author: Levy, J.

text:
    No. 8225.
    Heirs of Self vs. B. F. Taylor.
    Minors, whose property was sold without legal authority, can recover it without tendering the price of sale to the purchaser.
    They are not estopped irom revendicating the property because, in the partition of thoir father’s succession, at thoir majority, they received the proceeds of such sale, when they were not informed of the fact connectel therewith. Their action, under such circumstances, cannot be considered as a ratification of the sale.
    They have ten years after their majority, during which they are in time to revendicate the property.
    The purchaser of the property sold in such case is not entitled to an ofíer of restitution of the price, as a condition precedent of the revendication, but he may claim the amount in reconvention.
    The law does not consider the fact that a purchaser did not examine into the titles by which his vendor acquired the property as an evidence of bad faitb.
    The purchaser may be one in good iaitb, though his vendor acquired the property in bad faith.
    APPEAL from the Eighteenth Judicial District Court, parish of Tangipahoa. Thompson, J.

      Jas. H. Muse, B. B. Bussell and J. M. Wright for Plaintiffe and Appellees :
    Where A intermarries with C, surviving spouse oí a father of a family of children, who are minors, and by private act of sale disposes of a portion of the landed estate belonging to the succession as his individual propeity, in which his wife intervenes, relinquishing her liens and privileges upon the property, as the property of the husband, in fítvor oí his vendee, the act of sale is not an administrative act ; and so far as the succession is concerned cannot be regarded as any sale at all. It cannot be regarded by the law and public justice in any other light than as an act of spoliation. C. C. 2452.
    Such an act is absolutely null and void, and not susceptible of ratification. 4 L. 269; 15 An. 569; Carmena vs. Blanes, 16 An. 245; Rev. U. C. 2272; 6 M. 412; 4 An. 229; 5E S. 655*
    Avast difference exists in our jurisprudence between the sales of succession property in which minors are interested, where they are made of necessity to p"ay the debts of the deceased, and those cases in which no such necessity exists. In the former case, the' debts of the ancestor must he paid, and the minor must submit, of necessity, to the reduction of his inheritance pro tanto. In the latter case, it can only he sold in pursuance to the forms of law. Rev. C. C. 341 et seq. 1044.
    Those only who have purchased at a sale to discharge the ancestor’s debts, can demand repayment of the price from the minors. Daquin vs. Coiron, 8 H. S. 625.
    Where there are several warrantors, who, together with the defendant, have stated tbeir several grounds of defense in thoir auswers, they will not he permitted to shift their grounds of defense to a contradictory one, in order to frustrate the action of the law upon the issues thus made, nor a portion of them adopt the answer of the last warrantor, which is in direct conflict with their own grounds of defense as pleaded and contended for on tb,e trial. The doctrine that “the last warrantor is the real defendant ” cannot be enforced against the settled rules of practice and of pleading, and in disregard of the law of estoppels. G-reenleaf, Vol. 1, p. 28, sec. 22; 18 An. 136 ; 6 M. 549.

      Ellis & Ellis for Defendant and Appellant:
    Where property claimed by the heirs of a deceased person was sold by their co-tutor and tutrix, and the price paid was the full value of the land, and was carried into the partition of the succession, of the deceased, and distributed among his heirs, they cannot recover the property without alleging and proving a previous tender or offer of restitution, even if deceased was the real owner, and the property sold at private sale, aud without the probate order. 24 An. 603; 30 An. 174, 891, 1233.
    Where the price of property, claimed by the heirs as belonging to their deceased father, was regularly partitioned among them, and was received by them after becoming of age, such receipt of the price is a ratification of such sale, whether regularly or irregularly sold, aud estops them from ever attacking the same. R. O. C. 1811, 1816, 1875, 2228. Williams vs. Springfield, 15 An. 535.
    In such case the heirs cannot recover without allegation aud proof of a form\l tender ante litem motmiy whether the suit attacking such sale be a direct attack, or an indirect one, in the forid of a petitory action. 30 An. 174, 891; 24 An. 603 ; Hen. Dig. p. 1020, Ho. 19.
    The last warrantor is the real defendant, and after his answer has been filed, the defendant and other warrantors may avail them&elves of any special defense or estoppel which he may urge against the plaintiffs. Millaudon vs. McDonough, 18 La. 103-108; Yaseouvs. ■ Smith, 2 An. 828, 829. ^
    A ceitificate of a certificate of entry is not the best evidence, the original not being accounted for, and such a document will not support a petitory action. 9 An. 289, Basseron vs. McRae.
    Where, by plaintiffs’ own showing, a joint entry of land was made by A and B, with nothing to show the respective interests, and plaintiffs claim title by conveyance to their ancestor from A, with nothing to show that B ever parted with his interest in the land, it will beheld that there is an outstanding title in B of equal character with that of A, and as the onus is on the plaintiffs, they will be defeated in their petitory action for the land. See Williams vs. Springfield, 15 An. 535. They must fix, by proof, the exact amount of their interest; failing in which, they will be dismissed.
    In the petitory action, the defendant, on the general issue, can compel plaintiff to make out a perfect title, and the plea will not prevent defendant from availiug himself of any de-. fence, which his warrantor may afterwards plead as a special defense or estoppel against the plaintiff. Chowning vs. Johnson, 5 An. 678; Sassman vs. Aime, 9 M. 267.
    Proof of their ratification of the sale, which plaintiffs attack indirectly by a petitory action, will be admitted in favor of defendant and warrantors, where the last warrantor alleges an act of partition, which shows plaintiffs’ receipt of the price, by its date and particulars. Such ratification defendant can^also offer in rebuttal of plaintiffs’ claim of title, and in support of his own allegation of a just title, aud to support the plea of preseription, the • latter pleas following the general issue.
   The opinion of the Court was delivered by

Levy, J.

The heirs of Self brought this petitory action to recover from B. F. Taylor a certain tract of land, situated in the-parish of Tangipahoa. They allege that they acquired the land by inheritance from their deceased father, who acquired it from David D. Hunter by authentic act of 31st January, 1837. They allege that the said Taylor is iu the unlawful possession of a part of said tract of land and, being in unlawful pcssession thereof, “without right or title thereto, and in bad faith and in fraud, knowing that the same was the property of petitioner, whose title was extant and of record as required by law, he is indebted unto them in the full sum of five hundred dollars per annum, from the date of his said unlawful possession of said property, that being the value of the rents and revenues arising therefrom.” They pray that they be adjudged to be the lawful owners of the property described, and placed in f 11 and quiet possession thereof, and for judgment against said Taylor for the sum of $500 per annum for the rents and revenues arising therefrom. The petition was filed June 6th 1871.

The defendant, B. F. Taylor, for answer, alleges that he acquired the property mentioned in the petition by inheritance from his deceased sister, Miss L. E. Taylor, who acquired the same by purchase from John Coleman by authentic act, dated February 24th, 1859; that said property contains twenty-nine acres instead of thirty-nine acres, as is erroneously stated in the petition; that his said sister purchased the same for a valid consideration and in good faith from said Coleman, and in like good faith transmitted the same to respondent as her heir; that since the death of said sister, respondent has sold various portions of said property to divers persons, who are now in the possession and enjoyment of the same as owners, and were so from and at the time of the institution of this suit; that a portion of said property has been dedicated by respondent for public uses, as a street, to the corporation of Amite City, which dedication has been accepted by said corporation and is now, and has been long prior to the institution of this suit, in the enjoyment by said corporation and the general public as a highway; that; after deducting the said several parts and portions so sold and dedicated to public use as aforesaid, there remains abo-ut fifteen acres of which respondent is the owner and possessor; that of the portions so sold and dedicated and disposed of by him, he is not in possession and disclaims all ownership or interest therein; that, as to the portion so remaining to respondent, he resides thereon with his family; that, as owner in good faith he has made extensive and valuable improvements on the same, amounting in the aggregate to the sum of $4830; tha,t this respondent and his said sister had had uninterrupted possession as owners in good faith of said property for more than ten years from the institution of said suit. He calls in warranty John Coleman, his said sister’s vendor, to defend and maintain respondent’s title and indemnify him for all losses or damage he may sustain by reason of any defect of the same; that should plaintiffs be decreed to be the owners of said property, then, as owner and possessor in good faith, he should be entitled to and recover the value of his improvements from said plaintiffs. He further pleads the prescription of ten and three years.

Coleman, called in warranty, in his answer, admits that he sold the property mentioned in the petition to Miss L. E. Taylor, by act of 24th February, 1859, and admits his obligation as warrantor of the land, as ■mentioned in the answer of defendant, B. F. Taylor. He alleges that, in good faith and for a sufficient consideration, under a title translative of property and perfect in form, he acquired said land from Champion P. Bailey and Melissa, his wife, by an authentic act of sale of date January 5th, 1854; that under said title, as owners in good faith, he and his vendee, said defendant, have continuously, notoriously and publicly possessed said property since said last-mentioned date, and he pleads against plaintiffs the prescription of ten and three years in favor of defendant’s rights in the premises. He denies the title of plaintiffs to said land in dispute or to any portion thereof. He alleges, if the certificate produced by plaintiffs under the prayer for oyer, is true (which he expressly denies), then there is an outsanding title in one William Killenbarger, with equal grade with that claimed by plaintiffs, to at least one-half of the tract sued for, and he, therefore, pleads that, by their own declarations and exhibit they are not the owners of the same, and that, to this extent, they declare no valid cause of action. He avers that plaintiffs are the children of Mrs. Melissa Bailey, one of warrantor’s vendors. He calls in. warranty said Champion P. Bailey and Mrs. Melissa Bailey, his wife, and .prays that there be judgment in favor of defendant, Taylor, quieting him in possession; but should plaintiffs be decreed to be the owners, he prays that defendant’s demand for improvements be maintained, but that defendant’s demand against this warrantor for the purchase price of said land be rejected by reason of the use and benefit had by defendant from the enjoyment of the same for so'long a time. He prays for judgment, in solido, over and against the said Bailey and wife, for the purchase price paid by him to them, viz; $250, with interest from the date of their sale to him, and for such judgment as may be rendered against him.

