author: Bermudez,. C. J.

text:
    No. 8379.
    Josephine Eskholm vs. William E. Rau.
    Whore a judgment from bed and board is rendered in a suit by the husband against the wife, who reconvenes and prays for a divorce, and it does not say in whose favor it is rendered, the Court will infer that it was rendered in favor of the wife, where the custody of the issue of the marriage is given to her, and the community is condemned to pay costs.
    On a subsequent proceeding for a divorce, each claiming the benefit of the judgment and alleging the expiration of one year and absence of reconciliation, the Court will pronounce judgment in favor of the wife, and award her the custody of the child on a prayer for the amendment of a judgment against her, appealed by tho husband.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Sanibola & JDueros, for Plaintiff and Appellee.

      Mott, Kelly & Saunders, for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez,. C. J.

The difficulty presented in the determination of this cause consists in ascertaining in whose favor was rendered the judgment upon which husband and wife predicate their demand for a divorce.

The plaintiff sued his wife for a separation from bed and board. She answered by a general denial, setting up a reconventional demand containing- grave charges against her husband, and concluding with a prayer for a divorce, and for the custody of their minor son,

The decree of the judgment rendered reads as follows :

“It is ordered, adjudged and decreed, that there be judgment decreeing a separation from bed and board between tho plaintiff, Wm, Rau and Josephine Eskholm, his wife, defendant and plaintiff in reconvention, and that the cost of this proceeding- be charged to the community existing between them.

It is further ordered, that the minor child, William Edward Rau, issue of the said marriage, be given into the care and custody of defendant, Mrs. Josephine Eskholm, wife aforesaid.

The judgment was rendered December 20th, 1878, and signed January 6th, 1879.

On tho 6th of January, 1880, William Rau, claiming that the j udgment had been rendered in Ms favor, alleging the expiration of one year without reconciliation, prayed for a divorce.

On the next day after the expiration of the year, upon similar averments, Mrs. Rau prayed in like manner.

After a joining of issue, each litigant claiming the judgment to have been rendered in Ms or her behalf, the District Judge arrived at the conclusion that the judgment had been rendered in favor of society, but for neither of the litigants, and he dismissed both petitions for a divorce, at the respective costs of the petitioners.

From this judgment Wm. Rau has appealed. Josephine Eskholm, the wife, prays for an amendment of the judgment by the allowance of a divorce against her husband, and of the custody of their child.

It is clear, that as the judgment secures a separation, it was rendered in favor of one of the litigants, therefore against the other. Were it not so, it would then be a judgment in favor of both, which is a legal impossibility. It is responsive in appearance as well to the prayer of the original petition as to that of a reconventional demand, inasmuch as a separation a mensa et thoro only can be granted where a dissolution a vinculo is asked.

It is material to note that Wm. Rau interposes no impediment to the custody of his son being awarded to the mother.

It is not easy to discover what occult motive impels each litigant to insist that the judgment of separation was rendered in his, or her behalf, but it may be discernible. Whatever it be, their differences have to be adjusted, as one of them is entitled to a divorce, a year having since elapsed and no reconciliation has taken place.

We can neither affirm the judgment, nor reverse it, to remand the case. We must decide the controversy as, in our opdnion, it should have been settled.

Neither can we. revise the judgment of separation, as it has not been appealed from, and both parties have acquiesced in it. We must construe it.

From the fact that it awarded the custody of the child to the mother, and condemned the community, represented by its head and master, the husband, to pay cost, as also, from the circumstance, not before mentioned, that on a previous trial of the reconventional demand, a judgment subsequently set aside on a technicality was rendered, by the same Judge, in favor of the wife, dissolving the bonds of matrimony, we consider that the balance' of probability strongly preponderates in her favor, and we conclude that the judgment of separation was rendered in her behalf, on her reconventional demand. This view will relieve her from the costs of the litigation, fis she has prayed for an amendment of the judgment appealed from.

With this solitary exception, the judgment to be rendered will no doubt prove satisfactory to both parties, a result which the judiciary hardly ever accomplishes.

It is, therefore, ordered and deereed, that the judgment of the lower court be reversed, and proceeding to render such judgment as should have been rendered:

It is ordered, adjudged and decreed, that there be judgment in favor of Josephine Esldiolm, dissolving the bonds of matrimony between her rind William Ran, contracted in New Orleans on the 28th of March, 1870) that the care and custody of their minor son, William Edward Ran, bo entrusted to her, with a reserve of all the rights for support and assistance which the law awards, and of all rights she may have in and to the community, and otherwise, against her husband, who shall pay costs in both courts.

Levy, J., absent.


source: Caselaw Access Project

author: Bermudez, C. J. Roché, J. Fenner, J. Tonn, J.

license: Public Domain

text:
    No. 8488.
    State ex rel. L. Arnauld vs. E. A. Burke, Treasurer.
    The Register of Conveyances 1ms no preference over a deputy clerk for his salary, out of the judicial fund, the salaries of both constituting judicial expenses.
    Art. 14G of the Constitution, by deolaring that all .judicial expenses shall be paid by preference out of the speoial judicial fund, declares by implication that the rights of all those who constitute the judioial organization for the Parish of Orleans, arc of equal rank aud dignity.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Carleton Hunt, A. J, & O, VUleré, for Relator and Appellee:
    1. "When the Constitution has fixed the salary of an oifioer, to be paid out of a speoial fund, all aots of any branch of the government which prevent or modify the execution of such a provision are unconstitutional, null and void. 33 A. 1313.
    3.The salary of the Register of Conveyances is fixed by the Constitution and is to be paid out of the Judicial Expense Fund for the Parish of Orleans, by preference over warrants issued only by legislative authority. Const. Arts. 144,140.

      Spencer & White, for Defendant and Appellant:
    1. The Relator is not entitled to a preference over the salaries of the deputy clerks.
    3. The preference established by the Constitution is in favor of the judioial expenses. It may be doubted whether the salary of the Register of Conveyances is a judioial expense. Const. Art. 140.
    3. If not, then, instead of giving a preference in his favor, the Constitution has ordained one against him.
    4. lithe salary of the Register of Conveyances be ft judicial expense, then it is governed by the rule of preference in favor of nil judicial expenses established by the Constitution, ubi lex non distinguit nee nos débemus distinguere.

    5. The fact that the Constitution fixes the salary of the Relator does nob relieve him from the operation of Article 140. The mode of payment — the " preference in favor of the judicial expenses is as much a part of the Constitution as is the provision fixing Relator’s salary. The two provisions must, under the rule ut res magis valeat qmw pereat, be construed so as to give effect to both.
    6. The Constitution having determined a mode of payment — a preference in favor of the judioial expenses — that mode is exclusive of other modes, under the rule of inolusio uniwt.

    7. Being so exclusive, it precludes allowing a preference in favor of Relator, against and paramount to the preference fixed in the Constitution. ■

      -J* The ease of Collens vs. Burke, 32 A. 1213, is inapplicable to the instant issue. That case involved measuring a statute by the Constitution — this, measuring the Constitution by its own provisions, hence enforcing the provision in favor of the judicial expenses written in the Constitution.

      Miller, Finney & Miller, for E. Meister, Co-Appellanfc:
    1. The provisions of the Constitution directing that the Register shall receive Ms salary, to be paid out of the judieial.fund, and that the judicial expenses of this parish shall be paid out of that fund, are at least of equal,dignity, and the Register can claim no inference over judicial expenses.
    2. The Constitution itself fixes a part of the judicial expenses, provides the modes of ascertaining the residue of such expenses, and those expenses thus adjusted have, at least, the same san ctity and right of payment out of the j udicial fund, as the salary of Relator.
    3. It is only by a liberal construction in his favor, that the payment of the salary of the Register of Conveyances, out of the judicial fund, pari 2Mssu, with the judicial expenses, can he admitted, the preference declared hy Article 146 being in favor of the judicial expenses.

      T. ,T. Semines <& Payne, for Rolator and Appellee, on application for rehearing.
   The opinion of the Court was delivered by

Bermudez, C. J.

The Relator, who is the Recorder of Conveyances for the Parish of Orleans, and whose annual salary is fixed by tbe Constitution*, Article 144, at $2,500, claims to be paid, by preference, overall others seeking payment, out of the fund created by the Constitution, Article 146, and known as the “judicial fund,” where their salary is not likewise fixed.

After issue joined by the State Treasurer, the lower court rendered judgment agreeably to the prayer of tlie petition. From tliis judgment the defendant and a deputy clerk, who alleges an interest within our jurisdiction, have appealed.

The differences of the parties arise from a shortness of the fund out of which they are to be paid, and are now submitted for adjudication.

The contention here is, that not only is the Relator not entitled to a preference, but that he. ranks next to those who truly form part of the judiciary department, and who are recognized as such: that at best, the Relator can only ask and he allowed an equal participation in the judicial fund.

The Article (146) upon which the litigation hinges, provides: “All fees and charges fixed hy law for the various courts of the Parish of Orleans, and for the Register of Conveyances and Recorder of Mortgages of said parish, shall enure to the State, and all sums realized therefrom, shall he set aside and held as a special fund, out of which shall he paid hy preference, the judicial expenses of the Parish of Orleans, provided that the State shall never make any payment to any Sheriff, Clerk, Register of Conveyances, Recorder of Mortgages of the Parish of Orleans, or their deputies, for salary, or other expenses of their respective offices, except from the special fund provided by this Article, and any appropriation made contrary to this provision shall be null and void.”

