author: DeBlanc, J. Marr, J.

text:
    No. 6398.
    Louisiana Mutual Insurance Company vs. Antonio Costa.
    Notice of a motion to dismiss an appeal l>.y posting on the bulletin-board of the court is not sufficient, where the names of counsel for appellant do not appear in the list of cases posted.
    Where a party to an appeal dies, no further proceeding can be had on the appeal until his legal representative has been made a party by permission and order of the court.
    Where the term of offico of a public officer, appellant in his official capacity, expires pending the appeal, his successor in office must be substituted as appellant.
    j^PPEAL from the Fourth District Court, parish of Orleans. iAjnch,

    Original opinion by DeBlanc, J., 3d December, 1878.
    On rehearing, opinion by Marr, J., 10th February, 1879.

      Louque & Fernandez, C. F. Schmidt, and J. A. Seghers, for intervenor and appellee.

      Merrick, Race & Foster, for C. T. Parker, public administrator, appellant.
   DeBlanc, J.

On the 30th of November 1874, this case was remanded from this to the lower court for a new trial, and — on the 26th of April 1876 — Mrs. Antoinette Navarre, who had intervened in’this suit, was— by a decree of said lower court — recognized as the owner of a lot of ground, which — under a writ of seizure and sale addressed to the sheriff of the parish of Orleans — had been offered for sale and sold as belonging to Antonio Costa.

At the sale thus made by the sheriff, and which took place on the 18th of September 1869, said property was adjudicated to the late Erangois Lacroix; and — on the 30lh of September 1874 — the very same property was sold to satisfy a judgment of over ten thousand dollars rendered in favor of the city of New Orleans against said Lacroix, and then bought by Joseph Billgery.

The administrator of the succession of Lacroix has alone appealed from the decree which recognizes Mrs. Antoinette Navarro as the owner of the property which — in 1869 — was acquired by said deceased.

Mrs. Navarre claims title to this lot of ground through Jose Manuel Delabarre, who — on the 19th of June 1839, had himself acquired it from Ramon Vincent. An act of sale from said Delabarre, discovered since the trial of Mrs. Navarre’s intervention, shows that on the 11th of July 1849 — he transferred to Mrs. Louis Berniand the title which he had acquired from Ramon Vincent.

The transcript filed in this court is absolutely incomplete: it contains neither the order of seizure and sale under which the property was sold in 1869, the sheriff’s return thereon, nor his deed to Lacroix.

The most of the facts which we have recited are evidenced by papers which form no part of the record, and by an old transcript deposited among and taken from the archives of this court, the use of which we are asked to allow, in order to supply the omissions which wre have mentioned.

From what we have seen and said, we would be disposed to grant the appellant’s demand, as regards that old transcript; but can we do it under the law or any rule of this court? We cannot. It is true, we have already permitted the use of old records, to assist in the discussion and decision of appeals pending before us; but this we have done to avoid costs to the parties on timely application, and — invariably with the consent of every one of those interested in the suit. In this case, no such consent was given, and Mrs. Navarre, joined by the legal representatives of Joseph Billgery — the transferree of Erangois Lacroix’s title — has moved to dismiss this appeal, on the ground that, as it was not shown that the succession of Erangois Lacroix has any interest to protect in this controversy, it could not have been aggrieved by, and has no right to appeal from the judgment rendered in her favor ; and in the brief submitted by her counsel, they suggest the omissions already referred to and w'hich, in no way, could have escaped our attention.

The law does give the right of appeal to third persons, who were not parties to the suit, when they allege that they have been aggrieved by a judgment; but — to exercise that right they must do more than, merely allege that they have been aggrieved by it; they must show it toy the best evidence within their reach, and — it may be — by proper affidavit, indicating the nature and extent of- the right or interest imperiled by the decree, and by the recitals of which the opposite parties would be so minutely informed, as to be enabled to conclude — by an inspection of the evidence itself, or of any act or document referred to in the affidavit, whether to contest or acknowledge the applicant’s right to an -appeal. Where must that necessary interest, the existence of that right be established? Not in the Supreme Court, where — as a general rule — no new evidence can be received, even though it may have been discovered since the judgment below, but in the court to which the application is addressed to obtain the appeal. C. P. 891, 901. Otherwise, the remedy by appeal would often be resorted to, for the sole purpose of postponing the execution of the most unassailable decrees.

2. R. R. 391; 29 A. 397.

The appellant complains that — on account of an error made in posting the names of counsel on the bulletin-board — the defects in the record did not come to the knowledge of those by whom he was represented. The paper taken from the bulletin-board and relied upon to sustain that assertion, bears the names of every one of the attorneys who appeared in this case, and vindicates the watchful and attentive punctuality of the officers of the court.

The law — it is said — does not require vain things to be done, and the old transcript is quite as convenient as could be any return to a certi-orari. The law — however—does provide how, when, by whom and from what office a record may be completed, and appellant’s application came only after the case had been submitted and taken under advisement. It was then too late to apply for and obtain a writ of certiorari, or the use- of the old record.

The motion to dismiss the appeal should — it is contended — -have been made within three days from the filing of the record, and — when made after, cannot be considered. In this instance, the motion to dismiss is ■based on the plain enactment “that an action can only be brought (or ■maintained) by one having a real and actual interest which he pursues,” •and that, inasmuch as the appellant has failed to show that the succession of Lacroix has such an interest, the representative of that succession, which was not a party to the original suit, cannot — legally—claim -and procure the reversal of a decree, which may delay, but which — in no way — can prevent the enforcement of its alleged right.

It is the appellant’s duty to bring up a complete record, or perfect an incomplete one. In this case, the transcript does not contain documents introduced by the parties and mentioned in the note of evidence, and we can neither review, affirm, nor reverse the judgment appealed from. This we would have found in perusing the transcript, without suggestion from any one; and this found — whether within or after three-days from the filing of said transcript, we would have had — -of our own motion — to dismiss the appeal.

For this additional and suggested reason, the motion made by in-tervenor must prevail.

It is, therefore, ordered, adjudged and decreed that this appeal be and it is dismissed at the costs of the succession of Erangois Lacroix.

Marr, J.

The motion to dismiss the appeal is as follows :

“ Widow Jean Baptiste Ducoing, administratrix of the succession of Antoinette Navarre, deceased, who was the intervenor and appellee in this case, now comes into this Honorable Court, and moves to dismiss the devolutive appeal herein taken by E. T. Parker as administrator of the succession of Erangois Lacroix, deceased, on the ground that the said appellant has shown, and has really, no interest justifying an appeal on his part, from the judgment rendered by the district court in favor of the intervenor, and he has not shown that he has been aggrieved by said judgment, and has really not been aggrieved thereby.”

This motion was filed on the eighth of April; and it was submitted' to the court on the fifteenth, with another paper, purporting to be the-consent of Mrs. Jos. Billgery, tutrix, and J. M. Billgery, to the dismissal of the appeal taken by Erangois Lacroix for the reason that there had been a compromise and settlement of the matter relative to the property in litigation, and a sale by Lacroix to Jos. Billgery.

Neither Jos. Billgery, nor Mrs. Jos. Billgery, tutrix, nor J. M. Bill-gery was a party to the suit in the district court, nor to this appeal; nor was there any mention made in the proceedings of any compromise, or settlement, or sale of the property in question to Billgery. It would seem to be needless to say that we can not take cognizance of this new: motion, which was in no way involved in the litigation in this ease, andl which was not brought to the notice of, nor passed upon by the district court.

The motion to dismiss was submitted without appearance on the-part of appellant; and his counsel have filed affidavits, and have otherwise shown, since our decree dismissing the appeal was pronounced, that they had no notice of this motion until after it had been submitted and that their names as counsel did not appear on the bulletin-board of the court, on which the motion was posted. No other notice of motions; ■to dismiss is given than by this posting; and we do not think it sufficient where the names of the counsel for appellant do not appear in the column set apart for that purpose in the list posted. The names of

• appellant’s counsel were written in pencil in this column ; but when this was done we are not informed. The proof satisfies us that it was done after the list was posted. The lists are carefully prepared in the clerk’s office; and they are written in plain characters, in ink, so as to attract the attention of counsel readily. We granted the rehearing on the ground of want of sufficient notice.

Counsel for appellant moved the court to allow them to complete the transcript in this ease, either by supplementing it by using the transcript of a former appeal, in the same case, in which this court remanded the ease for a new trial; or by certiorari. The decision on this former appeal was rendered in February, 1875; it is number 3341 of the docket, not reported.'

On the showing made in this case we should probably permit the ■ transcript to be thus supplemented by the use of that filed in this court on the former appeal; because it, would be a hardship to compel the - appellant to have the record completed by copying into it simply that which is embraced in the first transcript of appeal between the same ■parties, in the same ease, a volume of over 300 pages. But the condition of the case is such as to prevent final action on the motion of • appellant’s counsel. The motion to dismiss informs us that Mrs. Antoinette Navarre, who was intervenor and appellee, is dead. This is the ■only suggestion of her death which we find in the cause. There is no ■motion or application otherwise to make her legal representative a ■ party. There is a paper, not marked filed, which is a copy of the letters . granted to Widow J. 55. Ducoing as administratrix of the succession of

Widow Victor Navarre; but there is no evidence showing that Mrs. Antoinette Navarre, who was intervenor and appellee, and “Widow Victor Navarre” are one and-the same.

Be this as it may, when a party to an appeal dies, the death must be suggested, and the legal representative ’ of the deceased must be made a party, by permission and order of the court; and until this is done no further proceedings can be had on the appeal. Mrs. Ducoing, whether she was or was not the administratrix of the succession of Mrs. .Antoinette Navarre, was not a party to this appeal at the time the motion to dismiss was made; nor has she become or been made a party since. She was without capacity, therefore, to make the motion ; and it must be considered as not having been made. See Edwards vs. Whited, 29 An. 650.

