author: Millbe, J.

text:
    No. 11,982.
    A. Goldman et al. vs. The North British Mercantile Insurance Company of London and Edinburg.
    A paper headed conditions containing a stipulation that the assured shall at all times keep his commercial books and papers in an iron safe, to preserve them from lire, the paper being plainly marked as part of the policy, delivered to and accepted by the assured, •will be deemed part of the policy, especially when the assured sues upon the policy with the paper attached as constituting his contract.
    Such a stipulation is a promissory warranty, the breach of which is not cured by the allegation that from oversight or neglect on the part of the assured, or his clerk, the books were not in the safe on the night of the fire, and the policy is avoided by the breach. Wood on Insurance, Sec. 179.
    The allegations in a supplemental petition, though -filed after the exception of no cause of action, may be considered in determining the exception.
    PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Morris Marks and Walter J. Burke for Plaintiffs, Appellants:
    A paper containing particular statements relating to the subject matter of insurance attached to the policy at the time of its execution is no part of the policy. May on Insurance, p. 182, 2d edition.
    A warranty will in no case be extended by construction, nor will it be made to include anything not clearly within its terms. And it will be construed strictly against those for whose benefit it is made when it imposes burdens upon others; and so if possible as to avoid a forfeiture. May on Insurance, 2d edition, pp. 199 and 200, Sec. 17.0.

      It has been held “ That a paper pasted to a policy containing a requirement that the insured should keep a record of sales warranted to be kept in an iron safe at night,” held a representation .and not a warranty. Am. and Eng. Ency. of Law, 295; Goddard vs. East Texas Fire Ins. Co., 67 Texas, 69.

      Saunders & Miller, Morgan & Thompson, Howe, Spencer & Coche, for Defendant, Appellee.
    Argued and submitted January 6, 1896.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

Millbe, J.

The plaintiffs sue for the amount of a loss by fire of their stock in store insured by the defendants. The defendants excepted there was no action. Thereafter plaintiffs filed a supplemental petition. The court sustained the exception and dismissed the-suit, from which judgment plaintiffs appeal.

The policy sued upon consists of one paper signed by the agent of the company, which states the insurance subject to the three-fourths value clause, accompanied with the stipulation that the company in the event of a loss shall be entitled to a proportionate diminution of its liability by reason of an additional insurance; and then follows the clause that assured should keep his books in a safe. That stipulation, the basis of defendants’ exception, is substantially: the assured shall take an inventory of stock annually; shall keep books exhibiting his purchases, sales and business transactions, and shall keep the books and inventory securely locked in an iron safe at night, and at all times when the building is not open for business, or in some place not exposed to fire which would destroy the building. The petition-made no reference to these stipulations constituting which is called the Iron Safe clause, but did aver the loss by fire and. compliance with all conditions, representations and warranties in the policy. With the exception of no cause of action defendants answered, setting up the failure to comply with the iron safe clause as a defence. Thereupon, the plaintiffs, by a supplemental petition, substantially admitted the non-compliance, but averred the books and papers were not in the safe when the fire occurred for the reason that using the books to a late hour on Saturday night, by oversight the books were not put in their safe; were destroyed in the fire of the next day {Sunday), and the additional averment was made that from other books and duplicate accounts the amount of the loss could be ascertained. In this position of the pleadings the exception of no cause of action was sustained.

The plaintiffs contend that the exception is to be tested by the original petition, and that petition they maintain was sufficient. We think on that petition the exception would have been overruled» leaving to defendants their defence of *the violation of the safe ■clause. It would, however, be of no avail to plaintiffs to reverse the judgment, even if the supplemental petitions could not be considered in passing on the exception, for they still would have to encounter, on the face of their own pleadings, the defence urged by the exceptions, and if that defence is valid, defendants would have the right to a determination of that issue, and thus save the trouble and expense of a trial. The object of amending is to set out more fully the cause of action, and we think the lower court properly treated both original and supplemental petitions, as presenting the cause of action denied by the exception.

The question, then, is whether this safe clause is a warranty, the breach of which avoids the policy; or, if a warranty, whether the excuse alleged by plaintiffs in their supplemental petition relieves the plaintiffs from compliance.' Eepresentations in their usual significance precede the policy and refer to the character, •ownership, use and other particulars of the subject insured. Whether material or not, if they are made part of the policy, and are false, they are treated also as warranties, and the misrepresentation avoid i the policy. Wood on Insurance, Sec. 160. Promissory warranties refer to what the insurer engages to do in the future. Obviously, it seems to us the safe clause is a promis>ory warranty in- . serted for the security of the assured to guard against fictitious losses. It is an engagement on the part of the assured that the books and papers deemed the most valuable evide .ee of the property and its value shall be preserved from destruction by the method plainly prescribed by the policy. We notice defendant’s contention that the stipulation as to the books is not explicit; that it does not state whether the books shall be single or double entry, and is deficient in other respects. We think the requirement that the assured shall keep a set of books exhibiting their purchases, sales and transactions is sufficient. But the argument on this point is stripped of force in view of the fact that they had no books in their safe. It is contended on behalf of plaintiff that the courts of other States have held the stipulation under consideration is not a warranty. A decision of the Supreme Court of Texas is relied on by plaintiffs on this branch of their argument. In New York the statute requires all conditions to be embraced in the body of the policy. The decisions to which we have been referred seem mainly to be devoted to questions arising under the statute. The Massachusetts decisions cited in plaintiff’s brief do not, in our appreciation, sustain the plaintiff’s contention that a stipulation like that under consideration is not a warranty. The question never has been decided by our courts. In view of the nature of this iron safe stipulation, referring as it does to the future and imposing an obligation to be observed by the assured in reference to their books, we must regard it as a promissory warranty. Wood on Insurance, Sec. 179.

But the plaintiffs contend that under the allegations in the supplemental petition the failure of compliance with the clause is excused. The allegation is the books and papers were not in the safe on the night of the fire, owing to the oversight or unintentional neglect of the assured or their clerk. We can not accept the allegation as importing an equivalent or excuse for non-compliance with the plain obligation of the policy. If such an excuse could be accepted it would be to change the contract. It would be idle to insert such a stipulation in the policy, if neglect or oversight of the assured could be deemed sufficient to avoid the effect of their failure to observe a duty imposed on them in explicit terms.

Again, the plaintiffs contend the iron safe clause, because on a separate sheet, is no part of the policy. The paper was delivered, with the policy bearing the statement on its face it was part of the policy. Under the New York statute, it is possible this might not have been sufficient. It is in this connection the decisions of the New York Court bear some relation. We have no such statute. Besides the paper was filed with t£e petition as part of the policy. We hold it to be such.

We have given attention to the authorities cited by plaintiffs and have considered their argument, but our conclusion is the judgment of the lower court, maintaining the exception, is correct.

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


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,992.
    Henry C. Prevost, Syndic, vs. Henry Walther.
    To a revocatory action for the recovery of an asset, which was pledged and assigned by an insolvent commercial partnership immediately previous to their surrender, an individual, member is not a necessary party, because the members of the firm are personated by the creditors to whom the cession is made, and the syndic is their accredited representative.
    The syndic is not estopped judicially by the creditors’ acceptance of their debtors’ cession and schedule. Neither imports absolute verity on its face.
    The fact that the relations of factor and customer exist between the insolvents and a particular creditor does not justify the former in pledging or assigning to the latter a mortgage note not relating to their transactions, immediately previous to their surrender, and while their affairs were in a state of financial embarrassment.
    PPEAL from the Eighteenth Judicial District Court for the Parish of Terrebonne. Caillouet, J.

      Beattie & Beattie and Fenner, Henderson & Fenner for Plaintiff, Appellee.

      L. F. Suthon for Defendant, Appellant.
    Argued and submitted January 9, 1896.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

Watkins, J.

This suit was brought by the syndic of the creditors of the insolvent commercial partnership of John A. Hubbard & Co., and of John A. Hubbard and Harris Gagné, the individual members composing that firm, representing that the insolvents owned a certain described note for three thousand dollars, secured by mortgage and vendor’s privilege on certain real estate; and that the same came into their possession anterior to its maturity for a valuable consideration, and was in their possession on the day of their cession, and passed to their creditors by their assignment. That same was thereafter illegally and fraudulently transferred to the defendant without legal or sufficient consideration, after maturity and for the purpose of giving to him, as a creditor, an undue preference over other creditors of the insolvents.

He prayed for judgment decreeing him to be the rightful owner of the note for the use of the creditors, and an injunction restraining him from making a sale or other disposition thereof, pendente lite.

The defendant first filed' an exception, to the effect, (1) that John A. Hubbard was a necessary party to this suit as a revocatory action, he being one of the contracting parties; (2) that the. syndic is estopped from bringing the suit because he is bound by the insolvent’s schedule; (8) that he is without interest to represent the mass of creditors.

They were tried and overruled, and the defendant then, for answer, plead a general denial, and especially averred that the relations between himself and the insolvents were of a fiduciary character, and the proceeds of rice sold by them for his account were in their hands, to the amount of six thousand dollars, and that in order to secure the same in part the note in controversy was pledg d to him prior to their insolvency, and that he received it in good faith and in ignorance of the condition of Hubbard’s affairs. That the charge of fraud comes too late — after moré than ten days had elapsed after the cession had been made and accepted.

