ radically from the English Statute referred to, which embodies the rule that prevails generally, where the English system of legislation and jurisprudence is followed.
    By the statute law of Louisianait was long since declared, that the right of accretion shall no longer subsist iu this State, except in two cases, viz: 1, Where a legacy is made conjointly, to two or more persons, by one and the same disposition, without the testator’s having asssigned the parts of the co-legatees in the thing bequeathed; and, 2, When a thing not susceptible of being divided without deterioration has been given by the same act to several persons; and the statute law declares, that except in the two cases stated, every portion of the succession remaining undisposed of, either because the testator has not bequeathed it, or because the heir or legatee has not been able or has not been willing to accept it, shall devolve on the legitimate heirs. The law thus establishes not only a tule of interpretation, but a rule of property, from which the Court is not at liberty to . depart. C. C. Arts. 1706, 1707, 1708,1709 ¡ C. N. 1044, 1045.
    Under the old Boman law, and that of the Pays de Droit Écrit, derived from it, there could be no valid will which did not institute an heir, and dispose of the entire estate. Under the system which prevails in Louisiana, derived from the Droit Coutoumier, it is otherwise. Under that system a person may dispose of bis estate by will entirely, or he may do so partially, and die partim testatus et partim intestatus.

    There is no presumption of law in Louisiana that a person making a will intends thereby to dispose of the entire estate of which he may die possessed. On the contrary, the law only presumes such intention where the dispositions of the will are “ couched in the future tense,” and where they are couched in terms of the past and present, or no time is mentioned, the presumption of the law is, that the testator intends to dispose only of property which he has at the time of making the will, or of so much thereof as is actually disposed of by the will. Dig. Lib. 1, XYII; De diversis regulis juris antiques, Nos. 7, 62 ; Mourlon, Yol. 2, p. 419, Nos. 824, 825, 826, 828; Marcadé, Yol. 4, p. 64, No. 92; Demolombe, Donat, et Test Yol. 4, Nos. 8, 11.
    The will of John Burnside, propounded and probated herein, contains no testamentary dispositions whatsoever couched in the future tense, further than must bo expressed or implied in every last will and testament; which must necessarily refer to the time of the death of the testator as time when it is to take effect, and contemplate and provide for its execution thereafter. With this reservation, all the testamentary dispositions of the will either express no time, or are couched in terms of the past and present. The residuary clause is couched in terms of the present, and does not constitute Oliver Beirne universal legatee, or legatee of the residuum of the entire estate of which the testator shall die possessed; but does constitute him-legatee of the residuum of the estate of the testator, at the time of the making of the will, remaining after deducting therefrom the sum of the legácies bequeathed to others by prior clauses of the will.
    As to the lapsed legacies, Beirne is precluded from taking them by the textual provisions the statute law of Louisiana, and the settled jurisprudence of the State. The values compromised in' such legacies pass db intestato to the legitimate heirs of decedent, or in default of such, belong to the State of Louisiana. C. G. 1605 (1598), 1606 (1599), 1612 (1604), 1625 (1618); Code Napoleon, Art. 1003; Mourlon, vol. 2, p. 415; Sirey, Code An. Art. 1003; Pothier, Testaments, Ch. 6, §§ 4 and 1, p. 298; C. C. 1706, 1707, 1708,T709; Code of 1808, p. 250, Arts. 194, 195, 196,197; Code Napoleon, Arts. 1044, 1045 ; Compton vs. Compton, 12 R.-56 ; Turner vs. Smith, 12 An, 317; Lewis vs. Williams, 14 An. 629 ; Deshotels vs. Soileau, 14 An. 745; Succession of Dougart, 30 An. 268; Laurent, Principes de Droit Eranqais, vol. 24, p. 316, No. 207; C. C. 1691 (1684), 1675 (1688); Pothier, Testaments, vol. 7, pp. 375, 382; 2 Williams on Executors, 742; 1 Jarman' on Wills, 330, 751, 754; In re Gibson, L. R. 2 Eq. 669; Pothier, Pandects, xi, p. 538; Dig. L. xxxiv, tit. 11,1, 7, de verbo Meum; Timewell vs. Perkins. 2 Atk. 203; Pothier, Testaments, vol. 7, p. 404, Regie, xi; Pothier, Pandects, xi, p. 590; Newman vs. Newman, 26 Beav. 220; Barnaby vs.'Tassell, L. R. 11 Eq. 363; Twining vs. Powell, 2 Coll. 266; 2 Mourlon, No. 818; 2 Williams on Executors, p. 890; 2 Mourlon, p. 449.
    " It is conceded that should it be finally determined that the entire estate of the decedent has been validly and effectually disposed of by the will, and that the estate is, as-to no part , of it, one db. intestato, and that, therefore, there can be no absent heirs, whose rights require protection, it will be proper to vacate the appointment of attorneys .of absent • heirs. The appointment was one proper to be made under the circumstances. The court below upon this application of the attorneys of absent heirs to have the will judicially construed, has decided that the succession is one db intestato, at least to the extent of one hundred and thirty-eight thousand dollars. Until the final determination of the cause in this court, it is proper that the appointment of attorneys of absent heirs should be maintained, to the end, that the questions involved in the judicial construction of the will may be properly presented to this Court for consideration and determination, and that the rights asserted for the heirs-at-law of the decedent, or in default of such for the State, may, in the event of their being recognized to any extent by the Court, be duly protected according to law. Rabouan vs. Rabouan, 12 L. 73; Addison vs. Bank, 16 L. 528; Lacey vs. Newport, 3 An. 227; Succession of Harris, 29 An. 746; Succession of Mayer, 12 H. 413; C. C. 1205, 1211; Acts. 1871, p. 200; C. C. 1156,1270; Dupré vs. Keggio, 6 L. 654 ; Meroier vs. Sherlen, 5 L. 474.

      Thomas Hunion and John MoEnery, Special Counsel for the State of Louisiana.
   The opinion of the Court was delivered by

Manning, J.

John Burnside died on June 29, 1881. Shortly thereafter his will was admitted to probate and was ordered to be executed. It begins thus:

New Orleans, April 28th, 1857.

I, John Burnside, being of sound mind and body, but mindful of the uncertainty of life, do by this my last Will and Testament, dispose of all my worldly estate, as follows :

Eighteen numbered clauses then follow, the first fifteen of which contain legacies to several persons and charitable institutions. The last three are in these words :

16. I do nominate and appoint Oliver Beirne, my late partner in trade', my sole executor to carry this, my last will, into full execution ; no security shall be exacted from said executor, Oliver Beirne, for the faithful discharge of the duties imposed on him by this, my last will and testament.

17. The residue of my property of every description—say stock in trade, promissory notes, accounts, my interest in the firm of J. Burnside & Co., stocks, etc., etc., etc., I bequeath to my executor, Oliver Beirne, subject to the payment of all my just and lawful debts, and the expenses incidental to my succession, as a token of my sincere regard for his uniform kindness and services rendered to me in early life.

18. At the end of twelve months after my demise, my executor, Oliver Beirne, will pay the bequests herein made, or as soon thereafter as possible.

John Burnside.

New Orleans, April 28,1857.

Oliver Beirne qualified as executor, and accepted the succession unconditionally. The Judge appointed Messrs. B. F. Jonas and Eobert Mott attorneys of absent heirs, and a rule was taken afterwards to vacate the appointment.

Interventions were filed on the part of Eobert B. Wilson, claiming to he a nephew and heir of the decease^, which seems to have been abandoned—by the attorneys of absent heirs on the part of such heirs as there might be, for whom it may concern, none being mentioned except tlie claimant Wilson—and by special attorneys for the State, all of-which aver that Oliver Beirne can take under the will only the residuum of such property as the testator owned at the time of making his will, and that as to all property acquired by him subsequent thereto he died intestate, and such property is inherited by his heirs, or in default of heirs escheats to the State.

Legacies amounting to $138,000 have lapsed by the death of the legatees before the death of the testator, and it is contended on the one hand that these legacies enure to the benefit of the universal legatee, and on the other, to the heirs and in default of heirs, the State.

Mr. Burnside was never married. If any relations survive him, they are distant collaterals. At the time of making his will he owned but one piece of real estate, bequeathed to Nelson McStea therein, which he sold many years before his death. At his death the bulk of his property was real estate, consisting of a princely domain of nine sugar plantations and a costly residence and grounds in this city. During the larger part of a long and busy life he had been in trade. His whole fortune at the time of making the will was invested in his dry goods business, and notes, accounts, stocks and such like, and amounted then to two million dollars. His partner Mr. McStea estimates it at that Sum, much more he thinks than Mr. Burnside was worth when he died. The inventories of his estate aggregate within, a fraction of eleven hundred thousand dollars.