This is sufficient 'ground for setting aside our original decree, in which we took it for granted that the person making the motion was a party to the appeal; but there is another ground, which may as well be stated now, in order to expedite the cause.

At the July term, 1878, at Monroe, we decided, in a contest for the office of public administrator, between Daniel Wilson and E. T. Parker, that Parker’s term expired on the fifth March, 1878 ; and that Wilson was entitled to the office under .his commission, bearing date third May, 1878. 30 An. 1182. So that, at the time our original decree' was rendered herein, E. T. Parker was no longer capable of standing in judgment as appellant. He administered only in virtue of his office ; and in that capacity alone did he have authority to take the appeal. His successor in office must be substituted for him; and the legal representative of Mrs. Antoinette Navarre must be made a party in her room and stead, in the manner prescribed by law and the rules of this court; and in the meantime, we can only reinstate the case on the docket, in the condition in which it was up to the time of filing the motion to dismiss, eighth April, 1878.

Our former decree dismissing the appeal is therefore set aside and annulled ; and the case is reinstated on the docket, in the condition in which it was at the time the motion to dismiss was filed, and as if that motion had not been made, reserving to the parties interested the right to have proper parties made, and to proceed in the cause when such parties shall have been made.

And it is further ordered that Mrs. Jean Baptiste Ducoing pay the costs occasioned by her motion to dismiss.


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 7555.
    Succession of P. V. Macarty. Opposition of P. J. Spear.
    "Where an auctioneer under an order of court, sells succession property -which, is owned in part by a minor, be is entitled to charge only one half of one per cent on the entire amount of the sale when that amount is over $2500. Revised Statutes of 1870, Sec. 160.

    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Frank Michinard for plaintiff and appellee.

      A. J. Villeré for widow and appellant.
    Frank Michinard, for plaintiff and appellee, contended:
    First — That by bringing suit for a partition, the plaintiffs accepted the-succession unconditionally. C. C. 994 (988). 28 A. 713.
    By consenting in their answers to the partition, the defendants accepted the succession unconditionally. C. C. 1000 (994).

      The capacity to stand in judgment in a partition suit, necessarily presupposes the quality of heir or co-owner.
    It was not a sale “of property belonging (entirely) to minors, or in which they may be interested.”
    First — Because the share of the minor had been formally ascertained, and liquidated at one twelfth. Hence, it was a sale of one twelfth belonging to the minor.
    Second — Because the words “ property in which minors may be (not are) interested” obviously mean property which may eventually come to them.
    This provision of law is clearly intended for the benefit of the minors, and should not be extended by implication to owners of age.
    A. J. Yilleré, for widow and appellant, contended :
    That the sale in question was of succession property in which a minor ivas interested, and hence that the commission of the auctioneer was fixed by section 160 of the Revised Statutes of 1870.
   The opinion of the court was delivered by

DeBlanc, J.

The Second District Court designated — -to make the sale of property belonging to the succession of P. Y. Macarty, in which a minor is interested, Placide J. Spear, an auctioneer of this city, who claims — for his services as auctioneer — a commission of two and a half per cent on the proceeds realized by that sale.

His demand is opposed by the defendants in the rule, on the grounds that what he sold constituted the residue of said Macarty’s succession— that a minor was therein interested, and that — under these circumstances — he is entitled to a commission which is fixed — by law — to one per cent upon all sums under $2500, and on all sums over that amount to one half of one per cent.

These are the very words of the 160th section of our Revised Statutes.

The lower court reduced the auctioneer’s demand, but exclusively on the minor’s share of the proceeds of the sale, and allowed it in full as to all the others. This was a mistake.

The law which we have referred to provides — in plain terms — that “ no auctioneer shall demand or receive a higher compensation for his services than a commission of two and a half per cent, on the amount of any sale, public or private, made by him; and on sales of succession property, of property belonging to minors, or in which they may be interested, and on property surrendered by insolvents, made pursuant to an order or decree of any court of the State, by the sheriff or an auctioneer, upon all sums under $2500 one per cent, and on all sums over that amount one half of one per cent. Revised Statutes, section 160.

The property sold by Spear was alleged to be, and was sold by him as succession property, and moreover — he himself acknowledged that it partly belonged to a minor. For these reasons he could legally have charged, on the entire amount of the sale, but the lowest of the commissions fixed by the law which we have quoted.

It is admitted by the parties that the sale of the property amounted to $40,700, and — considering that admission and the law — Spear, for his services as auctioneer, is entitled to a commission of two hundred and sixteen dollars.

Defendants have charged, but have failed to prove that plaintiff has retained, out of the proceeds of the sale, over one thousand dollars to satisfy the commission claimed by him.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court is amended and plaintiff’s commission reduced to and fixed at two hundred and sixteen ($216) dollars ; the costs of the appeal to be paid by him, those of the lower court'by defendants.

Rehearing refused.


text:
    No. 7425.
    Martha A. Starrs vs. W. R. Mason, Executor.
    An inquiry made by a notary to a testatrix, while inscribing tlie latter’s nuncupative will, asking if lier property was wortli a certain sum, was in no way calculated to change or modify her intentions, and hence is not a sufficient ground to annul the testament.
    The mere fact that a nuncupative will contains words which were not used by the testatrix in dictating the will, will not affect the validity of the testament, when it is shown that she lucidly expressed her intentions, and that the notary faithfully recorded those intentions in the will.
    The pause made by a testatrix after dictating each clause of her will, in order to allow the notary time to •write down her‘words, and her conversing with others during those pauses, do not constitute such an interruption as will affect the validity of the will.
    j^PPEAL from the Second District Court, parish of Orleans. Tissot,

      Ed. Phillips for plaintiff and appellee.

      Simeon Belden for defendant and appellant.
    Ed. Phillips, for plaintiff and appellee, contended :
    First — That the will was not valid, because it was not dictated to the notary in the words contained therein.
    Second — That words and dispositions are contained in the instrument which were not dictated or used by the testatrix or by any one present.

      Third — That the will was not written as dictated.
    Fourth — That the will was not dictated at all by the testatrix. That it was merely copied from a former will.
    Fifth — That the testatrix made no declaration whatever after the reading of the will.
    Sixth — That it was not entirely written without interruption or turning aside to other acts. 0. 0.1578.
    S. Belden, for defendant and appellant, contended:
    That the facts alleged by the plaintiff were not proved.
   The opinion of the court was delivered by

DeBlanc, J.

The plaintiff — a niece of the late Hannah Johnson— brought this suit to annul the nuncupative testament which, on the 24th of June 1873, the deceased made by public act, passed before a notary of this city. Her action is based on three grounds :

1st. That — at the date the testament was made — Mrs. Johnson was an imbecile, and — in disposing of her estate as she did — was prompted by improper influences.

2d. That the original act by which her will is evidenced, contains interlineations, pencil-marks and additions which are not on the copy filed in the probate court, and which were neither dictated nor sanctioned by the testatrix.

3d. That the instrument purporting to be the will of the deceased was not dictated by her, but by other persons, and embodies — not her wishes — but the suggestions of interested parties, as to how she should ■dispose of her estate.

I.

The testimony of every one of the witnesses examined on the trial— one of them was the physician of the deceased — leaves no doubt that, though weakened by age and by violent spells of asthma, Mrs. Johnson never was insane, and could have — at any time before her death — freely conceived and clearly expressed the most rational wishes. Her legatees are the children she adopted after the loss of her own, and it was shown that, until her last day, those adopted children were as kind as friendly to her. It evidently was their regard and affection for her, which prompted the dispositions which she made of her estate, and the charge that they were procured by improper influences is not sustained by <even plaintiff’s own declaration. The district judge' so held.

II.

The deceased made two wills, one which — it seems — did contain interlineations and erasures, and another one, by advice of the notary who had prepared the first, for the purpose of avoiding any contestation, on account of those erasures and interlineations. The former was revoked, the latter probated, and that which was probated, which alone is and could have been attacked, was carefully drafted and is free from such irregularities.

III.

Though the Code expressly provides “ that proof should not be admitted of the dispositions having been made through hatred, anger, suggestion or captation — O. C. 1492 (1479) — plaintiff did, without objection, attempt, but signally failed — as we have already said — to prove that the last dispositions of the deceased have been induced by any reprobated captation.

Was she more successful as to the alleged suggestions on which she relies to annul the testament? We think not. J. G. Gernon, her own witness, testified that, when the notary who had written the previous-will, and was writing the other, came to that part of the latter wherein it is declared “ I consider myself worth at the present time four thousand dollars,” he looked at her, but she couldn’t exactly state how much she was worth. He then inquired “about four thousand dollars,” and' she said yes.

The suggestion which — heretofore—was prohibited by law, and which has not ceased to be morally improper, was that which amounted! to an artful insinuation, and which was so shaped as to influence the testator’s will and procure a particular disposition, one which — otherwise, — he would not have thought of, or made. The inquiry by the notary as to whether the property which he knew was worth four thousand dollars, was — in no way — calculated to either change or modify the intentions of the testatrix, and — at no time — would have been considered as a sufficient cause to annul a testament, the validity of which could not have been affected by any answer to that inquiry..

9 L. R. 470.

As to the most important points in this controversy, the lower court said: “ It is clear, from the testimony of Gernon, that the will was not dictated by the testatrix, as stated by the notary, and that interruptions-occurred during the dictation.”