On the trial there was judgment in favor of the plaintiff, and the defendant has appealed.

Addressing our attention first to the defendant’s exceptions, it seems to us very clear that John A. Hubbard, individually, is not a necessary party to this litigation, (1) because he is one of the declared insolvents and is personated by the creditors through the instrumentality of the syndic, who is plaintiff; (2) because John A. Hubbard individually was not the debtor of the defendant. For it appears from the transcript that the defendant “ was a creditor of John A. Hubbard, the said John A. Hubbard being a commercial firm composed of John A. Hubbard and Harris Gagné, doing business under the name of John A. Hubbard. Mr. Walther had been doing business with that firm for many years, and when (the) firm changed its name, about January 1, 1894, from John A. Hubbard to John A. Hubbard &'Co., there was no change in the personnel of said firm, it still being composed of (John A. Hubbard) and Mr. Gagné. And Mr. Walther continued business with us without any interruption, and was a creditor and is a creditor of John A. Hubbard & Oo.”

This statement is that of John A. Hubbard, as a witness.

It seems to us equally clear that the syndic is not bound or estopped by the creditors’ acceptance of the cession and schedules of the insolvents; for if either is esteemed to import absolute verity, there would be neither safety or security to the creditors. Such a construction of the law would prove utterly subversive of the principles of the insolvency laws, the object of which is to place the creditors in a position where they can make available for themselves all of the assets of the insolvent, to the end that the same may be sold and the proceeds distributed in concursu according to their relative rank and priority.

Indeed this a well settled proposition. It was raised and decided in Chaffe, Syndic, vs. Scheen, 34 An. 687, the court employing this language, viz.:

“The appointment of a syndic, like that of an assignee in bankruptcy, so far from committing the creditors to the correctness of the schedule and precluding them or their representatives from seeking to amend or change it, it was but a step preliminary to the regulation and adjustment, as between the insolvent and creditors, and among the latter, inter sese, of all matters embraced in the surrender, and reported in, or pertaining to, the schedule submitted.”

That decision meets the identical question counsel for defendant has raised in the instant case, and it is conclusively against his contention.

Instead of the syndic being without interest to represent the mass of the creditors, such is the immediate object of his appointment. There is no force in this contention.

With regard to the prescription of ten days which is urged as a bar to the plaintiff’s action, it is sufficient to say, that the only action which is prescribed by ten days, with which we are familiar, is that which is defined in Revised Statutes, Sec. 1802; and it has no application to the revocatory action.

Our appreciation of the defendant’s answer is, that it admits the existence of all the essential facts on which plaintiff grounds this action, and leaves for examination and decision a single question of law; and that question is, whether or not John A. Hubbard & Co. had the right to pledge to the defendant the note in controversy, immediately preceding their judicial surrender, and when they were confessedly in embarrassed circumstances, financially — the defendant being a preferred creditor of the insolvents, as his factors and commission merchants at the time, for proceeds of rice sold and unaccounted for.

This question was correctly solved by the District Judge, and his judgment is supported by a well-reasoned written opinion. The insolvents might have paid defendant out of the proceeds of the rice he had shipped and they had sold; but being in insolvent circumstances, they had no right to thus divert their other assets to the prejudice of other creditors.

Judgment affirmed.

      Note—Civil Code, Arts. 1970-1994; Muse, Syndic vs. Yarborough, 11 La. 530: Stein vs. Gibbons & Irby, 16 La. 103.—Reporter.


author: WATKINS, J.

text:
    No. 11,988.
    M. L. Broussard et als. vs. Elias A. Pharr et als.
    It appearing from the evidence dehors two or more conflicting patenta, which were issued by the Register of the State Land Office, for the same land, to different parties, at different dates, that those last issued were predicated upon prior locations made under internal improvement certificates in due form of law, and those first issued were not founded upon sufficient proofs, the last in date of issuance will reflect the paramount title.
    A PPEAL • from the Nineteenth Judicial District Court for the Par-1 ^ ish of Iberia. Voorhies, J.

      Foster & Broussard for Plaintiffs, Appellees.

      Walter J. Burke and L. O. Hacker for Defendants, Appellants.
    Submitted on briefs January 11, 1896.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

WATKINS, J.

The plaintiffs, claiming joint ownership of a tract of land, and alleging certain acts of trespass and waste committed by defendants thereon under the color of title, pray for judgment recognizing their ownership thereof, perpetually enjoining the defendants from committing further acts of waste and depredation and maintaining their writ of sequestration of the timber which had been felled to the ground.

The defendants set up ownership and possession in good faith under titles translative of property, predicated upon patents issued by the State to their authors.

They aver that, acting under a written agreement with other parties, “ they have engaged in extensive works on said land deadening and trailing timbers,” and in “ doing other works for the advantage of said land, the benefit of which, in the event of an eviction, would accrue to the plaintiff.”

They pray for judgment, rejecting plaintiffs’ demand, and dissolving their writs of injunction and sequestration. That their title be recognized and they be maintained and quieted in their possession ; but, in the alternative that judgment should go against them, they pray for judgment in their favor, permitting them to remove from the land the timbers which they have prepared for market; “ or to complete their work for marketing, upon paying petitioners such market or usual price for the stumpage as shall be determined by the court; or in the alternative that petitioners elect to keep or retain all the fruits of their labor, that they be condemned in solido to pay (them) for the expenses ” they have incurred, in the aggregate of two thousand three hundred and eighty dollars.

The court below maintained the plaintiff’s title, and perpetuated their injunction; but, considering the evidence to be insufficient as to the quantity of timber that had been “ cut and trailed by the defendants on rhese particular tracts of land,” it dissolved the sequestration, fully reserving the rights of the plaintiffs as to the trees which had been deadened by the defendants, and the rights of the defendants as to the trees cut, or their value.

Virtually; the court decided the question of title to the land, and nothing more. From that judgment the defendants have appealed.

The lands which are involved in this suit are swamp lands, in the woods.

Plaintiffs predicate their title upon mesne conveyances duly recorded, traced back to two certain State land warrants, bearing the numbers 66 and 67, respectively, which were issued to John De Val-court on the 3d of March, 1847; and the defendants claim under mesne conveyances duly recorded, traced to three State patents, bearing the numbers 1668, 1820 and 4705, respectively.

The contention of defendants’ counsel is that no patents were ever issued to De Valcourt as evidence of his tide under the warrants of location which were issued in his favor in 1847; and that, for the first time, patents were caused - to be issued to him more than two years subsequent to the date of the patents, which were issued to defendants’ authors, and upon which they base their claim of ownership.

Consequently, they say, the question is well raised as to who have the better title to the land in dispute — the first holders of patents or the transferees of the land warrants or certificates.

It appears that in 1847, John De Valcourt purchased from the State of Louisiana Internal Improvement Warrants, Nos. 66 and 67, which were located upon the lands which are claimed by the plaintiffs. That said lands were selected by the State, and approved to the State by the Secretary of the Interior in 1850; and thereupon a certificate of location was issued to John De Valcourt. therefor.

In 1852 he conveyed the land to Elizabeth Morse and another.

In 1869 they conveyed to O. and P. Sampson.

In 1872 they conveyed to Junius Sampson.

In 1894 he conveyed to Levert and Mailne, from whom plaintiffs acquired by purchase all of the said conveyances having been duly recorded.

The lands in question are of those which were donated to the State of Louisiana by the government of the United States in 1841 for purposes of internal improvement; and the State, in pursuance of an act of the Legislature, issued and sold what were known as internal improvement warrants, two of which were purchased and located by plaintiffs’ vendor, as above recited. Act of Congress approved on the 4th of September, 1841; Act 91 of the Louisiana Legislature of 1844; Section 2449 of the United States Revised Statutes; Frasher vs. O’Connor, 115 U. S. 102; McCreery vs. Haskell, 119 U. S. 327; Wiggins vs. Guier, 13 An. 356.

Plaintiffs’ theory is that, notwithstanding De Valeourt had obtained the certificates from the land department of the State of Louisiana prior to the date of approval by the Secretary of the Interior to the State of said lands, the vestiture of tide in the State at a subsequent date draws to it a good and perfect title in him under said eertificates ab initio.-

And this proposition not only seems to be correct, but the State is the common author of plaintiffs and defendants’ title, and consequently neither can question the title she derived from the government.

Their contention is that lands which are held under a certificate of entry thus issued enters the domain of private property, becomes a proper subject of sale, and is thereafter fully under the protection of laws affecting the rights of property. That such certificates of location afford sufficient muniments of title on which to rest a petitory action, having full effect from the time of their issuance. Simien vs. Perrodin, 35 An. 931.

That a patent is but the final confirmation of the right which was previously conferred by certificate of entry, or internal improvement location..

That, as between the holder of a certificate and a third person, it confers all the rights that a patent could confer. Wiggins vs. Guier, supra.

That proposition appears to be fully borne out by our opinion in Broussard vs. Broussard, 43 An. 923, in which the court say:

1 ‘ From repeated adjudications of our- courts on the subject, we gather the settled doctrine to be this: That while a receiver’s receipt or certificate is not of equal dignity with a patent as showing complete and absolute divestiture of the title of the government, yet that land so held under the former enters fully into the domain of private property.”

The contention of plaintiffs’ counsel is, therefore, that the patent which was issued to them in 1895 conferred no new rights, but simply recognized the rights which previously existed under the internal improvement certificates; and that such patents primed those issued to the defendants’ authors in 1888 and in 1893.

