text:
    No. 14,115.
    State ex rel. Anthony N. Muller vs. Hon. Robert Brown, Judge City Court of the City of New Iberia.
    Syllabus.
    It being made the duty of the district attorney to represent the State In all < rlm Inal and civil actions in his district, he has the right to represent the State in magistrate’s courts on the trial of cases for assault; and this right, if denied to him by the magistrate, may be enforced by mandamus.

      APPLICATION for writs of certiorari, prohibition and mandamus.

      Anthony N. Muller, District Attorney Nineteenth Judicial District, relator in propria persona.

    Respondent in propria persona.

   The opinion of the court was delivered by

Provosty, J.

The respondent magistrate refused to permit the District Attorney to represent the State before his court in the prosecution of an assault case; he “ruled him out;” and this is an application by the District Attorney to this court for mandamus under the supervisory powers of this court to compel the recognition of his right to represent the prosecution in State cases before the respondent’s court.

The respondent returns, as follows;

“In refusing to permit the relator to prosecute in the court over which respondent presides, he was so induced to do upon the realization that if the District Attorney was permitted to make an appearance in a case entertained by him upon an affidavit of another party, it was opening the door to the mulcting of the parish for the fees allowed the District Attorney for convictions in cases of misdemeanor. Frequently the offense charged is of such a trifling nature that a judge of the City Court cannot consistently impose but a minimum sentence upon the party accused.
“All criminal cases within his jurisdiction are instituted without the assistance, and in the most instances without the knowledge of the District Attorney. He is of no practical assistance to the court.
“It would, in such cases, be a hardship upon the parish to have to pay the District Attorney a greater fee than that realized by the fine, and in some cases besides being made to pay for the party’s board, when he has been remanded to jail.
“The parish is already called upon to pay the salary of the judge of the City Court, and the purpose of the act creating the court is manifestly to reduce criminal expenses. If the District Attorney be permitted, notwithstanding, to collect fees for conviction in cases in which he has neither taken the initiative nor instituted proceedings, then the result will be that the criminal expenses of the parish will be increased instead of diminished. Most frequently the offenses charged before the City Court are of a nature that the Grand Jury would not entertain or the District Attorney file an information. It will also be noted that an appeal lies from the City Court to the District Court in case of conviction, and this fact would indicate that in contemplation of law the City Court is merely one of subsidiary police power, not one in which an accused can he finally and irrevocably convicted unless with his sanction and acquiescence. District Attorneys are paid for final convictions, and this would mean that if an accused would appeal to the District Court, then the District Attorney prosecuting there would be entitled to a fee in event that the finding of the City Court is affirmed. If no appeal is prosecuted from the City Court the finding thereof is final only through the acquiescence of the party accused and not through any efforts of the District Attorney. There is an additional objection to the District Attorney’s appearances in the premises; one that would result in tying the hands of the Citv Court if disregarded. Eespondent alludes to the fact that there are two parishes in the judicial district. Frequently the relator is performing his duties in the adjoining parish of St. Martin. It is physically impossible for him to attend to prosecutions in the City Court during that time. Now, his enforced absence extends on many occasions to a period of thirty days. During that time is the City Court to cease operations by reason of his absence? Even when attending the District Court in this parish relator cannot give any time to the City Court. The act creating the City Court provides that it shall be open at all times. Shall this provision be rendered nugatory ?
“Moreover, the Article 9 of the Constitution allows the Legislature to provide for the prosecution of misdemeanors on affidavit, yet no act has ever been passed authorizing District Attorneys to prosecute on behalf of the State except when indictment has been returned or information filed. All of the law appertaining to duties of District Attorneys is silent on the privilege in such a ease as the instant one.
“The inference from this silence is inevitable that the lawmakers sought, by permitting misdemeanors to be entertained upon affidavits filed, to save the parishes of such criminal expenses as that of the fees of District Attorneys.
“Act 96 of 1880, defining duties of District Attorneys, contemplates only duties in District Courts.
“Act 48 of 1900, creating the City Court of the City of New Iberia, does not contain a syllable authorizing the District Attorney to appear and prosecute therein in behalf of the State.
“So realizing and so reasoning, respondent was impelled to deny relator’s right to prosecute in the premises, and submits respectfully, the foregoing, with the prayer that the writ be dismissed at relator’s cost. “Rorert Brown,
"In propria persona"

This return shows that the respondent was actuated by the most laudable motives, but it does not deny the fact that the case in question was a criminal case, prosecuted under a State statute, and therefore a case clearly within the province of the District Attorney whose duty it is, by Act 96 of 1880, Section 1, to “represent the State in all civil and criminal actions” in his district. State ex rel. Marr vs. Judge, 48th Ann. 1369.

It is therefore ordered, adjudged and decreed, that the mandamus herein be made peremptory at the cost of the respondent.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 14,148.
    State of Louisiana vs. Frere Green et als.
    Syllabus.
    1. To constitute an offense under the first part of Section 2 of Act No. 8 of the Extra Session of 1870, there must be a severing from the soil of the produce, or other crop growing there, or attached thereto, by the party charged.’
    2. The words “attached thereto” used in the statute are held to mean attached to the soil by roots — a growing, or standing, or ungathered crop of some kind.
    3. If the crop be already severed or detached from the soil by the owner, and be left on the ground, and there be a taking and carrying away of the same, or some part thereof, by another, there may be a case of larceny, but no offense under Section 2 of the Act of 1870.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia— Foster, J.

      Anthony N. Muller, District Attorney, for Plaintiff, Appellant.

      Todd & Davis, for Defendant, Appellee.
   The. opinion of the court was delivered by

Blanchard, J.

The three defendants were indicted, under Section 2 of Act No. 8 of the Extra Session of 1870, for severing from the soil of another a lot of sugar cane.

The indictment, after alleging the cane was attached to the soil, adds: — “Which sugar cane was there windrowed for planting as seed cane.”

Defendants moved to quash on the ground that the indictment disclosed the cane in question was not a growing crop, but was at the time laid in the indictment already severed from the soil and in windrow.

The motion to quash was sustained and the State prosecutes this appeal.