The cardinal rule for the interpretation of wills is to ascertain the intention of the testator, and it is a rule of universal jurisprudence. It has been called ‘the law’ of the instrument, the ‘sovereign guide’ to those who seek the meaning of the will, ‘ the pole star ’ whither all must look who would find that meaning, and as Coin-Delisle has it, the trail which the Judge should follow in all its turns and windings. And yet, this rule has been so cumbered by glosses, so abraded and fettered by conditions superimposed by judicial construction, and so perverted by narrow pedantry, that in some courts it has come to mean, not that the intention of the testator must be sought, but whether he had expressed that intention in technical language. And this is exemplified by the candor of Lord Ellenborough when he said, “ if I were asked my private opinion as to what the testator meant when he used the words ‘ effects,’ I must suppose he meant to convey all his property for the maintenance of his family,” but nevertheless he would not give effect to that meaning by his judgment.

The common law has a vocabulary, of which certain words are used to designate various kinds of estates, tenures, etc., the meaning of which has been fixed for a time whereof the memory of man runneth not to the contrary. But to hold that a layman is supposed to know them, and do violence to his intention bjr construing them in their technical sense in an instrument, whereof the admitted .rule of construction is to ascertain his .intention, and thus to make them mean what he could not. have meant and what the Judge does not believe he meant, is not to follow that rule which all admit is the sovereign guide for interpreting a will. It is not quite fifty years since this Court held, only after grave debate and not with assured hearty conviction, that estate ” and “ succession ” might be considered as synonymous when employed by a man making his own will! Shane vs. Withers, 8 La. 489.

There can be no. doubt that John Burnside, when he wrote his will, intended to leave the residue of all property he then had to Oliver Beirne—in other words, he intended that Beirne should take his whole estate, subject only to the charges in the form of legacies. The will was made to avoid intestacy as to any part of his property, and had he died then, there could have been no question about the effect of the will.

Let us in the outset recognise the fact that the Code does not designate any words which must be employed to institute an heir, or to bequeath an universal legacy. It defines the latter simply as a testamentary disposition by which a testator gives to a person the whole of the property which he leaves at his decease. Rev. Civ. Code Art. 1606. It gives the name of legacy under a universal title to .that disposition by which a testator bequeaths a fixed proportion of his estate or all of a particular kind of property, or a fixed proportion of a particular kind, Ibid, Art. 1612, and then groups all others under one head in the class of legacies under a particular title. Ibid, Art. 1625.

It is not claimed that the bequest to Beirne is a legacy under an universal title. It certainly is not a legacy of specific property like the square of ground to McStea, or of a fixed sum of money like those to Andrew Beirne and others—“ a thing bequeathed,” in the language of the next article of the Code; and it is argued as evident that it is not a universal legacy because it is not a disposition of his whole property.

The words of the Code are not sacramental. It is not needful that a testamentary bequest shall be couched in the identical language of the Code, and if it is essential to constitute a universal legatee that all shall be given him without diminution, the only will by which such legatee could be named would be one which contained that disposition and no other.

Demolombe considers the question in two aspects, whether the legacies which precede the disposition of the residue are under a particular or universal title, (and we are concerned here "only with the former) and after stating .the arguments of preceding commentators says, the particular legacies which have been first made, not being of fractional parts of the whole—n1 ay ant pas fractions Vuniversálité—the legacy which follows will naturally embrace the entirety. 4 Donations et Testaments, Nos. 541-2. 3 Troplong Donations et Testaments, No. 1783.

The whole discussion of the French commentators upon this subject was before this Court in Compton vs. Prescott, 12 Rob. 56, and it was admitted there may be cases in which the legatee of the residue, or of the remainder of an estate, may claim as universal legatee, p. 66, and it was.later expressly adjudicated in Sue. of Fisk, 3 Ann. 705, wherein the Court, quoting Toullier—if a testator first give a particular legacy, * and then bequeath the surplus or residue of his estate to another, the latter will be an universal legatee—applies it as a rule of construction which controlled that case. It therefore follows that this is either an ■ . universal legacy, or it is a nondescript. When the Code divides all legacies into three classes, and a legacy is of such kind as to exclude it from two of them, it must be in the remaining class or not exist. But it would exist without classification. The testator’s disposition is therp, and effect must be given to it. It can be included in no other class but that of universal legacies.

This being ascertained, what is the effect of this legacy upon property acquired after making the will 1

The language of the testator is of the broadest and most comprehensive kind. In the exordium of the will he announces his intention to dispose of all his worldly estate, and after making a number of legacies then bequeaths the residue of his property of every description. Nothing is undisposed of. All his worldly estate of every description was intended to be passed by the will. What ground in law is there to defeat that intention 1 How dare a court disregard that intention, if it be assuredly ascertained ?

. The whole of one’s property—Vuniversálité—Rogron defines as a being or entity, distinct from and independent of the particular things of which it is composed, and therefore continues to exist although its constituent parts change. So Demolombe;—Vuniversálité, that is to say, this collective being which we call patrimony is susceptible of augmentation and diminution, and in its comprehensive meaning embraces all the property, movable and immovable, corporeal and incorporeal, known and unknown, present and future, of the testator. 4 Donations et Testaments, No. 531.

, It could scarcely be doubted that all the property of a testator of every kind would pass by such sweeping language as a general rule, but there are facts and circumstances peculiar to this case which it is Said prevent its application.

The testator at his death had none of the property in kind he possessed when he made his will. Speaking in general terms, he owned nothing but personal property when he made his will, and he owned nothing but realty when he died. Besides, in bequeathing the residue of his property, it is said he limited it by enumerating what he intended to give as stocks, notes, etc.

Here is manifest that tendency to technical construction which de- - etroys the vital essence of a will, its life—the intention—in order to give undue effect to words of secondary importance, The testator’s estate then consisted of the kinds of property enumerated, and nothing else. He meant to give all—said so—and added words descriptive of what all was composed of then. The word “ say ” used by him is not a word of limitation, but of illustration. To give that clause -any other effect would be to make the notes, stocks, etc., the exclusive and special objects of the legacy, as if the testator had written, I bequeath my notes, stock, etc.j.and written nothing else. How can such meaning be extracted from expressions so significant as those used, for not content with saying that he disposed of the residue of his property, he adds, as if to shut out misconception, of every description 1 ”

No argument can be drawn from the pecuniary result of the change? in investments. It cannot be said the testator could not have intended to enrich Mr. Beirne to the extent he will be by this real estate. The property as it was when the testator selected him as the recipient Of his bounty was worth more than it is now. The constituent parts of the. universality have changed, but the collective being survives, and comprises all the worldly estate.

It is however contended that the law itself has imposed stringent rules which are imperative upon testators in making, and upon courts in interpreting wills, and that the terms in which dispositions must be couched are. set, and have an inexorable meaning assigued them. Thus, a disposition couched in terms present and past does not extend to that which comes afterwards—if couched in the future tense, it refers to the time of the death of the testator—if the terms express no time, the disposition refers to the time of making the will. Rev. Civ. Code, Arts. 1720 (1713), 1721 (1714), 1722 (1715).

It would be a calamity if men were fettered by an unbending and inflexible formula for their expressions when doing an act which iit our country is not infrequently done without assistance. And the funest consequences of such a rule would be vastly augmented by its discouragement of the wise practice of making wills in health and before approaching dissolution. Men would be deterred from making wills until the possibility of making more acquisitions no longer existed, if there was danger of wills operating only upon property possessed at the time of making them.

In Shane vs. Withers, 8 La. 497, this Court refused to consider those rules applicable to universal legacies, ¿nd in Louisiana vs. McDonough, 8 Ann. 252, it was said that the enactment of these articles is not restrictive of the rules for the interpretation of testaments found in the body of the Civil law, and that all alike are landmarks to the Judge who must in every case exercise his discretion in applying these articles, ever bearing in mind that the least circumstance is at times sufficient to prevent their application.

Whatever may be the effect of these articles they cannot be considered as impinging the fundamental rule, formulated by the Code under the same division of general rules for the interpretation of legacies, which enacts that the intention of the testator must principally be endeavoured to be ascertained. Eev. Civ. Code, Art. 1712 (1705). They must be read along with the recognition of that controlling principle, and be construed in subordination to it.