Gernon is an attorney-at-law and the son of the notary before whom Mrs. Johnson made the two testaments already alluded to. To facilitate his father in preparing the last one, he procured a copy of the first, and added to it a memorandum, to the effect 'that the executor of the will was to be dispensed from furnishing bond and security. He swore that Mrs. Johnson declared to the notary, and that the notary wrote under her dictation that she appointed W. R. Mason as the executor of her will, and that he then copied from his — the witness’ — memorandum, “ that said executor was dispensed from furnishing bond and security.’”

W. R. Mason swore that Mrs. Johnson told the notary that she wanted him to have full charge of her property after her death, without giving bond or security, and the notary wrote that clause as it appears in the act. He is fully corroborated by two disinterested witnesses— Matthews and Ross — who swore, as positively as he did, that Mrs. Johnson said he should have full charge of every thing, without bond or security.

As to the alleged fact that the testament was not dictated by Mrs. Johnson, Gernon testified:

That she told the notary that she was about sixty-eight years of age, had been married, and that the children born of her marriage were dead.

That she named her legatees, mentioned what she gave to each of them, and designated Mason as the executor of her will.

That, excepting the words “ without bond and security,” she dictated, and the notary substantially wrote as dictated, the whole of the testament, which was read to the testatrix and witnesses.

It is urged that the act contains language which she did not use. That is so. For instance, she did not say, as written in the act, “ I give and bequeath,” but merely “ I give.” Less that, she appears to have lucidly expressed every one of her intentions, and those intentions were faithfully recorded by the notary. They mean as recorded by him, precisely what they meant when they fell from the lips of the testatrix.

More than fifty years ago, this Court said : “ We know that there have been decisions in some of the courts of France, requiring the utmost precision in the amanuensis; but we are unable to adopt this doctrine in its utmost extent. It is desirable to have, as much a* possible, every word taken down from the testator’s mouth, but we can not adopt the unqualified proposition, that the slightest variation is fatal; as, for example, the substitution of the pronoun lohich, instead of that. This would destroy almost every will.”

6 N. S. 146.

“ The commentators agree on the principle, that it is the identity of thoughts, and not of words, which the law requires.”

“ Au reste, pour qu’un testament soit réputé avoir été dicté par le testateur et éerit par le notaire tel qu’il a été dicté, il n’esfpas nécessaire que le notaire se soit serví identiquement et matériellement des expressions employees par le testateur ; en d’autres termes, qu’il ait éerit mot a mot ce que celui-ci a dit: il suffit qu’il ait éerit les dispositions du testament a mesure que le testateur les lui dictait, sans les ótendre, les restreindre, ni les modifier en aucune maniere.”

Toullier, Dt. c., vol. 5, No. 419. Coin Delisle, No. 18.

Duranton, vol. 9, No. 77.

As to the pretended interruptions, what is the evidence ? Gernon was asked: how many times did the notary interrupt her while she was dictating ? He answered : every time she came to a bequest. In this, he agrees with Ross, who testified that “ the testatrix spoke slow, and as the notary would write down her words, he would read a line off— she would say again, and he would again write, and so on.” While the notary was writing, the old lady conversed with him, remarked that it was warm, or something of that kind.

That evidence, far from establishing such an interruption as would vitiate the testament, shows that it was dictated, written, read and approved clause after clause ; and it was during the intervals which followed the dictation, and whilst the notary was writing what had been dictated, that the testatrix spoke to the witness.

“Par le mot actes, sans divertir a d’autres actes, on entend affaires, negotia. On peut donner au testateu'r malade un breuvage, le panser, s’il est blessé; mais on ne pourrait pas interrompre ces formalités pour passer'un bail, une vente, une procuration, ou méme pour écrire une lettre.”

Pandeetes Frangaises, vol. 9, p. 36.

“ Unity of action and time is all that is required by the provisions of our Code, and it has not been shown that, in this case, there was a division of either,, or — in other words — -that any thiog foreign to the will, intervened to disturb that unity.”

In “ Chardon’s Heirs vs. Bongue,” this court said : “ After the first bequests were written, the testator became silent, and for a considerable time ceased to dictate, and the notary stopped writing. How long this cessation lasted is not clearly shown ; the notary stated it was less than an hour and a half. The witnesses and notary remained in the room, and the delay was attributable either to the feebleness or indecision ot the testator. In the mean time no other business was transacted. This, it is contended, was an interruption which vitiated the testament. We can not yield our assent to that proposition. A mere suspension of the proceeding, in consequence of the weakness of the testator, or his want of decision, or to give him time to collect his thoughts, or to reflect maturely on the disposition of his property, does not amount to an interruption in a legal .sense of the word. It might be, on the contrary, evidence of greater deliberation on the part of the testator.”

■9 L. 470, 463 ; 12 A. 605.

■“In support of the will, we have the act itself, duly certified under the official sanction of a public officer,” fortified by the oath of two of the subscribing witnesses, and that of the executor — and, in contradiction of only one -of its clauses — that which dispenses the executor from furnishing bond and security — there is but one declaration, that of Ger-non, who might not have heard what the three others swore they did hear, and — under these circumstances — we can not, by annulling her will — disregard the twice expressed and twice recorded wishes of the deceased.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, and plaintiff’s demand rejected at her costs in both courts.

Rehearing refused.


author: Taliaferro, J. DeBlanc, J. Manning, C. J.

text:
    No. 4465.
    Mrs. Jennie Bronson Holbrook vs. A. M. Holbrook.
    The lower court having fixed the amount of the appeal bond at a certain sum may, before-the-execution of the bond, change the amount.
    The motion to dismiss an appeal must, in all cases, he made within three days after the filing of the transcript.
    A judgment which is itself the object of attack in an action lor its nullity, can not be pleaded' as res adjudicata in bar of the action, if it is brought within a year from the rendition of the judgment.
    So long as a final judgment, not absolutely null and void, which decrees a divorce between a certain man and woman, remains in force, the woman cannot maintain a suit for alimony. Until the judgment of divorce has been annulled, the claim for alimony is premature.
    REPEAL from the Eighth District Court, parish of Orleans. Dibbler

      E. IL Washington for plaintiff and appellee.
    27; os. J. femmes and Robert Mott for defendant and appellant.
    The opinions of the court on the motions to dismiss were delivered by Lüdeling, C. J., and DeBlanc, J., and on the merits by Manning, C. J.
    Robert Mott, for defendant, contended :
    First — That the petition having disclosed the fact, that a divorce had been granted, which had not been reversed on appeal, or annulled by a court of competent jurisdiction, the plaintiff had no right of action for alimony. 18 An. 618 ; 18 An. 41.
    Second — That the petition not having disclosed a case for the nullity of the judgment of divorce, the plea of res adjudicata was applicable. 3 East 346. See, also, Lord Eldon’s opinion in Seddon vs. Tutess, 2 T. R. 607 ; 1 Pothier on Obligations, pp. 428-9 ; do. 420 ; C. C. 2285.
    E. K. Washington, for plaintiff and appellant, contended :
    First — -This being an appeal from a judgment in favor of plaintiff for alimony, no other than the question of alimony vel non is examinable in the Supreme Court, and that depends on the means and position of the husband.
    Second — That since alimony is not dependent on the wife’s success, or ill-success, in her suit for separation from bed and board, it is not dependent on any particular defense he may set up, and is granted as a preliminary matter.
    Third — That on a simple question of alimony vel non, the court can not go into the merits of such questions as whether defendant had obtained a legal divorce or not, as plaintiff has not been heard on those questions, nor is there any appeal before the court in such questions, nor did defendant require a trial of any such peremptory exceptions before the .judgment for alimony was rendered, and has waived them, and he can not plead them in the Supreme Court. 1st N. S. 130 ; 23 An. 254 ; 4 La. 482 ; 14 La. 288; 15 An. 188.
    Fourth — That the case reported in 21 Howard, 588, is one exactly in point, and shows the Supreme Court of the United States would not on a question of alimony go into an investigation of a divorce said to have been obtained by the husband, and said, as it was attended with circumstances of concealment, it could not release the husband from the obligation to support his wife.
    Fifth — That in the present case it was declared in the judgment of the lower court, as shown in evidence, that defendant had sent plaintiff and appellee out of the State before his -judgment was rendered, and persuaded her it would not be proceeded with, which was a fraud on her and on the court.
    Sixth — That it is the duty of courts to maintain the integrity of marriage, and not decide from passion and prejudice rather than law in favor of the wealthy defendant and against the indigent wife.
    Seventh — That the continuance of a status, as of husband and wife, which had existed for eight years, must be preserved rather than its ■dissolution, when the latter is not res adjudicata, and a suit to annul it is instituted within a year, under the decisions in 29 An. 597, and many others.
   On Motion to Dismiss the Appeal.

Taliaferro, J.

The appellee moves to dismiss the appeal in this -case on the ground that the lower court having rendered an order of -appeal, and fixed the bond at $13,500, was divested of jurisdiction, and therefore could not subsequently revoke the order and fix the bond for .a smaller amount.

On the 19th November, the order of appeal was rendered, and the ■amount of bond fixed at $13,500. No bond was filed in pursuance of this order. The next day, 20th of November, the court amended the ■order, rendered the day previous, by fixing the amount of the bond at ¡$7500. No bond having been given under the original order, the court was not divested of jurisdiction, and might properly amend its order by fixing a .different amount of bond. 2 An. 628.

It is therefore ordered that the motion to dismiss be overruled.

DeBlanc, J.

In this case, the transcript was filed in this court on the 19th of December 1872, and — on the 21st of said month — the plaintiff and appellee moved to dismiss the appeal, on the ground that the bond was not for the amount fixed by the Judge’s order. That motion was denied in 1875.