Per contra, that of defendants’ counsel is as follows, viz.:

“ We are not unmindful of the proposition upon which the plaintiffs rest their contention, that land held under a certificate of entry enters the domain of private property, and becomes a subject of contracts, and is fully under the operation of our laws touching the property rights of all classes of persons, and such certificate is sufficient evidence to support a petitory or other real action. Simien vs. Perrodin, 35 An. 931.

“ The decision referred to, and it quotes many in its support, recognizes that a receiver’s receipt or certificate is not of equal dignity with a patent as showing a complete and absolute divestiture of title; and the proposition which here is submitted is, that although, as between the State and the holder of the certificate or warrant, the certificate or warrant is equivalent to title, still it can not be so, as between the holder of a warrant, who has not taken steps to cause a patent to issue to' him, and the holder of a patent, who holds the highest muniment of title. This phase of the case seems to have been presented in the case of Helluin vs. Minor, in 12 An. 125.

£t The court said: 1 In this statement of the case, it is evident that plaintiffs’ counsel have assumed that register’s certificate and receiver’s receipt are title. Now, as between the holder of the register’s and receiver’s receipt, and the patentees, the question. might be much more pertinently asked, which party holds the legal title?' The general government, we believe, has uniformly held that the patentee is the holder of the legal title (Pontalba vs. Copland, 3 An. 87). If so, defendant’s title must prevail, unless there are equities to defeat it.’ ”

The transcript exhibits the following facts as applicable to this controversy, viz.:

The two internal improvement certificates above referred to were issued and signed by the State Treasurer and Register of the State Land Office on the 3d day of March, 1847, of which John De Yalcourt became the purchaser.

A certified extract from the record of the General Land Office at Washington, D. O., showing that the selections of land made by the State, under the Act of September 4, 1841, had been approved and confirmed to the State, March 6, 1850, as per said internal improvement certificates.

An extract from the record of the Land Office at Opelousas, showing the selection and approval of said lands under the act of Congress, on September 4, 1841. .

The application of plaintiffs to the Register of the State Land Office at Baten Rouge, on the 20th of August, 1895, with the aforesaid documents annexed, for the issuance of a patent in conformity with said internal improvement certificates.

A certificate signed by the Register of the State Land Office, on the 6th of March, 1847, that John De Valcourt had on that date filed in his office the aforesaid internal improvement certificates, together with a list of lands upon which same were to be located.

A certificate from the Register of the Land Office of the United States at New Orleans, on the 16th of August, 1895, showing the lands which were located by John De Valcourt under the aforesaid internal improvement certificates on the 6th of March, 1847.

A further certificate of the same officer, of same date, to the effect that the register of internal improvement locations shows that John De Valcourt located the lands in controversy on the date specified.

The patents of the State which were issued by the Register of the State, Land Office to John De Valcourt on the ,81st of August, 1895, in pursuance of the aforesaid certificates and .proofs.

The testimony of the Register of the State Land Office was taken under commission, and the purport of his evidence is that the patents upon which the defendants base their title were issued by him to the defendants’ vendors under the impression that the land had not been previously located and confirmed by the Secretary of the Interior. That notwithstanding the records of his office did not, at the time, exhibit any evidence that such location had been made, he was under the belief that such was the fact, and that he so informed the appellant applicant, and he agreed to accept the patents at his own risk. That when the aforesaid exhibits and proofs of the prior location of said lands were presented to him he became satisfied that the patents he had issued were erroneous, and he thereupon issued the patents of the defendants and gave the first patentees due notice thereof.

Under this statement of the facts underlying the patents to the land in controversy we feel entirely satisfied that the District Judge rendered a proper decree.

Judgment affirmed.


author: Miller, J.

text:
    No. 12,018.
    John W. Saint vs. The Charity Hospital et als., Legatees, Under the Will of Mrs. Emma Saint.
    It is not required for the validity of the mystic will that it be closed with wax; mucilage or other adhesive substances may be used adequate to the firm closing of the envelope, and the law does not exact that any seal be impressed on the envelope. Civil Code, Article 158á; 15 La. Rep., p. 88; 8 Troplong Donations et Testaments, p. 156; 2 Vazeille, 477.
    A PPEAL from the Seventh Judicial District Court for the Parish of Bast Carroll. Montgomery, J.

      Glifton F. Davis, T. H. Thorpe and Leonard K. Barber.for Plaintiffs, Appellants.

      Joseph E. Ransdell, O. 8. Wyly and Farrar, Jonas & Kruttschnitt for Defendants, Appellees.
    Argued and submitted January 20, 1896.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

Miller, J.

The question in this case is the validity of a mystic will, alleged not to have been sealed in the mode directed by law. The judgment of the lower court maintained the will, and plaintiff, the legal heir of the testatrix, prosecutes this appeal.

The envelope containing the will is brought up with the record. The testimony and the envelope itself shows that the will was placed in the envelope lined with cloth, the flap attached and adhering to the paper with mucilage, and the envelope thus closed. On the back of the envelope, and written across the edge of the flap where it adheres to the paper, is the superscription of the notary of the presentation to him by the testatrix of the envelope closed and sealed, with the declaration that it contained her last will, and followed by the signature of the notary and the witnesses.

The requisites of the mystic will, so far as necessary to be considered in this case, are that the paper containing the testator’s disposition or that serving for the envelope must be closed and sealed, and thus closed and sealed must be presented by the testator to the notary with the declaration it contains the testator’s will. Oivil Oode, Art. 1584.

The argument for the defendants is that the envelope never had any seal in the legal sense. It is insisted that the law requires both sealing and closing, that this exacts that some substance other than mucilage shall be used, and that there must be some impress in the form of a seal on the substance thus used. If the words of the Oode are to be taken in their strict sense, support would be afforded the plaintiff’s argument in respect to the seal. Our jurisprudence is meagre on this subject. The object of sealing and closing is obviously to guard against any substitution of another paper for that contained in the envelope, or any tampering with the paper containing dispositions of the testator. Neither the use of wax or the impress of the seal can afford complete protection to the enclosed paper, hence we find the French authorities dealing with the Art. 976 of the Napoleon Oode corresponding with Art. 1584 of our Oode do not exact the use of any seal nor any specific adhesive substance to close the envelope. There is some divergence of views of the French commentators on these points, but there is an array of authorities to the effect that sealing implies firmly closing the paper, and there is no necessity for any impress of a seal. Thus Troplong puts it: “ Est-il néeessaire pour sceller le testament que le testateur imprime sur la cire, ou le pain a cacheter dont il se sert un cachet, un sceau, une marque gravée qui laisse des traces.” He answers the question: ni l’ordonance ni le Code n’ont prescrit une forme par-tieuliére pour apposer ce scellement; il suflit que d’aprés l’état ma-tériel de la piéce, la cloture en soit faite avec des précautions qui protégent le secret des écrits et ne permettent pas de les ouvrir sans les briser. Si done les rubans sont liés et retenus par de la cire, si les bouts du papier sout rapprochés, unis pas une matiére servant a sceller telle que cire, pains, colle forte, le voeu de la loi est satisfait et il y aurait une séverité déraisonable a prétendre que toutes ces précautions seront vaines. si les pains, la colle, etc., ne restent pas graves par un sceau laissant des traces.” 3 Troplong Donations et Testaments, pp, 156-57, par. 1627. Wefind concurrence in this view in Coin Delisle, pp. 398, 399; 2 Vazeille, p. 476. The last author upholds the rule of equivalents for the requisites of the Oode as to the closing and sealing, rejects the use of a seal and maintains the firm closing of the paper, whether with wax, pains a cacheter or other substance. Indeed, the French commentators hold that the provisions of the Code on this subject are designed to guide the courts in admitting to ■ probate mystic wills, and enjoin that the envelope when presented according substantially with the closing and sealing required shall present no evidence of having been opened. 2 Vazeille, p. 477. In the light of the seauthorities our Supreme Court held that a will closed with wafers with no seal was valid. Hart vs. Thompson Executors, 15 La. 88.

In this case the envelope is closed with the mucilage or gummy substance used to seal envelopes, the superscription is written across the envelope where the flap adheres to the paper, so that if opened the writing of the superscription would be torn and thus reveal the opening. Olosed in this manner, with the superscription intact and exhibiting no evidence of having been opened after the sealing attested by the superscription, until presented for probate, in our view the requisites of the law have been fulfilled and the will is valid.

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


author: BREAUX, J.

text:
    No. 11,958.
    Charles Unter vs. Metropolitan National Bank et als.
    If an aofc of sale for, at'least, some consideration was not passed to defraud creditors with whom it was proposed to contract later, the subsequent contractors have no right to have it annulled.
    In cases of fraud and simulation the conversations and admissions of the parties, even when not made in the presence of each other, their acts and actions are admissible as evidence, leaving to the court from all surrounding circumstances to judge of their weight as evidence.
    A witness examined out of court before an officer authorized to receive his depo-tions, should remain until d'scharged and he’should sign the depositions.
    APPEAL from the Tenth Judicial Court for the Parish of Natchi-toches. Coco, J.

      Chaplin^ Breazeale <Ss Chaplin for Plaintiff, Appellee.