C. P. Bailey and wife, called in warranty, in his answer admits his sale to Coleman, but denies that said wife signed the act as vendor; avers that said Coleman, when he purchased the land from said Bailey, did so with a full knowledge of the rights and claims of plaintiffs, if any they have, and that respondents are not liable as warrantors in this action. Further answering, they aver that respondents were tutrix and co-tutor of the plaintiffs, and that as such they have paid to the several plaintiffs all the funds, rights, credits and effects of the succession of Raleigh Self, deceased, as fixed by^a partition of said succession, and are relieved from all liability to plaintiffs on account of said succession.

This resume of the pleadings exhibits fully the grounds of action and defences in the suit.

One of the points dwelt upon by counsel for defendant and appellant in their brief, and which is elaborated with great earnestness, is, that plaintiffs cannot recover “ without alleging and proving a previous tender or offer of restitution of the purchase price,” etc., and another that, "where the price of property claimed by the heirs, as belonging to their deceased father, was regularly partitioned among them and was received by them after becoming of age, such receipt of the price is a ratification of such sale, whether regularly or irregularly sold, and estops them from ever attacking the same.”

In regard to these points, this case bears great similarity to that of Heirs of Wood vs. Nicholls, recently decided by us and not yet reported. In that case we held: “ The evidence satisfies us, that the plaintiffs were, and must have been, ignorant of the fact that defendant was the purchaser.” In this case, Bailey, the vendor of Goleman, who was co-tutor of the minors Self, testifies ; “ When I made the settlement with them (the heirs) I never advised them hpw the money came, more than it was their father’s estate. I never told them that it was the proceeds of the land sold by their mother and myself.” In the partition under which the settlement of their father’s succession was made with those .heirs, there is no -description of the land, or of the quantity, the name of the purchaser, or its situation; nothing identifying it with that herein sued for. The sale from Bailey to Coleman, on which defendant and his warrantors rely as the origin of their title, was made by Bailey in his individual capacity, with his wife’s renunciation. No reference is had therein to this land as belonging to the succession of Self or his heirs, and as to these heirs it could not operate as a divestiture of any title that they had thereto. It is not contended that there was any order for the sale of the minors’ interests.

In the case above cited, Heirs of Wood vs. Nicholls, we said : “After a somewhat exhaustive examination, we find no instance of its application (i. e. the antecedent tender) in a case like the present, where the nullity of defendant’s title is absolute, resulting from the active violation of a prohibitory law made to regulate defendant’s conduct in a fiduciary capacity, and where such violation was disguised and concealed from plaintiffs, who received what was paid to them in ignorance of such violation, and who only discovered the fact years after the payment.” * * * “ The title of plaintiffs has never been divested. Their right to recover the property is absolute and not dependent upon any antecedent restitution. Defendant’s right to recover does not spring from any contract which is annulled, but is an equitable claim for money paid by him for the benefit of plaintiffs. We discover no principle of equity requiring plaintiffs to tender this money to defendant before asserting their absolute title to property belonging to them and held by defendant as a mere possessor without title. All that equity could possibly require would be to permit him to set up his claim in reconvention, which would not be denied. Finally, it appears from the pleadings and proofs, that defendant is, in the sense of the law, a possessor in bad faith, responsible for fruits and revenues during more than ten years. In asserting such claim there was no equity or necessity for plaintiffs to make a tender of the very much smaller amount received by them. 14 An. 597; 13 An. 189.” The reasons given in that decision are to our minds applicable to and decisive of the question of estoppel raised herein, -and the plea cannot be sustained. Our brother of the court a, qua, in his clear and cogent reasons for judgment, has, in our opinion, seized and properly disposed of the legal questions involved.

In the judgment rendered, the title of plaintiffs is maintained, they claiming through their father from Hunter. The title from Hunter was acquired by notarial act of sale dated January 31st, 1837, under which title they held without dispute until Bailey sold to Coleman in 1859, more than ten years. Self’s vendor sold to him the entire tract? and there is nothing to show that he knew of any defects in Hunter’s title. Says the judge a quo: “Hunter may have satisfied him that he had acquired Killenbarger’s interest, or Self may have never learned that Killenbarger ever had any interest. The law does not consider the fact that a purchaser did not examine into the titles by which his vendor acquired the property an evidence of bad faith, 4 La. 274; 5 La. 242. The Self heirs have shown a complete title to the land by reason of possession under title from Hunter for more than ten years.” Although Coleman did not sign the act from Bailey to him, he assented thereto. He derived no title from Bailey and “is a possessor in bad faith, but there is nothing to show that the property yielded any.revenues while in his hands.” We agree with the District Judge that nothing shows bad faith on the part of Taylor or his sister, from whom he claims to have derived the property. On the contrary, the evidence clearly indicates that he held in good faith, and that he so held for more than ten years. The prescription of ten years holds good against the two plaintiffs, Levi and Josephine Self, more than ten years haviDg elapsed between the dates of their reaching majority and the institution of this suit. “ Prescription was suspended against the other four plaintiffs by reason of their minority. Catherine, Charity A., Louisiana, and Mary E. Self are entitled to recover four-sixths of the property sued for, and defendant to retain two-sixths. As possessor in good faith defendant retains the revenues up to the date of the institution of this suit. Since that date, he must return four-sixths. Defendant must recover of plaintiffs their pro rata of the value of the improvements. The rents of the property from +he date of the institution of the suit until the rendition of the judgment by the lower court, i. e. from June 6th, 1871, to June 23d, 1880, say nine years, amount to $3444 or $382 66| per annum. There was judgment to this effect, and also in favor of the defendant, Taylor, decreeing that the four last mentioned heirs should pay to him four-sixths of $6280, the value of the improvements placed upon the property in question by said defendant, and rejecting the demands of Levi Self and Josephine Self at their costs, and decreeing that no writ of possession issue in favor of the plaintiffs, Catherine, Charity A., Louisiana, and Mary E. Self, until they have paid or tendered to said defendant the amount herein decreed to be due him. for his improvements, and that no fi. fa. issue in favor of defendant until he shall have delivered or tendered, to the last four named plaintiffs, possession of their portion of the land in controversy. It was further decreed, that B. E. Taylor recover of his warrantor, John Coleman, four-sixths of $675, the amount of his purchase price and four-sixths of the costs of this suit, and that said Coleman recover of C. P. Bailey, his warrantor, four-sixths of $240, that being the sum paid by him to Bailey for said property and four-sixths of the costs of this suit; that B. F. Taylor pay four-sixths of costs of this suit, and rejecting the demand in warranty of Coleman against Bailey at his (Coleman’s) costs.

The plaintiffs in their answer to this appeal pray for an amendment of the judgment of the lower court, by reducing the amount allowed to defendant Taylor for improvements from $6280 to $4830, on the ground that the last mentioned amount is that claimed by said defendant in his answer and in his reconventional demand, and that he is not entitled to recover a greater amount than is thus claimed in his prayer in reconvention. We think the judgment should be amended as asked by plaintiffs. The defendant in his answer set up his claim in reconvention and was therein plaintiff. He distinctly alleged the value of the improvements, and fixed it himself at $4830, for which sum he prayed for judgment against the defendant in reeonvention. We know no law or rule of pleading under which he can recover a greater amount than is claimed in his petition and which would justify a judgment for an amount ultra petition.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended, in this: that the defendant B. F. Taylor recover of the above named plaintiffs (Catherine Self, Charity A. Self, Louisiana Self and Mary E. Self) four-sixths of four thousand eight hundred and thirty dollars, the valueof.iinprovements placed upon the property in question-by said defendant, B. E. Taylor, instead of the sum of $6280 as allowed in said judgment; and that the judgment appealed from be, in all other respects, affirmed; appellants to pay the costs of both courts in the proportion decreed by the lower court.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 7133.
    Simon Block vs. Meyers & Levy.
    Malice may be inferred from want of probable cause for the arrest of a debtor, and, therefore, needs not be proved, though the presumption is subject to rebuttal.
    It is only where there exists a probable cause and the arrest is effected under the advice of learned Counsel, consulted in good faith and on correct information of the facts, that a party can be exonerated from damages on the plea that he acted under legal advice.
    APPEAL from the Sixth District Court for the parish of Orleans. Bightor, J.

      Kennard, Howe & Prentiss for Defendant and. Appellant:
    First — To recover damages for false arrest, the arrest must have been
    (a). Malicious.
    (b). Wanton.
    (c). Without probable cause; and there must be ■
    (d). Proof of actual damages.
    Second — Attorney’s fees cannot be allowed as damages.
    Third — Sales made out of the usual course of trade are denounced by the bankrupt law as “prima facie fraudulent,” and this sale being proven, there was ample probable cause for the arrest.
    Fourth — This sale, a most extraordinary one, was an “oíjmií» bonorum sale” fraudulent under State law.

      Breaux & Hall for Plaintiff and Appellee:
    First — To recover damages for false imprisonment, plaintiff mustprove his trial and discharge ; want of probable cause and malice, but slight evidence of malice will suffice. 3 Fob. 18; Long vs. Fodger, 19 Ala. 321.
    Second — Where the arrest is not within the law, the arrest is without probable cause and malicious. Mortimer vs. Thomas, 23 An. 165; TJ. S. Fevised Statutes, 5024.
    Third — Damages in cases of malicious arrest will be inflicted in an amount sufficient to compensate the plaintiff and to amply punish the defendant. Hardy vs. Stevenson, 29 An. 174 ; Fitzgerald vs. Foulat, 13 An. 116.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an action in damages for a malicious arrest.

The petition sets forth allegations usual in such suits, and prays for $5000 damages. The defendants plead the general issue, probable cause, absence of malice on their part and of injury by the plaintiffs.

There was judgment for $1000, and the defendants have appealed.

It appears from the evidence that the defendants in this case brought suit against Block Bros., composed of Joseph and Simon Block, before the U. S. District Court in this city, sitting in bankruptcy, to have them declared' bankrupts, they being merchants who had suspended payment of their commercial paper and who had not resumed payment within the time fixed by law. They coupled with the allegations of their petition a charge that Block Bros., under the name of Joseph Block & Co., a firm composed of them'selves only, had made asale of the entire stock and effects contained in their store at Opelousas, to one Solomon Isaacs, their brother-in-law, with the intent to delay, hinder and defraud the creditors of the said- Block Bros., by placing those assets beyond their reach, with a view that the same might not be made liable for the just claim of the petitioning and other creditors, and in violation of the provisions of the bankrupt aet in such cases made and provided.