In February and March 1879 — more than six years after the filing of the transcript — plaintiff again moved to dismiss the appeal, and— this time — on the grounds:

1. That the transcript is defective, insufficient and incomplete. ,

2. That — in its own nature and in amount — the decree of the lower court is such that it could not legally have been appealed from.

In “West vs. Davis & Kuntz ” — -decided on the 7th of April — this court held that the motion to dismiss an appeal must be made within three days after the filing of the transcript, and that it must be so made even when — for the very causes urged by the mover — we may, ex proprio motu and after that delay, dismiss the appeal.

The motions to dismiss, filed by plaintiff in February and March, 1879 are therefore — denied.

Manning, C. J.

A long, rambling, and inconsecutive petition, apparently drawn by the plaintiff and signed by herself alone, obscures her demand. From the prayer we gather that it is for a separation and divorce from the defendant, and for alimony, and has coupled with it an action for the nullity of a decree for divorce previously obtained by him against her. This first judgment was rendered December 20,1871, and was unappealed. The present suit was instituted June 20,1872.

To this demand, the first judgment is pleaded as res acljuclicata. So far as this plea is made to the action of nullity, it is untenable. A judgment, which is itself the object of attack in an action for its nullity, cannot be pleaded as the thing adjudged in bar of such action, if it is brought within a year from the rendition of the judgment attacked. Edwards’ case, 29 Annual, 597.

Upon a rule, taken in this suit by the plaintiff, touching the alimony, a judgment was rendered in September 1872 granting it at ¡$250 a month, and this appeal is from that judgment. The husband died in January 1876 pending the appeal, and his executors are now parties to it.

The demand for alimony, by the wife against the husband, is art incident to a suit for separation or divorce — is accessory to it, and inseparable from it. An order or judgment for alimony is made pending such suit. A suit for alimony between such parties, disconnected with and not growing out of a. suit for separation or divorce, is an anomaly.

But it does not follow that no judgment for alimony can be given because there is as yet no judgment for separation. On the contrary, the allowance for alimony is always made pendente lite, and is not conditioned on the success of the principal demand. Le Beau v. Trudeau, 1 Mart. N. S. 93. Rowley’s case 19 La. 557.

The judgment of December 1871, unappealed and unreversed, destroyed the relation of husband and wife. When this suit was instituted in June 1872 that relation did not exist. It is in this sense, we take it, that the plea of res adjudícala is made. A demand against a man, not a husband, by a woman, not his wife, for alimony is unknown. It is because of the relation of husband and wife that the right to alimony exists.

The present suit assumes that that relation does exist, or did at the time of its institution. Its object and purpose was to sever it. It assumes that the judgment in the previous suit was and is a nullity. It attacks that judgment for alleged causes of nullity, not absolute but relative, and ignores the effects and consequences of that judgment, and treats it as an absolute nullity quoad those consequences. It assumes as accomplished the object which it has to accomplish. It anticipates what it wants to be adjudged, and bases upon the judgment, to be hereafter obtained in that regard, a demand which is only allowable when such judgment has been obtained.

The judgment of divorce of December 1871 had become final. The parties to this suit were thenceforward not husband and wife until that judgment is annulled. As the present suit, so far as it is a demand for alimony, is founded necessarily upon the assumed existence of that relation, it must fall with the removal of its foundation.

The demand is prematurely pressed, and the judgment upon it is error. When a judgment of nullity has been obtained (if the plaintiff shall succeed in that) she will be in a legal condition to have her suit for alimony considered. It is only the interlocutory judgment, decreeing alimony, that is before us. Therefore

It is ordered and decreed that the judgment of-the lower court touching the alimony is avoided and reversed, and that the plaintiff’s demand in that particular is dismissed as in case of nonsuit, and that the defendant’s executors recover of her the costs of this appeal.

Rehearing refused.


author: Manning, C. J.

text:
    No. 7629.
    Succession of H. DeBoisblanc. Opposition of Creditors.
    Where it appears that a surviving* ■widow, who is contending for the $1000 allowed out of the husband’s succession to a widow in necessitous circumstances, is the owner of a policy of insurance on the life of her deceased husband for $5000, the payment of which is resisted by the company issuing the policy in a suit then pending between it and the widow, the $1000 out of the husband’s succession will be allowed to her, on condition that she give proper bond and surety to return that sum. to the said succession, so soon as she shall receive a like sum from said insurance company ; or else, in lieu of said bond, that she assign to said succession, so much of the judgmont to bo recovered of the insurance company, or her demand against that company in said suit, as will equal the sum paid to her by the legal representative of the succession.
    APPEAL from the Second District Court, parish of Orleans. Bissot, J.

      F. & J. Legendre for the widow, appellant.

      Francis W. Baker for opponents, appellees.

      Robert Mott and Francis B. Lee for the Public Administrator.
    E. & J. Legendre, for the widow, appellant, contended:
    First — That Mrs. Boisblanc and her children were entitled to the homestead claim, because the policy held by them is not property in the sense of the act of 1852.
    Second — That the word p'roperty in the act means an object, real, substantial, with an intrinsic or comtaercial value attached to it; that it means an absolute right, giving full title and dominion over the object, and not a qualified property of a temporary interest, liable to be destroyed on the happening of an event.
    Third — That a policy of insurance is not a piece of property, but merely the evidence of a contract. Succession of Hearing, 26 An. 326.
    Francis W. Baker, for opponents and appellees, contended:
    That a widow who owns a policy of insurance on the life of her deceased husband is not in necessitous .circumstances, and therefore not entitled to the homestead allowance of $1000. o. C. art. 3252; 18 An. 36 ; 26 An. 686 ; 28 An. 832 ; 29 An. 702 ; 30 An. 669 ; 31 An. 36.
   The opinion of the court was delivered by

Manning, C. J.

The administrator of Boisblanc’s succession placed upon his tableau the sum of one thousand dollars, to be paid the widow of the deceased as her portion under the Act of 1852, now incorporated in the Civil Code as an addendum to art. 3219, new no. 3252. The insolvency of the succession is admitted.

There is a policy of insurance on Boisblanc’s life for five thousand dollars for his wife’s benefit, upon which she has instituted suit, and which. was said on the oral argument, by the counsel for the creditors, to have been determined in her favor on the previous day, but by her counsel to be then undetermined. The creditors oppose the allowance of the widow’s portion on the ground that she is not in necessitous circumstances, being owner of this life policy. It is admitted that she has nothing else.

The counsel for the widow invokes as conclusive the decision in White’s Sue. 29 Annual, 702, wherein we held that the pecuniary condition of the widow at the moment of her husband’s death must determine her right to the portion reserved for widows in necessitous circumstances. We then discarded M’Coy’s case, 26 Annual 686, as authority, because it was in direct conflict with Gimble v. Goode, 13 Annual 352, and had been overruled already, by the same court that decided it, in Max’s case, 27 Annual 99.

Becognizing the doctrine in White’s succession as authority in its entirety, and applying it here, we find that at the moment of the husband’s death, the widow became entitled apparently to a sum much larger than the law sets apart for necessitous widows. The event that made her a widow is the contingency upon which eo instanti her right to that sum ensues. No one can pretend that if she had actually received it, her claim in the present proceeding could be listened to for an instant. But it seems to have been supposed that her claim should be finally determined against her, because she was prosecuting a suit on the insurance policy, and it was accordingly rejected in the lower court. On the other hand the counsel for the widow urges that this chose in action is not ‘ property,’ in the sense in which that word is used in the Act of 1852, and as the suit is undetermined, that she is entitled to a present absolute judgment for the sum allotted to her as a widow’s portion.

Courts would be singularly devoid of power to prevent injustice, when the possibility of inflicting it was staring them in the face, if it were not within their authority and discretion to make a decree in such suit which shall protect all the parties to it.

The meaning of the Act under consideration cannot be mistaken. If the widow or minor children have nothing — are in necessitous cicum-stances — she is entitled to one thousand dollars from her husband’s succession. If she or the minor children have any species of property, not amounting in value to that sum, or have money not of that amount, she is entitled to so much as, when added to what she or they have, will make up that sum. At the moment of the husband’s death, the widow Boisblanc became possessed of the right to demand, sue for, and receive the sum secured to her by the life insurance policy, and this is such property as is contemplated by the Act. It may be that she will not perfect that right by obtaining judgment against the Insurance Oom-pany, or that she may be unable to execute the judgment, if obtained, for the whole sum or a part thereof. Our decree will assure her her rights, and it will protect the creditors of her husband’s succession.

It is ordered and decreed that the judgment of the lower court, amending the administrator’s account by disallowing the sum of one thousand dollars to the widow, is avoided and reversed, and it is further ordered and adjudged that the account, in so far as it allows the above mentioned sum to the widow is approved and homologated, subject to this proviso and condition, that before the administrator shall be required to pay that sum to her, she shall give bond, with security to be approved by the Judge of the Second District Court of Orleans parish, for the prompt and faithful return to the administrator of the sum'reeeived by her from him, so soon as she shall have received a like sum from the Insurance Company defendant in her suit on the Life Policy; or else, in lieu of said bond, that she transfer and assign to said administrator so much of the judgment to be recovered of the Insurance Company, or of her demand against that Company in said suit, as will equal the sum paid to her by him.