      I, J, Ringolsky, Pierson <& Porter, Scarborough <Ss Carver for Defendants, Appellants.

      Argued and submitted December 18, 1895.
    Opinion handed down January 6, 1896.
    Rehearing refused February 10, 1896.
   The opinion of the court was delivered by

BREAUX, J.

The defendants, claiming as creditors of Mrs. 0. Mar-der, separate in property from her husband and a public merchant, brought suits on their respective claims and made the statutory averments for writs of attachment.

Several days after this debtor’s property had been attached, the defendants directed the sheriff to seize, under the writs of attachment in his hands,' a stock of goods in another store. Charles ünter, claiming as owner of the goods thus attached, gave the sheriff an indemnity bond and took back the goods. He also enjoined the seizure and sale of this stock.

The answer of the attaching creditors to the petition of injunction denies that the goods were passed to Unter by sale or other transfer, and alleges that if there was any such,, transfer it was wholly fictitious, and it was fraudulent and null and void against creditors.

In 1892, 1893 and 1894 to February 6, the plaintiff was a partner of Mrs. Marder, wife of E. Marder, in Natchitoches, On the date last mentioned, he bought the half interest of his partner, valued at three thousand and fifty-four dollars and forty-eight cents, for two thousand five hundred and fifty dollars cash, and the deed called for, not the half interest, but the whole of the stock of which plaintiff claims, he was,-at the time, the owner of the half.

Although the stated consideration was cash, only two hundred dollars were paid cash, and the remainder was represented by eight notes, payable in instalments in different amounts, signed by the plaintiff, as maker, in favor of the vendor.

In August, 1894, the Marders returned to Louisiana and opened a store in Natchitoches and another in Minden. For these stores, after August and prior to the winter of that year, he bought goods to the amount of ten thousand dollars. In Novembe they sold théir stock in Minden in bulk to merchants and shipped the remainder to Natchitoches.

On the 10th of November E. Marder wired to Kendall Boot Oo. advising them to protect theniselves, as ,he was being pushed. The representative of that firm wired back to the debtor, Marder, to give him a chattel mortgage. Marder replied that they were not legal in Louisiana, and suggested to his creditor to send his claim to an attorney with instructions to attach at once.

The firm, instead, sent a representative to Nachitoches, who found his firm preceded by another creditor, and an attachment levied on the remnant of the goods, which brought seven hundred dollars, while his indebtedness for goods bought in the previous summer and fall amounted to about eleven thousand dollars.

The creditor, Barmon, whose attachment was first in date, went to the store of plaintiff. He was not permitted to come in and examine the goods.

This witness says: “I was down in Natchitoches to bid on the goods of Marder, which I had attached. I went into Unter’s store, but he did not like for me to come in much, and look around. Whenever I went there they were always in front of the store and would get in front of me so I could not get back into the store and examine the goods. I mean Oharles Unter and his brother; they always managed to get around in front of me. However, I came in once when the covers were turned up in a place or two, and there I saw quite a lot of the goods that had been purchased from me and not paid for.” Part of these goods had been bought in September, 1894.

The representative of the Kendall Company, with their attorneys, and the sheriff, called on the plaintiff at his store. Upon his refusal to permit his clerk to point out the goo s he had gotten from Marder, under their instruction the sheriff seized the entire stock of plaintiff.

It is in place to state that Kendall’s representative, Van H. King, testified that he saw shoes in plaintiff’s store which his house had sold to Marder. After the attachment an inventory was taken of plaintiff’s stock; it amounted to three thousand three hundred and ninety-seven dollars. He bonded the goods.

The judgment of the District Court maintained the injunction and decreed him the owner of the. property attached in the suit of the defendants; the writ of attachment was dissolved, reserving to the plaintiff the right to sue for damages. The judgment dismissed defendants’ reconventional demand and reserved their right to institute a separate action against the plaintiff “ for any goods or property it may be shown he had in his possession belonging to Mrs. C. Marder at the time or since the levy of the attachment.”

In November, 1894, a few days prior to the attachment, Marder moved his store to another building. Just prior to moving, a large part of his stock disappeared; the clerk noticed the disappearance in a night, but did not know what became of the goods.

In plaintiff’s store labels were scraped off shoes, and Marder’s name scraped off shoe boxes. Many of the pants had no tags on them of sizes and prices. At different times the plaintiff and other merchants bought shoes and other property from plaintiff’s former partner. They were hauled away in trunks during the day.

The defendants have appealed.

THE RECORD DISCLOSES PAYMENT OE A PRICE AS DECLARED IN THE DEED.

Plaintiff’s purchase of the half interest of a store and the alleged "termination of the previously existing partnership with the vendor, in the first place, has received our attention.

The sale was of the one-half, although the whole stock was referred to as the property sold, and the price was on terms of credit, as already stated.

In regard to the price, the first deed was drawn in accordance with the terms. Through a mistaken notion that plaintiff’s standing as a merchant would be affected, if he were to put on record a deed for movable property bought on credit, it was suggested to cancel it and to write another, changing the terms from creditto cash; the notes as originally made remained outstanding (corresponding with the terms of the deed canceled) between the plaintiff and his vendor. The record discloses that the advice to change to a cash sale was given in good faith by an officer of the locality, whose uprightness is entirely above question.

The notes were unquestionably paid at maturity. Two of these notes were by the holder, discounted by the defendant bank, and by it were collected. It seems, however, that the bank, at the time was not aware of the consideration. The fact remains that they were all paid. The error of description under the circumstances made evident by the record is not evidence of simulation. The defendants were not the creditors of the vendor; they became his creditors only some six months after the sale. The price having been paid we are decidedly of the opinion that the defendants can not sustain their theory that the sale was fictitious, nor that the sale between the parties was merely nominal. This sale was made some time prior to the origin of the indebtedness of the vendor to the defendants. The facts do not establish that it was intended as a basis for future acts of fraud and wrong-doings whereby they might enrich themselves at the expense of their creditors, as contended by the defendants. The failures alleged, and the irregularities of which it is charged that the vendor and the plaintiff had been guilty some time prior, are too remote to have any bearing upon the sale to-prove the conspiracy charged. They must be judged by circumstances contemporaneous, or connected in some way with the transactions. In so far as relates to the sale, we find no evidence to excite suspicion that the motive was as charged.

But whatever may have been the motive of the debtor in regard to his creditors, it is not shown that the plaintiff was a mere interposed party without a title. All the evidence points to the truth of the averment that he had actually paid the price.

ALLEGED ATTEMPT TO SCREEN GOODS.

This being our conclusion in regard to the sale of February, 1894,. another branch of the case is before us for decision. The defendants urge that at the time they levied attachments against their debtor, Marder, he had placed in plaintiff’s store a quantity of goods, bought from them, for which he had not paid; that they were in reality the goods of their debtor, Marder.

We think that there should be additional evidence heard and further examination made.

During the trial questions were propounded to the vendor, Marder. They were ruled out by the court on the ground that the answers sought were declarations made out of the presence of the vendee.

The jurisprudence of this State has excluded the application of the general rule announced, in cases of fraud and simulation.

“ The conduct and declarations of both parties to a written agreement may be admitted to prove a fraudulent simulation. Such is also the rule of the common law.”

Davis vs. Stern, 15 An. 177.

Cannon vs. White, 16 An. 85.

Bushnell vs. Bank, 20 An. 464.

Ray vs. Harris, 7 An. 138.

Erwin vs. Bank, 5 An. 1.

If the plaintiff, Unter, was only seeking to screen goods of Mar-der not included in the sale of February, 1894, it follows that he had no right whatever, and that it was possible to attach the goods, and the rule admitting the testimony, heretofore excluded, applies. The circumstances are exceptional. This witness was examined out of court by defendants’ counsel under the article of the Revised Statutes, which authorizes such examination. Prior to concluding the examination of witnesses at chambers, he left the State and did not, as required by the article in question, sign his depositions and enable counsel to close the taking of his testimony. On the trial the. defendants declined to offer the depositions. They were offered by and admitted at the instance of plaintiff.

The relations between defendants’ counsel and the witness were not such as to preclude them from propounding the questions excluded below.

DEPOSITIONS OUT OP COURT UNDER SECTION 489 REVISED STATUTES.

We affirm the court’s ruling in permitting the Unter depositions to be filed and read in evidence, and' in refusing to order him to answer interrogatories. He had been examined at length by defendants’ counsel, by whom he was called as a witness, and although he was present during the trial, the evidence having been taken for the trial and being part of the proceedings was admissible.

PACTS NOT RELEVANT.

The interrogatories offered' as on facts and articles also were properly excluded, for the evidence sought had no direct bearing upon the issues here involved.

The facts sought to be proved were not connected with the issues. The alleged wrongs committed by Unter at a time long prior to the sale to him and prior to his business relations with any of the parties in interest, was not admissible as evidence.

CAUSE SUFFICIENT TO REMAND THE CASE.

We do not desire unnecessarily to restrict the issue. With the light before us, we must state that we have not discovered cause sufficient to decree the sale of February, 1894, fictitious; if other evidence which may be admitted on the new trial have no more bearing and is not more conclusive, we leave this branch of the case, firmly convinced of the correctness of our previously expressed conclusion.

Our learned brother of the District Oourt reserved to the defendants the right to sue for and receive the goods in plaintiff’s store alleged to belong to the debtor.