Ruling — -The section of the law under which the indictment is laid is as follows:—

“Whoever shall maliciously or fraudulently sever from the soil of another any produce, or any fruit or crop growing thereon or attached thereto, or shall feloniously or maliciously sever from any building, or from any gate, fence, or other enclosure of another, any part thereof or any. material of which it is formed, shall, on conviction thereof, be imprisoned at hard labor or otherwise not exceeding two years, and be fined not exceeding one thousand dollars, at the discretion of the court.”

To constitute an offense under the first part of this section there must be a severing from the soil of produce, fruit, or other crop growing there, or attached thereto, by the party charged.

The words “attached thereto” must be held to mean attached to the soil by the roots — a growing or standing or ungathered crop of some kind.

If the crop be already severed or detached from the soil by the owner, and be left on the ground — as in this instance in windrow— and there be a taking and carrying away of the same, or some part thereof, by another, there may be a case of larceny, but no offense under Section 2 of Act 8 of the Extra Session of 1870.

It may be and undoubtedly is the case that sugar cane severed from the soil by the owner and placed in windrow on the plantation for the service of the place (to be used later as seed cane) remains “immovable by destination” — that fiction of our law described and defined in Article 468 of the Civil Code.

But it is not to be argued from this that when the cane is taken from the windrow and carried off there is a detaching from the soil within the meaning of the statute under discussion.

As well might it be said that a mule, forming part of the working cattle of the plantation and “immovable by destination,” which is taken and carried off, by a thief, may not be the subject of larceny because, being an immovable by destination, it is real property (which may not be the subject of larceny), and not of the personal goods of another (which may be the subject of larceny.)

Judgment affirmed.


author: Nicholls, C. J.

text:
    No. 13,863.
    Succession of Francois Crouzeilles.
    Syllabus.
    1. Though a person execute a last will and testament during an attack of delirium tremens, it will be maintained, if executed during a lucid interval.
    2. Where a notary public in writing a last will, understanding the name as given to him by the testator to be “Grouzeilles,” instead of “Crouzeilles,” so writes the name by mistake throughout the instrument, and the testator merely affixes his mark as his signature, evidence is admissible to prove said mistake, and on proof of said mistake and of the fact that the party making the will was really Francois Crouzeilles, the will will be maintained. The mistake was, besides, evidently the result of idem sonans.

    3. When the recitals made in the will are of character such as to leave no doubt in the mind of the court that the testator did make to the notary, in presence of the witnesses, the declaration required to be by him made, by Article 1579 of the Civil Code, the will will be maintained. It is not the duty of courts to refuse carrying out the wishes of deceased parties by pushing the requirements of the law to extremes.
    4. Parties claiming to be heirs of a deceased person and to be placed in possession of his estate, must prove their heirship. (C. P. 1903; Solar! vs. Barras, 45 Ann. 1132.)

      ^ PPEAL from Civil District Court, Parish of Orleans — Theard, J.

      A. E. & O. S. Livaudais and Frank McGlom, for Plaintiffs, Appellants.

      George Montgomery, for Defendants, Appellees.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

Francois Crouzeilles died in the city of New Orleans on the 5th day of February, 1899. On the 'Tth of the same month Juste Fontaine, Jr., presented a petition to the Civil District Court I'or the parish, in which he averred that Francois Grouzielles had died n that city on the 5th of February, 1899, leaving a last will by public set (a copy of which he annexed to his petition), by which petitioner vas appointed testamentary executor, and that he left neither ascendants, descendants nor other forced heirs. He prayed that said will be probated, registered and executed; that letters testamentary issue to him upon his taking the legal oath, and that an inventory be taken before Barnett, notary.

The will was probated as that of Francois Grouzeilles and an inventory ordered to be taken as prayed for. The succession was opened as that of Francois Grouzeilles .On the 12th of April, on the suggestion of counsel of the testamentary executor that in opening the succession the name of the deceased had been inadvertently spelled “Grouzeilles” instead of “Crouzeilles,” his real name, which error had been caused by a clerical error of the notary who drew up the will, which had been probated, by writing the name of the testator “Grouzeilles,” the court ordered the title of the succession to be changed so as to make it be entered as the succession of Francois Grouzeilles.

The inventory taken by Barnett was taken as that of Francois Grou¡eilles, but the various properties therein were referred to as those of Francois Crouzeilles. The letters testamentary issued as issued under the will of Francois Crouzeilles. Subsequent proceedings were made in that name.

In November, 1899, Pierre Lafon, Placide Bernis, Lueien Crouzeilles, Jeanne Plante, wife of Jean Bardel, and Marcelline Crouzeilles, wife of Phil Leger (the latter a resident of the State of Illinois and the others of the Eepublie of France), presented a petition to the Civil District Court for the Parish of Orleans, in which they averred that they were the only cousins in nearest degree of Francois Crouzeilles, who had died in New Orleans, without forced heirs, and without any brothers or sisters or descendants from them; that a document had been filed and on ex parte proceedings it had been probated as the will of Francois Crouzeilles; that Juste Fontaine, Jr., and Anna Schilder, claiming to be the widow of the deceased, claimed said will to be the last will of Francois Crouzeilles; that said will does not purport on its 'see to be that of Francois Crouzeilles, and these parties could not by attempted proofs dehors the instrument contradict, vary or in any wise alter or add to said alleged testament, particularly by endeavoring to show that the name of the testator was wrongly given to the notary.

Reserving said preliminary and peremptory objection and complaint, and only in the event of same being held inadequate and its being proven with the court’s authorization, that it was, in fact, Francois Crouzeilles who appeared and executed said instrument, under a wrong name, and with full reservation of the issue so reserved, petitioners alleged and pleaded:

That said pretended last will and testament was null, void and of no effect, for the following reasons:

1. That Francois Crouzeilles going for peace’ sake through the form, never, intended to make a last will or to divest his heirs of the blood of their right of inheriting from him.
2. That said alleged last will was never signed by Francois Crouzeilles, though he was, as petitioners believed and alleged at the time, able to have affixed his signature, had he so desired.
3. That said instrument does not set forth the name of said Francois Crouzeilles, and therefore cannot stand for the last will and testament of said deceased.
4. That said alleged testament does not recite the name of the testator or of any testator.
5. That even if said deceased was incapacitated to actually sign with his own hand said instrument, yet there is not the legal substitute for a signature, as iq such case the law exacts; the name of him declared being false and not the equivalent of his real signature.
6. That the said pretended testament does not distinctly set forth, as the law requires, a declaration on the part of the testator of his inability to sign.
7. That said instrument does not in any view or event express ■ruly the reason why said testator did not sign the same.