No greater force was ever given to those articles until in the Sire, of Valentine, 12 Ann. 286, and Lawson’s case, Ibid. 603. The manner of treating the subject in those cases hardly implies that it received attention commensurate with its importance. A single sentence in the last case disposes of the matter contrary to the previously accepted view. We cannot follow those cases. They stand alone. They apply an inexorable rule which ought not to be applied unless an unambiguous law compels it, and the application is hostile to the spirit of our jurisprudence upon wills, and contrary to the express enactment of Art. 1712 (1705).

Our conclusion is that the will speaks as of the date of the death of the testator, and therefore carries the residue of all the property then owned by him, after deducting legacies.

One other question remains. To whom do the lapsed legacies fall ?

The law of accretion had given rise to perplexing discussions among the French legists, in which the disputants had revelled until they were lost in a maze of subtleties and refinements. Our Code put a quietus upon the continuance of these discussions here by inserting a prohibition of the existence of the right of accretion, except in two cases—for the benefit of legatees when the legacy is conjoint; or where it is to two or more persons of the same thing, which cannot be divided without deterioration. Eev. Civ. Code, Arts. 1706 (1699), 1707 (1700), 1708 (1701). The next Article provides that except in these cases, every portion of the succession undisposed of, either because the testator has not bequeathed it, or because the person to whom it is bequeathed has not been able or willing to accept it, shall devolve upon the legitimate heirs. Ibid, Art. 1709 (1702). Note the traduction of this Article in the Code of 1808, Art. 197, t. 11, b. 3.-

It is confidently asserted these Articles are conclusive, but they have no application to the case before us, because it is not the right of accretion that is invoked by the universal legátee, but that other principle by which, as legatee of the whole, lie is invested with the right to whatever is not legally and validly given away.

The identical question in the case at bar was' presented to this Court in Prevost vs. Martel, 10 Rob. 512, where- quoting the last Article at length and others pertinent to the matter in hand, the Court say : “ it is clear therefore that there being no forced'heir, the universal legatee is bound to discharge all the legacies,- * * ■ and that in case of their failure, he should be entitled to take them as a part of the succession,” p. 518. The same principle was asserted in Major vs. Esnault, 7 Ann. 51, citing and approving the above case, and the whole subject was reviewed and reconsidered with the same result’in Lebeau vs. Trudeau, 10 Ann. 164.

In Sue. of Foucher, 18 Ann. 409, it was said it was optional with the testratrix, having no forced heirs, to bequeath to or withhold from-her relatives, and the construction must prevail that she desired the' property to be distributed among her instituted heirs, and that the will should be read as if the name of the legatee of the lapsed legacy had never been in it.

These were followed by Hoover vs. York, 24 Ann. 375, where the Court say, the lapse of a particular legacy, by reason of the incapacity of the legatee, enured to the benefit of the universal legatees, and not to the collateral heirs, p. 380. In the Suc. of Dougart, 30 Ann. 268, the Court cited Hoover vs. York, and said, if these parties are universal legatees, they profit by the caducity of legacies to the exclusion of the heirs at law-, p. 273, and this long line of uninterrupted and consistent ruling culminates in Suc. of Dupuy, 33 Ann. 277, where it was held that a legacy lapsing by the death of the legatee before the testator, enured to the benefit of the universal legatees, p. 282, thus’exhibiting a remarkable consensus of opinion upon this particular question, this Court having seven times affirmed the principle, and on each occasion with a different personnel of this Bench—seven courts, each differently constituted from the others. '

And why should it not be so ? The testator had formally and expressly disposed of all his estate, selecting a stranger in blood as the object of Ills bounty, and thereby evincing his intention to put him in his own stead and place, to the exclusion of kindred. It is he that ought to take adempted legacies, they- being a-part, when caducity occurs, of the universality of the property. •

Ceci nous conduit á poser en principe certain et incontestable, comme nous l’avons. déjá énoncé, que dans le silence du testament, le legs universel profite de la nullité ou la caducitó des autres dispositions. C’est la consequence nécessaire de la1 définitiorí conteñué dans' notre article. Puisque le legs universel embrasse présenteme'nt ou éventuellement l’universalitó des Mens du défúnt, il faut reconnaítre que tout ce dont il n’a pas été valablement ou utilement disposé s’y trouve inévitablement compris. Ainsi deviennent forcóment la propriété du légataire ■ universel tous les objets que le testateur avait léguós a des tiers qui, pour une cause ou pour une autre, ne peuvent pas les recueillir.” . 4 Saintespes-Lescot, No. 1314.

An ingenious argument is made against the- principle of these decisions, and an attempt is made to break their force by the citation of Turner vs. Smith, 12 Ann. 417, wherein, it is said, the contrary rule is maintained, but the legacy there was under universal title,' as was also the case in Lewis vs. Williams, 14 Ann. 625, and Deshotels vs. Soileau, Ibid. 745. Even if it were conceded that they sustain the principle contended for, they could' not stand against the well considered opinions in the line of .cases already cited, for it will be observed this particular question is disposed of in those three cases curtly and without a solitary reason therefor.

It is therefore ordered and decreed that the judgment of the lower court maintaining the interventions of the ■ attorneys of' absent heirs and of the State, and decreeing the heirs of John Burnside, or in default of heirs, the State of Louisiana to be entitled' to the sums bequeathed to persons who died before the testator, is avoided and reversed, and that portion of the judgment which recognises Oliver Beirne as residuary, legatee of the testator* is amended,' in this; that the said Oliver Beirne is now adjudged to be the universal legatee of John Burnside, and as such that he is entitled to the whole estate of said testator, after deducting therefrom the aggregate amount of the particular legacies which have not lapsed by the death of the legatees before the death of the testator, and he is also recognised as the executor of said testator. And it is further ordered that the dismissal of said Oliver Beirne’s demand for the revocation of the order appointing attorneys for absent heirs is reversed, and his said demand is now maintained, the costs of appeal to be paid by the succession.

Concurring Opinion.

Fenner, J.

It scarcely admits of dispute that, under the existing law of France, of England, and of the States of this Union, Oliver Beirne would, under the terms of the will in hand, take all that is claimed for him in this litigation. The main contention of the learned counsel for absent heirs and for the State is, that the controversy is dominated by certain statutory provisions found in the Civil Code of Louisiana which, they maintain, lead inevitably to the exclusion of Beirne: 1st, from property acquired by the testator after the date of the will; 2d, from the lapsed legacies.

' According to their own view, it is a question purely and simply of Louisiana law—of the construction of Louisiana Statutes.

If we shall conclude that a construction of these statutes, founded on reason and sustained by jurisprudence, conforms the law of Louisiana, in these repects, to that of the enlightened countries and States first named, we shall at least feel safe that such conclusion will not presumably violate justice or policy.

The exceptional provisions of our law, chiefly relied on, are Articles 1722 and 1709 of the Civil Code.

- 1. Article 1722, which is relied on as confining the legacy to Beirne to the property possessed by the testator at the date of the will, is one of several Articles denominated by the Code itself as “ general rules for the interpretation of legacies.” Of these rules it was forcibly and truthfully said by Judge Host, that they are mere advices given to the Judge, landmarks they might be called, taking effect in the cases to which they apply, not so much ratione imperii as imperio rationis.' State vs. McDonough, 8 An. 252.

■ They are mere aids and guides in ascertaining the true intention of the testator, and are not entitled to that rigidity of domination, which seems to be claimed for them by counsel.

Article 1722, though excluded from the French Code, is a literal translation of the trigésima secunda regula of the Pandects. 11 Pothier’s Pandects, p. 538,

It is there said, in substance, that this rule has no application to universal legacies, which, from their nature, are susceptible of augmentation or diminution.

The same doctrine has been expressly held by this Court. Shane vs. Withers, 8 La. 489; Shaw vs. York, 5 An. 146.

The contrary has never been expressly held in any case.

- Succession of Valentine, 12 An. 286, which is relied upon as over^ ruling those cases, does not mention them, and is expressly based upon the peculiar phraseology of the will,” which evidently contemplated the property then possessed,- as appears from various clauses.

- Lawson vs. Lawson, 12 An. 604, is. of still less force, as, though the terms of the will are not given, it is stated that •‘the wife was a particular and not a universal legatee,” from which we infer that there was no universal legatee.