This Article clearly conveys the idea that all the fees mentioned in it shall accrue to the State, but that they shall be kept separate for the payment, by preference, of the judicial expenses of the Parish of Orleans, the balance, if any, remaining thereafter, to be subject to be applied by the State, without preference over the j udicial expenses, to such of her creditor's as, under some legal appropriation, may be entitled to be satisfied out of it. The object of the Article was to secure, by a Constitutional provision beyond the reach of legislative action, the payment, above all, of the judicial expenses of the Parish of Orleans. In the absence of any formal expression in the Constitution, as to who the officers are, who may be entitled to share or participate in a distribution of the fund realized, a litigation has arisen which this Court has adjusted. Of the ruling made in that controversy, this Court has the right to take and takes official notice, the moro so, as the Relator was a party to it. See O. B. No. 55, fol. 146, not reported. It is referred to, however, only as an incident.

Had not the Constitution mentioned the Relator, in a manner which leads to the inference that he is to be considered, for the purpose of the disposition of the fund in question, as attached to the judicial organization, it might be a matter involved in considerable doubt, whether he could be regarded as belonging to it at all. He is neither a judge, nor a clerk, nor a sheriff, who are generally considered as representing, each one in his sphere, the judicial authority; the judge to decide, the clerk to keep a record and to issue process, the sheriff to execute the orders and mandates of the Court.

Conceding, therefore, that the Relator is entitled to be paid out of the funds constituted by the fees received and paid into it, the question presents itself, whether he is entitled to a priority over the others who are also directed to be paid out of it.

In support of that theory, the argument is made that his salary being fixed by the Constitution, must, like that of all the other officers similarly situated, be paid anterior to that of the other officers whose pay has not been fixed by the organic law. In justification of such a claim, the Court is referred to the ruling in the Collens’ case, 32 A. 1213.

We do not consider that, by the terms of the Constitution, the Relator is entitled to the privilege which he asserts. One provision of the Constitution does not necessarily control another, unless it clearly appears that it was so designed. The Article to which the Relator points as‘fixing his salary, must be taken and construed together with the other Article, which directs from what source and in what manner that salary shall be paid. If one Article controls the other, it is surely not that which fixes the amount of the salary, but rather that which circumscribes its mode of payment. To view them in a different light would be to ignore the fundamental canon of interpretation, which forbids the nullification of important expressions of a law, where effect can be given to all of them. 1 A. 162; 14 A. 419; 21 A. 407 ; 32 A. 597 ; R. C. C. 17.

The object which the Convention had in view, when it fixed the Relator’s salary, could only be to place it beyond legislative reach. It could not be to entitle him to a preference over those who belong really to the designated local judicial organization. Construing the provisions invoked, as the Relator claims that they should be, would be to make the Constitution read, that the Relator is to be paid first, and in full, out of the judicial fund, and that next to him, the judicial expenses are to be satisfied.

• The designation of a mode of payment, namely : the payment of all judicial expenses out of the judicial fund, by preference, implies a placing of all the parties representing them on a level of equality.

The argument that, if the construction contended for, be not put on those Articles, the legislature may materially affect the rights of the Relator to be paid out. of the same source, is one ab ineonvenienti, which cannot be addressed to this Court, and which lacks solid foundation.

The authority referred to — the Collens’ case — does not sanction the claim of the Relator. In that case, the Court declared that the legislature could not impair a constitutional immunity, because not warranted in so doing.

In this case, the Court is not called on to pass upon the constitutionality of any actual legislative action, but solely to measure the Constitution by itself.

While the Constitution fixes and restricts the salary of certain named officers, among whom the Relator, who aré directed to be paid, out of the judicial fund, it expressly authorizes the legislature to provide for the i>ayment of other designated officers, Arts. 143, 144, 145, 146; but only out of this identical fund. As the legislature is empowered to appropriate from that fund and not from any other, to pay the officers mentioned, it can exercise the. power delegated, but not further than granted.

If the fund prove insufficient to pay as well the officers whose salary is fixed by the Constitution, as those whose pay is fixed by the legislature, the irresistible and equitable consequence is, that the fund which is constituted by the yieldings of the officers representing' the judicial fund, must be ratably subjected and distributed in satisfaction of those expenses, which are together entitled, without discrimination, to a preference over all other. claims .which might be satisfied by the State out of the same fund.

It is well observed by the able counsel who represent the appellants, that it seems difficult to appreciate that the Relator should have a a preference, because of those provisions in the Constitution on which he relies, when the same Constitution, in terms equally mandatory, exacts that the judicial expenses shall also be paid from the same fund upon which he attempts to found his preference.

Indeed, while the Constitution enacts that the Relator shall be paid, it likewise decrees that the judicial expenses shall also be paid, and as to both, it commands that they be satisfied out of the same fund, pari passu, the several claims enjoying an equal dignity.

The complaint that, as at present existing, the source of revenue out of which the fund is to be formed, is insufficient to pay the Relator and the other remaining officers, is no doubt meritorious, but not when addressed to this Court. It should bo directed to the body which has the power to relieve them by providing for more abundant means of payment.

Were we to .sanction the theory urged on behalf of the Relator, we would be amenable to the founded charge of violating the fundamental maxim, that every positive direction contains an implication against everything contrary to it, or which would frustrate or disappoint the object of the provision. Cooley, C. L. 88.

We regard the Constitutional Articles, considered in this case, as designed to secure to each and every participant an equal right to be paid his salary, from the amount to be applied, by preference over all who do not represent the judicial expenses, out of the judicial fund, and ratably in case of inadequacy.

The judgment of the lower court is erroneous.

It is, therefore, ordered and decreed, that the judgment appealed from be reversed, and proceeding to render such judgment as should have been rendered.

It is ordered, adjudged and decreed, that the demand of the Relator to be paid his salary, by preference or priority, out of the judicial fund, be rejected; and that the right of all the officers representing the judicial expenses, to be paid out of said fund, be recognized and declared to be of equal dignity.

It is further ordered, that appellee pay costs in both Courts.

Dissenting Opinion.

Roché, J.

The interpretation which I place on the Articles of the Constitution creating Relator’s office ancl providing for the payment of his salary, compels me to dissent in this case.

In fixing the amount of his salary, and directing its payment from the judicial fund created by the Constitution, the framers of that instrument intended to place the payment of Relator’s salary, in its entirety, beyond the possibility of a reduction, or of a pro rata distribution, by legislative enactment.

While equity would require the full or equal payment of the salary of all other officers entitled to participate in that fund, the constitutional mandate, being clear and unequivocal, must and should have been obeyed.

If unjust, in its enforcement by present legislation, the remedy must come from the General Assembly, and cannot be supplied by the judiciary.

Dissenting Opinion.

Fenner, J.

I am compelled to dissent in this case.

The mandate of the Constitution that the Relator “ shall receive an annual salary of twenty-five hundred dollars,” and that the same shall only be payable out of the judicial expense fund, must be obeyed, and is beyond legislative control, directly or indirectly. Provisions as to the Constitution and amount of said fund, and as to the amount of judicial expenses, not fixed in the Constitution itself, are left subject to the legislative discretion. That discretion cannot be validly exercised in such manner as to impair or defeat Relator’s constitutional right to receive $2,500 out of the fund.

Such is the clear doctrine of the Collens case.

On Application eor Rehearing.

Tonn, J.

We find nothing in the able arguments, made in support of this motion, to induce us to alter our decree.

This entire subject received our earnest consideration when a case with the same title was before us last year, and not reported. See 0. B. p. 146. And in considering that case, we were brought to the same conclusion expressed in the one now before us.

We there said:

We, therefore, conclude that the judicial fund in question must be primarily affected without any priority to preference, inter seso to the payment of the salary, and of the proper office expenses of the clerks of the Criminal and Civil District Courts, of the clerks of the City Courts, of the sheriff of the Criminal District Courts, of the Register of Conveyances, and of the Recorder of Mortgages of the Parish of Orleans, anil to tlie office expenses of tlie sheriff of the Civil District Court, and of the oonstables of the City Courts, in the proportion, and to the extent, in which those salaries are fixed by the Constitution and by law, and those expenses are allowed and regulated by Statute.”

Subsequent investigation and study lias but served to confirm us in the views then expressed.

All the items of expenditures mentioned in the Article in question (146) by its terms, are equally obligatory. The judicial expenses shall be paid out of this fund, is the imperative language of the Constitution, and in the same Article that provides for the salary of the Relator. And judicial expenses are essential and inevitable, without which there can be no courts. The constitutional mandate being, that they must bo paid, and paid out of a particular fund, was sufficient, without a designation or estimation of such expenses, which, if not impossible, wouldhave been out of place in the organic law. But when, under laws framed in furtherance of the mandates of that instrument, or by the exercise of the required authority, those expenses were fixed and determined as debts of the State, such determination was equally as effective, as if they had been specified in the Constitution itself. They were and are the judicial expenses that that instrument contemplated, and ordered tó be equally paid, and paid out of the same fund with Relator. As to these payments and to whom they must be made, the Constitution does not discriminate, nor can we do so. If the special fund proves insufficient to pay all, it is a misfortune, and a misfortune in which all interested therein must share alike. Just as in case the general fund should be inadequate to pay the salaries of officers whose salaries are fixed by the Constitution, the officers entitled thereto must ex necessitate submit to a proportionate reduction.

Rehearing refused.

Justices Pochó and Fenner adhere to their dissenting opinions.


author: PocrrÉ, J.

text:
    No. 8360.
    John A. Bajourin vs. Daniel S. Ramelli.
    A judgment previously rendered, in execution of which a fieri facias has issued, cannot bo afterwards set aside by an ex pw'te order with a hearing, or notice to the party in interest.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      B. B. Borman, for Plaintiff and Appellant:

      It A Judge in one division of Civil District Court cannot sit in another division. Constitution, Art. 30.

      2. A final money judgment cannot be annulled and a fieri facias quashed and seizure released by an ex parte order, without notice or citation.