The proceedings may as well be prosecuted to a close, granting or rejecting the demand in this case, and for that purpose the case is remanded.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, reversed and avoided.

It is ordered that the case be remanded to the District Oourt for trial in accordance with the views herein expressed.

ON Application for Rehearing.

After having analyzed the facts, we thought that evidence, in addition to that before us, should be heard in the lower court. In consequence, the judgment was annulled; the case was not dismissed, but remanded for further examination, and a judgment in the lower court, after hearing, and such other legal steps as the respective rights of the parties might demand.

In regard to costs, the general rule is that one cast on appeal must pay the costs of appeal. The appellee, who would have had to pay the costs on appeal if we had applied the rule, has no cause of complaint.

Under the exceptional circumstances of this case, we applied the rules announced in Wilkinson vs. Martin, 13 An. 479.

Rehearing refused.


text:
    No. 11,989.
    Fortune Jaubert, Tutor, et als. vs. John Quilter.
    In the dation enpaiement as in the contract of sale, when the vendor acknowledges whether expressly or by implication the purchaser’s title and holds under and for the purchaser, the delivery by the vendor to the purchaser is to be deemed accomplished. Civil Code, Arts. 2439, 2455, 2566.
    APPEAL from the Fifteenth Judicial District Court for the Parish of East Baton K-ouge, Buchner, J.

      Thomas J. Reman and Samuel G. Laycoeh for Plaintiffs, Appellees.

      Gross <& Gross for Defendant and Intervenor, Appellant.
    Argued and submitted January 7, 1896.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs, heirs of Jean B. Ghebelin, sue to be decreed owners of a tract of land, alleged to have been acquired by him from the defendant. The answer is, the act conveying the property was a simulation, and that defendant has always been in possession. There was an intervention by the wife of defendant, assailing the verity of the act, alleging she was his creditor for paraphernal funds, and praying that the property be decreed that of her husband and subjected to her rights. From the judgment in plaintiff’s favor, recognizing his ownership and dismissing the intervention, this appeal is prosecuted by defendant and the intervenor.

The defendant bought the property, the subject of this controversy in 1883 for four thousand three hundred dollars, giving in part payment his note for one thousand eight hundred dollars, bearing eight per cent, interest. In 1886, by public act, he conveyed the property to J. B. Ghebelin, the grandfather of plaintiffs, for two thousand seven hundred and forty-five dollars, the amount of defendant’s note and interest, secured by vendor’s privilege and mortgage acquired and then held by Ghebelin. The defendant and Ghebelin were brothers-in-law. The defendant’s testimony is that the sale was not real, that he always remained in possession, paid the taxes in Ghebelin’s life, aDd for insuring the property; that one of the plaintiffs told him to make out a bill for improvements and it would be paid, and he did make out the claim, putting in the purchase price he paid on the property, that is the cash payment one thousand eight hundred dollars, and also the amount of rice shipped in Ghebelin’s name, because his son told witness it was better, as it might be seized if shipped in his name, .and the defendant further testified the statement of his claim was in the nature of a compromise. On the other hand, Ghebelin, the son, testified to the consideration of the sale, that is the amount of the note given by defendant for the purchase price; that after the sale defendant held possession for the elder Ghebelin on whose behalf witness demanded rent, that the rice referred to by defendant in his testimony was shipped on account of rent as witness understood at the. time; as to taxes, witness states he paid them in every instance, except once or twice, when the defendant paid, because, the witness testified, the elder Ghebelin said: “Why don’t you make Quilter pay some rent?” that in consequence he did pay for that year, and the witness supports his statement by producing the tax receipts and other bills paid ■on the property, all charged by witness to his father. Another witness, plaintiff’s attorney, testifies he demanded possession of the property from the defendant, who made no claim as owner or that the sale was a simulation, but made a claim for improvements, stating he would not give possession until it was paid. This is the claim defendant testifies was in the nature of a compromise. There is also in the record the answer of defendant in a suit brought by one of his creditors to annul the transfer by him to Ghebelin as unreal and in fraud of the creditor’s rights, and the answer avers the verity of the sale, and prays that the creditor’s suit be dismissed.

The defendant and intervenor claimed a continuance to obtain testimony contradicting the statement of one of plaintiff’s witnesses. The statement imputed to him was: He never said that Quilter and his wife had a just claim in the transactions .between him and his father, the elder Ghebelin, and the witness was willing defendant should take out his claim for improvements. The defendant had the benefit of the contradictory testimony and it has had with us its full weight. There is also a bill of exceptions of defendant and inter-venor to the rejection of the copy of the inscription in the mortgage office of Mrs. Quilter’s mortgage claim, and the tax receipts of 1889, 1890 and 1891, offered after the case was closed. In-our view the rejected testimony would not affect the issue. Testimony is offered on behalf of the intervenor to sustain her paraphernal claim as well as to support the position of the defendant. Under our view of the rights of the parties we find it unnecessary to determine the plaintiff’s exceptions to the testimony.

There has been some discussion as to the character of this action. It is brought to assert title against one who sets up title. Plaintiff exhibits his title from defendant, and defendant claims that his conveyance was a simulation, hence his title still subsists. The action is petitory. It is not for defendant to complain that plaintiff did not resort to the suit of the lessor for possession or other mode of presenting the issue, nor is there any exception to the suit. Defendant assumed the position of an owner denying plaintiff’s title. The plaintiff was entitled to bring the suit adapted to the pretensions of the defendant. Code of Practice, Arts. 43 et seq.

The testimony, irrespective of the question of its admissibility, offered by both parties, fully sustains the conveyance by defendant to the elder Ghebelin. The price stipulated in the act, two thousand seven hundred and fifty dollars, the amount of defendant’s note, acquired by Ghebelin, was, in our view, serious, and is not, as we appreciate the argument, assailed for inadequacy. No man is presumed to give, or to pay or give, value for property to present it to another. Ghebelin manifested his appreciation of acquiring ownership by surrendering to the vendor, the defendant, his note bearing mortgage on the property. His insistence, testified to by the witness Ghebelin, that the defendant should pay rent, and other circumstances appearing in this record, mark the position of the elder Ghebelin as that of an owner of the property he had acquired for value. In our view the testimony puts defendant in the position of •one holding under Ghebelin. The fact that rent was not vigorously exacted is due, we think, to the regard and liberality of Gkebelin for his brother-in-law, the defendant. There is the testimony that the defendant paid some taxes. This is a circumstance implying ownership; is to be weighed with the fact that the payment, as it seems to us, was owing to Ghebelin’s complaint to his son to make defendant pay some rent. Instead, the defendant paid, or arranged to pay, taxes that year. The testimony shows that Ghebe-lin, or his son for him, paid the taxes for the other years — all, as we understand the testimony, except for the year paid by defendant. In view of the testimony, the payment of taxes and other items connected with the property afford but scant aid to defendant’s pretensions of ownership. It is urged there was no delivery to Ghebe-lin. In the dation en paiement, as in the sale, delivery may be perfected by the vendor holding after the sale as the tenant or for the purchaser. That, we think, was the relation of the parties. There was, in one instance at least, a shipment of rice produced by defendant on the property and shipped to provide for the rent for Ghebelin. There was the payment by defendant of taxes for one year, instead of the rent, of the non-payment of which Ghebelin complained. “With still greater significance is the fact, that defendant made a. claim, though he qualifies it in his testimony as a compromise, for improvements on the property. Added to all this is the fact that defendant never advanced, until this suit was brought, any pretension of ownership, and in his answer in a suit of his creditors, attacking the sale to Ghebelin, as made in fraud of the creditors of defendant, he admitted and avowed the reality of the sale, and that he held for Ghebelin, the purchaser. In view of all this, we think the contention of no delivery must fail, if, indeed, delivery in the dationen paiement as in the contract of sale is not the incident of the public act by which the property was conveyed. Civil Code, Arts. 2479, 2655, 2656, 80 An. p. 966. It is our conclusion the conveyance to Ghebelin is sustained by the testimony, and that defendant’s possession was that of Ghebelin.

We can perceive no basis to remand the ease as we are asked to do by defendant. It seems to have been fully tried in the lower court. If, as we hold, the title passed to Ghebelin in 1885, there can be no claim of. the wife of defendant on the property for paraphernal funds alleged to have been received by him and the amount recorded years after.

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


author: Millbb, J.

text:
    No. 12,006.
    Town of Mandeville vs. J. B. Baudot.
    When there are two statements of facts by the judge of the lower court filed in this court, and there is a dispute between the parties to the appeal in reference to the statement on which the decision is to be based, the case, under the circumstances shown by the record, will be remanded to enable the appellant to obtain a statement in the mode pointed out by the Code. Code of Practice, Arts. 602, 603.
    APPEAL from the Fourth Justice of the Peace for the Parish of St. Tammany. Phillips, J.

      Olay Elliott for Plaintiff, Appellee.
    P. L. Pourchy for Defendant, Appellant.

      Argued and submitted January 11, 1896.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

Millbb, J.

This appeal is from the judgment imposing a license tax on defendant.

The parties are not agreed on the statement of facts. There are two statements in the record, both signed by the justice, one filed by defendant, the other by the plaintiff and appellee. The counsel for the appellee urges that filed by appellant was not submitted to appellee’s counsel, as required by the Oode of Practice, Arts. 602 and 603, and is incorrect, not containing certain ordinances claimed to have been offered in evidence and made part of the second statement. There is a motion to dismiss filed by him. The appellant insists that the first statement, that filed by him, is correct and should be the basis of our judgment.