Shane vs. Withers has never been overruled. Why should we now overrule it ? It merely applies a limitation to Art. 1722, which was applied in the system from which it was taken, and it conforms our law, to this extent, to the systems which the experience of the most enlightened countries has adopted in the interpretation of testaments; It enforces the manifest intention of the testator in the present case; who made his will in expressed anticipation of death, and with the desire of disposing of“ all his wordly estate,” and not to die intestate' as to any portion thereof.

The residue of all his worldly estate,” did not cease to be the residue, because the constituent portions thereof changed.

- 2. The next important question, and perhaps the most difficult one in the case, is, whether a disposition in a will by which, after first bequeathing particular legacies only, the residue is bequeathed to a person, is a universal legacy.

So far as this question is concerned, the provisions of our Code, affecting it or bearing in any manner upon it, are identical with those of the French Code.

The French authorities are, therefore, entitled to their legitimate weight in its determination.

They are unanimous in support of the general proposition above stated; and their arguments in its favor seem to me irresistible. 4 Demolombe, No. 541; Troplong, No. 1783; Coin Delisle, p. 451, No. 8; 5 Toullier, No. 513; 4 St. Espes-Lescot, No. 1685; 7 Aubry and Kau, pp. 465-6.

■ This is fully conceded by the learned Judge a quo in his able opinion, and he professed his reluctance to adopt a theory differing from such eminent authorities; but he arrives at the conclusion that the jurisprudence of Louisiana does not conform in regard to the point at issue to the views expressed by these writers, and is much better founded in reason and supported by logic.”

I have carefully studied the cases in our reports on which he bases this opinion.

Compton vs. Prescott, 12 Rob. 56, was a case where the residuary bequest was preceded by a legacy under universal title.

Far from overruling, the opinion quotes, without dissent, the doctrine of the French jurists, that if.a testator, after making'a'particular legacy, gives the remainder of the estate to another legatee, the latter should be. considered a universal one; ” and proceeds to difference the case in hand from that doctrine. P. 66. /

Turner vs. Smith, 12 An. 417 and Deshotels vs. Soileau, 14 An. 745, rest entirely upon the authority of the foregoing case, and-give no reasons whatever.

Succession of Dougart, 30 An. 268, rests upon peculiar principles not involving the proposition under discussion.. ‘

In no case has this. Court ever advanced the .general proposition, that a residuary legacy, following ,ouly specific particular legacies-, is not universal in its character. The cases above quoted rest upon their own peculiar facts. It is not pretended, even by the French authors, that the general doctrine is without exceptions. On the contrary, after announcing the general principle, Coin Delisle says: “ Cependant, ‘les tribunaux n’ont pas toujours consideré comme un legs universel la disposition du restant des biens, aprés le paiement des autre legs. Us ont le pouvoir d’examiner si, dans la volontó du testateur, ces expressions ont eu pour objet de limiter le droit du légataire; et s’ils reconnaissent que telle est son intention, ils refusent au légataire du restante l’accroissement qui résulterait de la nullitó de certains legs particuliers, etc.” P. 451, No. 8. So says Marcadó on the subject: “Ce sont 1&, on le voit, des questions de fait, des appróeiations des circonstanees et d’intention, abandonnóes & la sagesse des magistrate.” . -' '

■ I am constrained to suppose that, in the cases referred to, the Court exercised this liberty, and did not intend to announce a general principle adverse to the French doctrine. And, indeed,: on examination of the particular facts presented in those cases, I see no reason to question their correctness. .- .

. On the other hand, I consider that Compton vs. Prescott impliedly recognizes the French doctrine, and in two other cases, this Court has expressly recognized it. Succession of Fisk, 3 An. 705; Majors vs. Esnault, 7 An. 51.

- For these reasons, I cannot concur in the opi-nion' of the District Judge that our jurisprudence has established an interpretation-of our Code adverse to that of the French commentators and courts, still less, one more conformable to reason and logic. it,.

If the general principle is applicable in any case, it is applicable to the will in this.

3. The next and final question is., whether legacies - which lapse enure to the benefit of the universal legatee or of the iegal heirs.

The claim of the universal legatee is sustained by a course of decision too inveterate to admit of question. Prevost vs. Martel, 10 Rob. 513; Majors vs. Esnault, 7 An. 51; Lebeau vs. Trudeau, 10 An. 165; Succession of Foucher, 18 An. 409; Hoover vs. York, 24 An. 375; Succession of Dougart, 30 An. 273.

Taken in connection with the foregoing propositions, this disposes of the case.

Articles 1706 and 1709 of the Code have no application, because they refer only to accretion, and this is not a question of that character, but rests oh the different doctrine that the universal legacy, by its nature, comprises everything which lias not been otherwise validly disposed of. 4 St. Espes-Lescot, Nos. 1313-14; Lebeau vs. Trudeau, 10 An. 164.

An additional reason is that, by the very nature of a universal Legacy, where the will only makes other particular bequests, no portion of the estate remains “undisposed of,” which is a condition precedent to the application'of Art. 1709, by its own express terms.

In on.e case, this Court said : “ by the death of the particular legatee during .the lifetime of the testatrix, her will, under Civil Code Art. 1690, would be read as if his name had never been mentioned in it, unless a different intention of the testatrix could be gathered from the face of the instrument” Succession of Poucher, 18 An. 409.

Reading Burnside’s will as if the lapsed legacies had never been written in it, there would be no doubt that Beirne would take all except the effective legacies.

I have thus undertaken to eviscerate the pivotal questions upon which this important litigation hinges, and to announce the course of independent reasoning and investigation by which I have reached the same conclusions announced in the chief opinion-just read, and there much more ably and elaborately sustained. Por these reasons, as, well as for those there stated, I concur in the decree herein. . ,

Rehearing refused.


source: Caselaw Access Project

author: Manning, J.

license: Public Domain

text:
    No. 8735.
    Charles Hann vs. John C. Ruse.
    An attachment bond is fatally defective if it does not contain mention of the person, or of the property against which the writ issues. Its recitals should shew unmistakably, and without the aid or need of extraneous proof, what or whose property is attached.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      Chas. A. Conrad for Plaintiff and Appellant.

      : Nioholls & Oarroll for Defendant and Appellee :
    The writ of attachment, in case of non-residents, is not merely a conservatory writ, but is the basis and foundation of jurisdiction, which cannot be acquired except under the very letter of the law, allowing the process. 10 An. 324; 18 L. 367. Defendants have every presumption in their favor. 14 L. 503-j 11 An. 622,- 15 An. 709.
    The petition must’not be couched in general and sweeping terms, but must be drawn in terms so clear and precise as would subject the plaintiff to the charge of perjury, if the allegations were not true. 11 An. 622.
    When an attachment is levied on a claim not due, the petitioner must swear that the debtor is about to remove his property from the State before the debt becomes due. 8 L. 585; 14 An. 96 ; 13 L. 479 ¡ 2 An. 498, 920 : 8 R. 428.
    In the case at bar plaintiff does not declare that his debt is past due, nor does he make the oath required when a debt is to become due. Not only is his petition ambiguous, but a paper, on which plaintiff sues, referred to in the petition (probably showing whether the debt is past due or to become due) is kept in the background.
    The petition does not set forth the jurisdictional facts necessary to authorize an attachment.
    Plaintiff and defendant are both citizens and residents of the same State. Doth parties are presumed to have contemplated a settlement of this affair in the home forum. There is • no allegation of fraud, or ill-practice of any kind.
    The law of attachment never contemplated that, under these circumstances, one of the parties can attach the property of the other on the bare and bald allegation that the latter ■ has property in Louisiana. Where $he relations between the parties show that both looked to a different time, place and method of settling their rights, than by such proceedings, “• our courts should not be made the handmaids to defeat the lawful administration and distribution of property iix other States.” 6 An. 24i; 12 An. 49; 18 L. 367; 9 An. 535; 16 An. 47.
    An instrument claimed to be the necessary bond is pasted to the petition. This instrument is utterly insufficient.

      (a) The order of court contemplates a bond to be furnished. The paper annexed to the petition is ignored, and the attachment is directed to issue “ on petitioners giving bond according to law.” No such bond has been furnished, and the writ issued without warrant.

      (b) The instrument in question has never been filed.

      (c) This instrument is dated 28th .February, 1882, and refers, as its basis, toa petition’ presented that day j while the petition m this matter was not filed until March 11,1882.

      (d) The paper does not state as against whom or whose property the writ is sought.

      (e) There is no reference by number or title to the suit by which an attachment.is asked.