The Bankrupt Court granted the order, the warrant issued, Simon Block was arrested by the Marshal, who produced him the next clay in open court and held him subject to further orders.

He was arrested on the afternoon of the 21st of January, 1874, while at dinner with his family. He-left them much alarmed. He was taken to the Customhouse, and remained under arrest until the following day at three o’clock, when he gave bond and was released from custody. A few days afterwards, through counsel representing also his brother Joseph, who had also been arrested in Opelousas, but who is not a plaintiff in this suit, the Blocks moved the court to dissolve the arrest, which was instanter done contradictorily with the complainants, on the 31st, following.

That judgment is not before us for review. We must take it as having been correctly rendered.

We have authority to look into the facts connected with the arrest, for the sole purpose of determining whétner there was probable cause for the arrest, malice on the part of the complainants and injury to the arrested party.

We do not perceive that any evidence was offered on the trial of the rule, and must, therefore, assume that the court decided, on the face of the papers, that the order had been improvidently rendered and that the defendant, Simon Block, had been wrongfully arrested. The court, therefore, ruled that no cause had been shown in. the petition for the arrest.

It seems to us that, under Sec. 5024 of the bankrupt statute, no cause was indeed shown. The only causes for which a bankrupt can. be arrested, under its provisions, are, that he is about to leave the district and that he has made, or is about to make, a fraudulent disposition of his goods and chattels. The firm of Block Bros., sued before the bankrupt court, was held not to be the same as that of Joseph Block & Oo., though composed of the same members, who had made the sale assailed as fraudulent. The case presented was not within the purview of the act and the writ was quashed.

It is, therefore, clear that there was not only no probable cause, but no cause whatever to justify the complaint and the arrest.

The authorities are numerous that in such a case, malice may be inferred and, therefore, need not. be proved, although the presumption be subject to rebuttal. 4 An. 377; 8 An. 12; 11 An. 289; 9 An. 219; 12 An. 332; 13 An. 116; 15 An. 121, 337, 605, 672; 16 An. 3, 252; 20 An. 66, 336.

In 23 An. 165, the Court said: “ We have no doubt that Thomas» the creditor, merely desired to collect the claim due him by the plaintiff» but the utter want of probable cause for the arrest shown on his petition for arrest is a sufficient ground for inferring malice.”

The fact that the complainants acted under advice of counsel, cannot exonerate them from responsibility in a case in which, on its face the petition sets forth averments utterly insufficient to justify the harsh and violent remedy invoked. It is only where there exists probable cause and the arrest is effected under the advice of learned counsel, consulted in good faith and who are correctly informed of the facts, that parties can be exonerated from such damages. 8 An. 12; 11 An. 289; 9 An. 219; Greenleaf, 2 v. 459; Townsend, 427, 418, 431.

We are not prepared to say that express malice was not shown on the part of the complainants.

The lower court allowed plaintiff one thousand dollars. We are not authorized to declare that the indemnity was excessive.

The judgment appealed from is affirmed with costs.

Mr. Justice Fenner recuses himself, having been of counsel.


author: Todd, J. Fenner, J.

text:
    No. 6821.
    Paul Fourchy vs. G. M. Bayly & Pond.
    A debtor in bankruptcy, under the Composition Act of Congress of 1874, has sufficiently complied with the requirements of the law when, being ignorant of the name of the holder of his promissory note, he has given in his schedule a full description of the note,, stating the date, amount, maturity and to whom payable.
    A suit subsequently filed by the holder against such debtor, averring the ownership oí the note, does not affect the Composition proceedings and does not impose upon the bankrupt-the duty of amending his schedule.
    APPEAL from the Fourth District Court for the Parish of Orleans. Lynch, J.

      Thns. J. Semm.es for Plaintiff and Appellee:
    In case of Composition proceedings under Act oí Congress of 1874, where a creditor has two-distinct debts, and one only is placed.by the debtor on the statement of debts, the omitted debt is not affected by the composition, although the creditor participated in the proceedings.

      Kennard, Howe & Prentiss for Defendants and Appellants; on appli- ' cation for rehearing:
    First-State courts have no jurisdiction of suits against bankrupts, pending bankrupt proceedings, except in cases where the consent of the bankrupt court is obtained, and this-consent can only be given by tlie bankrupt court where the suit is for tlie purpose of liquidating the claim.
    Second — Tbe bankrupt law does not require the names of the holders of negotiable notes at the time the schedules are filed to be inserted in the schedule, but only such descriptions as are necessary to identity them; the debt is the thing which the law requires to bo described.
    Third — When the amount of the claim, as in this case, is evidenced by a note, no suit can run in a State court pending bankrupt proceedings. The bankrupt court has no authorily to consent to the institution of such a suit. This consent can only be given where the claim is unliquidated.
    ^Fourth — Where a doubt arises as to the correctness of a claim in bankruptcy, which doubt is not due to the bankrupt’s laches, the case should be remanded that justice may be done.
   The opinion of the Court was delivered by

Todd, J.

This is a suit on a promissory note for $1237. 44 and interest, executed by the defendants, payable to'the order of Payne, Denegre & Co. and by them indorsed.

The defense is that the defendants had been adjudicated bankrupts; that a meeting of their creditors had been held, and their creditors had voted in favor of a composition offered by them; that plaintiff had appeared and proved a claim held by him against the defendants, and had participated in said composition proceedings, by reason of which they claim their discharge from the debt.

There was judgment for plaintiff and the defendants have appealed.

The composition act of 1874, relating to proceedings in bankruptcy, prescribes the terms on which the bankrupt may make a composition with his creditors.

Among its other requirements it enacts :

“That the provisions of a composition accepted by such resolution in pursuance of this section, shall be binding on all the creditors whose names and addresses, and the amounts of the debts due to whom, are shown in the statement of the debtor, produced at the meeting at which the resolution shall have been passed, but shall not affect or prejudice the rights of any other creditors.”

We find in the statement submitted by the debtors in this case that plaintiff was not put down as a creditor for the claim in suit. It is true that a claim similar in amount, date, etc., was reported in the statement, and for this claim the names of Payne, Denegre & Co., the payees of the note sued on, were reported as the creditors.

The law required, as we have seen, that this statement must include the names of all creditors, with the amount of their claims, etc. A further provision required that where the creditor or creditors were unknown that such fact should be asserted in the statement.

A party claiming his discharge under this act, must bring himself clearly within its provisions; nothing must be left to inference or implication.

The plaintiff was not reported in the statement of the debtors as a creditor for this claim, although it is admitted that he was so reported for another claim. Nor was it a sufficient compliance with the law that Payne, Denegre & Co. were reported as creditors for a similar amount, date, etc.

It might be that there were two or more notes of the same tenor and amount executed by the defendants to the same payees. Besides, the note in question was negotiable in form; and thus its negotiation was contemplated at the time of its execution; and there was no reason to conclude that it still remained in the hands of the payees; and that they, the payees, were still creditors for this claim.

And again, the record shows that the defendants were cited in this case on the 14th March, 1876; at which time and by which means they were informed that plaintiff was the holder of the note. The amended answer of the defendants, filed on the 10th of April, 1876, refers to a meeting of their creditors, including the plaintiff, as having taken place. The composition act referred to gave the debtor the privilege of correcting his statement as to any error made in the original one, touching the claims therein reported; and here was an opportunity shown to have been offered the defendants to make this correction, and place plaintiffs name' on the statement for this debt, after they were informed by the citation that he was the creditor; and such correction was not made. Vol. 18 Stat. at Large, p. 183.

It made no difference that the plaintiff was present at the meeting of the creditors and opposed the proceeding for a composition, for it is distinctly admitted that he had been reported in the statement as a creditor, but a creditor for another claim.

We are of the opinion that creditors whose names and address, and the amount of whose debts are not placed on the statement of debts, are not bound by the composition proceedings; and in this we are supported by the highest authority.

Ex parte Matthews L. R. Ch. App., 307; Breslawer vs. Brown, 3. Appeal cases, 672.

And holding this opinion, we conclude that the defendants were not discharged by these proceedings, pleaded in their answer as a bar to this action.

The judgment of the lower court is, therefore, affirmed with costs.

On Rehearing.

Fenner, J.

Upon a re-examination of this case, we are satisfied that, in determining the duty of the defendants with reference to the framing of their statement of debts in their composition proceedings, we have committed error. The composition act of 1874, after providing that the composition should be binding only on the creditors “whose names and addresses, and the amounts of the debts due to whom, are shown in the statement of the debtor,” adds the provision that, when a debt arises on a bill or note, if the debtor shall be ignorant of the holder, he shall be required to state the date, amount, date of maturiy, to whom payable, and any other particulars within Ms knowledge, “and the insertion of such particulars shall be deemed a sufficient description by the debtor in respect to such debt.”

These requirements have been fully complied with by the defendants in their statement or schedule. The debt due plaintiff arose on a negotiable note, of which Payne, Denegre & Co., whose name is placed on the statement, were the original payees, and there is no evidence to show that, at the time of filing or producing of said statement, defendants were not ignorant of the then holder. This suit, subsequently filed, in which, for the first time, plaintiff appeared as such holder, did not have the effect to annul proceedings based upon such statement; nor did it impose upon defendants the duty of amending such statement under penalty of nullity. The answer of defendants informed the plaintiff that the composition proceeding was pending, and that his debt was placed upon the statement filed, quite as fully as the plaintiff’s petition informed defendants that he was the owner of the debt.

There was no necessity, in law or reason, for defendants to amend their statement, made in strict accordance with law, for the' mere purpose of apprising plaintiff of a fact of which their answer to his suit fully informed him.

In any event, defendants’ certificate of protection should have operated to stay the action until the termination of the composition proceedings, which were not completed even at the date of the judgment herein.

The granting of such stay is the judgment which should have been rendered.' U. S, R. S. | 5100.