      A. Goldthwaite, for Defendant and Appellee:
    After an order staying proceedings against person and property of one applying for respite, a suit pending in another court cannot be proceeded with, but should be cumulated with the respite proceedings. 2 Martin N. S. 163.
    A court is bound, ex parte, to quash an execution issued on judgment so illegally obtained. Acts 1870, No. 86.
   The opinion of the Court was delivered by

PocrrÉ, J.

The facts of this controversy are as follows:

On September 25th, 1880, plaintiff filed a suit for debt against the defendant, and the suit was allotted to Division B. of the Civil District Court.

On November 26th, 1880, defendant filed his application for a respite, and an order suspending proceedings against him was issued on the same day from Division E., to which those proceedings had been allotted.

On December 2, 1880, defendant moved, in Division B., that plaintiff’s suit be cumulated with the proceedings for respite in Division E., and his motion was overruled.

On February 35, 1881, judgment was rendered in Division B. against defendant, who had filed in that court, on November 15, 1880, an answer and a plea in reconvention, and on May 11, 3881, execution issued on said judgment.

On May 20th, 1881, a judgment was rendered by Division E., refusing a respite to Ramelli, but ordering a cession of his property for the benefit of his creditors ; and on June 1, 1881, a provisional syndic was appointed to administer his estate.

Now, on June 7th, 1881, on motion of the provisional syndic, who recited all the foregoing facts and proceedings, and alleged the absolute nullity of the judgment against Ramelli, an order was rendered in Division B., in the absence of the Judge thereof, by the Judge of Division E., quashing the writ of fi. fa. issued on May 11, 1881, and setting aside all seizures made thereunder.

The present appeal was taken from that order, which is alleged to be illegal, null and void, because it was granted ex parte, without notice to Barjourin, and by an incompetent Judge.

Under the view which we take of the proceeding, we shall treat the order or decree as though it had been rendered by the Judge of Division B. himself, and even with that concession, we cannot escape the conclusion that such an order, which is equivalent to a decree setting aside a judgment previously rendered by the Court, could not be made ex parte, without notice on, or hearing of the party in interest.

Act 86 of 1870, on which, appellee relies, does not bear him out, and has no application to such a proceeding.

That Act was intended to prevent a conflict of jurisdiction between the several courts of this State, and to that ond it prohibited a Judge from issuing any order, writ or .decree which would, in any manner, interfere with, or interrupt proceedings in a cause pending in another court, and it required the Judge, in such cases, to revoke, either at chambers or in open court, any such order or decree 1¡}ras illegally rendered.

We see nothing in tho Act to justify or warrant any Judge, to annul or set aside, ex- parte, a judgment previously rendered by him contradictorily between the parties, under the circumstances of this case. The authorities quoted by appellee turn upon cases in which an appeal was taken from judgments rendered under similar circumstances ; but in this case no appeal was taken from the judgment complained of, the attempt being mado to avoid its effect by means of an ex parte order, in a proceeding absolutely irregular, unwarranted bylaw, and therefore null and void. 1 M. 193; 3 M. 39; 2 N. S. 163.

It is, therefore, ordered, that, the decree of June 7th, 1881, quashing tho writ of fieri facias issued in this ease be annullod, avoided and reversed, and that tho parties be restored to the position which they occupied previous to the issuance of said order, at the costs of appellee.


author: Fenner, J.

text:
    No. 8333.
    Joseph Weise vs. C. V. Thibaut, Shekiff, etc.
    The title of Act No. 88 of 1880, conforms to Art. 29 of the Constitution ; does not embrace more than one object, and expresses that object sufficiently.
    The rice-flume tax authorized by Section 6 of Act No. 88, being a parish tax, conforms to the requirements of equality and uniformity, under Constitutional Article 203, being equal and uniform as between all persons of the class subject to the tax and within the limits of the authority imposing it. 29 A. 283; 26 A. 493 ; 27 A. 396.
    Judgment affirmed.
    APPEAL from the Eighth Justice’s Court, Parish of Plaquemines. Barry, J.

      F. Howard MeOaleb,■ George J. Fenis, for Plaintiff and Appellant.

      It. T. Beauregard, District Attorney, T. Á. Flanagan, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.


author: Fenner, J. Bermudez, C. J.

text:
    No. 8523.
    Eliza E. Marshall et al. vs. Sarah H. Pearce et al.
    Where a ■will says: I give and bequeath to ray wife property, to have and to hold during her natural life ; after her death. I give and bequeath the same property to my grandson, it is void as a prohibited substitution.
    The first bequest constitutes an imperfect ownership for life, and not an usufruct.
    The .second bequest, by its terms, takes effect only after the death of the first legatee.
    The charge on the first legatee *• to preserve and return ” need not be express, and here it is necessarily implied.
    This case is distinguished from 31 A. 45(5, and similar cases. Roy vs. Latiólas, 5 A. 552, overruled.
    APPEAL from the Twelfth Judicial District Court, Parish of Rapides. Harbin, J.

      li. J. Bowman, for Plaintiffs and Appellees:
    The will contains a substitution, for the following reasons:
    1. Because it is drawn in the exact language of the entail of the common law and the substitutions limited by the ordinance of 1747, and prohibited by the Code Napoleon, Kent, Yol. 4, pages 20 and 21, and what was an entail or substitution then, must be one now.
    2. Because the devise of the movables is not included is the devise to Joshua Pearce, but is to Mrs. Pearce in absolute ownership; but they are devised to Mrs. Pearce by the same clause by whieh the land is devised, and inseparable from it, and if the movables are in absolute ownership, the land must be.

      X The land being devised in absolute ownership to Mrs. Pearce during her life, no title will vest in Joshua Pearce until her death, and upon the contingency of his surviving her, and is therefore a substitution. '
    4. If the will should be held valid, its dispositions are beyond the disposable portion.

      J. Q. White, W. F. Blaelman and James Andretos, Jr., for Defendants and Appellants:
    It is not a substitution to give a life estate or usufruct to one and the naked property to another that is in existence, at the time the donation is made, and who is capable of inheriting. Arts. Civil Code, 1529, 1'522; Robinson Reports, 115; 3 An. 499; 5 An. 552; 10 An. 28 ; 31 An. 456.
    A donation mortis causa, for more than the disposable portion, is not null, but reducible to that quantum. Civil Code, 1502.
    The disposable portion, where the disposer leaves three or a greater number of children, is one-third. Civil Code, 1493.
    To determine the reduction to which donations are liable, to the value of the property at the time of the death of the testator, must be added fictitiously the value of the property disposed of either inter vivos or mortis causa, from this the debts of the estate must be deducted, and the disposable quantum is calculated on’the balance. Civil Code, Art. 1505.
    If the disposition of an usufruct or annuity, the value of which exceeds the disposable portion, the forced heirs can either execute the disposition or abandon to the donee the ownership of such portion of the estate as the donee had a right to dispose of. Civil Code, Art. 1499.
   Tlie opinion of the Court was delivered by

Fenner, J.

This is a suit by two of the children and forced heirs, to annul the following will of Joshua Pearce, as containing a prohibited substitution:

“ First. I give and bequeath unto my beloved wife, Sarah H. Pearce, the upper part of my plantation upon which I reside, situated on Rayon Boeuf, in the Parish of Rapides, containing one hundred acres, four acres front and twenty-five acres deep, running parallel with the plantation of W. J. S. Johnson, together with all the improvements and movables thereon, to home and to hold during her natural life.”
“Item. After her death, I give and bequeath unto my grandson, Joshua Pearee, son of William and Martha'Pearce, the above described land and improvements.”

The simplest test of the substitution prohibited by our law, is that it vests the property in one person, at the death of the donor, (in case of testaments) and, at the death of such person, vests the same property in another person, who takes the same directly from the testator, but by a title which only springs into existence on the death of the first donee. Such a disposition destroys the power of alienation of the-property by the first donee, because he is bound to hold it until his death, in order that the person then called to the title may take it. At the same time, no power of alienation exists in the second donee during the life of the first, because his title only comes into being at the death of the latter.

The practical mischiefs, which the prohibition is intended to prevent, are : that such dispositions place property out of commerce; and that they are a cause of deterioration of property and preventive of its improvement, because the possessors, conscious that they can neither profit by improvements, nor transmit them to their heirs or chosen successors, are naturally tempted to get the most out of the property with the least expense upon it. Other mischiefs are mentioned by Marcadó, 3 vol. p. 366.

It is obvious that the disposition of the will now under consideration falls within the prohibition under the above test, and entails the very mischiefs above mentioned, unless, under some possible interpretation of the language thereof, it can be held to import an immediate bequest of the naked ownership of the property to Joshua Pearce, the grandson, subject to a mere usufruct in the widow during' her life, which would bring it under the jurisdiction of C. C. 1522.

We think that under the Code Napoléon, there is no room for doubt that the provision in favor of Mrs. Pearce would be considered a mere usufruct. That Code recognizes but one kind of ownership, defined to be the right of enjoying and disposing of the things in the most absolute manner.” C. N. 544.

The authors agree that this definition includes, as one of the essential characteristics of ownership, that it should be, actually or potential^, perpetual. Thus, Demolombe says : Le droit de propriété est perpétuelj et nous avons citó plus liaufc un considérant d’un arrét de la " cour de cassation, qui déclare quHl ne sanrait étre borne par le temps

* * * D’ou il faut conclure qu’nne concession d terme ne sanrait étre translative de propriété.” 1 Demolombe, distinc. desbiens, No. 546.

Hence, it is held that sale or other concession of property, for life, or for a term, not being translative of property, conveys merely an usufruct. 14 Merlin Rép. “Usufruit,” p. 362; 1 Demolombe, distinc. des Mens, No. 500.