It is further ordered that the widow Boisblanc recover of the opponents the costs of this appeal.


author: Spencer, J.

text:
    No. 7484.
    N. O. and Carrollton R. R. Co. vs. Board of Assessors.
    Tli6 taxable value of that portion of the capital of a corporation represented by tlie shares ot its stock is the market value of those shares.
    The assessment of “the capital” of a corporation need not particularize every element of value entering therein. It need only be made in general terms.
    ^PPEAL from the Third District Court, parish of Orleans. Monroe,

      L. E. Simonds for plaintiff and appellant.

      Sam. P. Blanc for defendant and appellee.
    L. E. Simonds, for plaintiff and appellant, contended :
    First — That the term “ capital ” is not used in .any law of Louisiana in any other sense than “ money.” It is not applied to any other property or right. That it does not include the shares of stock of a corporation. Rev. Stats, art 733, sec. 10 of Act No. 96 of 1877 ; Act Ño. 8 of 1878 (ex. sess).
    Second — That the mode of assessment is unfair and unequal as applied. It was never intended by the Legislature to apply to railroads.

      Third — That it is an entire mistake, that the revenue laws of this State authorize the assessment of the “ capital ” of any corporation at the market value of the stock as a fixed criterion.
    And even if so, such rule was not intended to apply to railroads. See Act No. 96 of 1877; Act No. 8 of 1878; and Act No. 9 of 1878.
    Fourth — That the Act No. 59 of 1867 was not intended to fix the value of the property, or to require that the stock to be issued should be of an amount equal to the value of the property.
    And if the property was of that value then, it has greatly depreciated by the general shrinkage of values.
    Fifth — That the franchises, rights, and privileges do not form part of the “ capital invested or employed,” and they are of no great value. Sixth — -That even if the franchises and privileges have been taxed by the Legislature, and if they are of the value assumed, they have not been assessed, or not by any proper description.
    Sam. P. Blanc, for defendant and appellee, contended :
    That the stock of a corporation was a part of its capital, and that it may legally be assessed at its market value. He cited 31 A. 475.
   The opinion of the court was delivered by

Spencer, J.

The capital of the plaintiff company is §800,000, being 8000 shares of §100 each.

This amount of capital was fixed by an act of fusion between said company and certain parties holding a lease of its road, under the authority of an act of the Legislature of 1867, which authorized said road “ to issue such additional stock as may represent the value of the improvements placed on said railroad by said lessees, and scale the stock of the present stockholders in accordance with its real value,” etc., “ provided the total amount of stock shall not exceed §1,000,000,” etc.

Of the §800,000 capital thus fixed, stock to amount of §400,000 was given to the lessees, and §400,000 to the original stockholders of the company.

It is abundantly shown that at the time of the assessment complained of in this suit the stock was considerably above par.

The assessors have valued the real estate, cars, mules, horses, and road-bed at §244,750, and, after deducting these items from the capitaL of §800,000, have assessed it with the remainder, §555,250, as value of “ capital.” The present suit is brought to have that item of $555,250> stricken from the roll.

It is manifest that the property, rights, and privileges of the company at the time of the fusion were estimated as worth §800,000.' The legislative act contemplated that stock should only issue to the extent, of the combined values of the improvements made by the lessees and of the “real value” of the stock of the then stockholders. It is equally manifest that that estimate of values did not exceed the true value of the capital of that company; for its shares have, tor a series of years, been largely above par. The certificates or shares of stock are the evidences of ownership of the stockholders in the property, rights, and privileges of a corporation — in other words, of its capital — whether consisting of money, property, rights, privileges, or credits, or all of these, and we know of no fairer way of valuing this capital than by taking the aggregate value, in open market, of its shares. The revenue laws of this State expressly authorize that mode of ascertaining the Value. See sec. 3, Act No. 8 of 1878.

We are unable to distinguish this case from that of the “ St. Charles-Street Bailroad vs. the Board of Assessors,” lately decided, and not yet reported.

We are at a loss to understand how it can be affirmed that the capital, i. e. the property, rights, and privileges of this corporation is worth less than §800,000, when its shares, i. e. the evidences of the ownership of that capital, were worth, in open market, on the day of the assessment, far more than that sum. It is said in argument that the value of these shares is largely due to good management and administration of the corporation. Admitted. But does not the value of all property fluctuate, according to its productiveness ? Is not a well-managed and carefully administered cotton or sugar plantation valued more than one that is unproductive and gone to waste ? It is said that the profits of this corporation may not be so great hereafter, and that then its shares will depreciate! True, and then the vajue of its capital, if fixed by the value of its shares, will be proportionably diminished, and its assessment reduced.

In conclusion, we will add that the assessment of “the capital” of a corporation can not, in the nature of things, particularize each and every article and element of value entering therein. It must of necessity be assessed, to great extent, in general terms, and, so far as we can perceive, no distinction exists in law between corporations whose capital is all in money and those whose capital consists of property, privileges, and franchises. We think the plaintiff’s counsel underrates the value of plaintiff’s privileges as a corporation. He denies that it has any franchises. It certainly has an exclusive right to the use of its tracks laid through the public streets of New Orleans. A similar right has lately been bought by the Oity Bailroad at the sum of §630,000.

For these reasons, and those adduced in the case of the St. Charles-Street Bailroad case, it is ordered and decreed that the judgment appealed from be affirmed with costs.

Behearing refused.'


author: Marr, J. White, J.

text:
    No. 7571.
    Citizens’ Savings Bank vs. Judah Hart et al.

    A power of attorney which, authorizes the agent to draw, sign, and indorse notes, checks,, and hills in the name of the principal, which is deposited with a certain bank, and which, it appears, was designed by the principal to empower the agent to represent him only in such business as he might have with that bank, will not enable the agent to bind the principal by promissory notes in the principal’s name for borrowed money secured by pledge, executed in transacting a business in which the principal never engaged with other persons than the bank, who had not seen the power of attorney, who had received no intimation from the principal that he had executed any such power, and who could,, by proper inquiry, have ascertained that the agent in his dealings with them had exceeded his mandate.
    ^PPEAL from the Fifth District Oourt, parish of Orleans. Eogers,

      E. W. Huntington and H. L. Dufour for plaintiff and appellant.

      Chas. S. Rice for defendants and appellees.
    E. W. Huntington and H. L. Dufour, for plaintiff and appellant, contended :
    That plaintiff had no reason to suspect, if such was the fact, that Maurice intended to convert the money to his own use. It is therefore immaterial whether he or his principal was benefited by the transaction, if the power of attorney gave Maurice general authority to sign notes.
    “In like manner, if the written authority apparently justifies the act, it is no objection that the agent has secretly applied his authority to other purposes than those for which it was given ; as if, having an authority to make notes in the principal’s name in managing his business, the agent should make such notes for secret purposes of a different nature, which could not be known to other persons dealing with him.” Story on Agency, sec. 73; North River Bank vs. Aymar, S Hill, 262, 270, 271.
    Chas. S. Rice, contra, contended :
    First — That a power to make a note in the principal’s name does not include the power to pledge. C. C. 2997.
    Second — That a power to represent the principal in the latter’s business with a certain person does not authorize the agent to bind the principal in his dealings with other persons.

      Third — That whoever deals with one as the agent of another must inspect his power, and see, at his peril, that the agent dues not transgress his power. Edwards on Bills and Notes, pp. 85 and 86 ; Story on Agency, $ 70 and 73. Authorities reviewed, 25 An. 43; 30 An. 587.

      This case, omitted from the 31st Annual, is reported in tins- volume by direction of the-late Court. — Eepouter.

   The opinion oí the court was delivered by

Marr, J.

This suit was brought to recover of Judah Hart, Samuel J. Hart, and Maurice J. Hart, in solido, the balance alleged to be due on seventeen promissory notes. The petition charges that these notes, were signed by Maurice J. Hart, agent for Judah Hart; that they were given for a loan of money which was used by Judah Hart in his business as pawnbroker; and that the other defendants were partners of Judah Hart in that business, and were benefited by the debt.

The allegations of the petition were put at issue by the separate answers of the defendants. The evidence satisfied the district judge that the alleged partnership did not exist; that neither Judah Hart nor Samuel J. Hart was liable on the notes ; and that Maurice J. Hart alone was bound. The plaintiff is appellant from the judgment rejecting the demand as to Judah and Samuel J. Hart, and condemning Maurice J. Hart for the whole amount demanded.

The controversy is narrowed down to the single question of the liability of Judah Hart.

For many years Judah Hart has been engaged in business in New Orleans as a pawnbroker, loaning money on pledges of jewelry alone. He makes his home in the city of New York, and visits New Orleans, for a few weeks only, once a year, in the winter, at the time of his annual sales of unredeemed pledges. He has ample means for this, the only business in which he is engaged. The business has been conducted by his two sons, employed as clerks, and by another person, also employed as clerk. In 1874, Maurice J. Hart ceased to be in the employ of his father, and was employed at the Oity Hall, in one of the departments of the city government, until the latter part of 1876, when he was appointed a deputy in the office of the criminal sheriff.

During the time that Maurice Hart was employed at the City Hall he dealt largely in “ City Transfers,” as they are called, that is, the claims of laborers and other employees of the corporation. He procured the means of purchasing or making loans on these claims from the Citizens’ Savings Bank ; and the loans made by the bank for this business during the months of July, August, September, and October, 1876, are represented by the seventeen notes sued on, payable to the bank on demand, dated to correspond with the respective dates of the loans, bearing interest at the rate of two per cent a month, and secured by pledge of the claims against the city, with power of sale, expressed in each note. These notes are all signed “ Judah Hart, p. pro Maurice J. Hart.”

The proof shows that the officers of the banlc knew that Maurice Hart used the money represented by these notes in purchasing or making advances on these claims. They accepted his statement that he was the agent of his father, and authorized to sign the notes. He told them his power of attorney was lodged in the Germania Bank; but no officer of the Citizens’ Savings Bank ever saw this power until after this suit was brought; in fact, not until' it was produced on the trial, by the cashier of the Germania Bank, under subpoena duces tecum.