      (f) Even the amount set forth in the instrument is different from that fixed by law for an attachment bond, when the sum claimed is the amount of plaintiff’s demand.
    There is absolutely nothing on the face of the papers to identify the instrument with this suit, and anyone, in interest herein, on attempting to hold the surety would not only have to explain, hut to contradict, by parol evidence, a written obligation of suretyship.
    This is certainly not such a bond as our law requires.
    But plaintiff contends that the defects of the bond are cured by testimony of the surety taken May 12th, 1882, two months after the writ issued.
    No evidence curing the defects of the bond could be admissible, but were it admissible, there is no such evidence in the record.
    The best evidence, however, could not help plaintiff here. “ The writ, if improperly issued, cannot be aided by proof at the trial, * * nor by admissions in subsequent pleadings, the observance of the legal requisites being in the nature of a condition precedent.” 4 An. 452; 5 N. S. 45) 6 La. 586 * 10 An. 155; 12 An. 71 j 14 An. 708; Hen. Dig. p, 48, Nob. 6 and 7.

      An attachment must stand or fall according to the state of faots existing when it is issued. It cannot be cured by a subsequent event. 10 An. 324; 14 An. 436; 12 An. 72 ; 15 An. 523.
    The instrument in question is no bond. 32 An. 525; 6 L. 586 ; 10 An. 155; Drake on Attachment, Ch. 6, Sec. 129; 13 Texas, 368; 3 Blackford, 361; 5 Blackford, 227.
    The answers of the garnishee are copied in this brief. They have not been traversed. Garnishee declares that he is collecting a certain claim or certifícate for defendant; that the certificate is due only when all of certain assessments have been paid in, and that he cannot say when all of said assessments will be paid in. Garnishee denies having-.any property of* or being indebted to defendant.
    If there be any debt at all, it is contingent, conditional and prospective. There is no absolute* indebtedness. Neither plaintiff nor defendant could on the garnishee’s answers hold the latter to the payment of oue cent.
    No seizure has been made and defendant is not in court.
   The opinion of the Court was delivered by

Manning, J.

This appeal is from a judgment setting aside an attachment because of a defective bond, or as the Judge below expresses it, a bond utterly null and void. The 'cause of nullity is stated by him to be the failure to recite in it the name of the case, or under what title the writ issued, and the ruling is based on Percy vs. Millaudon, 6 La. 585; Dunlap vs. Price, 10 Ann. 155; Suc. of Walker, 32 Ann. 525.

Neither of these decisions have any bearing on the question. They relate to appeal bonds. The difference between appeal bonds and attachment bonds is too patent to require specification. They serve different purposes aud are regulated by different laws.

The bond in tills case is dated February 28,1882. The affidavit was made a week before, and the petition was filed and the order granted March ,11th following.

It is not unusual or irregular that the bond should antedate the filing of the petition, and there is an obvious reason why the name and number of the suit should not appear in the bond. The law contemplates that the bond may be executed anterior to the filing of the petition by expressly providing that the writ may issue without any petition being then presented,” Acts 1880, p. 20, and in that event the writ would issue before the case is numbered and docketed.

But although this lack of correspondence in dates is unimportant, the bond should contain recitals which unmistakably indentify it with the other proceedings in attachment. The remedy of attachment is harsh and rigorous, and it has been often said the party using it must bring himself within its plain intendment. The observance of the legal requisites is a condition precedent to the exercise of the right.

The recital of this bond is, whereas Charles Hann has this day presented a petition to the Civil District Court for the parish of Orleans pray ing a writ of attachment to issue, now the condition of the above obligation is that we, the above boun den principal and surety, will well and truly pay to the said clerk or his successor in office, for the benefit of any and all persons interested in said suit, all such damages as may be recovered against us in case it should be decided that the said writ was wrongfully obtained.”- • *. • ’ ■ * ■ ; '

There is no indication of the person, or property'against which the writ is issued. There is nothing in any recital qf the bond connecting it with Ruse, or with any proceeding against-Ruse’s property.

The plaintiff’s counsel insists there need be none, becatise tlie bond is required to be annexed to the petition,' and is explained by it. Annexing the bond is required equally in cases of arrest,.sequestration, and injunction. This bond purports to be for a -petition that day presented. No petition asking process against Ruse or his property was presented on that day, or on the following day as it might have been,' and not until eleven days thereafter. ....

The amount of the bond would not serve to identify it with, the petition. The sum claimed is $2,000 less credits of $75. The amount of the bond should bé a sum equal to that which is claimed. Code Prac. Art. 245, amended by Acts of 1880, p. 21. The bond is for.$3,200. We refer to the amount of the. bond only in connection .with the question of identity. The bond has not been filed.with the suit, that is, it has not been marlked by the clerk in any manner that would identify it with the suit. ...... . .. ,

So far as the surety’s obligation upon. the. bond goes, there is nothing appearing that he is surety for any damages to result from attaching Ruse’s property. If sued upon it,.-and he should plead in defence that he was surety for an attachment taken out on February 28th and no other, and that he was not surety on any attachment of Ruse’s property, and should object to parol testimony connecting his obligation with the attachment actually levied, how could this bond be -identified with that process?

An attachment, bond should contain recitals which indicate unmistakably, and without the aid of extraneous proof, what or .whose property is to be attached, so that the party aggrieved by the execution of the writ may have his recourse upon the bond and the surety thereto, without resorting to other methods of connecting the one with the other. .

We have shewn that this requisite has not been complied with in the present case, and the proceedings must be set aside,

Judgment affirmed.

Rehearing refused.


author: Fenner, J. < Manning, J. . : Fenner, J. Todd, J. Bermudez, C. J. .

text:
    No. 8774.
    The State of Louisiana vs. Adolphe R. Murdoch.
    Under an indictment for shooting with intent to murder, a verdict of “inflicting with a dangerous weapon a wound less than mayhem,” is fatally variant.
    The two offenses are separate and distinct crimes which could not be joined in the same count' of an indictment.
    The offense found is not necessarily embraced within that charged.
    APPEAL from the Criminal District Court for the Parish of Orleans. Roman, J.
    . <7, G, JEgan, Attorney General, for the State,. Appellee: .
    A record in a criminal case, which comes up without bills of exceptions-or motion in arrest* , presents nothing-for this .Court to consider, and the judgment .appealed from will be affirmed.
    The- “Criminal District Court for the parish of Orleans” is the only name by which said Court is known, or may be designated.- Constitution'of 1879, 'Art, 130. ■ ': ’
    The time and place a9 regards the “intent” in the crime of “ shooting with intent to 'commit murder,” are sufficiently set forth by the words: “with intent ip. so doing*,” or even without ihe use of the words; in so doing, where the act and intention are expressed as set forth in the statute. '
    The verdict of “guilty of wounding, with a dangerous weapon, less than mayhem,” is responsive to the charge of “.shooting with intent to commit murder.”- .88 An. 434.
    The crimes defined in Sections 791, 794, H. S-, are separate and distinct offenses. 10 An, 171 34 An.
    An acquittal or conviction, on the trial of the one, cannot be plead in bar of a prosecution foi . . the ¿other, although the same transaction be the basis of both charges! - •
    ' Henry O. Castellanos and Arthur Gaslinel for Defendant and Appellant i
    1. Variance-between the verdict and the information. Seotions 791 and 794 R. S.; 6 An. 286 • .32 An. 571; Arcbb. 49; 32 An. 812; 31 Mel386.; 30 An..311; 10 An. 191; Wb. Cr. L. 133 5 .1 Chit. C. L. 283; Bish. C.L.813; 30 An. 1173; 30 An. 61; Seotions 792=3-4, R, S,;. 2 Martin, Ó. S. 48; 8 Rob. 642; Bisb. C.L. 819; 24Miss.54; 1 Ch. C. l! 233; Russ. & Ry„C. C, 365; 2 East, P. C.; Roso. Cr. Ev. 328; 13 Sm. & M. 242; 11 Ib.317; 7 Carr. &. Payne, 51S% . 3-Johns. R. 511; 2 Stark. Ev. 416, 419. !i . • . ' .
    2. The information is fatal for uncertainly as to time and place. Arcbb. 43,-. Wb. C. L. 261; . 272; ,Cb. C. L. 219,.222; Wh.Prec.; 8 Rob. 600; 1 Cb. 218, 219; Stark. C-PI. 58, 62, 65 ; 2 'Rale, Í78; Arch. C. R."34; 2Hawk. Cap. 23,Sec. 88.
   The opinion of the Court was delivered by

Fenner, J.