Our Code, however, treats of ownership in a different manner. It divides it into per/eci and imperfect ownership. The perfect ownership is perpetual. “ On the contrary, ownership is imperfect, when it is to terminate at a certain time or on a condition.” C. C. 490.

Thus, the Code distinctly recognizes the right of ownership for a term; and though this ownership be imperfect, and though the rights derived therefrom be subject to certain restrictions not attached to perfect ownership, it is nevertheless a distinct right of property in the thing so held. It is, therefore, entirely distinct from an usufruct, which' is defined to be “the right of enjoying a thing, the property of xohich is vested in another.'1'’ C. C. 533.

Imperfect ownership is exclusive of any co-existing ownership of the same subject, in another, during the term of its own duration. This is of the essence of ownership, whether perfect or imperfect. C. C. 494.

The argument, therefore, that a concession for life or for a term, must be an usufruct, because it cannot be an ownership, though valid under the French law, has no force under ours. It is, as we have shown, entirely competent to convey an ownership for life.

We are then brought face to face with the question: What is the effect of the disposition of this will in favor of Mrs. Pearce ? Does it confer an ownership for life ? Or does it confer an usufruct ?

The terms are, “ I give and bequeath unto my beloved wife,” what ? The usufruct of property? No, the property. For what purpose? “To be used, enjoyed and occupied by her, during her natural life,” as in the case of the Succession of Law, 31 A. 456 ? No, “ to have and to hold during her natural life,” the technical habendum ac tenendmn, which conveyancers have used immemorially as significant of the grant of property. If these are not terms conveying an imperfect ownership for life, what terms would do so ?

Unless we should hold that every disposition by which a person gives, or sells, or otherwise conveys, property to another for life or for a term, is a constitution of an usufruct, we see not how such interpretation can be placed on this will. Yet such á> method of construction would negative the existence of that kind pf imperfect ownership which is to “terminate at a certain time,” and thus to render part of C. C. 490, nugatory.

We find no words in the will suggestive, in any degree, of the constitution of the usufruct, and, still less do we find any capable of conferring any right whatever upon the grandson, prior to the death of Mrs. Pearce.

Where should we find authority to impose upon Mrs. Pearce the obligations of an usufructuary 9 How should we require her to give security, (C. C. 5589) to make necessary repairs, (571) to keep up roads, bridges, ditches, levees, etc. (578) 9 How should we be authorized to decree the absolute extinction of her right, prior to the expiration of the term fixed by the donor, on the ground of the abuse of her enjoyment of the property, (C. C. 621)9 And whence would the grandson derive the right to claim the performance of such obligations, when, under the express terms of the will, the property is only given and bequeathed to him, “ after her death 9 ”

Evidently, there is no language in the will, expressly or impliedly, imposing such obligations on Mrs. Pearce, or conferring such rights on the grandson.

We do not believe such was the intention of the testator. We believe he intended his wife should hold this property, in imperfect ownership, free from interference by anybody, during her life. It is well settled that the “ charge to preserve and return,” need not be express. It may be implied, and it is implied here.

We have carefully compared the disposition of this will, in this respect, with those held void as substitutions in the following cases, without being able to discover any distinction, in principle, between them. Provost vs. Provost, 13 A. 574; Wailes vs. Daniel, 14 A. 578; Anderson vs. Pike, 29 A. 120.

We find analagous decisions of the French Court of Cassation, holding void a disposition by which a testator bequeathed an immovable to one, with provision that, at his death, it should pass to another; and holding void another bequeathing to one with provision that, at his death, the property shall belong to another designated person. Journal du Palais, 1851, vol. 2, p. 478; Ib. 1850, vol. 1, p. 454.

In all these eases, the charge to “ preserve and return,” w'as implied.

The case of Succession of Law, 31 A. 456, rests entirely upon the use of the words qualifying the first bequest, “to be used and enjoyed and occupied by him during his natural life,” which the Court held to be, in themselves, clearly significant and descriptive of an usufruct; and, from this fact, the Court ^not without difficulty) deduced the inference that, by the phrase, “ at his death to go to ” others named, the testator really meant to make these last immediate legatees of his estate, subject to the life usufruct of the husband.

There are no similar words in this testament to support such a construction of either estate.

Like considerations controlled the decision of the following cases, viz: Succession of Ducloslange, 4-Rob. 409, where the donation to the first legatee was “ pour enjouir sa vie durant;” Succession of Barker, 10 A. 28, where the legacy was of the rent of a house to one during life, and of the house to another at the death of the first; Fisk vs. Fisk, 3 A. 494, where the bequest was to A “ for his sole use and benefit during his natural life,” and at his death to others.

The case of Roy vs. Latiolas, 5 A. 552, is the only one in which a bequest for life, without words expressly tending to qualify it as an usufruct, was held to import such. That decision was rendered at Opelousas, when but three Judges were in their seats, Chief Justice Eustis being absent. Judge Preston was the organ of the Court. Judge Slidell, in assenting, expressly referred to the “ limited means he had had of examining the subject.” Judge Rost dissented.

Its authority is of the weakest kind. The opinion rests upon the grossly unscientific proposition that “there is no substantial difference between a life estate and an usufruct for life; the rights and duties of the parties are the same in each case.” Judge Rost rightly said: “ An estate for life is not an usufruct.” Obviously, there is not only a substantial difference between an estate for life, or an imperfect ownership for life, and an usufruct, but they are absolutely inconsistent with, and contradictory of, each other; and the rights and duties of the parties are entirely dissimilar, as we have already shown.

We cannot follow this decision. It .renders the decisions quoted above, simply absurd. For of what use or moment would it have been to discuss the effect of the qualifying words in those several cases, if the mere fact that the bequest was for life, was sufficent to stamp it as an usufruct, and thereby to sustain the will ?

With great respect for the ability usually displayed by the Judges who participated in that decision, we are compelled to say that the proposition on which it rests is so preposterously untenable, that we can only characterize it as an example of Homeric nodding. With all possible desire to effectuate testamentary dispositions, and to impress upon them a lawful, rather than an unlawful meaning, the language of this will and the collocation of the two bequests in separate and independent items, leave no possible doubt that the intention of the testator, clearly and unambiguously expressed, was, first, to give to his wife the ownership of this property during her life; and second, after her death to give it to his grandson.

This implies, necessarily, the charge to preserve and return ; and under the imperative mandate of C. C. 1520, the disposition must be declared null.

Judgment affirmed, at appellant’s cost.

Dissenting Opinion.

Bermudez, C. J.

Guided by.the light of the jurisprudence of this State, I fail to see that the will of Joshua Pearce contains any prohibited substitution.

To my mind, it is apparent that, when he bequeathed to his wife his plantation and movable effects, ‘‘ to have and to hold during her natural life,'1'' he merely intended to give her the usufruct of that property, and that when he bequeathed to his grandson, Joshua Pearce, Jr., the same things, at the death of his wife, he meant to give him the naked ownership ■ first, and the absolute ownership next, at the demise of his widow.

In the interpretation of last wills, the intention of the testator must first be ascertained, and testamentary dispositions have to be understood in the sense in which they can have effect, rather than that in which they can have none.

In construing a will, it has been said that the intention of the testator is the polar star by which the Court should be guided, and it is the duty of those who have to expound it, if they can, ex fumo dare lucem. In other words, the first thing to be done is to ascertain what was the intention at the time of making the will, and then to carry out that intention, find out quod voluit by interpreting quod dixit.

Not only are these fixed and established rules by which Courts will be guided, but there are certain technical expressions of which the legal interpretation is different from that which in ordinary language would be attributed to them, and consequently in a will, in which such expressions may occur, may, in some cases, be made to operate in a manner different from that which may, apparently, by close and sharp analysis and criticism, be claimed to have been intended by the testator, the duty of the Court being to give effect to all the words of the will, and to construe technical words in their proper sense, when they can consistently be so understood, to carry out a legitimate intention, particularly where the technical words have a popular sense to the same effect. In testamentis plenius volwntates testarntimn interpretantur. D. 50, 17,12; 7 L. 230 ; 8 L. 43; 2 A. 581; 7 A. 127; 7 R. 481.

Where a testamentary disposition is susceptible of two interpretations, one which will destroy it, and another which will execute it, the latter should unhesitatingly be preferred andcarried out. Melius valeat quarn pereat, for tlie obvious reason that it must be presumed that the testator intended to do that which was legal, rather than that which was prohibited. 7 U. S. 416; 4 L. 504; 4 R. 409; 8 A. 113; Toullier 5, No. 44; Duranton 8, No. 5162; 3 Marcadé, 418, 428; Merlin, Vo. Sub. Fid. Sec. 8, No. 7.

The law of this State expressly permits dispositions inter vivos and mortis causa, by which the usufruct is given to one and the naked ownership to another. R. C. C. 1712, 1713, 1522.

It is striking that there exists, nowhere, any authoritative definition of a prohibited substitution, none is found, either in the Napoleon or our own Code, in the French, or our jurisprudence.

It may, however, well be stated to be a disposition by which a testator intends to bequeath thefvM ownership of a thing to one person, charged to preserve and to return it, at his death, to a third person who, then only, inherits the same. In other words, it is a disposition by which, after giving absolutely a thing, the testator arrogates to himself, as though he had not divested himself of title to it, the right of settling the succession of his legatee, by giving again the same thing to another legatee who is to own it, at the death of the first legatee.

The thing intended to be received by the second legatee must be the same thing that was designed to be bequeathed to the first legatee, with all the rights which the first legatee had received, and which the testator possessed, at his death, to that thing.

The testator, in this case, has not bequeathed the full ownership of the land and movables to his wife. The very qualification of the length of her tenure repels the proposition, for it is of the essence of the right of ownership that it b& perpetual.