The following is a copy of that power, the only one offered in evidence, or proven to have been given by Judah Hart to Maurice:

“ New Okleans, La., January 25,1876.
“ To the Germania National Bank, New Orleans:
“ Sir, — Please take notice that Maurice J. Hart I hereby authorized as my attorney, to make deposits, draw, sign and indorse notes, checks, or bills of exchange; to draw whatever money or moneys that I have now or may have at my credit with you or others, and in general to transact all business in my name, place, and stead, hereby ratifying in advance all he may do. You have his signature herewith, which please respect when presented to you.
“ Your obedient servant,
“ (Signed) Judah Hart.”

All of this instrument, except the signature, and the words and figures Italicised, is the blank form which the Germania Bank, and, perhaps, most of the other banks in New Orleans, keep for their own convenience, and for the use of their customers, as occasion may require.

Judah Hart says that his object in giving this power was to enable Maurice to cheek for money that might be required from time to time in his business as pawnbroker; and that he gave it to Maurice, who was not in his employ, because he was the elder of his two sons; and if he had preferred the younger, there might have been bad feeling between the brothers. Besides, Samuel J. Hart was in bad health; and went to New York, temporarily, on that account.

The fact that this power was addressed specially to, and was lodged with, the Germania Bank indicates clearly that the sole object was to enable Maurice to represent his father in any business which he might have in that bank ; and to use the money and means of Judah Hart, at his credit in that bank, in and about the business and interest of Judah Hart. "We do not think any other bank in New Orleans would have been justified in dealing with Maurice J. Hart as the general agent of his father, on the faith of this power. It was ample for the business of J udah Hart with, the Germania Bank : it was restricted to his business, and to his business with that bank.

There is no room for doubt that this was the purpose of Judah Hart in giving the power ; but it is possible for a power to be given in such terms that the attorney may abuse it, and that innocent third persons may acquire rights against the constituent which he never contemplated or intended. If Judah Hart had announced through the public press that Maurice J. Hart was his agent, or, by public notarial act, accessible to all, had conferred on Maurice J. Hart the powers specified in this instrument, without words restricting their exercise to his business with persons, or banks, or corporations named or specially indicated, a state of case might have been presented very different from that with which we are dealing. But Judah Hart did not choose to do either. There is no proof that he informed any person whomsoever that he had given this power ; and there is nothing in the case to show that it was ever exhibited to any other person besides the proper officers of the Ger-mania Bank. It could not have been 'used by Maurice to deceive any person ; for his father did not leave it in his custody.

In general, powers of attorney are designed to be used only about the business of the constituent. No matter how broad the terms may be in which they are conceived, those who deal with the attorney, knowing that he is abusing the power for his own purposes, aid him in perpetrating a fraud ; and acquire no rights against the constituent.

The officers of the Citizens’ Savings Bank had no communication with Judah Hart during the entire period of their large dealing with Maurice J. Hart; nor can they affirm that they were deceived or misled by the power. They were informed by Maurice that it was lodged at the Germania Bank ; but they do not pretend that they ever asked him to show them the original or a copy ; nor did they give themselves the trouble to ascertain what were its objects, its nature and extent. Judah Hart states that'he had no business with the bank ; that he never dealt in city debts ; that he never borrowed money for his business, having ample means of his own ; that he knew nothing of the business which Maurice was engaged in ; and that he had no interest in that business, and derived no benefit from it.

Each one of the seventeen notes sued on is a promissory note and a contract of pledge ; and the one cannot be separated from the other. The law requires the power to pledge to be express and special; and there is no such power in this case. If the officers of the Savings Bank believed that the business which Maurice was doing with the means obtained from the bank was really for account of his father, they could not have supposed that the property pledged belonged to Maurice, or to any other person than Judah Hart. According to their theory, they not only accepted these several pledges, by the attorney, of the property of his constituent without the shadow of authority, but, in accordance with the terms of the several contracts, they sold and disposed of that property, without the intervention of justice. The charter of the bank, Act of 1872, p. 120, required that the value of the property so pledged should exceed, by one third, the amount of the loan ; and yet, this whole affair was so managed that, after applying the proceeds of the sale of this property to the loan debt, there remained the large balance of §7500, bearing interest at two per cent a month, which the bank claims of Judah Hart.

Proper inquiry by the officers of the bank would have satisfied them that the agency of Maurice J. Hart was limited to his father’s business with the Germania Bank; and that this power did not authorize Maurice to buy, or to sell, or to pledge, or to borrow, or to loan for account of his father. They might also have learned, by inquiry at Judah Hart’s well-known, long-established, place of business, that he was a pawnbroker, lending money only on pledges of jewelry ; a business altogether different from that of borrowing money at two per cent a month, to be used in the extra hazardous speculation in claims against the city which has given rise to this litigation.

If any loss has fallen upon the bank in this ease, it is to be attributed solely to the extraordinary want of care and diligence which characterizes its dealing with one professing to act under delegated authority; and for this Judah Hart is not answerable.

The judgment appealed from is affirmed with costs.

Dissenting Opinion.

White, J.

I dissent from the opinion and decree herein, and as the-view taken by the court seems to me, in a large measure, destructive of what I believe the law of agency to be, I regret that time has not been-at my disposal to elaborate the reasons of my dissent and to support them by copious reference to authority. However, as my views are the result of the application of what seems to me elementary principles, I feel no very great hesitancy in briefly stating them, although hurriedly and without any reference to authority.

I take it that the power of attorney given in express words power to the agent to draw Mils and notes, and that the body of the mandate contains no limit on the power whatever. The only semblance of limitation is that held to result from the power having been addressed to the-bank, so that the question is simply as follows: Where an express power is given to an agent to do a particular thing, without limitation or restriction, does the fact that the written evidence of the giving of the-power is addressed to or deposited with a particular person limit the-agent to dealing alone with the person in whose hands the power or rather the evidence of it is deposited ? I think not, because the only question is, did the agent have the power, and is the power limited or restricted ? True, the address may be said to be a part of the written! mandate, but the important part of the contract is that in which the-extent of the powers is defined. Now, it is true, the court finds circumstances dehors the instrument from which the limited nature of the mandate is deduced. Whatever may be the view of these circumstances, their effect between the principal and agent, they cannot, in'my opinion, be invoked to destroy the rights of a third person, which are to be tested by the scope of the agent’s written authority, not by the extent of that authority as explained by matters and relations existing between the principal and agent, and between them alone. Nor do I think the fact that the parties dealing with the agent had not seen the written power when they lent the money and took the notes should have any earthly effect on the right to recover. The parties dealt with the agent, as such, and) their rights are to be governed by the question of whether the power was in existence, not whether it was seen. The fact of the agency at the time of the contract is the legal test of the principal’s obligation, not the fact of seeing the power. Now, while I think the law is undoubted, that one cannot recover who knowingly deals with an agent, even within the scope of the agency, in such a way as knowingly to lend his aid to the defrauding of the principal by the agent, I find no proof justifying the application of this reasoning to the present case. True, the proof establishes that the parties knew that the principal was a pawnbroker; but this does not authorize the inference that the parties knew the money borrowed was not for the purposes of the principal. There is no law creating a simple, how much less so a legal, presumption that a pawnbroker from the nature of things can never require to borrow money. I think there is a confusion in saying that the note and pledge cannot be divided. The confusion, it seems to me, comes from the confounding of the evidence of the contracts with the contracts-themselves. The contracts were twofold, principal and accessory; the-evidence may be one, the contracts are nevertheless twofold. Grant that the pledge was beyond the scope of the agent’s authority, the failing of the accessory would not entail that of the principal obligation. If the things pledged were the property of the principal, and he has suffered any loss by their having been disposed of at private sale, such would have been a good defense, but none has been urg«d' in the pleadings,

I think the plaintiff entitled to recover.

Rehearing refused.


text:
    No. 7659.
    Sun Mutual Insurance Company vs. Tom Bynum et al.
    Wliore a delay to a certain day in term-time Jiaa "been granted to an appellant to file the transcript of appeal, and lie omits to file it on or before that day, the appellee may have tbe appeal dismissed, even though it appear that the last day of the delay was a legal holiday, and that this court was consequently not in session.
    APPEAL from the Second Judicial District Court, parish of St. Bernard. Pardee, J.

      B. R. Forman for plaintiffs and appellees.

      James Lingan and T. A. Flanagan for defendants and appellants.
    James Lingan and T. A. Flanagan, for defendants and appellants, contended:
    That where the expiration of the delay for filing the appeal falls at a time when the court is not in session, the appellant has till the first court-day to file his appeal. This was done in this case. The appellant was entitled to show cause before this court on the 27th, and obtain an extension, if proper cause was shown. But on the 27th this court was not in session, being Thanksgiving-Day, and appellant therefore was entitled to the whole of the next day, 28th, to file the record.
    B. B. Forman, contra, cites :
    Copley vs. Buth, 3 A. 189 ; 8 L. 206.
    Van Campe vs. Morris, 6 B. 79.
    Pond vs. Horten, 7 L. 177.
    Artieta vs. Gordon, Opinion Book 35, p. 3.
    Pintada vs. Marais, Opinion Book 43, p. 3.
    Christen vs. Flatow, No. 2399, Minute Book, 1868, No. 17, fo. 497, November 3,1869.
    Feltus vs. Blanchin, Opinion Book 44, p. 383.
    State vs. Judge Fourth Court, 24 A. 233.
    Bienvenue vs. Factors’ and Traders’ Insurance Company, 28 A. 901.
   The opinion of the court was delivered by

DeBlanc, J.