We do not think the appeal should be dismissed nor that the case should be disposed of in the present condition of the record.

It is therefore ordered that this case be remanded to enable the appellant to obtain a statement in the mode pointed out by the Code of Practice, with leave to the parties to agree the case shall be submitted on both statements on file, if they prefer so to do.


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    No. 11,980.
    The State vs. Joachim Comeau.
    A member of the grand jury can not be permitted to impeach its finding, by testifying he, as a -witness before that body to support the indictment, was not. sworn. 1 Bishop Sec. 874,873; 1 Wharton’s Criminal Law Sec. 509; 38 An. 680.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. Voorhies, J.

      M. J. Cunningham, Attorney General, and R. F. Broussard, District Attorney, for Plaintiff, Appellee.

      Edward Simon, for Defendant, Appellant.

      Argued and submitted January 11, 1896.
    Opinion handed down January 20, 1896.
    Rehearing refused February 10, 1896.
   The opinon of the court was delivered by

Miller, J.

The defendant appeals from a sentence for shooting at the party named in the indictment.

He relies on a demurrer to the indictment on the ground that a witness, the foreman of the grand jury, heard as a witness before that body in support of the indictment, was not sworn. It is alleged the name of this witness is endorsed on the indictment, hence we infer the lower court entertained the demurrer on motion to quash, as it is termed in the brief for the accused.

The defendant proposed to sustain the demurrer by the testimony of the foreman, the alleged witness before the jury and the person against whom the shot was directed. . The court refused to allow the testimony, and defendant’s bill is to that refusal. It is strenuously contended the rule prohibiting all disclosures, impeaching their findings, by members of the grand jury of proceedings before it, does not preclude testimony from one of them that he was not sworn. The rule forbidding the juror, whether of the grand or petit jury, from impeaching his Aiding or verdict, is one of public policy. The juror is not permitted to affirm he disregarded the law, thus assail his own action and disturb the basis on which judicial proceedings are conducted. The testimony that the juror has disregarded obligation, or that the proceedings of the jury of which he formed part were illegal, must come from others and not from him. Of this general rule, of course, there can be no question. 1 Wharton Criminal Law, Sec. 509, 512; 1 Bishop Criminal Law Sec. 874. This court has applied the rule in a case where it was sought to show by members of the grand jury that their Anding was on insufficient testimony. State vs. Lewis, 38 An. 680. We think the policy of the rule equally extends to jurors impeaching their action by testifying the witness before them, one of their own number, was not sworn. Again, if in this case the witness testiAed he was not sworn, it might well be that the jury acted on other evidence, and no member of the jury could be used as a witness to disturb the And-ing, on the ground of insufficient testimony. 1 Bishop Crim. Proc. Sec. 873. The application of the rule protecting grand jury proceeding against'impeachment by their members is enforced, wethink, by the ineffectiveness of such testimony if allowed from one of them that he was not sworn. With all effect given to such testimony, non constat there was not other testimony to sustain the bill, The presumption is there was, and testimony from the jury can not be admitted to the contrary. We think there was no error in this respect in the action of the lower court.

Another bill reserved by the lower court was to permitting the State’s witness to exhibit the attitude and motion of the accused when he fired the shot. As we understand the bill the witness accompanied his testimony by the appropriate positions and motions attributed by the testimony to the accused. By this the jury were aided in their appreciation of the testimony, and. in our opinion no basis was thereby afforded for the exception.

We have considered the only bills urged • on us by the counsel for the accused, and in our opinion neither can be sustained.

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


author: Nicholls, 0. J.

text:
    No. 11,996.
    Board of Administrators vs. W. R. McKowen and C. D. Smith.
    In a suit against the sureties on an official bond for a failure to account for public or trust funds, it is part of the plaintiff’s duties to allege and prove that the defalcation occurred during the term of office covered by the bond.
    When the term of office for •which an official bond has been given has expired and no second bond exacted, the responsibilities of the sureties on the first bond cannot be extended so as to hold them liable for the acts of a next term, for which other sureties on a new bond would have been responsible.
    Whenadeficit is shown to have occurred during a first term of an official and in the funds with which, during that term he was chargeable, he will not be permitted to apply moneys, subsequently received by him, to closing up past accounts, thus leaving a deficit at the end of another or second term. The fixed liabilities of sureties can not be lifted from themselves and transferred to others simply by reason of Bhe fact that a new term had commenced with new sureties.
    APPEAL from the Thirteenth Judicial District Oourt for the Parish of East Feliciana. Brame, J.

      W. F. Fernán for Plaintiffs, Appellants.

      Isaac D. Wall for Defendants, Appellees.
    Argued and submitted January 10, 1896.
    Opinion handed down February 10, 1896.
    Ohas. A. Decker was elected treasurer of the Board of Trustees of the Insane Asylum, on September 6, 1892, for the period of one year from that date; he was chosen as his own successor on November 6, 1898, and did not execute any new bond. It is . alleged that defendants, who had been his sureties on his official bond, verbally consented to remain his sureties on his said bond as treasurer, and for the balance of the time the said Decker acted as treasurer they- recognized him as such, and received and disbursed funds for him as such up to the date of his death. That on September 6, 1893, the said treasurer had in his hands as treasurer aforesaid the sum of forty-five thousand two hundred and yAnety-ohe 36-100 dollars, funds of said asylum, and that on November 6, 1893, the date he was elected his own successor, he had in his hands as treasurer, seventy-six thousand five hundred and twenty-three 08-100 dollars, funds of said asylum. That of said amounts in his hands on September 6, 1893, he has failed to account for the said sum of twenty-nine hundred and forty-five dollars.
    The defendants pleaded the prescription of one and three years, and contingently they further pleaded the general issue and denied their indebtedness in any sum. They urged that the alleged bond was not a bond at all. That the same was a private writing, not executed before a notary or other public officer as required; that it was never properly approved nor accepted as required by law, nor any notice of its acceptance given to defendants; that it was never delivered as required by law. That the same was never recorded in West Feliciana, in which parish Decker lived and owned real estate, as is required to be done for the protection of the State. That the said recording would have operated as a mortgage on Decker’s real estate in said parish to the full amount of the pretended bond sued on; that by their failure to take and effect the said mortgage plaintiffs are unable to subrogate defendants to said rights of mortgage, and by their said default defendants are released from their obligations as bondsmen, if any they had incurred. They pleaded that Decker was granted a quietus by the hoard on March 22, 1894, as shown by their biennial report made to the Governor of the State. That a quietus was granted to Decker about March 6, 1894; that he was granted an extension of time by the board in which to make his settlement without defendants’ consent, and therefore they are discharged from any liability.
    The prescription of two years was subsequently pleaded.
    The case was tried before a jury, which returned a verdict in favor of defendants. The court rendered judgment in accordance with the verdict in favor of the defendants and against the plaintiffs. They appealed.
   The opinion of the court was delivered by

Nicholls, 0. J.

Plaintiffs in their brief first direct our attention to defendants’ pleadings with the view of defeating the position taken on their behalf and claimed to be supported by two decisions of this court (40 An. 241, State vs. Powell; 45 An. 1207, State vs. Lake), that being sureties on an official bond to secure the faithful performance of duty of an officer holding an office the term of which is fixed at one year, they were not liable for any default of the principal beyond the term under which the bond is given,, and that provisions of law authorizing officers to hold over until their successors are appointed and qualified can only extend the liability of the sureties for such reasonable time as with due diligence would enable the successor to be appointed and qualified.

Plaintiffs say “defendants depend on several special pleas coupled with a general denial — among other pleas they allege that the bond sued on is not a bond at all — that the same is a private writing. They do not depend on the ground that the deficit did not occur during his term of office. It is a rule of law that a special plea waives the general issue and controls it so far as it goes * * * Accepting their plea that it is not a bond but a private writing, it is nevertheless a legal obligation which they voluntarily signed and which is binding on them. This obligation is not limited to any particular time — to any period of time or term of office. The general rule of law is, that in whatever manner one may bind himself he shall be bound. The defendants having bound themselves in this manner are bound thereby, volenti non fit injuria.” We can not adopt plaintiffs’ view of defendants’ pleadings or give to them the consequences claimed. Plaintiffs themselves declare upon the bond as an official bond, and seek to hold defendants liable on an alleged breach of its conditions for a certain sum of money.