Petitioners averred that they were entitled to have the ex parte proceedings or order vacated and to have said pretended last will decreed null, void and of no effect, and to be recognized as the only heirs of said deceased Francois Crouzeilles, and as such to be placed in possession of his entire estate.

They averred that the testamentary executor and widow had been in possession since the death of the deceased of the property left by him, and they should be condemned in solido to restore the same to them, with fruits and revenues.

The petition closed with a prayer in conformity with its allegations.

Defendants excepted to plaintiffs’ demand, on the grounds:

1. That it was too vague and indefinite to permit of their safely answering it, in that it does not show how alleged relationship of plaintiffs to decedent is established, or if at all, said plaintiffs are heirs in the same degree and for equal parts or not.
2. It does not affirmatively show any interest in the plaintiffs to attack the will.
3. It sets forth no cause of action.
4. The will cannot be attacked collaterally in the same action; a direct action must be instituted and regularly allotted.
5. Plaintiffs’ demand is premature.

These exceptions were overruled. Plaintiffs, by supplemental petition, attacked the testament, on the ground that the testator had been for some time before, and was at the.time of the execution of the will, and continued thereinafter, to be insane and absolutely incapable of making any testamentary disposition whatever or of performing any rational act.

Defendants, after pleading the general issue, admitted the execution v nd probating of the will referred to in the petition. They averred that the notary, misunderstanding the testator, by reason of the simularity in pronunciation, wrote the name “Grouzeilles” instead of "Grouzeilles/’ notwithstanding the fact that the will which was in due form, was dictated by Francois Grouzeilles, the deceased. They alleged that the name of the deceased had been misspelled upon other occasions and that the testator’s real name was Francois Grouzeilles, he being the same person whose succession was being administered in the Civil District Court by Juste Fontaine, Jr., as testamentary executor, and the same person who died on the 5th of February, 1899; and that there was no such person as Francois Grouzeilles.

1 he District Court rendered judgment rejecting plaintiffs’ demand at their costs, and they appealed.

Opinion.

We do not think it has been shown that at the time of the execution of the will, which has been attacked in this litigation, the testator was insane. It is true that he died either during or as the result of an “attack of delirium tremens," hut it is established that there were lucid intervals during such attacks and the testament seems to have been executed during one of them. We can reach no other conclusion under the testimony given by the notary and the witnesses who were present at the time. The attending physician was not then present and he declined giving any opinion of his patient’s mental condition at that moment. It is suggested that one of the witnesses should not be believed for reasons assigned. Waiving a discussion as to whether the facts on which this suggestion is made were proved or affirmed, and whether they would have carried with them an impeachment of his testimony, the fact remains that the testimony of the others is absolutely uncontradicted.

It is urged that if ihe testator was sane he deliberately gave to the notary a name other than his real name, and therefore “it is manifest that he was acting against his true inclinations,” in other words, the will was made under duress of some kind. There is not a word to support that position other than the fact itself that the testator’s name Is givqn throughout as “Grouzeilles” instead of “Crouzeilles.” The testator did not himself write out his name to the will as “Grouzeilles”; he simply attached to it his mark, the notary himself placing the marx Ms between the words “Francois” and “Grouzeilles” (“Francois X Groumark zeilles”). It is very evident that the notary, who did not know the testator, understood the name given to be “Grouzeilles,” not “Crouzeilles.” This was a mistake easily to be made under the rule of "idem sonans.”

The testimony establishes beyond the possibility of a doubt that the party who executed the will was Francois Crouzeilles and not Francois Grouzeilles, and that there is no such person as Francois Grouzeilles. We think evidence to prove that fact was legally admitted. The will attacked closes with the words:

“In faith whereof said testator, said witnesses and I, said notary, have each subscribed our names m presence of each other, on the day and date, and at the time of taking said last will and testament, the said testator declared unto me, notary, in presence of said witnesses, not being able to sign his name on account of nervousness, has made his mark.”

Opponents assert that these recitals are not a compliance with the requirements of Article 1579 of the Civil Code, which declares that “the testament must be signed by the testator; if he declares that he knows not how or is not able to sign, express mention of his declara, tion, as also of the cause that hinders him from signing, must be made in the act.”

It is insited ihat the wording of the sentence should have been. “Saving been asked to sign, the said testator declared to me, notary, in presence of said witnesses, that he could not do so, and not being able to sign his name on account of nervousness, he has made his mark.”

We think that in France at one time the notary writing out a wilt was required to call upon the testator to sign his name and required to state that fact and the testator’s declaration in answer thereto, but that requirement no longer continues there, and is no requirement' here. It is quite possible and, probable that as a fact a testator’s declaration is usually responsive to some question or demand of the notary, but neither of those facts are required to appear in the act. All that is required by the law is that the declarations of the testator should appear. Whether made of his own motion or in answer to something said by the notary, the law considers immaterial.

Opponents refer the court to Shannon vs. Shannon, 16 Ann. 8; Succession of Whittington, 26 Ann. 89; Succession of Carroll, 28 Ann. 388; Succession of Sparks, 12 Rob. 39; Succession of Vidal, 44 Ann. 45, and Succession of Marqueze, 50 Ann. 68.

They concede “that no particular form of expression is sacramental in the making of this necessary declaration, but insist the language of the notary must indicate clearly and unambiguously the fact that the testator himself has announced his inability to sign, that though immaterial in what words that proof is furnished, still some words must be used from which the fact may be inferred that the formality was complied with, and such inference should be so conclusive and so certain as to leave no doubt in the mind of the court, that implication cannot, he resorted to unless at least it be an implication necessarily involved in the meaning of the express words used.”

They say that this court, in the Succession of Marqueze (50 Ann.), quoted approvingly from the French authorities to the following effect: “Du reste il n’y a pas ici des expressions sacramentalles; tout ce que exige la loi c’est que la mention est concue de telle maniere qu’ellc contienne une affirmation non equivoque de l’observation de eh acune des formalities.”