This appeal was, by an order of the lower court, made returnable on the 17th of November. That order was not complied with — and, on»that day, we granted appellants — to file the transcript — an additional delay, which expired on the 27th of said month, a day of Thanksgiving.

The transcript was filed on the 28th, one day after the expiration of the extended delay, and — on that account — appellees have moved to dismiss this appeal. To defeat their motion, appellants rely on our decision in “ Louise L. Sarrat vs. Widow George L’Hote,” not yet reported,, and contend that — as this court was not in session on the 27th of November, they had until the whole of the next day to file the record.

Our decision does not sustain that position. We held that “when an extension is granted to a day not in term-time, the transcript may be filed on the first day of the next ensuing term — and, as here, the term of this court commences on the first Monday in November, and lasts until the end of May, and as it was during term-time that the delay was-extended and expired, the appellants could have preserved their right by simply applying for a further extension. This they did not do, and as that omission can be imputed but to them, the motion to dismiss must prevail.

It is, therefore, ordered that this appeal be dismissed at appellants” costs.


author: MARK, J. Marr, J.

text:
    No. 7342.
    Adolphe Verret vs. Robert Bonvillain.
    The surety of tlie plaintiff in injunction, in a case where no money judgment is enjoined, may become the surety on the appeal-bond of the defendant in injunction, who appeals from the decree perpetuating the injunction.
    "Where there is no proof to show an agreement of counsel to try a rule on a certain day, and no proof of notice of trial on that day, a judgment making the rule absolute on that day is absolutely null and void.
    This Court is without jurisdiction to pass on objections to evidence which the lower court did not pass on.
    The court below has no right to receive certain depositions offered in evidence without first considering and passing on the objections to them made by counsel.
    j^PPEAL from the Second District Court, parish of Orleans. Tissot,

      T. M. Gill for Verret, appellee.

      A. L. Tucker for appellant.
    A. L. Tucker, for appellant, contended :
    That “ a change of domicile from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there.” C. C. 41.
    “This intention is proved by an express declaration of it before the-recorders of the parishes from which and to which he shall intend to remove,” etc. C. C. 42.

      •“ In case this declaration is not made, the prooí of this intention shall depend upon circumstances.” C. 0. 43 ; 8 L. 213 ; 11 L. 178 ; 12 L. 190 ; 13 L. 297 ; 30 A. 498 ; 8 Cranch, 279.
    T. M. Gill, contra, contended:
    'First — That the judgment making the rule absolute was invalid. 5 Rob. 61; 20 A. 544.
    ¡Second — That agreements o£ counsel, to be binding, must be in writing. 5 R. 125.
    'Third — That evidence of the loose confession of a deceased person is entitled to no weight. 6 A. 479 ; 10 L. 355 ; 2 R. 300 ; 7 R. 112 ; 6 A. 114, 763 ; 8 A. 278 ; 14 A. 275 ; 18 A. 618 ; 24 A. 604.
   On Motion to Dismiss.

The opinion of the court was delivered by

MARK, J.

Adolphe Yerret, claiming to be administrator of the suc- • cession of Auguste H. Yerret, by appointment of the Second District ■ Court of Orleans, brought suit against Robert Bonvillain, claiming to be ■ administrator of the same succession, by appointment of the parish • court of St. Mary, to arrest the sale of the property of the succession in New Orleans, by order of the parish court of St. Mary ; and to enjoin Bonvillain from interfering with Yerret in the performance of his duties as administrator. The injunction was granted; and John Calder was ■the surety of Yerret on the injunction-bond.

The day after this suit was brought, Robert Bonvillain, in his capacity as administrator, brought suit against Adolphe Yerret, in the same court, to have annulled and revoked the appointment of Yerret, on the grounds that the deceased had his domicile and resided, at the time of 'his death, in the parish of St. Mary: that his succession was opened and plaintiff was appointed'administrator by the parish court of St. Mary; and that the Second District Court was without jurisdiction to appoint an administrator.

The two cases were consolidated, and the injunction was perpetuated, and the petition of Bonvillain dismissed. Bonvillain appealed ‘by motion; and John Calder became his surety on the appeal-bond.

Appellee Yerret moves to dismiss the appeal for want of an appeal-bond, upon the ground that John Calder is not competent as surety on the appeal-bond, because, as surety on the injunction-bond, he is interested in maintaining the judgment which, as surety on the appeal-bond, he is interested in having reversed.

It is well settled that where the appeal is by motion, all the parties ■to the suit who are not appellants are appellees; and that where the •appeal is from, a judgment dissolving an injunction with damages, the surety on the injunction-bond is not competent as surety on the appeal-bond. See Dumas vs. Mary, 29 An. 808 ; Bauer vs. Lochte & Cordes, 30 An. 685 ; Bowman vs. Kaufman, 30 An. 1023.

But it is only where the execution of a money judgment is enjoined ■that the surety on the injunction-bond is a party to the suit. The words of the statute are : “ On the trial of injunctions, the surety on the bond .shall be considered a party plaintiff in the suit; and in case the injunction be dissolved, the court, in the same judgment, shall condemn the plaintiff and surety, jointly and severally, to pay to the defendant, interest at the rate of ten per cent per annum on the amount of the .judgment, and not more than twenty per cent as damages,” etc. Act of 1831, approved 25th March : re-enacted, reducing the rate of interest to eight per cent, Acts of 1855, sec. 7, p. 325 ; R. S. 1870, sec. 1754.

In such a case as this, there being no sum of money involved, no 'basis upon which interest and damages could be assessed at a rate per ■cent, if the injunction had been dissolved, no statutory damages could have been awarded; defendant would have been compelled to sue on the bond for such damages as he may have suffered. See Morgan vs. Briggs, 17 La. 183 ; Paten vs. Blaize, 19 La. 402 ; Wolden vs. City Bank, 2 Rob. 180 ; Jacobs vs. Augustin, 3 An. 476.

It will be the duty of this court, in the event that the judgment appealed from should prove to be erroneous, to reverse it; and Calder, •by enabling the defendant in injunction to appeal, incurs the risk of having that judgment reversed and the injunction dissolved, and of a .suit and recovery against him, on the injunction-bond, for damages.

The only question, however, which we have to deal with, on this motion, is as to the competency of Calder to bind himself as surety on the appeal-bond. Extraordinary as his position may be, the fact that he is surety for plaintiff on the injunction-bond does not make him a party to the suit nor disqualify him as surety for defendant on the .appeal-bond.

The motion to dismiss is therefore overruled.

Ox the Merits.

Marr, J.

Auguste H. Verret, who resided in the city of New Orleans, continuously, from 1856 to March, 1877; went to the parish of St. Mary on the 5th March, and died there on the 2d April, 1877.

Robert Bonvillain, nephew of the deceased, was appointed administrator of his succession by the parish court of St. Mary; and Adolphe Terret, brother of the deceased, was appointed administrator by the Second District Court for the parish of Orleans. Under an order of the parish court of St. Mary, Bonvillain was about to have the property of the succession, in the city of New Orleans, sold at auction, when Adolphe Yerret brought suit to arrest the sale, and to have Bonvillain perpetually enjoined from interference with the administration.

The theory of this suit is, that the domicile of the deceased was in the city of New Orleans; that the parish court of St. Mary was, consequently, without jurisdiction; and that the mortuary proceedings in that court were absolutely void.

Immediately after this suit was brought, Robert Bonvillain brought suit, in the same court, to have annulled the proceedings in that court, on the ground that the deceased had abandoned his residence in New Orleans, and established his domicile, permanently, in the parish of St. Mary. The suits were consolidated; and the judgment of the district court rejected the claim and demand of Bonvillain, and perpetuated the injunction granted in limine.

In support of his theory, Bonvillain caused to be taken the depositions of himself, his wife, his brother-in-law and sister-in-law, living in the same house with him, and of several neighbors. When these depositions were filed counsel of Bonvillain took a rule on the adverse party, as provided by the R. 0. P. art. 439, to show cause why they should not be read in evidence; and a copy of this rule, returnable on the 23d November, 1877, was served on the counsel of Adolphe Yerret, defendant on the rule. The rule was continued, and fixed for the 29th November, which was Thanksgiving, a day on which the court did not sit. It was continued from the 4th to the 6th, and from the 6th to the 7th December, as entries in the minutes show. There are no entries showing any subsequent fixing or continuance ; but it otherwise appears that the rule was made absolute on the 12th December, the counsel of Yerret not being present.

There is no evidence in the transcript of any service on the counsel of Yerret, except that of a copy of the rule returnable 23d November, and of the notice of trial on the 29th November. How it was fixed or taken up for trial on the 12th December, we are not informed. The day before there was a conversation, on the street, between thé counsel of Bonvillain and the counsel of Yerret; and the former understood the latter to consent to try the rule the next morning. The counsel of Yerret says he told the counsel of Bonvillain that he would try'it if he could ; and he could not because he was engaged, at the rule-hour, in another court.

Any misunderstanding between members of the bar as to their agreements touching the proceedings in a cause should always be carefully avoided; and it is a good rule to require all such agreements to be reduced to writing. The prooí fails to show any agreement or consent to try the rule on the 12th December ; and there is no proof of the fixing, or of notice of trial on that day. The j udgment making the rule absolute, without notice, or proof of consent in lieu of notice of trial, is, in all respects, analogous to a final judgment without either citation or the appearance of the defendant. It is simply a nullity ; and, when the case came up for tfial on the merits, the depositions were subject to all the objections which might have been urged against them if no such rule had been taken.