It is, therefore, ordered that our former decree herein be annulled and set aside; and it is now ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and that this cause be remanded to the lower court with instructions to stay all further proceedings therein until the determination of the court in bankruptcy on the question of discharge under the composition proceedings or in bankruptcy; plaintiff and appellee to pay costs of this appeal.


author: Todd, J.

text:
    No. 8095.
    The State of Louisiana vs. John Crowley, Martin Nolan, Alexander Giles, alias Joe Little, alias Frenchy Joe, and Pierre Bertin.
    Act Ho. 98 of the Legislature of 1880, providing for the organization of the Criminal District Court for tlie Parish of Orleans, etc., is not unconstitutional on the score that it violates article 29 of the Constitution, which prescribes that every law shall embrace but one object, and that shall be expressed in the title.
    A law may be broader than its title and not be unconstitutional. Such portions of the law as are not expressed in the title, are null and void, and the rest is valid.
    Though the accused were charged with murder, it was permissible for a witness to state that he heard one of the Defendants say, in presence of the others, that they were going to rob the deceased. The fact that such witness was an associate of the accused may affect his credibility, but not his competency. The statement was admissible also, to prove the declarations of the accused as to a circumstance jiaving a hearing on the question of iheir guilt. As all the accused were present when the declaration was made, none of them can object to the statement of tlie witness.
    It was proper and legal, in order to show tbe motives of the accused for committing the murder, to admit in evidence the Inventory of the succession of the deceased, which proved that he had in his house a certain amount of money.
    The Motion for a new trial, based on tbe grour d that the evidence was insufficient to convict, cannot be reviewed by this Court, as it has no jurisdiction of the facts in criminal cases.
    A Motion for a new trial, on the ground oi newly discovered evidence, should not be considered by tbe Court, when such Motion contains no sworn-lo allegation that due diligence was used to procure the same evidence on the first trial.
    APPEAL from the Criminal District Court for the parish of Orleans. Luzenburg, J.

      J. C.'JSgan, Attorney General, for the State, Appellee:
    JFfrst — 'When the exact; point in a bill of exceptions cannot be discovered, tbe bill must be disregarded. 1 Parker, 272; 6 An. 420, 651; 11 An. 283, 430; 12 An. 679 ; 14 An. 461.
    Second — If the evidence has a diroct tendency to prove the particular crime charged, it is admissible, although it tends to prove the commission, or contemplated commission, of another separate and distinct offense. 38 Mo., 496, 587; 42 Ib.» 242.
    Third — Evidence to prove the reputed wealth of the deceased, and that he had money in his house and store, with the view of showing that such money would tempt robbers and thieves to murder him for it, is admissible.
    Eourfch — The credibility of witnesses cannot be sought to be impeached by offering a criminal record in evidence wherein the names of none of the witnesses appear.
    Pifth — Motion for a new trial on accouüt of newly discovered evidence is properly overruled when the accused does not show that the knowledge of the existence of such evidence has come to him since the trial, or that he used due diligence to got such evidence.

      Win. L. Thompson for Defendants and Appellants:
    Eirst — Act No. 98 oí the State of Louisiana, passed íd the year 1880, under which the jury were drawn, is unconstitutional, because there is more than one object embraced in the act not contained nor mentioned in the title; nor can the act have more than one object, and that shall he expressed in its title. Art. 29 Const. 1879.
    Second — Statements of one of the accused as to the commission of a crime different' to that charged in the indictment, cannot he given in evidence against co-defendants; such statements can only ha received against the party making them. 29 An. 354.

      Third — Evidence must "be confined to tlie issue, and must he facts j the time and place must he expressed with certainty. Roscoe’s Or. Ev., side page 73 et seq.

    Fourth — The defendants were entitled to meet the witnesses against them, and the right to cross-examine them; that the records of a succession cannot he received in evidence against accused where they are not parties to it. Irrelevant testimony prejudicial to accused should ho excluded. Art. 8 Const. 1879. Arnold case, C. P. 621.
    Fifth — The accused were entitled, where the State endeavored to show motive hy the introduction of the record of a succession, to show a stronger motive on hehalf of others to commit the crime. 30 An. 921.
   The opinion of the Court was delivered by

Todd, J.

Martin Nolan and Alexander Giles, alias Joe Little, alias Freneby Joe, were indicted in the Criminal Court of the parish of Orleans, for the murder of M. L. Mead. They were tried under said indictment, and the jury returned a verdict against them of guilty without capital punishment, and from the sentence and judgment of the court, rendered in accordance with said verdict, they have appealed.

The record contains several bills of exception, a motion for a new trial, and a motion in arrest of judgment, relied on by the accused to obtain a reversal of the judgment.'

•1. The first bill of exceptions is taken to the rulings of the judge a quo, refusing to sustain the challenge to the array of jurors. This challenge was made on the ground that the jurors were drawn under Act 98 of 1880, which was alleged to be unconstitutional. No specific ground of unconstitutionality is designated in the bill, and the objection might be considered too general to be considered by the Court; but we are informed by the brief of counsel that the act is assailed as being violative of Art. 29 of the Constitution, requiring that every law shall embrace but one object, and that shall be expressed in the title.

The title of the act in question plainly indicates that its object was to organize the Criminal District Court for the parish of Orleans, and as the means to effect this object, it was provided in the title for the appointment of jury commissioners, for the drawing and impanneling of jurors for said court, the division of the court into sections, and for everything else necessary to the full and complete organization, and regulation of the proceedings therein, of the court. The object expressed by the title is essentially one' object. Tne title at least conforms to the constitutional requirement. The counsel, however, charges that section four of this Act provides for the selection and drawing of jurors for the trial of cases in the Civil District Courts. If this be the case, then this section would not fall within the object expressed in the title ; but this, of itself, would not render the entire act unconstitutional, inasmuch as every other part or section of the act is covered by the title ; but the only effect would be, that this provision or section being foreign to the object expressed in the title, would be considered as not written and void, but the balance of the act would stand unimpaired. The chargé is, substantially, that the act itself- is broa'der than its title. This of itself does not destroy the entire act. Cooley announces the rule of construction in such a case to be as follows :

“ But if the act is broader than the title, it may happen that one part of it can stand, because indicated by the title, while as to the object not indicated by the title it must fail. * * * * If by striking from the act all that relates to the object not indicated by the title, that which is left is complete in itself, sensible, capable of being executed, and wholly independent of that which is rejected, it must be sustained as constitutional.” Cooley., Constitutional Limitations, p. 181; 22 An. 779.

Leaving out the obnoxious section designated, there is no question but that the rest of the act constitutes a “ complete and sensible act,” and its sufficiency for accomplishing the object of its title in no manner impaired.

The challenge to the array of jurors was, therefore; properly overruled.

2. From the second bill of exceptions it appears, that a witness testified that she heard one of the accused in the presence of the others, say that they were going over the river to rob Mead, with whose murder they were charged. This was objected to on the ground that, if the witness knew that a crime was about to be committed and was in company with the accused at that time, she was incapacitated from giving evidence, particularly where the a'ccused were charged with murder and not larceny. The bill was taken to the overruling of the objection. There was no error in the ruling. The witness was not charged with being an accomplice of the accused in the offense for which they were on trial, and however much the fact of the witness’ association with the accused might affect her credibility, it could not affect her competency; and, apart from this consideration, it was certainly admissible to prove the declarations of the accused, not to establish their guilt of a different crime, but as a circumstance having a bearing on the question of their guilt of the offense with which they stood charged. 38 Mo. 496; 587 Ib. 242.

The fact shown in the bill, that the others were present when one of the accused made the statement of a common intent on the part of all, deprived any one of the accused of the right to object to it, on the ground that such declaration was only admissible as against the one making it.

3. The third bill of exception was taken to the ruling of the judge permitting the District Attorney to ask the same witness if the accused were making preparations to poison dogs over the river prior to the death of Mead.” The objection to it was that the question was calculated to “ prejudice the jury.” There is no,force in this objection. We cannot of course know what bearing the fact sought to be proved had upon the issue; it might have had an important bearing; but it certainly should not have been excluded for no other reason than it might prejudice the jury.

There is really no legal question presented by the bill or the objection to the evidence on this point. The most that could be claimed for it, giving full weight to the counsel’s argument, would be that the objection went solely to the effect of the evidence, and not to its admissibility.

4. Another bill of exception was taken to the admission in* evidence of the inventory of the estate of the deceased, whom the accused were charged with murdering; and it appears from the bill, that the object of offering the evidence was to show the motive of the accused to murder the deceased to have been robbery; and to this end to prove by the inventory “that the deceased kept a sufficient quantity of money and property in his house to tempt thieves and robbers.” The objection to its admission was, “ that it was irrelevant and calculated to influence the mind of the jury.”

We think the evidence was admissible for the purpose stated, and for such purpose it was entirely relevant and proper. A witness was examined to prove the same fact sought to be established by this record, and the same objection was made to his testimony. The reasons for admitting the inventory would apply in favor of the admissibility of the testimony of the witness.

5. The grounds alleged in support of the motion for a new trial which, however, have not been mentioned in the counsel’s brief, are substantially:

That the evidence was insufficient to convict;

That new evidence had been discovered since the trial, and that the court erred in admitting the inventory mentioned and the testimony of the witness, Mrs. Doyle, referred to above.

The first ground this Court cannot review, as we have no jurisdiction of the facts, nor the power to judge of the sufficiency or insufficiency of the evidence, even if the evidence was in the record, which is not the case.

As to the second ground, the motion does not state that. the discovery had been made since the trial, that the witness named knew the fact alleged, but only that his residence had been discovered since that event; nor is there any showing that the least diligence had been used to obtain the desired testimony in relation to a fact, an alibi, which, if it existed, was of course known to the accused before the trial, and which it is but reasonable to suppose some effort would have been made to procure. It is essential that such diligence should have been alleged and sworn to. Archbold, 2 vol. p. 650; 8 R. 529, 590; 6 An. 554.

6. The motion in arrest of judgment was based on the alleged invalidity of the indictment for defects of form and substance, and the incompetency of the grand jury from being drawn and impanneled under an unconstitutional act.