A true and crucial test, to be applied in such inquiry, is:

Whether, or not, the first legatee, gramatus, who takes immediately from the testator, would, by the predecease of the second legatee, who takes mediately from tlie testator, through the first legatee, acquire an absolute, indefeasible title to the thing bequeathed ; in other words) whether, or not, by the death of tlie second legatee, before the first legatee, (both surviving the testator) the first would remain such owner of the thing as the testator himself was iii his lifetime.

Where the answer is in the affirmative, there exists a substitution ; where it is in the negative, there exists none.'

Now, in this instance, would Mrs. Pearce, by the death of Joshua Pearce, Jr., before her, become the absolute owner of the plantation and movables ? 'Evidently not.' The conclusion irresistibly is, that there exists, therefore, no’ prohibited substitution, and that the will is perfectly valid. ' . ■

Tlie assumption that he gave the imperfect ownership is likewise fatal. That sort of ownership being recognized, as it appears to be, it follows, that it can be acquired and, therefore, transferred, as there is imposed no limitation touching the cases in which it can be conveyed, and can thus accrue. If this can be done, to take effect' during life, there is no perceptible reason why it should not also occur, to take effect after life. I fail to perceive that the law concerning undefined, prohibited substitutions, extends to such cases. The law prohibits certain substitutions, not all, for reasons of public policy, which are well known and need not be enumerated, not one of which appears to exist in the present instance.

At the death of Joshua Pearce, it could not be difficult for the State assessor and tax collector to ascertain, at first sight, that Mrs. Pearce was the usufructuary, and Joshua Pearce, Jr., the naked owner of the property bequeathed. The first could lose nothing on account of uncertainty in the. ownership of the things given by the testator.

To say that the will of Law and that of Pearce are dissimilar, because the former is expressive of the right of use and enjoyment by the legatee, while the latter is reticent on the subject, is to gratuitously negative the undeniable proposition, that legacies are essentially and invariably excluded from those privileges, unless when distinctly announced. The right to use and enjoy are clearly implied in this- case.

A legacy of property to have and hold the same during life, is a life estate at common law, equivalent to an usufruct in the Roman, or civil law.

There does not exist among the reported cases. adjudicated by this Court, any instance in which such a legacy ever was construed as one of ownership of any kind, and was consequently annulled, as containing a prohibited substitution. Neither have I been able to find a solitary case in which a testamentary disposition was avoided on that ground, by less than a unanimous court, so true is it, that this should be done in glaring cases only.

I think that the will of the deceased can legally and conscientiously be saved from destruction and annihilation by the provision of the Code, which permits the giving of the usufruct to one, and the naked ownership to another.

The objection that the first legatee is charged to preserve and return, is not a test, for that is clearly the duty, the obligation of the usufructuary, as specially declared by law. R. C. C. 567, 594; 18 A. 285.

As was well said by Mr. Justice DeBlane: “The last will of those who depart this life is the last expression of their love, friendship or gratitude, and where it violates no law, that will, by far the most sacred of all things,- should be as respected as the grave of the dead.” 30 A. 217.

Unless this Court has flagrantly misunderstood and applied the law in its previous adjudications, it is difficult to perceive how the will of Joshua Pearce can be legally destroyed and blotted out of existence. 31 A. 456 ; 10 A. 28 ; 5 A. 552 ; 3 A. 494; 1 R. 115 ; 4 R. 176, 409; 12 R. 660; 13 A. 197; 7 A. 395.

I, therefore, dissent from the opinion and decree.

Levy, J., absent.


author: Bermudez, C. J.

text:
    No. 8391.
    People’s Bank of New Orleans vs. T. H. Ballowe.
    Where an injunction issues against executory process, on the ground of extension of time by the plaintiff, the debtor’s evidence must be positive and precise to show such fact. It will not otherwise be entitled to weight, particularly when contradicted by two disinterested witnesses, whose testimony was even superfluous in this case.
    When a vendee redeems property sold, from forfeiture to the State, by paying the taxes due thereon, he cannot set up against this unpaid vendor that his privilege and mortgage have been extinguished hy the forfeiture.
    The privilege was dormant and revived. The debtor cannot keep both the property and the money.
    In case of appeal from the dissolution of such an injunction, damages will he allowed for a fiivolous appeal.
    APPEAL from the Twenty-fourth Judicial District Court, Parish of Plaquemines. Livau&ms, J.

      13. Howard MeOaleb, for Plaintiff and Appellee :
    1. Injunction after injunction cannot lawfully issue from the same court, arresting execution upon the same, or even on different grounds — otherwise a creditor could he perpetually baffled by his debtor, and the administration of jastice become a mockery and a by-word. 12 A. 197-613.
    2. The defendant arresting the execution of a writ of seizure and sale, on the ground that time had been given bim for paying the debt, should distinctly aver the length of time, or the duration of the delay on which he relies. Vague and indefinite allegations are insufficient to support an injunction. The facts relied upon should be clearly set forth. 11 A. 613 ; 4 A. 473 ; 7 A. 290.
    3. The burden of proof rests upon him who has the affirmative of any issue. JEiincumbit probatio, qui dicit, non qui negat. H. D. Evidence, Vol. Ill, p. 495; Louque, p. 237.
    4. Testimony of witnesses, taken under commission in a previous suit between the same parties, for the same cause of action, where there has been an opportunity for cro^sexamination, are admissible if the witnesses are absent or cannot be produced. 4N. S. 449 ¡ 7 N. S- 267, 283 ¡ 1 L. 320; 15 L. 43; 1 A. 391.

      o. An agreement for indulgence, without consideration, is a mere nudum pactum, invalid and not binding. § 157, Daniel on Negotiable Instruments; Parsons on Bills and Notes, Vol. 2, pp, 528-530.
    6. The laws relating to the forfeiture of property for non-payment of taxes will not be ex. tended so as to assist a vendee in thwartin'g his vendor, and thereby evading the payment of the price of property which he admits he owes. 27 A. 209.

      7. Even if a mortgage be extinguished by the forfeiture of the property to the State, because of the non-payment of taxes, as soon as the mortgagor redeems and reacquires the property, the mortgage revives and reattaches to it in his hands. It. C. C. 3282, 3304; 16 A.' 225; 14 A. 587. The forfeiture was not irrevocable, and hence, on redemption, the mortgagee’s rights upon the property revive. Pothier De E’Hypothéque, Chap. Ill, § 2.
    8. A tax title acquired by a mortgagor enures to tlie benefit of the mortgagee. Blackwell on Tax Titles, Eo. 999, and cases there cited; 30 An. 853.

      T. A. Flanagan, for Defendant and Appellant:
    Depositions taken in another case which was never at issue, cannot bo used in a subsequent case, even between the same parties, and partly involving the same issues, where other counsel is employed, who had no opportunity to cross the interrogatories and no notice of the intention to use them by a rule to show cause wli¿ they should not be used in the latter case, as required by Article 439, C. P.
    Where a mortgagee has been induced to expend large sums of money on the property mortgaged. under a promise of extension, or further time to pay, made at the maturity of the note, the mortgagor is estopped from foreclosing, and may be enjoined until the expiration of the time promised.
    Where property under a conventional mortagage has been forfeited to tbe State for back taxes, under Act 96,1877, and the time for redemption expires without the exercise of that right, either by tbe morfcagor or mortgagee, the mortgage is extinguished and dead, and a subsequent payment of the taxes, under the provisions of the Constitution of 1879, did not revive the mortgage which, once dead, is always dead.
   Tlie opinion of the Court was delivered by

Bermudez, C. J.

Tbe defendant appeals from a judgment dissolving an injunction taken by him to arrest, for a second time, the seizure and sale of his property, ordered to pay the vendor’s notes sued on.

In Ms first injunction, he claimed that time had been allowed Mm by tbe plaintiff. That injunction having been dissolved, on account of tbe insolvency of Ms surety, he procured another one,,based on the same ground, advancing further, that tlie privilege and mortgage claimed had ceased to exist, owing to a purchase which be averred he had made of the property, from the State, by redeeming it from forfeiture, on payment of taxes due on it by him.

The plaintiff, in answerto the appeal, prays for ten per cent, damages for a frivolous appeal.

' The defendant has failed altogether to substantiate the averment of extension of time granted Mm. Ignoring tbe fact that be swore that the notes had been protested svlien they were not, we think that Ms testimony is exceedingly unsatisfactory. It should have been exceptionally positive and precise. It is entirely deficient. If it prove anything, it is that no time was ever granted him.

. The president and cashier of the Bank, whose testimony was produced contradictorily with the defendant, (whether the interrogatories were crossed or not is immaterial) negative the indulgence vaguely claimed to have been granted. The objection of tlie defendant to that testimony is insignificant. As he had failed to prove the alleged extension, which it was incumbent upon him to do, this evidence was superfluous.

The first ground of the injunction admits an actual indebtedness, as well as the existence of the security guaranteeing payment. It follows that the second ground, that of the extinction of the privilege and mortgage asserted by the plaintiff, is inconsistent and so cannot coexist with it. It is not such as could be, nor was it even averred in the alternative. The former is destructive of the latter.

Were it otherwise, it is devoid of merit.

A mortgagor is, in duty and in honesty, bound to pay the taxes on the property encumbered by him to pay his debt. Should he fail to do so, and the property thereby be forfeited to the State, his redemption of it, in discharging the taxes, does not extinguish the mortgage upon it. The mortgage, which was only dormant, is vivified in favor of the mortgagee. Such tortuous movement, disreputable when accomplished with evil intent, cannot be tolerated by courts of justice, as it would be permitting a debtor to thwart his creditor by an. ill practice. It is niore particularly reprehensible in the case of a vendor seeking payment of the price of sale legitimately due him.