The counsel of Yerret objected to the introduction of the depositions, on several grounds ; but the court refused to entertain them, because the previous rule to show cause had been made absolute. These objections are annexed to and made part of the bill of exceptions. All the depositions were considered by the judge, except that of the wife of Bonvillain, properly held to be inadmissible; and they failed to convince him that Auguste H. Yerret had changed his domicile to the parish of St. Mary, which was the only thing to be determined on the merits.

We cannot undertake to say what effect these depositions would have upon our minds; because, before we could consider them as evidence, we should be compelled to decide that the objections are not well taken. We could not reject the depositions, and dispose of the case on the merits, without first deciding that some one of the objections is fatal; but as the district court did not pass upon the objections, we cannot either overrule or maintain them without assuming original jurisdiction.

The first objection is, that the depositions were reduced to writing by the attorney of Bonvillain. The proof of this depends upon extraneous evidence. The bill of exceptions was signed by the judge, without explanation or reservation; but this fact only shows that the objections were made as stated in the bill, not that they are true in point of fact. As the district court did not pass upon the objections, there was no occasion for proof, and the transcript does not show that any proof was offered in reference to this objection. It is manifest, therefore, if the objections were otherwise properly before us, we could not pass upon the first one.

In our opinion the district court erred in receiving the depositions offered in behalf of Bonvillain, without first having considered and passed upon the objections to them made by the counsel of Yerret, as shown by the bill of exceptions ; and as the case is presented to us by the transcript this is all that we can decide on this appeal.

The judgment appealed from is, therefore, annulled, avoided, and reversed; and the cause is remanded for further proceedings according to law and the views herein expressed, with instructions to the district court not to receive as evidence the depositions of Robert Bonvillain and others, taken on the 7th, 8th, and 9th days of November, 1877, under the commission of date 1st November, 1877, addressed to William McGregor, Esq., justice of the peace at Eranklin, parish of St. Mary, or to any judge or justice of the peace in the parish of St. Mary, La., without having first considered and disposed of the objections to said depositions set up by the counsel of Adolphe Yerret, as shown by his bill of exceptions of date September 5th, 1878, the appellee, Adolphe Yerret, paying the costs of this appeal, the costs in the district court to abide the final result.

Rehearing refused.


text:
    No. 7533.
    The State vs. John Foster and Charles Speed.
    When it appears that there "were the names of not less than 1000 qualified persons in the wheel from which the jury commissioners drew a panel of petit jurors, the fact that there were at the same time the names of a large number of persons not qualified to act as jurors, will not vitiate the drawing.
    The law does not direct from what sources the commissioners are to seek for the names of petit jurors, and in the absence of charges of fraud, or corruption, the commissioners will not be interfered with in that respect. Mere carelessness on their part, resulting in having the names of a large number of disqualified persons in the wheel, will not invalidate their drawing.
    Questions of fact cannot he considered hy this Court.
    An information which charges the defendant with publishing as true a forged order “ with intent to defraud” is sufficient undor the statute which makes such an act a crime when done “with intent to injure, or dofraud.”
    A PPEAL from the Superior Criminal Court, parish of Orleans. alcer, I. Whit-

      H. N. Ogden, Attorney-General, for the State.

      Andrew H. Wilson and W. L. Evans for defendants.

      H. N. Ogden, Attorney-General, contended:
    That this court is without power to restrict the commissioners to any special method of procuring names, as the law is silent upon that subject. The truth is, .the whole subject matter of this bill is of fact, and not of law, and the decision of the judge below disposes of it. All of the other bills refer to matters of fact, not reviewable in this court. The motion in arrest of judgment upon the ground that “ the information does not charge that it was published with intent to defraud, but charges that defendant intended to defraud by means of the check” surely cannot require any notice. See Act No. 94 of 1873, section 9.

      Andrew H. Wilson and W. L. Evans, for defendant, contended:
    First — That challenge to the array is made because the officer, clerk, or the persons whose duty it was to make the array .of jurors, are in default in the performance of their duties; or on account of some original defect in making the return of the venire; “ or when exception is taken to the principle on, or the means by, which the jury has been procured, as when the sheriff has not chosen the jurors impartially.” Chitty’s Criminal Law, vol. 1, m. p. 536-7 and notes; Co. Litt. 166, a; Bacon’s Abr. Juries, E. 1. Tidd. 5th ed. 845; Black. Comm. 3d Book, m. p. 359; 1 Archbold’s Crim. Pr. and PI'. 6th ed., page 163-1; Bouvier’s Inst. ¶ 3041.
    ■Second — That under the law the jury commissioners had no authority to draw a panel of jurors from names of persons taken from the directories of the city of New Orleans. See act 24, extra session of 1878, p. 280.
   The opinion of the court was delivered by

Spencer, J.

The defendants were convicted on an information for publishing as true a forged order for payment of money.

They have appealed, and have presented for our consideration three bills of exception.

The first bill relates to a challenge to the array of petit jurors on the grounds that at the time the names were drawn from the wheel it did not contain the names of not less than one thousand good and competent men, selected impartially from the citizens of the parish of Orleans having the qualifications to register as voters; but that said wheel did contain the names of a large number of persons who were not good •and competent men, etc.; ’that of 400 names drawn, 352 were by order of the court stricken from the list for the following reasons, viz.; returned by sheriff as not found, 126 ; minors, 28 ; dead, 21; out of city, -24 ; not citizens, 14 ; sick, 17 ; exempt firemen, 13 ; over age, 17 ; served as jurors within two years, 23; residents of Sixth District, 1; exempt for militia services, having paid fifty dollars to the State, 2; United States officers, 2; member of General Assembly, 1; excused by the •court for other legal cause, 59.

The agreed facts are that there were at the time of the drawing 1369 names in the wheel. That of the 400 drawn there were, as stated above, 352 not available. Of the 352 there were 160 disqualified or exempt, not including those reported, not found, sick, and dead. The names in the wheel were selected by the jury commissioners from the •city directory, taking such names,-without special investigation of their •qualifications, as they supposed represented qualified persons. The law is as follows:

“ The said commissioners shall select, impartially, from the citizens of the parish of Orleans having the qualifications requisite to register as voters the names of not less than one thousand good and competent men, a list of whose names shall be made out and returned, certified under their hands, to the clerk of the Superior Criminal Court, to be filed by him in his office; said list shall be kept complete, and supplemented from time to time, before each drawing, and no drawing shall be made from a list of less than one thousand names, and in order to the proper preparation of such lists and supplemental lists, and to the selection of such good and competent men; provided, no person shall be liable to serve as a juror of tener than once in two years. The. said commissioners shall have at all times access to, and the right to copy from, the several books of registration of the voters of the parish of Orleans -, shall be authorized to apply to the Superior Criminal Court for, and said court shall thereupon direct to be issued, subpenas to secure the attendance of witnesses and the production of papers ; and persons failing to obey such subpenas may be punished for contempt.”

The question is, was the jury, thus selected and drawn, a legal one? The commissioners were certainly careless in the discharge of their duties, but there is no pretense that they acted corruptly or from improper motives. The law does not direct from what source the commissioners are to seek for names. It manifestly did not intend to confine them to the registration rolls, for it does not require the person to be a registered voter, but simply to have the qualifications requisite to-register as a voter. The purpose was to subject to jury duty that large class of citizens who do not register, and to this end it was their duty to-go to other sources than the registration. In the nature of things the’ most careful investigation would fail to afford a thoroughly accurate return. Many would not be found, many would be sick, or would die; or be absent, and more or less prove to be exempt or disqualified. True, the result of the drawing in question disclosed an undue proportion of such persons, more of them than there should have been with ordinary care. But if we hold that the presence of such names in the wheel vitiates the whole selection and drawing in this case, the principle-thus established would render it well-nigh impossible to get a panel at all. The law seems to trust the matter to the honesty and discretion of the commissioners, and, in the absence of charges of fraud or corruption, we think it would be unsafe to interfere. ¥e do not think the-present case presents legal objections to the panel. In the case of “ The-State vs. Newhouse,” 29 An. 84, the commissioners delegated the preparation of their lists to a person not authorized or sworn for the purpose-. In this case, the most that can be said is that the commissioners were-not as careful as they should have been in the discharge of their duties-

The second bill is taken to the refusal of the judge to grant a new trial on the grounds:

First. That the check offered in evidence as the’instrument forged was not sufficiently identified as such.

■ Second. That there was no evidence showing that Speed had guilty knowledge.

It is manifest that the questions here presented are of fact, and not of law, and therefore not reviewable by this court.

The third bill of exceptions is to the refusal of the judge to arrest judgment upon the grounds urged,” to wit:

1st. That the information charges the intent only “ to defraud?’ whereas it should have charged the intent “to injure and defraud.”

2d. That the information does not charge that it was “published with intent to defraud,” but charges that “ the defendants intended to defraud by means of the check,” which are not equivalent expressions.

3d. “ That the charges made in the information are not sufficient in law to constitute the crime of publishing,” etc.

The second ground above stated the counsel abandon, but they insist on the first and third, contending that as the statute (R. S. 883) makes use of the words “ with intent to injure or defraud,” the charge should have been “ with intent to injure and defraud.” The charge is, “ with intent thereby to defraud.” The rule is that where the statute in stating the intent uses the disjunctive, the indictment should use the conjunctive, if it changes more than one of the intents. Thus it would be bad to charge in this case, in the words of the statute, “ with intent t'o injure or defraud,” for that would leave the offense uncertain. If both intents are charged it must be done conjunctively. But it is' sufficient to charge either intent, as “ with intent to injure,” or "with intent to defraud.” It is a crime to do the act prohibited, with either or both intents, and they may be charged separately or conjunctively. ’ See State vs. Banton, á An. 32.

¥e therefore conclude that the judgment and sentence appealed from are correct, and the same are affirmed.

Rehearing refused.