They insist that the observance of the legal formalities required by law in the drawing up of wills should be rigidly enforced.. This last contention is true, but there is a limit to this doctrine beyond which we should not pass. It is not óur duty to refuse the carrying out ot the wishes of deceased persons by pushing the requirements of the law to extremes.

The recitals of the will in this case as made by the notary are oí character such as to leave in the mind of the court no doubt that the testator did make “to the notary in presence of the witnesses” the declarations which the law required should be made by him and mentioned by the notary. There was unquestionably a declaration made by the testator to the notary in presence of the witnesses, and that declaration undoubtedly was that he was not able to sign his name on account of nervousness. The omission of the word “he” after the word “nervousness” and before the words “has made his mark” would have made the sentence more complete, but leaves it none the less sufficiently clear and explicit to satisfy the mind of the court that the requirements of the law were carried out.

We have entered into an examination of the issues raised by the parties with the object of closing this litigation. The parties who attack the will claim to be the nearest relatives and the legal heirs of the deceased. That fact, though called in question by the defendant in his exceptions, was not established on the trial. The only attempt on the part of plaintiffs to establish heirship was through an offer to introduce in evidence what is styled an act “de- notoriete” which was not allowed to be introduced on the ground that it was hearsay evidence. . '

Plaintiffs reserved a bill of exceptions to this ruling arid the right to attach the act to the bill, but no bill seems to have been made out.

Plaintiffs contend that they were not put upon proof of their heir-ship under the pleadings, but we think they were.

Plaintiffs’ action is to be recognized as heirs of the deceased, and to be placed in possession of his succession, accompanying this demand by an attack upon a will which he had executed.

Articles 1001 and 1003 of the Code of Practice declare “that the heirs or other persons claiming shall file along with their petition all such proofs as may go in support of it to the end that the curator or testamentary executor may be made acquainted with them.” "If, from, the examination of the testimony produced in support of the prayer, the judge discovers that the heirs are entitled to the succession, he shall put them in possession,” etc., etc.

In Solari vs. Barras, 45 Ann. 1132, this court declared that the “authority of the heir is not representative, but is connected with a part of the right of action to recover and must be proved, being intimately connected with the claim.”

We reaffirm this declaration. Plaintiffs had ample opportunity to present their proofs.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment of the District Court be affirmed.


text:
    No. 13,812.
    William R. P. Huey vs. William N. Kroutter.
    Syllabus.
    1 Only an issue of fact is involved, whether property bought during marriage, in the wife’s name, is in fact her paraphernal property, as stated in her title deed.
    2. The evidence adduced in support of that contention being satisfactory, the judgment appealed from, so holding, is affirmed.
    APPEAL from the Civil District Court, Parish of Orleans. — Sommerville, J.

      Carroll & Carroll, for Plaintiff, Appellee.

      A. E. Blackmar, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

This is a suit to compel the defendant to accept title to certain property which he had contracted in writing to buy from the plaintiff, the terms of sale, price, etc., all being agreed upon.

Even now defendant expresses a willingness to consummate the purchase, but is afraid of the title, or professes to be, and submits the same to the adjudication of the court.

It is one of a good many such cases which find their way, with too great frequency, it is sometimes thought, to this court. Some of them bear the ear marks of consent suits, brought to test title in advance, to have the opinion of the court upon matters not yet really in controversy — this to the end of removing what little apprehension or doubt as to sufficiency of title may linger in the mind of the would-be purchaser, or his attorney.

Courts of justice sit to determine real controversies, not moot questions, and it is not of their legitimate functions to scatter by decrees speculative doubts.

We are not, however, to be understood as intimating that the instant case is subject to the criticism here made. A seasonable opportunity is thought to have presented itself to admonish litigants that only real controversies are to be brought here and the court improves the occasion to so announce.

Our examination of the title herein presented has led to the conclusion that the same is unobjectionable.

Mrs. Charlotte C. Leathers purchased the property, which is the subject of the agreement to sell, in 1866 from George M. Bayly. She was at that time the wife of Thos. P. Leathers and he appeared as a party to the act of purchase in authorization of her.

The act recites that she was purchasing the property with her own private funds and as paraphernal property.

She went into possession and administered the property for her own account and benefit.

In October, 1889, she executed a mortgage on the property in favor of Edward Toby for money borrowed, and in this act of mortgage, signed also by T. P. Leathers, the declaration is made that the property is the separate, paraphernal property of Mrs. Leathers.

This money, it seems, was borrowed and the mortgage executed pursuant to authority of the judge of the' Civil District Court of the Parish of Orleans, the domicil of Mrs. Leathers, empowering her to incur the indebtedness and to mortgage this, her separate property, to secure its repayment to the lender.

Mrs. Leathers held title to the property, and its possession, until September 1897 when she sold it by public act to William R. P. Huey, the plaintiff herein. She had, meanwhile, become a widow. Her husband, T. P. Leathers, had died in 1896 and she became his executrix.

The act of sale from her to Huey recites the fact of T. P. Leathers’ death and gives the names of his deseendents whom he left as his sole and only heirs.

It also recites that' each and all of these heirs had, by public acts, recognized and confirmed her separate, paraphernal title to the property.

Copies of these recognitive acts appear in the record, as does also a copy of an affidavit made by Mrs. Leathers before a notary, dated August 28, 1897, in which affidavit she deposes that the funds with which she purchased the property from George M. Bayly in 1866 were her own separate paraphernal funds derived by her from her parents, and which had always been under her administration. This affidavit had been annexed to the act of sale by which she conveyed the properly to Huey.

To the foregoing several muniments of title must be added the testimony of Mrs. Leathers, taken in this suit, to the effect that the funds with which she purchased from Bayly in 1866 were her own separate funds, giving the source from whence derived, etc.; that the same had always been under her control and administration; that the mortgage she had consented to on the property in favor of Edward Toby had been paid off with her own funds and not those of her husband or of the community existing between him and her; and that her paraphernal title to the property had never before been questioned by either the heirs or creditors of her deceased husband, or of the community.