Never has law, still less equity, sanctioned in a purchaser, the keeping to himself of both the property and the purchase money. He should give up the former, or pay the latter.

In such cases the security awakes from slumber; it does not rise from the dead. Won a morte sed a sommo resurgit. 26 A. 718; 27 A. 209; 16 A. 225; 14 A. 587; 30 A. 853; R. C. C. 3282, 3304; Pothier Hyp. ch. iii, § 2 ; Blackwell on Tax Titles, No. 399.

The defendant has clearly abused the equitable remedy of injunction.

The payment of the first note at two years, was gratuitously extended till the 18th of December, 1880, when the second one, that at three years matured. The executory proceedings were brought on March 7th, 1881. Since May 6th, following, by two groundless injunctions, the writ of seizure and sale has been chained, the defendant remaining in possession and the plaintiff kept out of its money, It is time that the writ be let loose.

The plaintiff has asked damages for a frivolous appeal; we think the same should be allowed.

It is, therefore, ordered and decreed, that the judgment appealed from be affirmed, with ten per cent, damages for a frivolous appeal.


author: Levy, J.

text:
    No. 8461.
    S. H. Kennedy vs. Succession of A. & E. McCollam.
    Servitudes may ho proved by parol when they are based on prescription, but not otherwise, though parol is admissible to establish the character of an alleged title, without regard to the validity or effect of such evidence.

      A continuous apparent servitude may be acquired by prescription of ten years.
    APPEAL from the Nineteenth Judicial District Court, Parish of Terrebonne. Goode, J.

      Thos. L. Winder, for Plaintiff and Appellant:
    1. Title to a continuous and apparent servitude cannot be proved by parol. C. C. 2440, 2275 • 32 A. 839; 28 A. 678; 12 A. 213; 5 A. 132, 204; 15 A. 541; 3 Rob. 452. The opposite rule asserted by defendant and appellee is not sustained by the cases from 12th and 20th and 25th Annuals. They are all to be restricted to agreements relating to the fact and mode of use and enjoyment, as showing the kmd of possession, whether as owner or in the right and by the permission of another, and the like.
    2. Plaintiff’s bills of exception {Transcript, 49 et seq.) to the introduction of parol to prove title, etc., should be sustained, and the testimony objected to should be excluded.
    3. The law governing the acquisition of continuous and apparent servitudes hy prescription, is that of thirty years, without a title or good faith. C. C. 3504. The prescription of ten years, to he effective, must be based upon a possession in good faith under just title. 0, C. 765. The law of the Code of 1808 was a naked possession of thirty years, and there was no other class of cases or kind of possession embraced within its provisions. By the enactment of Code of 1825, two distinct classes of cases were recognized, those resting on title and good faith and those on naked possession alone. By the effect of Art. 3504, introduced as a new Article in the Code of 1825 for this special purpose, cases resting upon naked possession were taken out of the operation of Art. 765 and consigned to the thiity years’ prescription; all other cases, viz., those resting on title and good faith, were left to tbe operation of Art. 765, in which the prescription was changed from that of thirty years to ten. '
    4. Laws in pari materia must be construed together, and that interpretation will be preferred which will give effect to all their provisions. C. C. 17 ¡ 7 L. R. 166 j 17 L. R. 407 ; 9 Rob. 531; 19 I* R. 447; 13 A. 387; 14 A. 621; 5 A. 121; 32 A. 598,
    5. In the cases cited from 7th L. R. 55, and 33 A. 797, there was no discussion of Arts. 765 and 3504 taken together, as laws in pari mateHa, either by counsel or the Court. To such cases the rules of stare decisis, and posterior legislative sanction do not apply.

      Jno, JB. Winder, for Defendants and Appellees:
    If the owner of an estate stand by and see another expend money upon an adjoining estate, the latter relying upon an existent right of easement in the other estate, and do not interpose to prevent the work, he will not he peimitted to interrupt the enjoyment of such easement.
    It is a rule of law, that when a statute has been interpreted by the courts, and is subsequently re-enacted, the legislature is presume'd to have acted with reference to the interpretation already given. 12 A. 81,174; 13 A. 582.
    Art. 660, R. C C., is construed liberally in favor of the interests of agriculture. 12 L. 503; 7 A. 291; 15 A. 301. ■
    A will is a just title in cases of prescription. 4 Rob. 170.
    An agreement relative to servitudes may be proved by parol, {25 A. 55; 12 A. 108; 20 A. 339,) particularly when the agreement has been executed. Angel on "Watercourses, Sec. 309.
    A continuous apparent servitude is prescribed by enjoyment of ten years without title. R. C. C. 765; 7L. 55; 33 A. 797.
   The opinion of the Court was delivered by

Levy, J.

Plaintiff, the owner of the Ardoyne Plantation, in the Parish of Terrebonne, on the Bayou Black, brought this suit against defendants, the owners of Ellendale Plantation, a contiguous estate below, on tlie same Bayou, in which he prayed for judgment in his (plaintiff’s favor) ordering defendants “to close five certain ditches or canals leading from the Ellendale Plantation into petitioner’s lands at the points where they respectively intersect his said lands, ordering them to restore the land leading upon petitioner’s plantation to the level and natural incline as existing in a state of nature, enjoining them from throwing the waters of the Ellendale Plantation upon petitioner’s lands, by means of said canals and ditches, and decreeing to petitioner the full and exclusive control of said ditches or canals,” and for judgment condemning defendants to pay petitioners $5,000, actual damages incurred, and $2,000 annual damages, until the decision of this case.

Plaintiff alleges, in his petition, that the Ardoyne Plantation extends in the rear of Ellendale, on the west side of Bayou Black; that defendants have made, or caused to be made, at points where said Ellendale Plantation intersects that of plaintiff, five large canals or ditches, running parallel with each other, in a northeasterly and southwesterly direction, at a distance of about five arpents apart into plaintiff’s lands, and extending therein several arpents ; that said canals or ditches were cut some time in the year 1877, but the exact time is unknown to him ; that thereby plaintiff’s lands are subjected to an unnatural burden by receiving waters from the Ellendale Plantation, from which they Avould Otherwise be exempt, and they throw Avater upon him, from which he Avould otherwise be exempt.

Defendants, in their ansAver, deny generally, and make the following averments and allegations. They aver oAvnership of the Ellendale Plantation in the succession of E. E. McCollam, that it was purchased by the late John McCollam from Tanner and Judan, by notarial act of 19th April, 1851; that said John McCollam, by his last Avill, duly- probated January 22, 1867, bequeathed it to said Mrs. E. E. McCollam, av1\o Avas immediately put in possession thereof; that said Ardoyne Plantation A\ras formerly the property of Widow James Hanna, avIio conveyed one undivided half thereof to James J. Hanna, on 27th June, 1843, and the other half Avas acquired by Mrs. S. Yorke, on 24th September, 1844, at a judicial sale in the succession of said WidoAv James Hanna; that, on February 9th, 1859, said James Hanna and Mrs. Yorke comreyed the whole of said plantation to Alfred A. Williams ; and on 27th of August, 1869, N. S Williams, executor of A. A. Williams, in pursuance of due and legal authorization, conveyed the same to Mrs. M, McD. Von Phul, and on January 31st, 1871, said Mrs. Von Phnl conveyed it to N. S. Williams, and at public sale, under Execution vs. N. S. Williams, it was conveyed to plaintiff. It is admitted by all parties that the original titles and mesne conveyances, as above set forth, were duly made and the various acts mentioned duly recorded. Defendants aver that -there are five ditches leading from Ellendale Plantation, at the rear thereof, into the land of plaintiff; that said ditches were cut by the then proprietor of Ellendale, John McCollam, prior to the year 1858; that Ed. McCollam, administrator, did cause three of said ditches to be extended on plaintiff’s land during the year 1875; (giving the dimensions of said original and extended ditches.); that these extensions were made to render serviceable and useful the ditches that were already cut, and to preserve them; that instead of plaintiff being injured, he is heuefitted thereby; that Ellendale Plantation has a right to drain through said portion of Ardoyne, for the reasons : that by a compact made prior to thoyearl858, between the then proprietors of the two plantations, in consideration of John McCollam granting to Hanna & Yorke the right to cut wood for sugar rolling purposes from a portion of Ellendale, said Hanna & Yorke granted and conveyed to McCollam a servitude of drainage in favor of Ellendale through Ardoyne, where said ditches were cut., which servitude has been continuously possessed and enjoyed over since. That said ditches were cut in an open, public manner, at considerable outlay, and with the full knowledge of said Hanna & Yorke, and without objection on their part and, therefore, that plaintiff, claiming under them by mesne conveyances, is estopped from setting up his present claim. That said five original ditches have been used for the past twenty-three years, continuously, and this use has been open, public and uninterrupted, and of right and adverse to the proprietors of Ardoyne, and they plead the acquirement of said servitude by the prescription of ten years. That this portion of Ardoyne, situated below Ellendale, owes a servitude to the latter to receive its waters. That the extensions were made without objection by plaintiff, but with the encouragement of his agent, are of great service to plaintiff, who has availed himself of them, and is, therefore, estopped from objecting. That the devise to Mrs. E. E. McCollam, by ■will probated January 22, 1867, carried with it all servitudes enjoyed by it, including that of drainage now in contest, of which she and her representatives have been in possession and enjoyment, openly, publicly, uninterruptedly, and of right since January 22, 1867, by a just title and in good faith, apd plead the prescription of ten years. They specially plead, further, the prescription of one, five and ten years.

There was judgment in favor of defendants and against plaintiff, in so far as the main ditches are concerned, and in favor of plaintiff and against defendants in so far as the extension ditches are concerned, and ordering defendants to close said extension ditches at the points where they lead from the main ditches, respectively, and to restore the land at said points to its natural level, and condemning defendants to pay the costs of suit.