Defendants pleaded the general issue and denied that they were indebted in any sum to plaintiffs. They alleged that the pretended bond sued on was not a bond; that the same was a private writing not executed before a notary or other public officer, and not binding or operative for various assigned reasons. A denial by the defendants that they were liable on the ground of action set up by the plaintiffs, because in order to be so bound certain features essential in their opinion to fixing liabilities upon them were lacking, viz.: an instrument of a certain specified form is not an admission of liability upon the instrument they did sign, and which they describe simply to sustain their defence. It would be perfectly consistent for defendants to claim that it was the intention of all parties that they should bind themselves as sureties upon an official instrument which would give them the benefit of defences other and wider than those resulting from a conventional agreement, but that the instrument as signed could not be considered as having that character, but was entirely different from that which it was designed it should be, and therefore not binding at all upon them. We see plainly a denial of liability upon the instrument as an official bond, but we see nowhere an admission of liability upon it, either as a private bond or otherwise. It is expressly averred on the contrary that it was no bond at all, and that defendants owed nothing to the plaintiffs’. Plaintiffs’ position, if true, would be substantially the abandonment of their allegations in order to substitute in lieu thereof defendants’ pleadings so as to make them the basis of a judgment against the latter on grounds entirely different from those set up in the petition and to do so by a forced construction of those pleadings. There was no necessity for defendants to allege that the deficit in Decker’s account did not accrue during the term of office which the bond covered. It was part of plaintiffs’ own case that they should allege and prove that it did occur during that period. The general issue put them on proof of that fact. Plaintiffs allege that on the 6th day of September, 1893, Decker had in his hands the sum of forty-five thousand two hundred and ninety-one 36-100 dollars. * * That of said amount in his hands on the 6th day of September, 1893, as treasurer, he had failed to account for the sum of two thousand nine hundred and forty-ñve 64-100 dollars as claimed in the original petition. ■ As plaintiffs had averred that Decker was elected on the 6th September, 1892, for the period of one year, they by their allegation fixed the time of the deficit and the funds with reference to which the deficit took place. The general issue placed plaintiffs on proof of this fact.

We think that the decisions in State vs. Powell, 40 An. 241; Rison vs. Young, 7 N. S. 298; Brown vs. Cunning, 19 L. 462, and State vs. Lake, 45 An. 1207, support defendants in their contention as to the extent of -the legal liability of a surety upon the bond of an officer holding under a fixed term of office. See also authorities collated in Am. and Eng. Encyclopedia of Law, verbo “Bonds,” p. 466 M.—(Note). It remains tobe seen whether the principle announced in those cases finds reason for application in the case before us.

The Insane Asylum at Jackson, La., was established by Act No. 327, approved March, 1855. Its affairs are administered by a Board of Administrators. The law directs that the board shall elect annually a treasurer, who shall be ex-officio secretary, and who shall not be a member of the board, and who shall give bond and security for the faithful performance of his duty, to be approved by the majority of the board (Sec. 1766, Bevised Statutes). Deckerw as elected secretary on the 5th of September, 1892. A question was raised as to whether he was elected for a full term or to fill out the unexpired term of a former treasurer (Holcombe), and as to what in law fixes the period of the beginning of a term of office. One side claims that the term commenced on the day of election and continued for one year from that date — the other that it commenced on the 10th day of July, it being asserted that that was the date on which the act establishing the asylum was originally promulgated. There is nothing in the evidence going to show when Holcombe’s (the former treasurer) term commenced or how and when he left the office, and nothing to show the day of the promulgation of the act of the Legislature. We do not think a decision on these points one way or the other would materially affect the result of the litigation, for, assuming plaintiff’s contention that the defendants would be responsible for the faithful accounting of all funds which should have been in the hands of Decker on September 6, 1893, to be true, we do not find established the fact that he did not have that amount actually in his hands at that time; or that all iunds then in his hands were not properly disbursed and accounted for. Plaintiffs charge there was a deficit in the funds then in his hands to the amount of two thousand nine hundred and forty-five dollars. Prom that date forward Decker received sums largely in excess of the amount he had in his hands on September 6, 1893; and he also disbursed amounts largely in excess of that sum. No illegal disbursements are charged or shown to have been .made, either after or before that date. When, after he had continued to act as treasurer from September 6, 1893, to the date of his death, September 10, 1894, and after he had disbursed during that interval a sum largely in excess of the amount in his hands on the 6th of September, 1893, his acocunts were ascertained to be ultimately short to the amount of two thousand nine hundred and forty-five dollars, we know of no reasoning and no process by which we could reach the legal conclusion that the deficit claimed occurred prior to the 6th September, 1893, or out of the funds in his hands on or before that day. On the contrary, if the funds with which he was chargeable on the 6th September, 1893, were then in his hands we should rather, as a matter resting on mere presumption, presume that subsequent disbursements were drawn from the fund in 'his hands in the order of their receipt. If Decker had placed his funds in bank at different dates, checking against them from time to time, payments made by the bank would, we think, be referred back and set against the earliest indebtedness to him. (Morse on Banking, Sec 355.) If the deficit had been shown to have occurred during the first term, and in the funds for which he was then chargeable, he would not have been permitted to have applied moneys subsequently received by him to closing up past accounts, thus leaving the deficit at the end of the second term. The fixed liability of the sureties could not be lifted from themselves and transferred to others simply by reason of the fact that a new term had commenced with new sureties. Clements vs. Boissat, 26 An. 244. On page 466-K of the American and English Encyclopedia of Law, Verbo “Bonds,” it is laid down that “ Sureties are not liable for the default of their principal before the execution of their bond; but when an officer is reappointed and gives a new bond, the sureties are liable for the amount of money shown by his books to be on hand. He is presumed to have the amount charged to him, and the burden of proving the contrary is upon the sureties.” In support of this proposition are cited Bruce vs. U. S., 58 U. S. (17 How.) 437, 443; S. C. 4 Myers, Fed. Dec., Sec. 522; U. S. vs. Stone, 106 U. S. (16 Otto) 525; U. S. vs. Eckford, 42 U. S. (1 How.) 250.

In Pine County vs. Willard, 39 Minn. 125, where a treasurer, on surrendering his office during his second term, failed to account for or pay over all the funds then chargeable to him, it was held that the sureties for the second term were prima facie liable, and that-to exonerate themselves the burden was on them to show that this deficiency occurred during the former term. In Morley vs. The Town of Metamora, 78 Ill. 394, where a supervisor was elected his own successor and gave a new bond it was held the sureties were liable on such bond for any amount which appeared to have been in the hands of such supervisor belonging to the town at the end of the preceding official term. At the end of his first term he had made a-report showing a certain amount in his hands, belonging to the town, which report was approved; the court was of opinion that the report-should be considered as true, and that such amount was in his hands as his own successor, and that the sureties on his bond for the second term were liable for a failure on his part to account for it. The evidence in that case showed that the supervisor had accounted for an amount of money about equal to the amount by him received that-year. The defence was that the defalcation all occurred during the first year, and hence the sureties on the first bond were liable for it. Had Decker furnished a new bond at the termination .of his first term • — -and the present suit had been directed against the sureties on such bond, the principles announced in the cases cited would have applied directly against the sureties so sued. Oan the fact that there-was no second bond exacted, and no second sureties given who could be held responsible for the last term, extend the responsibilities of the sureties on the first bond? We think not. They were under no-obligation to see to it that the treasurer should furnish a second bond — that was a duty devolving upon the Board of Administrators-of the Asylum themselves. They can not make the responsibility for a failure to have had such bond furnished fall on other parties.

We think the judgment appealed from is correct and it is affirmed.


author: McEnery, J.

text:
    No. 12,016.
    A. T. Nelson et als. vs. Mayor and Selectmen of the Town of Homer.
    The proviso to Art. 209 of the Constitution gives no authority to municipal corporations to levy a tax for school purposes.
    The General Assembly, under the Art. 46 of the Constitution, is prohibited from conferring upon any one corporation the privilege to assess a local tax for school purposes.
    Act 110 of 1880 confers no power upon municipal corporations to amend their charters, so as to incorporate in it any right or privilege not previously granted by the Legislature.
    APPEAL from the Third Judicial District Court for the Parish of Claiborne. Barksdale, J.

      J. W. Holbert for Plaintiffs, Appellants.

      John A. Richardson for Defendants, Appellees.
    Submitted on briefs January 20, 1896.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs, who are taxpayers in the town of 'Homer, bring this suit to annul certain ordinances of the corporation, establishing a high school, and the ordinances assessing and appropriating five mills of the taxes of 1895 for the support and maintenance of the school. The reason for the nullity of the ordinance is that the corporation of the town of Homor was without power and authority to enact said ordinances; to levy said amount .and appropriate the same for educational purposes.

The defence is that, under Art. 209 of the Constitution, municipal ■corporations have the power and authority to levy and collect taxes to the amount of ten mills for municipal purposes, and that an assessment for educational purposes is a municipal regulation. It is further alleged that the corporation in accordance with Act 110 of 1880, amended its charter and incorporated this power in it.

Under the general welfare clause of the charter, as originally •granted, the District Judge rendered a judgment in favor of defend-' ants, maintaining the legality of the ordinances and assessment and appropriation of the tax. The plaintiffs appealed.

Art. 209 of the Constitution, in the proviso to said article, authorizes parishes and municipalities to increase the rate of taxation for the purpose of erecting and constructing public buildings, bridges and works of public improvement. Under this article it would be a wide interpretation to include within its meaning the establishment -of and the support of a public school. Public education is declared ■by the Constitution to be an affair of the State, and it assumes the whole responsibility of public education. It will be unnecessary to •discuss the question whether the Legislature, by a general law, could authorize local assessments for educational purposes. This question is not raised. But it is certain, from the provisions of the Constitution, that the Legislature is without power to confer this privilege upon any particular political corporation. Art. 46.

The power claimed to levy this tax under the amendment of the ■charter of the'Constitution is unfounded.

The General Assembly is prohibited from passing any local or special law creating corporations, or annulling, renewing or extending or explaining the charters thereof, except as to the city of New Orleans and the creation of levee districts. Art. 46 of the Constitution.