The only question which the case presents is, was the property bought and held by Mrs. Leathers as an investment or reinvestment of paraphernal funds belonging to and administered by her?

This is a question of fact. The district judge could not do otherwise, from the evidence adduced, a resume of which we have given, than to decide it in the affirmative. The property was hers and not that of the community which had existed between herself and her husband.

A wife has the right, under our law, to buy with her separate funds; and property thus purchased is her paraphernal property.

A purchase in her name, however, is presumed, in the absence of proof, to be for the community, and the wife, or any party holding under her, is under the burden of meeting this presumption. In this case it is'fully met and overcome.

Judgment affirmed.


author: Provosty, J.

text:
    No. 14,085.
    State of Louisiana vs. John Love.
    Syllabus.
    Under an indictment for rape, a verdict of “guilty of assault with attempt to commit rape,” is responsive to the charge of assault contained in the charge of rape, and is in consequence a good verdict for assault. The words “with attempt to commit rape,” do not, under the decisions of this court, convey the meaning of, with intent to commit rape, and are meaningless as qualifying the verdict for assault, and in consequence are mere surplusage.
    APPEAL from the Ninth Judicial District, Parish of East Carroll. —Ransdell, J.

      Walter Guión, Attorney General, and David M. Evans, Jr., (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Charles S. Wyly, for Defendant, Appellant.
   The opinion of the court was delivered by

Provosty, J.

The accused was tried for rape, and the jury returned against him a verdict of “guilty of assault with attempt to commit rape.” The judge taking this verdict to be equivalent to one of guilty of assault with intent to commit rape, imposed on the prisoner a sentence of fifteen years in the penitentiary. The prisoner assigns as error that the judge misinterpreted the verdict; that it was a good verdict for assault, but not for assault with intent to commit rape. The interpretation adopted by the judge is in opposition to the decision of this court in the case of State vs. Hearsey, 50 Ann. 373, and the sentence must be set aside; but is the accused well founded in his contention that the verdict is a good one for assault? He contends that it is, because, he says, the words, “with attempt to commit rape,” must be treated as mere surplusage. If these words are not the equivalent of the words, with intent to commit rape, then they are meaningless in qualifying the verdict, for they must mean that or nothing; it is not possible to assign to them any other meaning; if meaningless in qualifying the verdict, they are mere surplusage. In the Heasey case we thus held them to be meaningless to qualify the verdict, and as a consequence we must now hold them to be meaningless and mere surplusage. Such being the ease the verdict was a good one for assault, and the judge should have passed sentence accordingly.

It is therefore ordered, adjudged and decreed, that the sentence herein be set aside, and that this case be remanded to the lower court to be proceeded with according to law, with instructions to the judge a quo to pass sentence on the prisoner as for assault.


author: Breaux, J.

text:
    No. 14,065.
    State of Louisiana vs. Jack Sims and Gus Mays.
    Syllabus.
    1. A confession in which one of the defendants owned that he had sold the property and said that he had disposed of it under the direction of his co-defendant, is admissible in so far as he is concerned, and not against his co-defendant, as to whom the jury was instructed that it should not have any effect. Confessions are to have effect only against the parties making them. State vs. Havelin, 6 Ann. 167 ; State vs. Fontaine, 26 Ann. 513 ; State vs. Harris and Nellum, 27 Ann. 573 ; State vs. Johnson, 47 Ann. 1230.
    2. A defendant may testify in his own behalf, although he may try to cast the guilt upon his associates. It may bear upon his credibility, but does not pre sent grounds to exclude his testimony. Underhill Crim. Ev., p. 77. The “ testimony is admissible for or against the other under instructions from the trial judge to the jury to restrict such testimony.” State vs. Adams, 40 Ann. 213; State vs. Wright, 41 Ann. 600.
    3. The defendants were indicted jointly and no objection was made to a joint trial.
    4. The court is entrusted with some discretion to permit the prosecution or the defense to bring in additional testimony after the close of the evidence and before the argument has begun. 31 Ann. 267; 39 Ann. 319.
    APPEAL from the Fifth Judicial District, Parish of Jackson.— Dawkins, Special J.

      Walter Guión, Attorney General, and A. B. Hundley, District. Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      F. W. Price (Charles B. Roberts, of Counsel), for Defendant, Mays. Appellant.
   The opinion of the court was delivered' by

Breaux, J.

From a verdict and sentence condemning him to hard labor for twelve months, one of the defendants, Gus Mays, appeals. He and Jake Sims were charged with having stolen a bale of cotton. They were both indicted and stood their trial together. A mistrial was entered as to Jake Sims and Mays was condemned as before mentioned.

The first contention pressed upon our attention by counsel for Mays is based upon the facts narrated in his bill of exceptions to the court’s ruling in admitting the confession of Jake Sims in evidence. Mays’ counsel contends that the testimony was inadmissible; that the confessions of an accused, after the alleged crime, are not admissible against a person jointly indicted for the same crime. To the declaration of Sims, made during the asserted confession, that “Gus Mays hired him to haul the cotton and sell it,” defendant, Mays, particularly objected as being inadmissible.

The court overruled the objection and permitted the confession of the defendant, Sims, to be introduced, stating that, at the time the introduction of the testimony was objected to, he, the judge, stated to the jury that the confession could only affect Sims, by whom it had been made, and that he reiterated this statement to the jury immediately after he had ruled upon the objection raised by defendant.

We note that no severance was asked for by either of the defendants.

In all the decisions in which the question before us has been discussed by this court, it has been held that the confession was admissible as against the defendant by whom it had been made, and the jury was instructed to limit the application of the admission to the defendant by whom it had been made.

In the first decision we have had occasion to consult, the court said that the admission was not evidence against the defendant by whom it had not been made, but against the one by whom it had been made, and it follows from the narrative of the bill of exceptions, although not expressly stated, that the court received it against the latter alone. State vs. Havelin, 6 Ann. 167.

In a case of more recent date the error in receiving the admission was committed in not having instructed the jury to limit the application to the defendant by whom it had been made. State vs. Fontaine, 26th Ann. 513. See also State vs. Harris and Nellum, 27th Ann. 573.