Plaintiff has apjtealed.

As will he seen from the above statement of the pleadings, defendants rely upon the alleged compact between John McCollam and Hanna & Yorke, in 1858, as establishing the right to cut the main ditches and giving a continuous servitude of drainage thereby, on the lands now owned by plaintiff, and upon the prescription of ten years, based upon adverse possession during that period. The proof as to the primal grant and establishment of this servitude is wholly parol.

By Article 471, R. C. C., a servitude, established on an immovable estate is considered asan immovable. Articles 2440 and 2275, R. C. C., respectively require “ that all sales of immovable property shall be made by authentic actor under private signature,” and every transfer of immovable property must be in writing.” It is not contended, in this case, that the servitude was granted by any written instrument, and it is claimed that, if the right were relied upon alone, as arising from a verba] contract or agreement, it should necessarily fail of recognition. In Bailey vs. Ward, 32 A. 840, the Court said: ‘‘ We do not consider that the late Court, by remanding the ease, intended to permit the introduction of parol evidence to show title to an element of ownership of real estate, but merely, to allow the defendant to establish the character of his alleged title, in view thereafter of passing upon the validity of oral testimony, and of regulating its effects. So far as the testimony is offered, and was permitted to be introduced, to show any title whatever to the realty, whether in the shape of ownership, usufruct, use, or habitation, it is illegal, and is to be eliminated, as the law requires written evidence in such cases ; 7 A. 103 ; 23 A. 242 ; but in so far as it was proposed to show permission on the part of the owner to occupy the property without paying rent or contribution for such occupancy, it is legitimate and can be weighed.”

It is settled that servitudes may be proved by parol when they arc bused on-prescription. Macheca vs. Aveguo, 25 A. 56. This is necessary to show the kind of possession and the duration thereof.

The evidence in this record shows that the natural drain of the waters from the Ellendale Plantation is not through the Ardoyne lands, but, on the other hand, that it is towards the Crescent Farm Plantation, which adjoins and is below Ellendale, hence the servitude herein claimed does not originate from the natural situation of the places, or from the obligations imposed by law., but falls tinder the head and description of those which arise from contract between the respective owners, or from such permission as serves to' give title. The evidence shows that as to the main ditches, the owners of Ellendale have been in possession of the servitude since the year 1858; this suit having been instituted on July 7th, 1880. The extension ditches were cut in the year 1875.

Defendants contend that the possession and use by them of the main ditches for more than ten years, perfect their right thereto, and entitle them to the benefit of the prescription of ten years, and plaintiff contends that the prescription of ten years is inapplicable, and if any prescription can be successfully invoked, it is that of thirty years.

In support of their position, defendants rely upon Art. 765, E. C. C., under the head: How servitudes are acquired,” which reads as follows: Continuous and apparent servitudes may bo acquired by title or by a possession of ten years,” and on the decisions of this Court in the'cases of Vincent vs. Michel, 7 L. 52, and Guesnard vs. Executors of Bird, in 33 A. 797.

The first mentioned case was to compel the defendant to abate a nuisance alleged to be caused by the drip from defendant’s house, which fell on plaintiff’s adjoining lot and for damages in consequence thereof. Defendant pleaded the prescription of ten years against plaintiff’s demand and right of action. There was a verdict of the jury in favor of defendant by reason of prescription. Mr. Justice Matthews, as its organ, rendered the decision of the Court, and in the opinion said : “In the present case, no written evidence of title is shown on the part of the appellee, by which he claims the servitude in question. His right of servitude rests solely on the acquiescence of the plaintiff in the burden imposed on his property, by suffering ten years and upwards, without complaint, the drip from the defendant’s house to fall on his lot. The 761st (now 765th) Article of the Louisiana Code provides, that continuous and apparent servitudes may be acquired by title or by a possession of ten years, etc.’ A possession of the servitude claimed in the present instance is proven to have existed more than ten years before this suit was brought. We are, therefore, of opinion, that the verdict of the jury is supported by the evidence of the case, as no interruption to the possession of this servitude is shown on the part of the plaintiff.”

In the case in 33 A. 797, this Court held that plaintiff, who did not rely upon any written title, had enjoyed, without legal interruption, for more than ten years, the right of draining over or through defendant’s lands and, therefore, an apparent predial servitude had been acquired by the prescription of ten years.

The two decisions clearly constitute an unqualified affirmation of the right, even in the absence of an apparent or just title in writing, to acquire such servitude by mere quiet and uninterrupted possession for ten years, by virtue of Art. 765, R. C. C.

Oral testimony is admissible to establish title to a continuous and apparent servitude, where such is claimed to have been acquired by the prescription of either ten or thirty years. .

Title to it can be shown, first, in the same manner that, title to real estate is established, that is, by a translative title which, if valid, confers an immediate and indisputable right, by the prescription of thirty years, with the possession prescribed bylaw, without any written evidence of title, and in the absence of good faith; secondly, title can also be maintained to such servitudes in two other ways in which real estate cannot be acquired, viz : by destination depere de famille, which is equivalent to title, and the prescription of ten years, by possession, both of which it is lawful to prove by oral testimony.

Indeed, destination depere de famille, as a rule, is not susceptible of written evidence, but may, exceptionally, be shown in that form. Recourse is had, necessarily, to oral testimony, in default of written evidence, in such cases, under the sanction of the law. R. C. C. 767, (763), 769, (765); 13 A. 583.

In relation to the acquisition of such a servitude by the prescription of ten years, no written evidence is necessary. The fact of the possession with the characteristics thereof, as prescribed by law, is all that is required.

Article 53, Chapter iv, Section 11 of the Code of 1808, was to the effect that, perpetual and apparent servitudes could be acquired by title or by a possession of thirty years,” but it was modified by the compilers of the Code of 1825, so as to read that, “continuous and apparent servitudes may be acquired by title, or by a possession of ten years,” striking out the' word thirty and substituting the word ten ; but making provision in Article 3170 for the acquisition, by prescription, by the longer term. Articles 761 and 3170, are now Articles 765 and 3504 of the Revised Civil Code of 1870.

When making this change the compilers observed: “ Nous avons pensé que le terme de dix ans, qui était celui exige par lesancienneslois de eet ótat suffisant pour la prescription des servitudes continués et apparentes.” They then referred to Partida 3, tit. 31, law 15, which is to the effect, that if the service be of such a nature that it is daily used without labor on the part of the person who enjoys it, as if it be an aqueduct, * * * and a neighbor makes use of it during ten years, acting in good faith, believing that he had a right to do it, * * * using no force, he will, then acquire the service * * * by prescription. It is manifest that, this mode of acquiring a right to a continuous and apparent servitude can be established by oral testimony, when there exists no written evidence-to justify title.

There is no antagonism between the two Articles : that which refers to the prescription of ten years, relates to those cases in which go.od faith is required, the other, which mentions the prescription of thirty years, concerns the cases in which no good faith is required and, therefore, applies to those where the possession is even characterized by bad faith.

In the instant case, the uninterrupted possession for more than ten years of the original ditches is fully proven, and the principles herein-above laid down are applicable. The extension ditches, however, have not been thus irsed by the defendant and, therefore, no right to their enjoyment has been acquired.

We find no error in the judgment appealed from, which is, therefore, affirmed, the costs of this appeal to be paid by the ajipellant.


author: Boché, J.

text:
    No. 8384.
    State ex rel. A. N. Bertel et al. vs. Board of Assessors.
    Masonic societies are charitable institutions, witbin the meaning of Article 207 of the Constitution, and are exempt from taxation on property owned and. used for their corporate purposes. But property of such institutions, when leased or Used for corporate income will not be entitled to the exemption.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J. - ■

      Myrtíl B. Dubuisson, Vallé J. Hosier, for Plaintiffs and Appellants.

      O. F. Bucle and Wynne Bogers, for Defendants and Appellees.
   The opinion of the Court was delivered by

Boché, J.

Relator, as Grand Commander of the “ Supreme Council of 33 Scotch Masonry,” claiming that said Association is a charitable institution, and, as such, exempt from taxation under Art. 207 of the Constitution, complains of the act of defendants in having assessed for taxation, a piece of immovable property owned by the institution and used for its corporate purposes.

He has taken this appeal from a judgment reducing the assessment from $3,000 to $1,500. It appears that the District Judge recognized Relator’s right of exemption, but declined an entire exemption, on the ground that a portion of the Association’s property is leased for purposes of corporate income. The object of appellant is to obtain a¡ judgment granting an absolute exemption.

As tlie issue presented by tlie record involves the constitutional right of exemption from taxation, the jurisdiction of this Court does not depend upon the amount in dispute, and, hence, appellees’ suggestion of our want, of jurisdiction in the cause cannot be entertained. Gillis & Kennet vs. Clayton, Assessor, 33 A. 286.

The answer of appellees, in which they pray that the judgment of the District Court be amended so as to reject the .partial exemption granted therein, was filed on the 28th of March, 1882, the very day on which the case was submitted, and comes, therefore, too late. Under the provisions of Article 890, Code of Practice, we are forbidden from even receiving it; and, hence, if cannot be considered.

The issues presented by the pleadings, are:

1. . Whether Relator is a charitable institution within the meaning and intent of Art. 207. of the Constitution.

2. And if it be such a charitable institution, whether it is affected by the proviso of Art. 207, which reads as follows: provided the property so exempt be not used or leased for purposes of private or corporate profit or income.”

First. According to the evidence in the record, and under Act No. 24 of Extra Session of 1870, incorporating the Relator' corporation, it appears to our satisfaction that the primary objects of this Society are benevolence and universal charity ; and, hence, we must conclude that Relator is a charitable institution, entitled to the protection of Article 207.