Error is assigned on the face of the record, upon the following ground: “ that the verdict rendered herein is null and void,' there being a fatal variance between the crime charged and the finding of the. jury.^ '• "

•'•■•-'The'-information charged the prisoner with the offense denounced in Section-791, Rev. Statutes, viz: shooting with intent to commit murder. ■The verdict"was: “ guilty of wounding with a dangerous weapon less than mayhem; ”• being the offense denounced in Rev. Statutes, See. 794".

We have heretofore held, that the offense of stabbing “ with a dangerous weapon, with intent to commit murder,” (covered by Sec. 791, R. S.) and that of wounding with a dangerous weapon less than may-:, hem, were separate and distinct crimes, which could not be joined in the same count of an indictment. State vs. Johns, 32 An. 812.

In a prior case, the precise question here presented arose, and it was held that, under am indictment, charging shooting with intent to kill br murder, a verdict of guilty of inflicting with a dangerous weapon a wound less than mayhem, was fatally variant. State vs. Pratt, 10 An. 191.

This authority, if adhered to, is conclusive. We find its reasoning apt and satisfactory, and its doctrine well supported by authority.

' The reflection cast upon it in Jessie’s case, 30 An. 173, was uncalled for and, we think, resulted from inadvertence in not observing the fundamental difference between the two cases.

In Jessie’s case, the verdict was “guilty of inflicting a wound less than mayhem with intent to MU;” the italicized words bringing the case within the authority of Stouderman’s case, 6 An. 286, which held, that a verdict of wounding with intent to Mil was covered by the information, charging assault with a dangerous weapon with intent to murder; or, in other words, that the intent'to Mil was necessarily included within the intent to murder charged.

But in Pratt?s case, as in the instant one, the verdict was silent as to any intent, and the Court, after approving Stouderman’s case, said: “ But the charge of inflicting a wound less than mayhem is not necessarily included in a charge of shooting with a dangerous weapon with the intent to kill and murder. * * * Here the jury have found a verdict for a statutory offense hot charged in the bill of indictment by averments comporting with the terms of the statute, and not necessarily embraced in the offense as charged.”

'• -We adhere to this doctrine, which equally results from our own prior decision in John’s case.

We have examined the text writers and authorities in England and America, without finding anything in conflict therewith. .Take, for instance, the enumeration by Mr. Wharton of the cases in which verdict for a minor may be sustained under indictment for major offense.: “ Thus, if A be charged with feloniously killing B of malice prepense, and all but the fact of malice prepense be proved, A may clearly be convicted of manslaughter, for the indictment contains all the allegations essential to that charge. * * * Another illustration is that bf assaults upon, officers, assaults with battery, or assaults witli felonious intent, where, as has been seen, all but the assault may be rejected as surplusage, and the defendant convicted of that alone. And so of indictments for adultery, in which they may be convictions for fornication. An indictment charging that the defendant did embezzle,' steal, take and carry away,’ will be good for larceny.” 1 Whart. Cr. L. Sec. 627; 1 Archbold, pp. 309, 310.

• In every case cited, proof of the major would necessarily include' proof of the minor offense. •

' But obviously, proof of “ shooting with intent to murder,” might well be made without proof of “ inflicting a wound less than .mayhem.’?.' The nature of the wound, which is of the essence of the latter offense,; is not directly or indirectly put at issue. There is to be considered the; further fact that, under a charge of shooting, defendant is found guilty of inflicting a wound less them mayhem with a dangerous weapon, which, for ought that appears, may not have been a shooting at all. • •->

If Delany’s case, 26 An. 434, is in conflict with Pratt’s case, which is doubtful, it is unreasoned and it is .not supported by the-authority which it refers.

The unfleported case at Monroe, referred to, is unknown to us, and: could not avail with us to overrule the well-considered and thoroughly; sound doctrine of Pratt’s case.

It is, therefore, ordered that the judgment be arrested, that the sen-, tence be set aside, and the prisoner discharged.

.Dissenting Opinion.

< Manning, J.

It js a settled principle.of criminal law that whereon© has been indicted for any offence, he may be convicted of one of less; magnitude, provided the offences be of the same generic class. ■ Whar-*. ton Cr. Law § 384, State vs. Ford, 30 Ann. 313. The question at issue here is, is the crime of which, the prisoner was convicted of. the same class as that with which he was charged?

■ In State vs. Pratt, 10 Ann. 192, it was held they were not, and it has. never been so held since until in the present case.

In State vs. Delaney, 28 Ann. 434, the accused was charged with as?, saulting and stabbing with a dangerous weapon with intent to commitmúrder, and was ‘ convicted of assault with a dangerous weapon and inflicting wounds less than mayhem. The conviction was held good,' and is in direct opposition to the ruling in Pratt’s case. The charges-in the two cases are identical, shooting in the ease being only replaced by stabbing in the other, and the same verdict was rendered. Pratt’s', ■case was not mentioned in the opinion, but a case is none the less overruled by a contrary , doctrine in a subsequent one because it is not said" •go in -terms. . . .....

, The point was not presented again until State vs. Jessie, 30 Ann. 1173, where it was examined quite independently of Delaney’s case, which was in its turn not alluded to, but Pratt’s was. mentioned, and the Court refused to follow it, and sanctioned the verdict upon the indictment, both of which are the same as in the ease at bar. That ruling was adhered to in State vs. Williams, 30 Ann. 1162, and in State vs. Tumblon, decided at Monroe and unreported.

' I think these later decisions correct, but since there is conflict of opinion it becomes necessary to penetrate the philosophy of these qriminal rules, and to ascertain the rationale of the principle which in criminal practice justifies a verdict of a minor offence under an indictment for a major. - .

, Such verdict was justified even at common law-with all its strictness of criminal pleading, and attempts were made to exclude the principle from any application to prosecutions for statutory offences, on the ground that each statutory-offence -was distinct in itself) but the courts did not hesitate to hold that where crimes were defined by statute in set words, a conviction of one of less magnitude was legal under a charge of a greater. .

The gist of the matter and the raison d'etre of the rule is, that while the law will not permit two offences of the same class to be included in the same count because it tends to confuse the prisoner in his defence, it does sanction a conviction of a less offence under a charge of a greater because the prisoner cannot be confused in his defence. And why? For the reason that the evidence which is admissible to support the crime charged is equally admissible to support the crime found. - There being a single act for which the prisoner is indicted, and the indictment charging it as constituting a grave crime, when the evidence .which has been properly admitted under the averments of the indictment does not sustain the charge as made, but does sustain another crime less grave, the conviction for this latter is legal.

And thus it appears to me incontrovertible that the true test in a question of this kind is—was the evidence, that is admissible under the charge as laid, pertinent to the inquiry of guilt for the eharge.as found* And that is what the books and the courts mean when they say the offences must be of the same generic class, because it is only when they-are so that evidence, admissible under one, can possibly support or be pertinent to the other, and that is wliat is meant by the expression that the one is necessarily included in the other. . .. . .

To illustrate: under an indictment for rape, a conviction of thrusting, with a dangerous weapon would not hold good, (.except .perhaps in a court of wags) but a conviction for an assault would be good-... In an indictment for burglary or robbery, a conviction of arson would-be bad, but one for theft would not. If evidence were offered to prove arson, it would be excluded because not admissible to prove burglary, but evidence offered-to prove burglary and admissible for that purpose, might not be- sufficient to prove burglary but could prove theft.

. Apply this test to the present case. The prisoner was charged with shooting with a dangerous weapon with intent to murder,. He was convicted of woupding with a -dangerous weapon less than mayhem. . Testimony that5 was admissible to prove shooting with a dangerous weapon with -intent to commit murder, if not sufficient to prove that the act done by the prisoner amounted to that offence, would unquestionably be pertinent to the other. The evidence necessary.to-sustain the two offences is the-same in kind. It differs only in-.degree.-' If evidence is offered1 to prove the shooting, and that it was with a dangerous weapon, and the intent was to murder, and it does prove the shooting, and that the weapon .was dangerous, -but does not prove, the murderous intent, what crime have you proved ? Assuredly the crime of wounding with a dangerous weapon, either mayhem, or less than mayhem, in this case the jury found less than mayhem. If one shoots with a weapon and hits, does he not wound ? If- he wounds less than mayhem is not that necessarily included in.the shooting with the danger-pus weapon with intent to murder? Shall it be argued that the intent, which constitutes the gravamen of the one offence, is fatally absent from the other ? The distinction between murder and manslaughter is in the malice prepense, the intent of the act. But who ever doubted that a conviction of manslaughter.-was-good under an indictment for piurder.