The defects in the indictment are not specifically mentioned, but we have examined it and find it drawn in strict conformity to law, both in form and substance, and the act referred to is the same that we have already held to be constitutional.

We have carefully reviewed all the proceedings in this case and find mo error in the same, nothing that can entitle the parties to any relief.

The judgment and sentence appealed from are, therefore, affirmed ■with costs.

Rehearing refused.


author: Roché, J.

text:
    No. 8135.
    E. N. Pugh, Testamentary Executor, et al. vs. Mrs. Mary Jane Cantey et al.
    A 7i onerous donation, when the value of the thing given does not exceed hy one-half that of the charge imposed, is not subject to the rules prescribed for donations inter viwja; and an action for its dissolution must be governed by the rules relating to ordinary contracts.
    Therefore, as in a suit for the rescission of a contract, in which the plaintiff must put, or offer to put, tho dofendant in the same position in which he was before the contract, in the case of an onerous donation, the donor or his representative, who seeks the rescission of the donation, must offer to return what he has received from the donee, as a condition precedent of the suit.
    APPEAL from the Twenty-second Judicial District Court, parish of Ascension. Oheevers, J.

      Pugh & Ilowell for Plaintiffs and Appellants:
    First — On the 21st; of October, 1868, a donation inter vivos was made on certain express condi • tions and stipulations set out in tbe act by tbe late J. B. Futch to defendant, Mary Jane Cantey, of notes to tbe amount of §6256 98 made by John X). Cantey, ber busband, and secured by vendor’s lien and privilege on bis property. (31. page 87). Tbe principal and most essential condition of tbe donation was that tbe donee should pay annually to tbe donor, or in case of bis death to Matilda Postian (who was a party to tbe act and accepted tbe stipulation in ber favor), an amount equal to 8 per cent, interest on §6256 98, tbe principal and interest of tbe notes donated. These conditions were accepted by the donee, and it was agreed that on tbe faithful compliance by tbe donee of all tbe conditions of tbe aet, that on tbe death of tbe donor and Postian, tbe beneficiary, that tbe notes should become tbe absolute property of Mrs. Cantey- Present suit, brought by executor and tbe heirs of Futcb, to annul donation for non-fulfillment and non-performance of tbe conditions imposed onthedoneo. (Record, p. 1). C.C.1559,§3; 1523, §2; 1524, 1526,1527,'1568,1569, Mac. v. 3, § 699 ; Bemolombe, v. 20, page 506, § 575-512, § 576 — 527, § 597 — 528, § 598-523, § 590-.524, § 592-525, § 594 — 536, § 608, 610; 31 An. 634; 9 L. 503 ¡ 18 L. 16; 30 An. 723; 6 L. 99. '

      Second — In 1876, compromise made between Postian and Mrs. Cantey, in wliicli she bound herself to pay the amounts coming to Postian under the donation, subsequent to January, 1876. In 1878, Postian sued Mrs. Cantey under the donation for $1067 50, being balance due under compromise and the $500 in 1877 and 1878. (Record, page 113). To this suit, as a defence, Mrs. Cantey set úp the nullity of the donation as being an effort, on the part of the donor, to force her to pay the debts of her husband (Record, p. 101), and that the donation has the resolutory condition. The District Judge held that the heirs of Dutch , had a right of action against Mrs. Cantey (Record, page 103) to dissolve the donation for the non-fulfillment of its conditions, that the donation was absolutely null and void; but as the heirs of Dutch are not parties to the suit, it was simply decreed and adjudged, “for the reasons above stated,” that judgment be entered in favor of defendant aud that the plaintiffs petition be rejected. (R. page 1U5). Since this judgment Mrs. Cantey has ne.ver paid one cent to Postian.
    The legal effect of this judgment was to annul and set aside the donation in its entirety. The present suit was necessary, under article 1566, C. C., to have the donation judicially decreed null between the proper parties. 30 An. 958; 31 An. 238; C. C, 2045, 2046 ¿ Demolombe, v. 20, page 523, § 590, et sec[ — 532, § 605 — pp. 512, 506, 535; Mac. v. 3, § 704; Id. 4, page 635.
    Third — -The “reasons” for judgment form an important part thereof, especially when the decree is expressly stated to be based and founded on these “ reasons.” Constitution 1868, * Article 80; 14 An. 435; 2 An. 60, 907; 18 An. 418, 193, 371; 21 An. 409; 12 L. 144; 19 An. 525; Henn. page 727, No. 1, 9, 728, No. 8; 16 An. 365. “ Sublato fundamento cadit opus.” Judgment indivisible, ?2 An. 699; 1 An. 305; 23 An. 441; 28 An. 744, 761; 28 An. 202.
    , Strike the “reasons ” from the judgment and you deprive it of all life and vitality. The reasons and decree in this case are inseparable. 4 An. 150; 18 An. 65.
    Dourth — Mrs. Cantey having successfully set up as a defense, the nullity of the donation, and having had the court at her instance and request, to relieve her from the payment of a large sum of money by reason of this nullity, is now forever estopped and debarred from claiming any rights and henofits under the donation. She was, as soon as she filed her answer in suit No. 1941, a trespasser, and by that answer judicially renounced the donation. The bill of exception to any evidence by her was well taken. (Record, page 135). 22 An. 369; 28 An. 121, 140, 462, 163; 31 An. 104, 256, 470, 565; 2 An. 269; 4 An. 416; 22 An. 429; 18 An. 136; 7 An. 612; 5An.22; 23 An. 766; 26 An. 706; 487, 631, 366; 14 An. 140; 32 An. 501, 949. 967; 29 An. 171; 3R. 134 ; Henn. 519, No. 18; 4 An. 150; 23 An. 784; 15 An. 55; 27 An. 351, 632.
    Difth — Matilda Postian, in whose favor a stipulation was mide in 'the donation, had a perfect right to sue Mrs. Cantey for a specific performance, and it was only because the District Judge considered the donation absolutely null and void, that judgment was given against her. "Why Postian should ho or can be a plaintiff in the suit, we are at a loss to know ; her only action was for a specific performance. C. P. 35; C. C. 1890,1902; Demolombe, v. 20, page 498, § 568, page 527, §597; ^bid, 81, § 90; 30 An. 723 ; Henn. 1029, No. 1, 4,15; 5 R. 243; 31 An. 238, 62; 22 An. 362.
    A suit to specifically enforce a contract does not bar a subsequent one for its rescission, but it is by law a preliminary step to be taken, and puts the party “ in mora.” C. C. 1911— 1912; 15 L. 75; 3 An. 208.
    Sixth — Not necessary that all the heirs of Dutch should be parties to the suit. The right to recover property belonging to the deceased is indivisible. 9 L 492, 504 ; 18 L. 16; 32 An. 853; 31 An. 76; 3 L. 135,150; 6 An. 235; 26 An. 367: Henn. 3115, No. 3; 5 L. 430.
    Seventh — Plaintiffs are the heirs of Dutch. (See evidence, pages, 46 to 57 and 21 to 86, particularly page 116). 20 An. 97 ; 3 L. 33; 2 An. 944; 7 An. 253; 26 An. 26 ; 30 An. 1390 ; Henn. 500, No. 3; 6 L. 463; Greenleaf on Evidence, §107, 106;.Whartjn on Evidence* § 1297, 83, 84.

      Eighth — Want of Tender. What is paid out under an onerous donation is a debt paid. The heirs received nothing, and Mrs. Cantey was simply temporarily carrying out her solemn agreement. Demolombe, v. 20, page 506, 510, 511, 512.
    “ Non seulement il ne pourrait pas exercer la repetion des charges déjá. pas lui acquitéu dans le passé; ce qui ne saurait etre conteste par personnel Ibid, 512; Mac. v. 3, § 700; C. C. 1558, 1560.
    Ninth — Article 1519. Impossible conditions, those which are contrary to the laws or to morals, reputed not written, has no application to onerous donations. Consent is indivisible, and the express condition on which the donation was made, was that the donee should do certain things — the performance on her part of those “conditions” was the juridical cause of the donation. Mac. v. 3, page 384, § 480, v. 4, page 343, § 5; Dalloz & Vuds, page 1021, Nos. 36, 42, 43, page 672, Nos. 3, 9, 10, 12, 13; 4 An. 150 ; 1 An. 305 ; 23 An. 441; 12 R 87; Mac. v. 3, page 580, § 700; 18 An. 65; 1 An. Ill; 27 An. 441; 28 An. 202, 199, 761; 30 An. 359 ; 32 An. 757 ; 26 An. 27; 1 R 330 ; C. C. 1523, 1527, 1559, 1758, 2045, 2046; 29 An. 407; 13 An. 117; 30 An. 216 ; 28 An. 199 ; Demolombe, v. 20, page 496, § 563'; 27 An. 351; 30 An. 359.