It has been held, that masonic lodges are entitled to exemptions created in favor of charitable societies. State vs. Addison, 2 South Carolina, N. S. 499.

Second. The next inquiry is, whether the property sought to be exempted from taxation is, or not, used or leased for corporate profit or income.

Tlie evidence shows that the lower part of the building in question, which consists of two stories, is rented and used for stores or warehouses, and brings an annual income of $150, and that by renting its main hall up-stairs, to other societies on certain occasions, Relator derives a casual income of $175 per annum.

As suggested by the District. Judge in his reasons for judgment, a very strict application of the proviso would entirely defeat Relator’s claim of exemption.

And jurisprudence has settled the rule, that all exemptions must be strictly construed. Cooley on Taxation, 146. And every presumption will be made against an exemption from taxation. 18 Wall. R. 206; 97 U. S. R. 666.

Hence, we conclude, that under the proviso, this property is liable to taxation; and for that reason we shall not disturb the judgment of the lower court.

In the absence of a timely prayer for amendment, we are not authorized to grant any additional relief to appellees.

Judgment affirmed.

Levy, J., absent.


text:
    No. 7615.
    Mrs. E. F. Brown vs. George A. Pike et al.
    The irregular deposit of money with a bank or banker, is subject to the legal understanding that the money will be pavable only on demand of the depositor. The latter’s light of action only accrues after proper demand, and prescription only begins to run from the date of such demand and refusal.
    Private unincorporated partnerships, conducting the business of banking, are “merchants ” within the meaning of C. 0. 2248, and their books oaunot be given ia evidence in their favor.
    APPEAL from the Sixth District Court for the Parisli of Orleans. Ilujhtor, J.

      Wilkinson <& Armstrong, for Plaintiff and Appellee :
    I.
    1. According to the rules of commercial and common law, the books of a bank are not admissible in evidence in its favor.
    2. Even were the books of a bank, admissible in evidence in its own favor, according to the rules of common and commercial law, it is a condition precedent to their admission that the entries therein must be proved by the evidence of the clerk who made them, or, if he be dead, by proof of his handwriting. Morse on Banks and Banking, 2d Edition, p. 62 ? Watson vs. Phoenix Bank, 8 Met. 217; Union Bank vs. Knapp, 3 Pick. 96; Lewis vs. Horton, 1 Wash. 76; 15 Mass. 380; 3 Camp. 305
    3. Bankers are merchants aecordiug to both the commercial and civil law. Smith on Mercantile Law, B. 1, Chap. 1; Erencli Code de Commerce and Rogrou’s Commentaries thereon.
    4. Clerks or employees of a principal in a cause at issue are not third parties to the other principal, and entries made by them cannot be introduced in evidence against him as entries made by third parties.
    II.
    1. Presumptions arising from facts in order to determine a cause at issue must result front acts of commission by the party against whom they are drawn.
    2. They must also be of such a character as to amount to conviction of the ideas they entertain, and also exclude any other reasonable hypothesis, which might be inferred from the facts.
    3. Presumptions not established by law are only admitted in cases where the law admits testimonial proof. C. C. 2288.
    4* Ho parole testimony of the contents of a lost instrument, made the foundation of a suit or defense-can he admitted, unless the loss thereof has been duly advertised within a reasonable time in a public newspaper, and proper means taken to recover the possession. 0. C. 2279, 2280 ; 2 R. 212; 2 A. 754 ; 3 A. 228 ; 29 A. 277,

      III.
    1. An open account, when once acknowledged, is prescribed only l)y ten years.
    2. Act 3 of 1874 prevents prescription from accruing on deposits in banks.
    3. Where a thing is payable or due at the demand of the lender, prescription will only begin to run from the time that such demand is made, or such thing becomes duo.

      T. Gihnore (& Sons, for Defendants and Appellants :
    i.
    1. The books of a bank are admissible as evidence, on its behalf. The entries are to.be proved by the evidence of the clerk who made them, or if he be dead, by proof of his handwriting. Morse on Banks and Bankiag, pages 52, 580-4; Union Bank vs. Knapp, 3 Pick. 96; Bidgway vs. Parmer’s Bank, 12 Serg. & B. 256; Johnson vs. Parmer’s Bank, 1 Harrington, 117.
    2. Bankers’ books have a different character from merchants’ books.
    3. Entries made by third parties in the ordinary course of business or professional duty are admissible in evidence. Greenleaf on Evidence, marginal pages 115, 117; Lathrop vs. Lawson, 5 A. 238; Bayne vs. Taylor, 12 A. 765; Union Bank vs. Knapp, 3 Pick. 108.
    4. The general rule that the best evidence of which the nature of the case admits is legal evidence, governs in cases where the admission of certain testimony, excluded by the stricter rules, would lead to less evil than its exc'.usion. Price vs. Torrington, 1 Salk. 285; Welsh vs. Barrett, 15 Mass. B. 380; Evans vs. Lake, Bull. H. P. 282.
    ir.
    Payment will be presumed from the circumstances of the case, the lapse of time, and tlip staleness of the demand. Bethany vs. His Creditors, 7 B. 61; Abat vs. Buisson, 9 La. 417; Davenport vs. Labauve, 5 A. 140.
    III.
    This action is barred by the prescription of three years.
    1. Money deposited with a hauker is money lent to the banker. Cases of Mathews, Pinlay & Co. vs. Their Creditors, 10 A. 342 and 344; Sims vs. Bean, 10 A, 346; Bank of the Be-public vs. Millard, 10 Wall. 155.
    An account with‘a bank, where deposits are made and checks are drawn, is an open account until the pass-book is balanced.
    2. Actions for money lent and on open accounts are prescribed by the prescription of three years. Article 3558, (3503) Civil Code.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff, as heir of her mother, Mrs. Zaratin, sues the defendants, as representative of the late hanking firm of Pike, Brother & Co., for a deposit of $3,297.94, made on the 23d of October, 1872.

She produces her mother’s hank hook, which contains hut one entry, to-wit: the credit of the deposit aforesaid, made by the hank, and the correctness of which is not disputed.

The defendants plead the prescription of three years from the date of the credit. This plea is manifestly untenable. The irregular deposit of a customer with a banker, even if classed as a loan for consumption, under C. C. 2941, is yet controlled by the implied convention of the parties, and is modified by the clear, legal understanding that the money will he paid only on the demand of the depositor.

The demand for payment is an integral and essential part of the unT dertaking, and the depositor’s right of action does not come into existence until after such demand has been properly made,

Prescription does not begin to run until after a right of action has accrued. Sims vs. Bean, 10 A. 346; Pool vs. Fontelien, 26 A. 613; Morse on Banks and Banking, pp. 40, 41, and numerous authorities there cited.

In this case, demand and refusal to pay occurred but a short time before the institution of the suit.

Defendants’ answer admits the deposit, but avers “ that the deposit so made by her has been checked out and withdrawn, with the exception of one dollar,” which they tender and consign in court.

In other words, the defendants admit the debt to have once existed, but plead payment on the checks of the depositor.

Defendants produce twelve checks, aggregating $474, and allege that other checks, for the balance due, existed, but are lost.

They offered in evidence the books of the banking firm, which were rejected, and the correctness of this ruling is presented to us on bill of exceptions. We think the ruling was correct.

Our Code expressly provides, that “ the books of merchants cannot be given in evidence in their favor.” C. C. 2248.

Defendants’ firm was a private, unincorporated commercial partnership, conducting a banking business. They were, unquestionably, merchants within the meaning of the Code, and of the law merchant. Beawes Lex Merc. 23; Abbott’s Law Dic., Verbo, Merchant; Smith’s Merc. Law Bk. 1, Chap. 1.

The defense, as made, is of payment on the depositor’s checks. It could only be established by the production of the checks, or, if lost, by proof of their existence, of their genuineness, of their loss, and of their contents. With the exception of one, hereafter to be adverted to, the evidence fails to establish the existence, genuineness, amount or contents of any particular cheek, and, indeed, it is of the most shadowy and uncertain character, with regard even to the existence of any checks at all other than those produced. The proof of loss of any checks is of the most unsatisfactory sort. It is claimed that they were lost in removing from No. 17 to No. 47 Camp Street. But the proof is, that, prior to the removal, plaintiff had called more than once for a settlement of the account, and had left the bank book with defendants for the purpose of examination, and, after so leaving it, had called and had been asked for further time. The testimony of Mr. Sandidge is particularly clear on this point.

The only weighty evidence in support of the defense is that of Mr. Paul Blanc, a gentleman of undoubted character and integrity, who testifies very positively and circumstantially to having paid to Mrs. Zaratin, in person, one check for a thousand dollars. He was the paying teller and had been in the habit of filling up checks for her when she came to draw money, and all the checks produced except two are proved to have been filled up by him. He must have known her, and his reasons for remembering this particular check are natural and sufficient.

We can discover no ground upon which the jury should have disregarded his testimony, and satisfied, as we are, of its truth, we are compelled to allow defendants the benefit of it.

The claim of plaintiff is undoubtedly surrounded by some circumstances tending to throw doubt upon its correctness. They are not attributable to her, however, and they are not sufficient to establish a presumption of payment, dispensing with the necessity of legal proof. All these circumstances have been appreciated on two trials, first before the judge, and then before a jury, and in both cases they have been discarded as insufficient to support the defense. We do not feel authorized to reverse their finding on such a question.

It is, therefore, ordered, that the judgment appealed from be amended by reducing the amount thereof from $2,823.94 to $1,823.94, and by reducing proportionally the virile shares of the defendants not condemned in solido, and that, as thus amended, the same be affirmed, appellee to pay costs of this appeal.

Levy, J., absent.