- It is not necessary, say the New York court, that the particular intent and circumstance characterizing a lower degree of crime shall be Stated, when the act for which the accused is indicted is of the same class as that for which he is convicted. Although the indictment contains averments constituting the offence of the highest degree of that species of crime, and omits to state the- intent of the lower crime, the conviction of the latter is good,. Keefe vs. People, 40 N. Y. 348; People vs. Thompson, Ibid. 1.

, ,The counsel for the defendant observe that the correct- doctrine is Stated in State vs. Stouderman, 6 Ann. 286, and so it is, but they can get from it.no countenance for -the position they have advanced. On the. contrary the three cases of Stouderman, Delaney, and Jessie are perfectly consistent and harmonious, and all three must be disregarded if effect be given to Pratt’s case., In Stouderman. the Court, conclude the reasoning, which the defendant’s brief characterizes as forcible and unanswerable thus:

This general proposition is true that offences, created by different statutes, cannot be included in one count. But when the crime prohibited by one statute is greater in degree and includes the crime punished by the other statute, the greater crime denounced in a single Count necessarily embraces the prosecution of the lesser crime, for-which therefore the accused may be convicted under the count.”

. The crime of which the défendant was convicted is included in the Crime with which he was charged, and therefore the prosecution of the greater necessarily embraces a prosecution for the less, because the evidence which was admissible to support the crime charged is pertiiient.to prove guilt of the crime of which he was convicted.

- I think the verdict was legal and the sentence should stand.

Bermudez, C. J. I concur with Mr. Justice Manning.

ON Application for Rehearing.

. : Fenner, J.

The brief for rehearing, filed by the learned Attorney General, fails to produce a single case which does not fall distinctly Within the principles of our original decision herein, and thus confirms our conviction of its correctness. Indeed, the more we have reflected-upon it, the better satisfied have we become that the doctrine advanced by the State'is inconsistent with the fundamental principles of criminal-law. ,

■!' Its-first idea is, that nó man can- be,convicted of any crime with: which'he has not been distinctly and specifically charged by-indictment or information. Therefore, an indictment can support conviction tiff no offense which is not clearly expressed or necessarily included iff •its terms.'1 Where the major offense charged necessarily includes a-minor offense, the indictment includes the latter and will-support Conviction therefor.. But when the major offense does, not necessarily include the minor, but might be fully proved without including-proof of the minor, how can it be said that the-indictment, in charging the-major, has also charged the minor offense? How does if inform the defendant that he is prosecuted for the latter, when, for ought that appears on the face of the bill, the State may intend -to establish thei major offense by- evidence not at all supporting the minor ? Obviously, the requirement of the law is not-satisfied by the fact that.-the evidence-in support of the crime charged may accidentally include proof of a-Separate-and distinct¿crime, though of the same-general character, - •

Our decree in this case was formulated upon the decree in Pratt’s case. Complaint is made that we erred in discharging the defendant, and should have held him. in custody to abide further action in the court below.

The question is not free from difficulty, and desiring argument thereon on this point alone, the rehearing applied for is granted.

■ The Chief Justice and Manning, J., adhere to the dissenting opibion of the latter, and think the judgment of the lower court should be affirmed.

On Rehearing.

Todd, J.

The rehearing was- granted solely with reference to the correctness of that part of oirr previous decree discharging the accused from custody.

r In the argument upon the rehearing, the Attorney General makes the admission that the . accused could not be tried under the same indictment for the offense therein specially charged, nor for any other offense for which a legal verdict might be rendered under the indictment j and he only suggests that the accused be held to await a prosecution under a new indictment for the same offense of which he was convicted by the verdict of the jury which we set aside by our decree heretofore rendered. The effect of our decree, then, has been to end the prosecution for the offense set out in the indictment and for every offense with which the accused stood charged.

We do not feel authorized to continue him in custody to await a prosecution for an offense with which he has never been charged and may never be.

For these reasons, our former decree will remain undisturbed.

Concurring Opinion.

Bermudez, C. J. .

Considering that the previous decree is final, and that the admission of the Attorney General leaves no other alternative, I concur in the decree.

( Manning, J., concurs in this view.

Poché, J., absent.


author: Bermudez, C. J.

text:
    No. 8902.
    The State of Louisiana ex rel. Widow Dupierris vs. The Judges of the Court of Appeals for the Parish of Orleans.

      A mandamus does noi lie to the Court of Appeals,‘to'compel it to take jurisdiction of a caso which it has dismissed, where it appears that the amount claimed or the matter in dispute exceeds one thousand dollars.
    It is indifferent whether the demand be made in a direct suit, or in an opposition to an administrator’s account in the settlement of a succession, showing for actual distribution an . amount less than $1,000,
    APPLICATION for a Mandamus.

      J. Ad. Bonier for the Relatrix.
   The-opinion of the Court was delivered-by

Bermudez, C. J.

This is an application for a mandamus, to compel the defendant Judges tó pass upon -the merits- of-a case over which they have determined, on a motion to-dismiss, that their court had no' jurisdiction.

It-appears that in-the succession of-the husband of the • relatrix, the assets of which -were inventoried at $1,400, an account was filed proposing to distribute the proceeds of two pieces of realestate, amounting to $755, a third-piece remaining-in hind. ■ ■-■ - : •

•' To -this account the relatrix made opposition, claiming, as- due-her for her- homestead, for the marital fourth,- for money loaned the deceased and for funeral expenses advanced'by her,'the-total-sum-of $1,938.50. a- '

Frora.ajudgment rejecting heropposition, she appealed to the Court of Appeals for the Parish of Orleans, by which a motion to dismiss' the appeal, for-wah't 'of jurisdiction, was-sustained.

The appealable or unappealable character of a suit is determined by the extent or scope of the demand, regardless of the solvency or insolvency of the party defendant. .,

It was in the power of the 'relatrix to have brought a direct and independent action for the recovery of the $1,938.50, to which she claims to be entitled. Had she done so, and an adverse judgment been rendered, she could have appealed from it directly to. this Court., , Had the succession been cast, its representative would have enjoyed a similar right.

From the fact that, instead of resorting to a direct suit, the relatrix has justly deemed more advisable to institute her action against the Succession by a proceeding which is a suit in itself, and is carried on contradictorily with, all concerned in resisting it, it does not follow that the character, in point of appealability of her action, has been changed. She enjoys the. same right as if she had sued directly. The matter in dispute,” exceeding one thousand dollars, the appeal was improperly made returnable to the Court of Appeals. It should have been taken to this Court.

The jurisdiction of the former court extends to cases in which the amount in dispute or fund to be distributed exceeds two hundred, but not one thousand dollars. That of this Court extends to cases in which property or rights exceeding one thousand dollars are involved.

The circumstance that the account proposed to distribute $785 does not give thé' Coxxrt of Appeals jurisdiction any more than a general denial filed by the succession in a direct suit, proposing no distribuT tion at all, could have done.

The appeal was properly dismissed.

It-is, therefore, ordered that the application for a mandamus be refused with costs.

Poché, J., concurs in the decree.

Rehearing refused..


author: Poché, J.

text:
    No. 8933.
    The State of Louisiana ex rel. Fred. Holyland vs. The Judge of Civil District Court for the Parish of Orleans, Division D, et als.
    A surety on a judicial bond must not only be solvent, but must be good for tbe amount of the bond.,
    The burden of proving such capacity is on the party who tenders the surety.
    APPLICATION for Prohibition.

      JR. Stewart JDennee and Wm. JR. WMtaJcer for the Relator.

      JUf. JR. Rightor, Judge, Respondent, in pro. per., and JB. R. Forman for Defendants.
   The opinion of the Court was delivered by

Poché, J.

The District Court having dissolved an injunction sued out by the relator in this case, he obtained an order of suspensive appeal from the order of dissolution, on a bond of five hundred dollars.

On a rule to test the solvency of the surety on the appeal bond, the court decided that the surety was not good, and made its judgment executory.

Relator then instituted this proceeding for a writ of prohibition, which presents the question of the sufficiency and solvency of the’ surety on the appeal bond.

From an examination of the evidence taken' on the riile, we reach the conclusion that the finding of the District Judge is correct.

That evidence consists mainly of the testimony of the surety, who swears that he owes no debts, and that he owns household and kitchen furniture of the value of six or eight hundred dollars, and that he owns a house and lot which he values at $1,500.