      B. N. Sims for Defendants and Appellees:
    First — The donation from Eutch to Mrs. Cantey is not a real donation. It is burdened with heavy charges, “ The onerous donation is not a real donation when the value of the object given does not manifestly exceed that of tho charges imposed on the donee.” C. C. 1524.
    “In consequence the.rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half that of the charges or of the services.” C. C. 1526; 3 An. 230.
    “ The donor may impose on the donee any charges or conditions he pleases, provided they contain nothing contrary to law or good morals.” C. C. 1527. The charges imposed in the act of donation are equal to about fifteen per cent, interest on the amount of the capital of the notes donated — much more than they were worth.
    “ Donations by which charges are imposed on the donee, can never be reduced below the expenses, which the donee has incurred to perform them.” C. C. 1514.
    The so-called donation of 21st of October, 1868, was a contract, and is subject to the rules governing ordinary commutative contracts.
    “ It is no more a real donation than an act would be by which one of the parties made an irrevocable donation inter vivos of an immovable to the other party, who, in return, made to him a similar donation of the price. It will not be contended that a contract of that hind could be avoided by the subsequent birth of children to the donor, nor on account of the ingratitude of the donee. Compromises may assume any form, and simple obligations to do or give may be shown, by other evidence, to be the consideration of them.” Troplong, Transactions, No. 34; 3 An. 230.
    “Le droit de retour établi en faveur de l’ascendant donateur par l’art 747 C. Civ., ne peut étre exercé & l’égard des donations qui, par suite,des charges dont elles sont accompagnées, peuvent étre qualifiées de contracts a titre onéreux.” Eossignol, 3, 76; Dalloz, Jurisprudence Générale, 1849 ; V. Donation.
    “Ii’acte par lequel une mére donne á son gendre et á sa filie conjointement des immeubles, & la charge de lanourrir, de laloger et de l’entretenir sa vie durant, doitmalgrésa dénomination, étre considéré, comme un contrat onéreux et aléatoire, si les charges imposées sont aumoins l’équivalent de la valeur des immeubles * * * qu’il en résultequ’en consen tan t á se charger de cet entretien, les conjoints Neyss ont gróvé la communautó d’une obligation dont la durée etait indéterminée et qu’en obtenant en échange les immeubles doDt ils’agit, ce n’est pas une donation qu’ils ont regue mais un contrat onéreux et aléatoire qu’ils on signé. (DameReyss, C. Syndic Reyss); Dalloz, Jurisprudence Générale, 1851.
    In the case last cited, it appeared that the value of the property donated did not exceed 400 or 500 francs, and that the charges amounted annually to about 100 francs.
    Second — The exception of want of tender was properly sustained. Since the date of the act of 21st of October, 1868, Mrs. Cantey has paid to Eutch and Postian the sum of $3599 14, exclusive of the expenses incurred by her for the erection of the buildings for the donor’s use. The act of 21st of October, 1868, being an ordinary commutative contract, the plaintiffs were bound to tender these sums to Mrs. Cantey as a condition precedent to their right to bring this suit.
    “ The dissolving condition is that which when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed. It does not suspend the execution of the obligation; it only obliges tbe creditor to restore what he has received, in case the event provided for in the condition takes place,” C. C. 2045; 24 An. 539 ; 21 An. 514; 23 An. 354.
    “A party demanding the rescission of a contract must return or offer to return the consideration received by him. It is a settled principle in courts of equity, that relief will never be extended to a party against his own contract, without exacting from him strict justice to his adversary. This is a condition precedent to be heard.” 21 An. 425; 3 H. S. 466; 4 La. 198; 19 La. 283; 2 Pob. 180; 5 Pob. 65; 6 Pob. 450; 4 An. 562; 2 An. 379; 9 Pob. 306.
    uHe who seeks equity must do equity. So, in all actions of rescission, tbe party seeking relief must first offer to restore his adversary to the situation he was in before the contract. An offer of restitution or an offer to perform his part of the obligation must be alleged and proved by plaintiff as an indispensable preliminary in an action to rescind a commutative contract.” HennenJ1020, and authorities cited.
    Third — This suit is based on the allegations that Mrs. Cantey has absolutely failed to fulfill any and all of the conditions attached to the donation. Ho reference is made in the petition in this case to the judgment of the court in tbe suit of “ Matilda Postian vs. Mary Jane Cantey,” to enforce a specific performance of one of the conditions. Mrs. Cantey has shown that up to the 1st of January, 1876, she paid $3599 14 to Eutch and Postian, besides the sum disbursed by her to provide a comfortable home lor them. Postian sued to enforce one condition. Mrs. Cantey set up as a defense that she was without means and under the law, she could not comply with it. She could not sue her husband, and the notes were not, and never had been in her possession or under her control. On these issues judgment was rendered in Mrs. Cantey’s favor. Matilda Postian acquiesced in the judgment and it has become res adjudicata.

    The court decided that that particular condition or charge, was contrary to law, and impossible of fulfillment and must be considered as not written. O. C.
    This was the only lawful judgment which the lower court could have rendered in favor of defendant on the pleadings in that case.
    The position assumed by the plaintiffs in their brief, that the judgment in the Postian case estops Mrs. Cantey from setting up any rights under the donation now, is palpably untenable. That judgment which has the force of res judicata rather estops the plaintiffs from urging the non-compliance with that condition as a ground for the rescission of the donation.
    The opinion of the judge in the Postian case, is paraded as conclusive of the absolute nullity of the donation.
    The plaintiffs are in error. The remarks of the judge so far as they went outside of the record and the pleadings, were mere obiter.

    “'The reasons for judgment form no part of the judgment itself, though they may he consulted to explain an ambiguity. The thing adjudged will be found, not in the opinion pronounced, but the decree rendered.” Hennen, 728, Ho. 15; 10 An. 261, 640 ; 12 An. 736.
    “ Isolated expressions cannot control the decretal force of a formal judgment.”
    The reasoning of the court arguendo is less to be regarded than the final conclusion announced. Hennen, 726, Ho. 7; 14 La. 445; 19 La. 318 ; 6 P. 208; 10 An. 352.
    The pleadings and facts must be separated from the judgment to determine it; and all recitals in the opinion are not to be considered as approved by the court. 18 La. 12.
    The decree alone indicates the decision. 14 An. 764.

      “ Jtes judicata is not to he decided by the points raised in argument, but the issues raised in. the pleadings.” 7 N. S. 430.
    A judgment has the force of res judicata as to all matters and demands set up in the pleading. 17 La. 92.
    In the Postian case, Mrs. Cantey did not set up the nullity of the donation. She only claimed, as a defense to the action, that her husband owed the interest, and that the payment thereof could not be enforced as against her. In doing so she merely invoked the shield of the law's protection.
    “A wife cannot, under any circumstances, become suiety for her husband, and if she be really such, the form of the contract will be disregarded.” 2 N. S. 39; 4 N. S. 388; 5 N. S. 431; 7 N. S. 252 ; 4 R. 508.
    “A wife whether separated in property or not, cannot bind herself for her husband, nor conjointly with him for debts contracted by him before or during the marriage.” C. C. 2412; 1 R. 218; 4 R. 114; 7 R. 357; 2 ’An. 3 ; 12 An. 725 ; 14 An. 700; 12 An. 852; 14 An. 419.
    “ The law prohibiting a wife from binding herself for her husband’s debts is to a certain extent one affecting public order.” 9 La. 589 ; 14 An. 169.
    Eourth — The plaintiffs, especially the executor, are absolutely without right to stand in judgment.
    Matilda Postian, the beneficiary under the donation, and the onlyqwty in interest besides Mrs. Cantey, comes into Court, denies all the allegations of their petition, and prays that their suit be dismissed with costs.
    The theory of the learned counsel is, that plaintiffs are suing/or the use of Matilda Postian, ■ but her pleadings do not indicate that she is inclined to favor that view of the situation. She is provided with the comfoits of a home, and she testifies that Mrs. Cantey has always treated her with kindness and given her food when she has asked for it. Evidently she prefers to hear the ills she has than fly to others she knows not of.
    Eiftk — -Upon no consideration of justice or equity can the plaintiffs’ suit prevail. Mrs, Cantey has never received one dollar ot benefit' or advantage under the so-called donation. She cannot use the notes; not a cent of interest has been paid on them; she cannot sue her husband; she has paid out her funds to Eutch and Postian until all her means have been exhausted, when the aihitrament of the law is invoked against her to enforce a specific performance, with the result already mentioned. The executor has mistaken his remedy. It does not behoove Mrs. Cantey to point a way out of his difficulties. Eutch received all that was stipulated in his favor in the act of donation, and his heirs, if his heirs they he, must make restitution to Mrs. Cantey before they can be heard to assail her rights under it. They stand in the place of Eutch. He, if living, could not retake the notes of Mrs. Cantey’s husband, swelled in amount by the accumulated interest of fifteen years, and still he permitted to retain the large sum of money received from her. Neither law, justice or equity could sanction a result which would enable him thus to enrich himself at the expense of another. If he sought equity he must do equity.
    The temple of justice of our country is the House of God.
   Tha opinion of the Court was delivered by

Roché, J.

This is an action to annul a donation inter vivos for noncompliance with the conditions imposed on the donee, and grows out of the following facts:

On the 21st of October, 1868, J. B. Eutch made a donation to the defendant of certain promissory notes amounting together to some $6256, held by the donor and due by J. D. Cantey, defendant’s husband. By the act of donation the notes were to be placed in the custody of a third . party, and were to be delivered to the donee, as her absolute property, on her fulfilling certain conditions, which were in substance as follows:

To provide for the donor and for a faithful servant of his, named Matilda Postian, a comfortable home, by building a house and outhouses of stipulated dimensions, on the property of the donee’s husband, and to provide said home during the lifetime of the donor and of his servant, to both of whom the donee was to furnish the subsistence of life to an amount not to exceed annually the interest at 8 per cent, on the amount of the notes donated; and that on the death of the donor and of his servant, and after a full compliance on the part of the donee with the conditions thus imposed, she- would be entitled to the full possession and ownership of said notes.

The donor died in 1872, but his servant is yet living. In his will, the donor entrusted E. N. Pugh, one of the plaintiffs herein, with the execution of his will, particularly charging him with the protection of his servant’s rights under the donation.

Charging that the donee had violated the conditions of the donation, but particularly in failing to furnish, since the year 1876, either supplies or money to the servant Postian, the executor, joined by two persons alleged to be legal heirs of J. B. Eutch, prays that the donation be dissolved, and that the notes be delivered to them.

Among other defenses, Mrs. Cantey excepts to plaintiffs’ action on the ground that the latter have failed to reimburse or tender to her, the • value of supplies and the money given and paid by her to Eutch and to the servant Postian since the date of the act of donation, which supplies and money amount to the sum of $8599 14; and that such payment or tender was a condition precedent to plaintiffs’ right of recovery.

This exception, which was tried with the merits, was maintained by the lower court, and plaintiffs appeal.

The proper solution of the question presented by this exception depends upon the nature or correct definition of the act which is sought to be annulled. It purports to be a donation of certain promissory notes, but is unaccompanied by the delivery of the objects given, which are placed in the custody of a third party, until the happening of an uncertain event, and the fulfillment of conditions depending, in a measure, upon the happening of the event; and it contains so many novel dispositions and conditions that a proper understanding of the instrument is not free of some difficulty.