Similar objection was made in a case of comparatively recent date. The court in that case was unanimously of the opinion that a confession is admissible “under the instruction of the court to the jury that the evidence was admissible only against the' accused” and was not to affect others prosecuted and tried jointly. State vs. Johnson, 47 Ann. 1230.

The next objection presented in behalf of the appellant grows out of the fact that J ake Sims, with whom, as we before stated, Mays was tried, became a witness and said that Mays, appellant, with whom he was being tried, “hired him” (witness and defendant Sims) “to haul the bale of cotton” in question to Ruston and “sell it for him.” (Brackets ours.)

To this appellant, Mays, objected, in substance, on the ground that the testimony of the defendant jointly prosecuted with him, incriminated him, and that that was its only purpose and end.

The court overruled the objection and admitted the testimony. 'In the narrative of the bill reserved to the ruling, the court states that, pains was taken fully to instruct the jury not to give any effect to the testimony as against Mays the joint defendant, now the appellant, “that they should acquit defendant, Mays, unless they should find from the evidence introduced in the case other than that introduced in behalf of defendant, Sims, or testified to by him, sufficient to justify conviction of defendant, Mays.”

We are constrained to hold that defendant, Sims, was entitled to testify in his own behalf. We take as settled that the one accused with him could not have that right curtailed by contending that the testimony had the effect of incriminating him. The extent of his right was to have the effect limited to the defendant witness, Sim3. This we have seen was done by the court.

The evidence was received, only as to the accused who chose to testify. It was restricted as to its effect to him alone. The goods alleged to have been stolen were found in his possession. In accounting for the possession he could be heard in his own behalf. If he chose to accuse anyone he. fancied, it remained for the jury to determine, in so far as he was concerned, whether or not he was telling the truth. This testimony could not have any effect in law against anyone, not even the one with whom he was prosecuted. The court must presume, under the rule laid down in repeated decisions, that the jury heeded the instructions of the court and that they gave no importance, as against anyone else, to the testimony of a witness who was seeking to obtain his acquittal from the charge brought against him. The testimony was not laid before them as against Mays. We do not think that we would be warranted in assuming that the jurors none the less persisted in considering it as against him despite the instruction received by them.

In oral argument at the bar, counsel for the defendant forcibly argued that under prior rulings of this court in cited decisions infra, the testimony was not admissible, that a witness can be heard in his own behalf, but that he should not be heard to incriminate one with whom he jointly tried. We have not found these views in consonance with our analysis of these decisions.

The court held in the first, in point of time, of the cited decisions that one defendant jointly tried with another is not to be called to testify for or against his co-defendant, but it was not held that he should not be permitted under proper instructions to the jury to testify in his own behalf. “One of several defendants jointly tried who becomes a witness for himself is a witness for all purposes, and his testimony while a witness in his own behalf is in no way incompetent merely because it may be injurious or beneficial to a co-defendant. The fact that, as usually happens, he tries to exonerate himself by casting the guilt upon his associate, while it may bear upon his credibility, is otherwise immaterial.” Underhill Crim. Ev., p. 77.

In this State an additional safeguard is laid down requiring the judge properly to instruct the jury that this testimony is of no weight against his co-defendant.

We have carefully considered the decisions cited. We have not succeeded in arriving at the conclusion that either holds that a defendant cannot be heard to testify in his own behalf even if the defendant incriminated the other defendant, provided that under proper instructions the effect of the testimony is restricted as before mentioned. “The statute permits an accused to testify voluntarily on his 'own behalf.” State vs. Angel, 52 Ann. 486.

In another case of date more recent, the court said that the testimony of a witness in his own behalf was admitted, but not in behalf of the two other persons charged. State vs. Breaux et als., 104 La. 540.

We do not interpret these decisions as holding that one defendant cannot be heard to- testify in his own behalf, if the jury is properly instructed to attach no importance to it as relates to another being tried. The question of credibility is left to the jury. They are to determine what effect is to be given to the statement of an accused intent upon saving himself.

The courts, as we read the authorities upon the subject, must have concluded that the impairing effect of the fact that an accused testifies in his own behalf and the admonition of the court that his testimony must be restricted in its effect to him alone would be protection enough to another party to the defense.

This brings us to a consideration of the grounds brought up in the second bill of exceptions. The statement of the judge made part of this bill does not, in our view, present an objection which would justify us in setting aside the verdict and sentence. He sets forth that the State had introduced her evidence. Then followed Sims who introduced his, and lastly, Mays followed with his evidence. The court then inquired of the District Attorney if the State had any rebuttal testimony to offer, to which this officer replied, informing the court he had no further testimony. At this time counsel for Sims said that he had other testimony. To this application the District Attorney answered that he had no objection. Mays, through counsel, objected. The court overruled the objection and admitted the testimony for the reason, we are informed by the narrativ.e in the bill, that one of Mays’ witnesses testified that Sims had confessed his guilt. The court then heard testimony regarding the reputation for truth and veracity of the witness to this confession. The court adds: “These alleged confessions had been first raised by defendant, Mays, after the evidence of Sims had been closed.” We take it from this statement that this was not a mistaken re-opening of the taking of evidence nor a rebuttal of rebuttal testimony.

The statement of Sims’ admission of guilt was made after Sims had closed his testimony and he had no opportunity to meet it. He was, for that reason, permitted to offer a witness with the view of impeaching the veracity of the incriminating witness. Even if the admission of this testimony had been offered somewhat late in the trial, it woul'd fall within the rule allowing some latitude to the trial judge in this respect. State vs. Woods, 31 Ann. 267; State vs. Hebert, 39 Ann. 311; State vs. Gonsoulin, 38 Ann. 459.

A motion for a new trial was filed. It was overruled. It brought up points by the bill of exceptions which have already been decided. It does not require any further attention from the court, as it presents no new issue. The court sets forth in this hill: “The court refused the new .trial because the law and the evidence justified the conviction of the defendant, Mays.” Defendant moved the court to correct the judgment on the ground that the indictment charged no crime, as it failed to show that the “cotton was taken with the intent to appropriate to his, the taker’s, own use and fails to allege that it was taken with the felonious intent of depriving the owner of the same.” “The indictment sets forth the property and by whom it was owned and charges that the same being then and there found the defendant did then and there feloniously steal, take, and carry away, contrary to the form of the statute.” This was held sufficient in State vs. DeSarrant, 33 Ann. 979.