But he does not describe his furniture in detail, and the legal presumption is, that the better part of it is exempt from seizure and sale under the provisions of Act No. 79 of 1876, amending Art. 644 of the Code of Practice.

The immovable property which he owns was acquired at a tax sale ; but it appears from his testimony that his title is in litigation, and hence, it is not absolutely available to creditors.

As he owes no debts he maybe solvent, hut* the evidence fails to show that he is good for five hundred dollars under the requirements of the law, or that a judgment of five hundred dollars could be satisfied out of all the property which he owns, and not exempt from seizure under the law.

' The burden of proving the sufficiency or legal capacity of a surety on a judicial bond is on the party who tenders the surety. In this case the relator has failed to satisfy the legal requirements, and hence, he is not entitled to the relief which he seeks.

The preliminary restraining order granted herein is, therefore, set aside, and the writ of prohibition prayed for is refused at relator’s costs.


text:
    No. 8888.
    The State of Louisiana ex rel. Smith Bros. vs. C. G. Ogden, City Judge.
    Where a Judge, after overruling an exception to his jurisdiction ratione materiaft renders a judgment on the merits of the case without passing on that portion of the demand which it was claimed was not within his jurisdiction, this is virtually sustaining the exception, and the defendant has no occasion to complain.
    On application for a certiorari and for a prohibition, the proceedings will not he annulled or restrained.
    APPLICATION for Prohibition and Certiorari.

      J. E. Ferguson for the Relators.

      E. P. Part for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition and for a certiorari.

The complaint is that, in a suit for $90, wherein it was sought to annul a certain transaction concerning movable effects, alleged to be worth $250, the City Judge has overruled an exception to his jurisdiction, and has assumed to take cognizance of the matter in dispute.

The original proceedings are before us. While they show the exception to have been dismissed, they establish that, by the same judgment, the City Judge decreed in favor of plaintiffs only for the amount' claimed, without passing at all upon the other portion of the prayer.

If the City Judge erred in overruling the exception, the relators have no reason to complain, as he afterwards virtually sustained it by his' judgment on the merits, which was merely for the sum of money claimed, and which was within the limit of his jurisdiction.

The relators have sustained no injury, and have no ground of complaint.

Application refused.

. Rehearing refused.


text:
    No. 8848.
    A. V. Davis et al. vs. Mrs. Catherine Young.
    There exists no essential, difference between a discontinuance and a voluntary non-suit. The latter does not interrupt prescription, whatever the intention to the contrary may appear. It is equivalent to an abandonment.
    A plaintiff is entitled to make either, and the Court is -bound to grant that made before judgment. However, when made and. alio wed, such motion cannot, in a oase in whioh areconventional demand has "been made, destroy or affect the right of the plaintiff in reconvention to a prosecution and trial of his demand.
    A plaintiff in reconvention has the right to oppose any such motion which would produce such effect.
    Where the motion is allowed during the course of trial, the rights of the plaintiff in reconvention must he reversed, and where he insists upon it, the trial of his demand must he proceeded with as though the withdrawal had not taken place.
    ÁEPEAL from the Ninth District Court, Parish of Concordia.’ Eough, J.

      Wade B. Young for Plaintiffs and Appellees.

      F. P. White and Boatner & Boatner for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The motion •• to • dismiss cannot prevail. The appeal is from a judgment of non-suit, which disposes of the case, and is suoh as can be appealed from. This is no new question. Motion overruled.

On the Merits.

This is a petitory action which the defendant resists, asserting in re-convention title in herself. After the evidence had been received and the argument of the case had begun for the defense, the plaintiff asked to take a non-suit, to which objection was made, final judgment being demanded. The court overruled the objection, granted the non-suit, reserving to defendant her rights on her reoonventional demand., The defendant insists here, that the Judge should have refused a non-suit, and could have granted a discontinuance only. He cites in support, 6. R. 354; 20 An. 234.

Those are cases in which, under the special circumstances stated, the Judge refused a non-suit, and the appellate court declined to interfere with the discretion exercised.

The plaintiff here had a clear right to discontinue before judgment. A motion to that end the court would have been bo.und to grant, unless thereby some acquired right of the defendant would be impaired.

There exists no essential difference between a discontinuance and a voluntary non-suit. A suit in which plaintiff is non-suited, .on motion of his counsel, does not interrupt prescription, whatever the intention may appear to the contrary. A voluntary non-suit is equivalent to an abandonment. R. C. C. 3485. Dennistown vs. Rist, 9 An. 464; 6 An. 684.

The withdrawal of a suit by the plaintiff, in any form, cannot destroy or affect the right of the defendant to a judgment on her reoonventional . demand which she had asked, but which was not rendered. 24 An. 225; 15 An. 70; 10 An. 703; 2 An. 756; 7 R. 10, 422; 9 R. 133, 210; 4 L. 367; 3 L. 457; 9 L. 310; 7 N. S. 405; 4 N. S. 439.

It is therefore settled, that a plaintiff in reconvention has the right to oppose a discontinuance or voluntary non-suit which would tend to produce such effect. 15 An. 70.

Although the withdrawal of the case is allowed, the reoonventional demand remains in court and the plaintiff therein can prosecute the same, notwithstanding the withdrawal; otherwise the withdrawal of the'suit would certainly affect vested rights of the plaintiff in reconvention,"'for lie would then be driven either to a continuance of the case or to institute another proceeding, and he might thus lose rights and advantages already acquired.

The defendant, as plaintiff in reconvention, is entitled to have the case remanded.

It is, therefore, ordered and decreed that, so far as it non-suits plaintiff, the judgment appealed from be affirmed, and that, so far as it simply renews the right of' the plaintiff in reconvention to prosecute her claim, it be reversed.

It is now ordered and decreed that this case be remanded to the lower court, with instructions to replace it in the condition in which it stood when the motion for a non-suit was made and granted, and with direction to proceed with the trial of the same on the reconventional demand of defendant, the plaintiff and appellee to pay costs in both Courts.' . . ■ ■

Rehearing refused.


author: Todd, J.

text:
    No. 8803.
    Samuel Friedlander vs. Elvira A. Brooks et als.
    Where a creditor Of the husband sues to annul a judgment of separation of property between the husband and his wife, and denies any indebtedness on the part of the husband to his wife, and charges fraud and collusion .between them, the burden is on the wife to sustain the validity of the judgment.
    Where the husband, in an embarrassed condition, conveys his plantation to his mother-in-law, a resident of another State, who does not take possession of the property, and subsequently conveys title to the property to her daughter, the wife of her vendor, in the absence of any proof of the validity pf these sales and of means to make the purchases, the sales will be held to be simulated.
    APPEAL from the Eighth District Court, Parish of Madison. Delony, J.

      A. h. Slack for Plaintiff and Appellant.

      J. 0. Seale and Ogden & Hill for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.


text:
    No. 8924.
    The State of Louisiana vs. Isaac Williams.
    The right of one who ie not a more trespasser, who acts under color of right as the Judge of a court, cannot be attached collaterally. Direct and regular proceedings by the State are necessary.
    The complaint that the Judge in a criminal case has improperly overruled a motion for. a new trial will not be considered when not presented in a bill of exception.
    APPEAL from tile Twelfth District Court; Parish of Rapides. BlackTnan, J.

      J. 0. Egan, Attorney General, for the State, Appellee. ■

      E. B, Baigre for Defendant and Appellant.
   , The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was prosecuted for, and found guilty of, shooting with a dangerous weapon, with intent' to kill and murder. He appeals from the judgment sentencing him to tw.o years at hard labor in the State penitentiary.

I.

He complains that his motion to quash the indictment and that for a new trial, on the ground of newly discovered evidence, were overruled.

The motion to quash attacks the right of the person who officiated as the District Judge to act in that capacity.

Such right cannot be assailed in that form. Direct and regular proceedings are indispensable in the name of the State, when the person acts- under color of right. It is a mistake to suppose that it is the right or privilege of every citizen to champion, even in informal and collateral proceedings, rights which the State can alone assert. See 33 An. 14 L3, and authorities there cited.

It is not claimed that the person filling the office of District Judge, and who acted in this .case, is a mere trespasser or usurper, without any color of right. ,

On the contrary, it appears that he was elected under a law expressly passed for the purpose of the election.

The objection to the constitutionality of that law, raised by the defendant, cannot be considered at his instance in this proceeding.

II.

The record does not show that any bill of exception was reserved to the ruling of the Judge, denying the motion for a new trial. This was necessary. 32 An. 842, State vs. Nelson.

Judgment affirmed.