But a careful examination of the act fully satisfies us that the primary object or motive of J. B. Eutch in the contract was, by means of the notes held by him, two of which were secured by mortgage and vendor’s lien on the property of defendant’s husband, to secure to himself and to his faithful servant, during their respective lifetime, a comfortable home and assured means of subsistence or living. The measure of the pecuniary charges imposed on the donee depended exclusively upon the number of years to be yet allotted to Futch and his servant; the test of the donee’s fidelity in complying with her obligations being definitely fixed at the death of the last survivor of the two beneficiaries under the act. In accepting the future ownership of the notes in question, Mrs. Cantey contracted a pecuniary obligation of an indefinite amount, the precise figure of which was concealed in the womb of time.

Under the stipulations agreed to, the amount to be contributed annually was to have reached at least five hundred dollars; and thus, if either beneficiary had lived twelve years from the date of the act, the pecuniary charges imposed on the donee could have reached the full value of the property given.

It appears from the record that, notwithstanding Mrs. Cantey’s alleged short-comings in the execution of her obligations, she has disbursed under the terms of the act the sum of $3599 14 in eight years, exclusive of the cost of building the home required by the act.

■ , Plaintiffs themselves not only admit, but allege that the “ governing motive” of Futch in making the donation was to secure to himself during his lifetime, and after his death to his servant, Matilda, during her lifetime, a comfortable living.

Viewing the contract under the construction most favorable to plaintiffs, we are irresistibly led to conclude that the value of the object given in the act did not manifestly exceed that of the charges imposed on the donee, and that, therefore, it was an onerous and not a real donation. C. C. article 1524; 3 An. 230; Dalloz, Jurisprudence Générale, 1851, case of Reyss.

Hence, as an onerous donation, it is not subject to the rules peculiar to donations inter vivos, O. C. article 1526; and the action for its dissolution must be governed by the rules relating to ordinary contracts. 31 An. 634; Marcade, vol. 3, § 704.

Under this rule every commutative and synallagmatic contract implies the resolutory condition, under which one of the parties has the right to demand the dissolution of the contract for the non-performance of an obligation by the other, and under which matters are placed in the same state as though the obligation had never existed. C. O. Arts. 2045, 2046.

This rule has been uniformly interpreted by our courts to require that a party demanding the rescission of a contract must return or offer to return the consideration received by him, and that this is a condition precedent to his being heard. 21 An. 425, Latham vs. Hickey; 6 R. 450; 5 R. 65; 2 R. 180: 4 La. 180; 2 N. S. 466.

Proceeding to apply this principle to the present case, we are met by a record which shows that defendant, after disbursing under the contract in favor of the donor and his servant considerable sums of money, and having yet reaped no benefit or advantage under the donation, is now sued with a view to cut her off from all claim to the property given to her,- under conditions faithfully executed by her during eight years, as admitted by plaintiffs themselves; and that they have not returned, or offered to return, the sums disbursed by her in favor of the beneficiaries under the onerous donation.

Law, justice and equity alike require that the dissolution of this contract be preceded by at least an offer on the part of plaintiffs to place Mrs. Oantey in the position which she would occupy had the contract never taken place.

Plaintiffs urge that, for two reasons, defendant cannot invoke the benefit of this rule.

1. They aver that they, the executor and the two alleged heirs, have received nothing from the defendant, and that, therefore, they cannot be held to the reimbursement of funds never received by them.

They evidently lose sight of the position which they assume in their pleadings, in which they act in lieu and stead of the deceased, seeking to enforce rights which he alone, if living, could demand; and seemingly forget that, as his legal representatives, they are amenable to all the defenses which could have been urged against him as plaintiff in a similar proceeding.

2. They urge that Mrs. Cantey has debarred herself from claiming any right under the contract by her judicial admission in a suit filed against her in 1878, by Matilda Postian, seeking to enforce the specific performance of the conditions of the donation. They charge that, in her answer to the suit, Mrs. Cantey, urging the impossibility of the conditions imposed by the donation, alleged the nullity of the same, and that on the issue thus raised and for the reason of such nullity, the judgment rendered in the case, which is now final, rejected plaintiff’s demand. They therefore urge that defendant is estopped from denying the nullity of the donation, thus leaving nothing for the Court to do in this case büt to judicially declare said nullity. Hence they have reserved a bill of exception to the ruling of the district judge in admitting, over their objection, evidence offered by defendant in proof of the amounts disbursed by her under the contract. A careful inspection of the record in that Postian suit fails to produce on' us the impression suggested by plaintiffs. In her answer defendant merely sets up her inability to pay ttfe amounts demanded of her, for reason of her want of funds, growing out of her legal inability to enforce on her husband payment of the interests accrued on his notes and remaining unpaid. True, the judge, in his reasons, strongly intimates the nullity of the contract; but he clearly says that such is not the issue before him, and in his decree he merely rejects plaintiffs' demand. He did not and could not decree the nullity of the act; and his judgment offers no impediment to the defense made by defendant in this case, which is not affected by defendant’s judicial admission in the other suit. The evidence was properly admitted and supports defendant’s allegations in her exception.

It is unnecessary to express-any opinion on the other defenses invoked by defendant.

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

Rehearing refused.


text:
    No. 8301.
    The State of Louisiana ex rel. M. L. Dowling vs. F. J. Mix, Sheriff, et al.
    This Court has no authority to issue the writ of Prohibition, either in the exercise of its appellate or supervisory powers, unless it is to an inferior judge exceeding the bounds of his jurisdiction.
    Application for a Prohibition.

      T. A. Flanagan for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition.

The relator avers that he has obtained an injunction to stay the execution of a writ levied on property belonging to him and not to the judgment debtor; that it is not liable for the debt recognized; that his injunction was dissolved; that he has taken a suspensive appeal from the judgment against him and furnished bond with good and solvent security, which, after test, was found to be in accordance with law; that, notwithstanding, the plaintiff in writ and the sheriff to whom the process is addressed, have proceeded with the execution of the writ, to his, relator’s, injury. He prays that they be prohibited by this Court in the exercise of its supervisory powers.

He is not entitled to the relief sought at our hands.

We.have no authority to issue a writ of prohibition, either in the exercise of our appellate or supervisory powers, unless it be to an inferior judge who exceeds the bounds of his jurisdiction. C. P. 845.

The petition prefers no charge whatever against the judge of the District Court. It does not allege any evil for which a remedy can be asked in this Court.

The parties against whom the writ is sought — a plaintiff and a sheriff — are’not amendable to this Court in a prohibition suit, unless when the judge of the court is himself a main defendant in a proceeding of this description, and they are necessary adjuncts. State ex rel. Cientat vs. Judge, 32 An. 814.

The application is dismissed with costs.


text:
    No. 8254.
    The State of Louisiana vs. J. W. Potter and D. J. Muller.
    This Court cannot review a criminal case on appeal, when the Transcript contains no bill of exceptions, no motion in arrest of judgment and no assignment of errors, and there is no defect in the proceedings patent on the face of the record.
    APPEAL from tjie Criminal District Court for the parish of Orleans. Lnzenburg, J.

      J. G. Egan, Attorney General, for the State, Appellee:
    Questions of law in criminal cases are reviewable by this Court only when they come up by bills of exceptions or assignments of error.

      L. Marrero for Defendants and Appellants:
    First — It is not essentially necessary that questions should he brought before this honorable Court on hills of exceptions or assignment of errors to authorize its interference. The court can taire cognizance of all errors patent on the record. State vs. Krepple et al., 20 An. 402.
    Second — The description of the property stolen must be certain, specific and minute, in order to validate the information. Whart. C. C. 1869 and 89 ; Whart. Prec. 190; 2 Hale, 180; Arch, C. P. 45.
    Third — The name of the owner of the property stolen is essential to the validity of the information. Whart. C. C. § 1823; 2 Hale, 181, etc.; Unger vs. State, 42 Miss. 642.
    Fourth — The information should have been made, and the acoused prosecuted under a special statute and not for petty larceny. Rev. Stat. 3685.
   The opinion of the Court was delivered by

Bermudez, C. J.

On a charge of petty larceny, the defendants were tried, convicted and sentenced to hard labor, for one year in the State Penitentiary.

Prom the judgment and sentence they have appealed.

The transcript contains no bill of exception, or motion in arrest of judgment, or assignment of errors. We discover no defect patent on the face of the record.

The objections raised in the brief, even if properly presented, would be untenable. 32 An. 1020.

Judgment affirmed


author: Poché, J.

text:
    No. 8214.
    Auguste Guesnard vs. Executors of John Bird, of Missouri.
    Article 660, C. C., relating to the predial servitude of drain, is to be liberally construed in favor of the estate to which it is due. Previous Decisions affirmed. Seld accordingly, that the owner of an estate whose waters flow by natural drain on the lands of his neighbor, has the right of cutting ditches or canals by which the waters may be concentrated and their flow increased beyond the slow natural process, by which they would ultimately reach the same destination.
    Apparent predial servitude acquired by the prescription of ten years.
    APPEAL from the Twenty-Third Judicial District Court, parish of West Baton Kouge. Cole, J.

      Pavrot & Lamon for Plaintiff and Appellee:,
    First — The provisions of Art. 656 C. 0., if interpreted to the letter, would, in effect, condemn to sterility the superior estate. Every man has a right to clear and cultivate his land; he may make ditches, not for the purpose of making the water flow upon the adjacent land, but for the purpose of improving and cultivating his own, and nothing it healthy. He is not to do this, however, to the injury of his neighbor. 12 L. 503; 14 L. 163; 15 An. 300, 683; 16 An. 151; 6 An. 645; 7 An. 291.
    Second — Continuous and apparent servitude may be acquired by title, or by possession of ten years. R. C. C. 765.
    Third — A servitude can be extinguished by the erection of works incompatible with its ex* ercise, only when made with the express permission, verbal or written, of the owner of the estate or creditor of the servitude. R. C. C. 765.
    Fourth — When John A. Bird sold the Bellevale plantation to James L. Lobdell in 1858, if the apparent sign of service existed, and no mention was made of the same in the deed of sale, the service continued to exist as before the sale. C. C. 765; 4 L. 312; 5 R. 16; C. C. 763, 764, 766.
    Fifth — Plaintiff stands in the shoes of John A. Bird, the original owner of Belmont and Belle-vale plantations. Canals or cuts to drain his entire tract are servitudes, and, after selling the tract to different parties, his vendees cannot, by erecting levees, etc., interfere with such drains. 5 An. 590.
    Sixth — The use which the owner establishes on one part of his property in favor of another is equivalent to a title as to perpetual and apparent servitudes, which may be acquired by title, and to establish which permanence of destination, and the caractére de perpótuité are essential requisites. 5 R. 16; 1 An. 407; 3 An. 166.
    Seventh — The destination du pore de famille, or disposition of the owner, is, in reality, a servitude equivalent to an alienation. C. C. 645, 727, 763, 765 ; 12 An. 473.
    Eighth — A sale of a servitude, separate from the place to which it is due, confers no title to the purchaser. Being essentially due® from one estate to another, they remain the same as long as no change takes place-in regard to the two estates, whatever change may take place in the owners. R. C. C. 652, 653.
    Ninth — Prescription for non-usage does not take place against natural servitudes, which originate from the situation of the places. C. C. 791; 1 R. 321.