It having been decided in the just cited case that the criminal intent was sufficiently shown, by averring that the act was feloniously committed, and that it necessarily followed that it must have been committed lucri causa, and to deprive the owner of the property, we have not found good reason to set aside the rule previously laid down.

We have reviewed the proceedings as carefully as we could and have not found error or irregularity which would justify the court in setting them aside.

It is ordered, adjudged and decreed, that the sentence and judgment be affirmed.


text:
    No. 13,640.
    Mrs. Mattile Labarre vs. City of New Orleans.
    Syllabus.
    Only an Issue of facts presented. Plaintiff was Injured by a fall In the night time from a higher level to a lower level of a side-walk. The evidence shows such a condition of the banquette, left for years unattended to, as to be dangerous to pedestrians at night, and to amount to negligence on part of the municipality rendering it liable.
    APPEAL from the Civil District Court, Parish of Orleans— King, J.

      Charles Louque, for Plaintiff, Appellee.

      Arthur McQuirh, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

One night in the winter of 1898 plaintiff was walking along Marais street in the City of New Orleans when she fell, and suffered from the fall bodily injuries.

She brought this suit to recover damages.

She alleges the fall was occasioned by a serious and dangerous unevenness in the sidewalk, a “great depression” as her petition styles it, and that by reason of want of light and her lack of knowledge of the locality she suddenly stepped off the higher plane of the sidewalk down on to the lower level and was pitched violently forward, fell, was rendered unconscious, and received various injuries, which she describes, and was confined to- her bed for a long time, etc.

She charges gross negligence and want of care, amounting to total disregard of public duty on part of the defendant.

She avers she had been and was at the time of the accident the proprietor of an undertaking establishment and conducted the business of undertaker, and that by reason of her injuries and her confinement consequent thereon, her business was ruined, her bills remained uncollected, she fell in arrears in payment of her obligations and was seized and sold out for debt.

She alleges this was proximately caused by the injuries received as aforesaid and lays claim to five thousand dollars damages on this score.

She represents herself to be permanently disabled, and for this and the pain she underwent she claims ten thousand dollars.

She asserts she expended for medical and surgical aid, including medicine, incident to her illness, five hundred and fifty dollars.

Lastly, she claims under the head of punitive and exemplary damages five thousand dollars.

The defendant, the City of New Orleans, pleaded the general issue.

The case was tried without a jury and resulted in a judgment by the trial court in favor of plaintiff for one thousand dollars.

The city prosecutes this appeal, and in this court plaintiff prays the judgment be amended by increasing its amount to twenty-five hundred dollars.

Ruling — The petition greatly exaggerates the plaintiff’s injuries and the extent of her financial loss. There is a tropical-like luxuriance of allegation, but a Sahara-like sterility of proof.

She was injured to some extent by the fall, she endured some pain and was confined to her house for awhile. It may be, too, she suffered some financial loss by the fact of her illness and consequent inability to give, during the time, personal attention to her affairs.

But the allowance of one thousand dollars given by the judge of the District Oourt covers, we think, everything she is entitled to on all accounts.

The evidence shows the condition of the sidewalk at the point where the fall occurred was such as to present the element of danger to pedestrians on a dark night, such as the one in question, and this was augmented by the fact that on the day and evening of the date of the accident heavy rains had flooded the street, filling the lower level of the sidewalk flush with the higher level along which the plaintiff was walking, and thus concealing the discrepancy and rendering entirely unapparent to her the danger of the situation.

The evidence shows, further, that this inequality of the sidewalk, this “step-off” from a higher level to a lower level in the banquette, had been permitted by the city authorities to remain for years, having been remedied only since the date of the plaintiff’s fall.

These facts make out a ease of liability on part of the city.

The plaintiff had the right to traverse that street; it was the shortest route, it seems, from her place of business to her home; she was on her way from one to the other when she fell.

She was in the habit of going home by street car over another street, but testifies she missed the car and, thus, came to choose the route which resulted in the misfortune which overtook her.

But she had not, it seems, traveled it enough to be familiar with its dangers.

Judgment affirmed.


author: Pboyosty, J.

text:
    No. 14,120.
    State of Louisiana vs. Sonny Alexander.
    Syllabus.
    1. In a contest over a fund in court the contestants need not file formal answers or exceptions to each other’s pleadings; but may urge without pleading same all objections they may have to each other’s claims, whether such objections be founded on law or on fact.

      2. Where all the iacts necessary to support a plea of res adjudicata are to be found in the record, such plea may be Hied in the Supreme Court.
    3. The judgment on a rule to distribute proceeds may serve as a basis for retí adjudicata, although not signed.
    APPEAL from the Criminal District Court, Parish of Orleans.— Baker, J.

      George W. Flynn, for Plaintiff in rule, Appellee.

      Albert Yoorldes, for Nicholas Gaspar, Surety, Defendant in rule, Appellant.

      Henry Garland Dupre, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for the City of New Orleans, Defendant in rule, Appellee.
   The opinion of the court was delivered by

Pboyosty, J.

The appearance bond of the defendant was forfeited, and for the amount of the bond a judgment was entered against the surety. Under this judgment the property of the surety was sold, and the price was received by the sheriff. This price exceeded the amount of the bond. The sheriff died without having distributed the money thus received, and the administratrix of his succession obtained from the court an order for turning over the fund to the present sheriff. The present sheriff, treating this order as a rule to-show cause, made answer to it; he averred that he was not obliged to receive this money, that it should be paid to the party in interest, the City of New Orleans; and he prayed that the City of New Orleans be ordered to show cause why the money should not be paid to her. The city pleaded that she was entitled to $500.00 of the sum, and she prayed that this amount be paid to her. Thereupon, the administratrix came in with a motion that the surety be likewise made a party, he having an interest for the excess of the money after satisfying the claim of tl^e city. The surety pleaded that the judgment of forfeiture and the sale made thereunder were absolute nullities; because, among other reasons, the accused had been re-arrested, and after such arrest had been discharged by nolle prosequi; he excepted to the proceeding by rule, and gave notice of his intention to bring suit thereafter to annul the judgment and the sale; and he prayed that matters be held in statu quo to await the termination of this said intended suit; and he prayed, further, in the alternative, and “as a last resort,” that the entire fund be given to him. In this court both parties have filed further pleadings. The surety has filed an assignment of errors, in which he has set out fully the grounds on which he relies for claiming that the judgment of forfeiture and the sale made thereunder are null, and for objecting to the distribution of the fund. The City of New Orleans has pleaded res adjudicata against the demands of the surety. This plea of res judicata is founded on the fact that heretofore the same demand has been made by the same surety, in the same case, contradictorily with the same parties, before the same court, and been rejected by judgment now final.