Act 110 of 1880 was, in consequence of this prohibition, enacted, ¡authorizing existing corporations, by a vote of its members, to alter, change and amend their charters. There is no power conferred by the act upon any corporation to incorporate within its charter any grant of any privilege not existing in the original charter. Corporations are the creatures of legislative will, and can do no act not ¡authorized by their charters, unless it is by implication necessary to •carry out conferred powers.

In the original charter there was no grant of any right to the corporation of Homer to erect a school building and maintain a high ■school. It can not by its own act usurp powers not granted. There was no authority under the act for the corporation to so amend its •charter as to authorize the levying of a tax for the maintaining of a Hugh school or for any other educational purpose. Police Jury vs. Shayot, 47 An. 589; Tax Collector vs. Dendinger, 38 An. 261.

The general welfare clause of the corporation can not be so-construed as to permit the exercise of an original power necessary to be granted in the first instance by legislative will.

Under this clause many useful and necessary exercises of power are allowed, but they are all referable to powers granted or those necessarily implied. The subject of education is an important matter, and it is so treated by the State, as it seems to be jealous of the exercise of the power by subordinate political corporations, as it has-not granted local self-taxation for this purpose. This may be the key-stone to a successful educational system, but the collective people in convention did not so regard it; otherwise it would have found a place in the educational system of the State, and protection in the permanency of the organic law.

A high school is not essential to municipal government; a system of education is not a part of municipal regulation, and the power of a corporation to establish a public school can not be inferred from, any power necessary for municipal existence.

The judgment appealed from is annulled, avoided and reversed,, and it is now ordered that there be judgment for plaintiffs, decreeing, the nullity of the ordinances mentioned in the petition and on which the taxing power and assessment is exercised for the-levying of the five-mill tax complained of.


author: Bebaux, J.

text:
    No. 12,024.
    William Winter vs. Isidore M. Davis.
    A writ of attachment was sued out by plaintiff under the fourth and fifth clauses o. Article 240 , 0.1\

    The defendant moved to dissolve on the ground that the affidavit was untrue.
    The District Judge dissolved the attachment.
    Fraud is not always to be presumed from a breach of contract, when the broken promise will admit of an interpretation favorable to honest intention.
    The facts do not show that the failure to deliver cotton (the basis of the attach inent) was with intent to defraud creditors.
    The law allows the husband to make a transfer enpaizmmt to his wife. The settlement with his wife can be corrected by his creditors if it was erroneous and to-their prejudice.
    A statement of assets and liabilities by the defendant to one who was his creditor, in order to obtain advances, made some time prior to the date of plaintiff* claim, is not ground sufficient for an attachment.
    A breach of contract and failure to forward all the cotton promised will not under all circumstances justify an attachment.
    APPEA.L from the Second Judicial District Court for the Parish of Iberville. Watkins, J,

      Wise & Herndon for Plaintiffs, Appellants.

      Ben. P. Edwards and J. A. Dorman for Defendants, Appellees,
    cite: ■82 An. 348, 840, 344; 36 An. 285, 399; 41 An. 227; 46 An. 518; 37 An. 722; 43 An. 1062; 46 An. 1337; 47 An. 17; O. P. 240; 22 An. 531; '24 An. 82, 586; 26 An. 258; 28 An. 258, 309; 30 An. 396.
    Argued and submitted January 23, 1896.
    Opinion handed down February 10, 1896.
   The opinion of. the court was delivered by

Bebaux, J.

The plaintiff in October, 1893, caused a stock of goods -and other personal property of the defendant to be attached. About the same time a number of other creditors also caused attachments to issue. The attachments were made under the fourth and fifth ■clauses of Art. 240 of the Oode of Practice.

The defendant filed motions to dissolve on the ground that the affidavit was untrue.

The District Judge dissolved the attachments and plaintiff appeals.

The defendant had a general country store in the town of Arcadia. His stock of goods was large, and he was indebted in a large amount. It is a disputed question whether he was solvent at the date of the attachments. The evidence upon that point is not clear and conclusive. He sold goods in the ordinary course of his trade; paid a few of his creditors, and carried on such transactions as are not unusual with men engaged in active business. It is evident that there was no system in his business, and that it was conducted without much regard to those principles essential to success. Such ■ defects and want of business tact and ability are not ground for attachment. Unless it be shown that there was an intent to defraud, the attachment must fail. The intent to defraud was not . shown; moreover, the sales and transactions do not seem to have been made with a well formed design to defraud creditors, how- ■ ever much they may have been sufficient to excite the anxiety of ■a careful creditor, seeking to avoid a loss.

A debtor may be ignorant of the facts and circumstances pertaining to his business and yet not be exposed to tfat writ. He may not know the number of bales of cotton he had received at the date of the attachment and not remember which of his creditors he had paid, nor the amount of his assets and the sum of his liabilities (possibly unknown quantities to him) without fraudulent intent toward his creditors. These and other facts proven in the case may be incidents of fraud but are not in themselves a fraud, perpetrated or intended. An attachment basedupon Nos. 4 and 5 of Art. 240, O. P., must be supported by proof of an act or acts showing the fraudulent intent of the defendant to place his property beyond the reach of his creditors or to give an unfair preference to some of them.

It is not evident that, prior to the attachment, there was fraudulent concealment of property to prevent its seizure under the writ.

The plaintiff, as one of his principal grounds, urges, in support of' the writ, that the defendant transferred property to his wife. That question was considered and decided in Wilson vs. Chalaron, 26 An. 641. The court said in that case, that the dation en paiement to the wife will not be sufficient to sustain the attachment upon grounds similar to those alleged here.

The payment to the wife was made under a provision of the Civil Code. The amount transferred to the wife was small as compared with the gross assets of the plaintiff. If the settlement was erroneous and to the prejudice of creditors, they are not without remedy. The notes and accounts were, it seems, transferred to the wife after the attachment had been served.

It is also urged that the defendant, Davis, bought a stock of goods for about thirty thousand dollars; that at the time, and to enable him to make-this purchase, he made a statement to one of his creditors of his financial condition in which he showed assets: twenty-two thousand nine hundred and eighty dollars; total liabilities: five thousand seven hundred dollars; while his ledger showed an indebtedness of a much'larger amount.

However reprehensible and false the sworn statement may have been, the fact remains that it was made prior to defendant’s agreement with plaintiff to consign cotton to him to be credited on the loan. It was made to creditors, who, presumably, were paid before the attachment issued, for the firm’s name does not appear on the list of creditors of the defendant. It might have been different if the de endant, under similar circumstances, had made false statements in regard to his assets and liabilities to the plaintiff here, at the time of the agreement between them and the latter’s loan to the former. .

“ The defendant, for the purpose of obtaining credit, stated that his indebtedness was a certain sum, when in fact he knew it to be much larger. Upon the faith of the statement the plaintiffs gave him credit. Held that the transaction was a fraud upon the plaintiffs, and was sufficient ground for suing out a writ of attachment.” Rosenthal vs. Wahl, 58 Wisconsin, 621. Here there was no statement made to the plaintiff, and the statement was made prior to plaintiff’s claim. Moreover, prior to plaintiff’s loan the total indebtedness of the defendant was much less than plaintiff alleges it was.

It is further urged by the plaintiff that the defendant- was under obligation to buy cotton and ship it to him; that throughout September and to the 7th day of October, 1893, he seemed to have shipped to him, Winter, in accordance with his contract-; that on the 7th of October he, despite the contract, shipped about thirty bales of cotton to others than plaintiff, and received the money therefor.

The advances, as we understand, were not made for the sole purpose of buying cotton. They were made to aid the defendant in his business. He, as an inducement, promised to ship cotton to the-plaintiff, which the latter was to sell and pay himself from the proceeds. There was a breach of contract, a failure to comply with an-obligation; not of such a character, however, as to justify an attachment. The evidence shows that the amount of sales of cotton to-others than plaintiff was small as compared with defendant’s assets and the amount of his business, and that it was applied to the payment of debts to creditors pressing him for payment. There was-but little cotton for sale at the time, and that the defendant, in consequence, was disappointed, as the opportunity for buying was much-less favorable than it had been in previous years. It is also in evidence that the sales in defendant’s business were conducted on a-reasonable basis as to prices.

It is not evident that the intention of the defendant was to place his property beyond the reach of his creditors, or to dispose of it so-as to give an unfair preference. These are essentials to sustain an attachment. Hernsheim vs. Levy, 32 An. 340. The condition of defendant’s business, we have already stated, was such as to give the average creditor concern and some anxiety, particularly as the-amount was large and defendant’s ability to pay uncertain. He had. a large stock, and possibly lie had reason to think, by adopting the course he did, he would succeed in overcoming his -financial troubles. 'There is uncontradicted evidence of record in support of that theory.

However conclusive the grounds urged are against all possible claims for damages for illegal attachment, they are not sufficient to ■sustain the attachment1.

Pood and poison are quite distinct, and yet they sometimes so ^nearly approach that it is impossible with absolute certainty to select ¡between the two.

Error and fraud are equally distinct; none the less in some cases they approach so nearly that it is difficult to decide with absolute ■certainty which term we ought to choose. The error here, the violation of duty, was not the fraudem legis denounced by the statute.

We agree with the District Judge in the conclusion that the error ■committed was not.of the kind which justifies the writ.

The judgment appealed from is affirmed.