      8. P. (Preves and Barrow & Pope for Defendants and Appellants:
    First — In order to make out title by prescription, the plaintiff must prove that he held peacable, public, continuous, uninterrupted and unequivocal possession, a sufficient time and under a just title, with proof of exact commencement of that possession, which we contend he has failed to do. 14 An. 511; 11 An. 78; 10 An. 327; C. O. Arts. 3486, 3487, ' paragraph 2, 3491.
    Second — Plaintiff was estopped from showing title by destination by act oí sale, when the same act of sale of Bellevale plantation, from Bird to Lobdell, contained a warranty against incumbrances on the place, and that the existence of the ditch on the place, on. . tbe day of sale, was not proven. 15 An. 140; 11 An. 489.
    Third — The act of sale from Bird to Lobdell, of date 29th March, 1866, has no reference whatever to the servitude in question, and related to another ditch. Nor had this title been alleged in plaintiff’s petition. He should not have been allowed to prove it. 15 An. 618; 24 An. 157.
    Fourth — That the owner of Belmont plantation, during the year 1864, interrupted the course of prescription, if not acquired, and abandoned it, it acquired, by closing the ditch in controversy.
    Fifth — By the sale of Belmont plantation to L. F. Generes, on the 4th April, 1867, with the ditch O D closed, the plantation lost said servitude by change of destination. 22 An. 117.
    Sixth — Plaintiff has constantly increased and. enlarged the ditches B E, B Ü and O X), which has aggravated the servitude and interrupted the course of presoripti'on. 7 La. 54; 16 An. 275.
    Seventh — The natural flow of water was not into Choctaw, hut between the two bayous. Plaintiff has diverted the water from its course.
    Eighth — Plaintiffs right to draiD into Choctaw is limited, as stated in testimony of A. T. Bird.
    Ninth — The nature and extent of the servitude of drainage is clearly defined by Art. 660 Be-vise.d Civil Code. The proprietor above can do nothing whereby the natnral servitude due by the estate below may he rendered more burdensome. 12 La. 504; 14 La. 161.
   The opinion of the Court was delivered by

Poché, J.

This case involves a right of servitude claimed by plaintiff.

He alleges that he owns a sugar plantation known as the “ Belmont,” situated on the right bank of the Mississippi River, in the parish of West Baton Rouge, adjacent to, and bounded on the upper line by, the defendants’ plantation, known as the "Bellevale,” from which it is separated by a lane running from the river front to forty arpents in the rear, or from north to south.

He avers that the natural flow of waters on the upper part of his plantation is from front to rear, to a certain point, and thence in a southwestern direction; and that for upwards of twenty-five years that portion of his plantation has been drained mainly by a ditch on the upper line of his place and running back to the forty arpent line, where it turns to the right or west, and crossing over defendants’ lands, a distance of above seventy feet, empties into a stream known as “ Little Bayou Choctaw,” which takes its rise in the front upper part of his field, runs in a southwestern direction until it crosses over into defendants’ Bellevale plantation, whereon it runs nearly due south, far beyond the point where it is intersected by the ditch described above;

That, through constant use by himself since 1869, and by his vendors before him, of the ditch connecting between his upper line leading ditch and Choctaw Bayou, altogether for upwards of twenty-five years, he has acquired this right of drainage by prescription of ten years; but that, in the beginning of the year 1880 the defendants, through a tenant and an agent, by damming and otherwise obstructing the connecting ditch described above, have interfered with his acquired right of servitude, materially impeded the drainage of his lands in the southwestern portion of his plantation, which are thus rendered unfit for cultivation, and he prays for judgment enforcing his right of servitude as claimed, and for damages.

The defendants, through a curator ad hoc, filed a general denial, followed by a special denial of the servitude claimed by plaintiff. They aver that, by making and keeping open the ditch described by plaintiff and by diverting, through artificial means, the natural flow of waters from the southeastern portion of his plantation to the southwestern part, and emptying them into Bayou Choctaw over their lands, plaintiff has caused their lands on the southeastern part of the Bellevale to be overflowed and seriously damaged their crops for several years; and they pray for judgment abating the nuisance complained of, rejecting the right of servitude claimed by plaintiff, and for heavy damages.

The lower court recognized the right of drainage as claimed by plaintiff, ordered the removal by the sheriff of the obstructions placed in the connecting ditch on defendants’ lands, and ignored all damages claimed by both parties.

The law applicable to this case having been frequently expounded in numerous decisions of the Supreme Court, the parties differ very little on this point.

Defendants, however, contend for a strict and rigid interpretation of article 660 of our Civil Code, which prohibits the use of the industry of man in causing the flow of waters from the upper to the lower estate.

On the other hand, plaintiff advocates a liberal construction of the article, as laid down by this Court in 12 L. 503; in 15 An. 300, 681.

Guided by these clear and learned decisions, we concur with plaintiff in the opinion that a rigid interpretation of that article would condemn to perpetual sterility all the rich lands in lower Louisiana bordering on the Mississippi River, and we hold that the article must not be construed so as to debar the owner of an estate, whose waters flow by natural drain on the lands of his neighbor, from the right of cutting ditches or canals by which the waters may be concentrated, and their flow increased beyond the slow natural process by which they would eventually reach the same destination.

Having reconciled this difference of construction between the parties, who are in perfect accord on all other legal questions involved in the cause, and rely upon the same authorities and decisions, we have reduced the issue to a simple question of fact, which is embodied in the two following inquiries.

1. Do the waters on the upper and rear portions of Belmont Plantation drain naturally in a southwestern direction, and towards the southeastern portion of Bellevale Plantation ?

2. Has plaintiff, through his own right and through the previous owners of Belmont Plantation, enjoyed, without legal interruption for more than ten years, the right of draining the waters of the upper portion of said plantation into Bayou Choctaw, by means of the upper line leading ditch of said plantation and the connecting ditch at the forty arpent line, where it intersects said bayou ?

As might be naturally expected in a case like this, growing out of differences which have culminated in bad and angry feelings between near neighbors, the testimony is very voluminous and painfully conflicting, reflecting 'in a great measure the degree of sympathy felt for the contending parties by some of their respective witnesses.

Hence we have taken great pains in carefully weighing the testimony, in discovering the means and sources of knowledge of the various witnesses whose testimony is clashing or conflicting, and our conclusion after such an analysis is that the affirmative of both the above inquiries is established by the evidence.

It would be an idle waste of time, and a composition of matter of little interest. or instruction to the student of jurisprudence, to reproduce in this opinion the analysis which we made of the testimony, and to parade the names or the statements uf those witnesses who carried conviction to our minds, or to expose the names of those witnesses whose statements were contradictory, self-destructive, or not clad in the livery of truth.

Our conclusions on these questions of fact are strengthened by those of the district judge, who is of the vicinage, heard and saw the witnesses testify, knew their degree of intelligence, their reputation and standing, and was familiar with their means and sources of knowledge of the matters whereof they spoke; and who found, as we do, that plaintiff had made out his case on the matters of fact involved in this litigation.

We must state, however, that several witnesses are positive in deposing that they knew of the existence of the connecting ditch as far back as 1852, and others as far back as 1856, and that such statements are not necessarily contradicted by the statements of other witnesses, who say that they did not see suoh a ditch before 1858 or 1859. In-the analysis and construction of testimony, it is elementary that, all other things being equal, positive testimony on á given point must always predominate over negative testimony on the same point. But, be that as it may, all the witnesses who are in the least familiar with the grounds agree that the ditch in question exists and was used as drainage for the waters of Belmont since 1858, or the beginning of 1859.

But defendants contend, and the evidence shows, that the ditch was dammed up by the then owner of Belmont in the year 1864, and that this was an interruption of prescription in favor of the servitude, if not yet acquired, or a renunciation or abandonment of the right, if prescription had acquired. But the same evidence which shows the obstruction relied upon, proves at the same time that this act of the owner cannot be construed as an abandonment of that drainage, for it shows that the object of the owner in stopping up this ditch was to prevent the flow of waters from two crevasses from running'into his field through that ditch. Any one familiar with the system of plantation drainage in Louisiana knows that the ditches and canals, which are not only essential but indispensable to the proper drainage of plantations under ordinary circumstances, have to be stopped up when waters from crevasses invade the plantations from the rear.

Defendants also complain that plaintiff, since his ownership of Belmont began, has aggravated the servitude, if it ever existed, by increasing the size of the ditch in question, as' well as that of other ditches on his lands, which connect with said ditch, and has thus concentrated an unusual and unreasonable volume of waters, which must escape exclusively through the ditch in question; and these acts are held up by defendants as interrupting the prescription set up by plaintiff.

The evidence fails to sustain these complaints, or to show that plaintiff has done any act reprobated by law or in derogation of his vested rights.

We are satisfied from the evidence that the increase of the volume of water which runs from that point on the southeastern part of Bellevale Plantation is caused by the present condition ' of Bayou Choctaw, which is fast filling up by fallen trees and deposits, from want of proper attention and cleaning.

If the necessary works were done to that stream, its draining capacity would be restored to its former position, and no trouble would be felt by either Belmont or Bellevale.

Believing that justice was administered fairly and impartially by the district judge, we, therefore, affirm his judgment with costs.

Behearing refused.