This plea is borne out by the facts, and has to be sustained. Such a plea, when based on facts to be found in the record, may be filed in this court. Carpenter vs. Beattie, 12 R. 440; Code of Practice, 346. But there was no need to file the plea. The answer of the surety to the tule was, without plea, open to every objection of law and fact. Hennen, Vol. 1, page 1155, No. 1; Succession of Romero, 28 Ann. 607; Succession of Plauchet, 29 Ann. 521; Succession of Ames, 33 Ann. 1325; Succession of Sparrow, 39 Ann. 700. The proceeding was a contest over a fund; issue did not need to be joined as between the several contestants, by formal pleadings; the issue was tacitly formed between them, each denying the claims of the others. The claim of each was open to all the objections of law and fact that every other could bring against it without need of formally pleading such objections.

The judgment thus pleaded as res adjudicata was not signed; but it did not need to be; it was merely incidental, distributing a fund realized under the main judgment. Fox vs. Kio, Executor, 1 Ai-m. 334.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be maintained at the cost of the appellant.

Rehearing refused.


text:
    No. 14,230.
    State of Louisiana vs. Joseph James.
    Syllabus.
    1. It has been repeatedly held, and the same Is now the settled practice In criminal appeals, that testimony found recorded In the transcript will not be noticed unless the same comes up as part of a bill of exceptions.

      2. Either the testimony, upon the admissibility vel non of which the court Is to pass, must be copied into the bill, or else, if detached therefrom, must be referred to in the bill and specifically made part thereof.

    APPEAL from the Eighteenth Judicial District, Parish of Acadia— JjeBaillon, J.

      Walter Guión, Attorney General, and William Campbell, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Charles F. Garland, for Defendant, Appellant.
   The opinion of the court was delivered hy

Blanchard, J.

Six bills of exception appear in this transcript, recording objections of the accused to the ruling of the court excluding testimony offered by defendant and objected to by the prosecuting attorney. Preceding each bill is what purports to be a transcript of the testimony — questions and answers — upon which the bill is supposed to be founded, but none of the bills embody the testimony excluded, and none of them recite that the testimony, with reference to which the bills were reserved, is made part of the bills.

It has been repeatedly held, and the same is now the. settled practice in criminal appeals, that testimony found recorded in the transcript will not be noticed unless the same comes up as part of a bill of exception. Either the testimony, upon the admissibility vel non of which the court is to pass, must be copied into the bill, or else, if detached therefrom, must be referred to in the bill and specifically made part thereof.

The points raised, therefore, in the bills are not presented in proper form for the court to pass upon the same.

But, were it otherwise, our examination of the same has led to the conclusion that none of the bills disclose reversible errors.

A seventh bill refers to the Judge’s refusal to give a special charge requested by counsel for defendant.

We do not find that the Judge erred in refusing it.

Judgment affirmed.


author: Monroe, J.

text:
    No. 14,035.
    Parish of Tangipahoa vs. Campbell & Hart.
    Syllabus.
    Where, in a general parish election, under Act 76 of 1884, the majority of the voters of the parish decide against the sale of intoxicating liquors, the Police Jury Is powerless to exact licenses for that business anywhere in the parish; but, if those voters of the parish who live in a particular town subsequently reverse that decision, in so far as their town is concerned, they, thereby, authorize the exaction of parochial licenses for liquor selling in such town just as they authorize the exaction of State and municipal licenses.
    APPEAL from the Twenty-fifth Judicial District, Parish of Tangipahoa — Reid, J.

      Robert 8. Ellis, District Attorney, for Plaintiff, Appellee.

      D. M. Sholars (Boatner, Dodds <& Boatner, of Counsel), for Defendants, Appellants.
   The rpmion of the court was delivered by

Monroe, J.

The defendants appeal from a judgment condemning them to pay $500 for a parish license as retail liquor dealers at Pontehatoula, in the parish of Tangipahoa.

It is admitted that, at an election held throughout the parish of Tangipahoa, in 1889, under Act 76 of 1884, there was a majority vote against the sale of intoxicating liquors in the parish; that subsequently, in 1900. the town of Pontchatoula, by a vote of its citizens, decided to authorize such sale, within its limits; and that, thereafter, the police jury imposed a license of $500 upon the business so authorized, though the matter had not been submitted to the voters of the parish since the election of 1889. It is also admitted that the defendants are engaged in selling intoxicating liquors, at retail, in the town of Pontchatoula; that they have paid a State and municipal license therefor; and that the police jury has adopted, for the collection of the parish licenses, the mode prescribed by the General Assembly for the collection of State and parish taxes.

Article 229 of the Constitution, after authorizing the State to levy a license tax, proceeds as follows, to-wit: “No political corporation shall impose a greater license tax than is imposed by the General Assembly for State purposes. This restriction shall not apply to dealers in distilled, or alcoholic, or malt liquors. The General Assembly shall have authority to provide that municipalities levying license taxes equal in amount to those levied by police juries for parochial purposes shall be exempted from the payment of such parochial licenses.”

By Act 115 of 1898, amending R. S. 2743, police juries are authorized “to levy such taxes as they may judge necessary to defray the expenses of their respective parishes.” So far as property taxation is concerned, this is necessarily subject to the ten-mill limitation contained in Article 232 of the Constitution, but in the matter of licensing dealers in distilled, alcoholic, or malt liquors, the power of the police juries, in general, is wthout limitation other than is found in Act No. 76 of 1884, since the Generel Assembly has never seen fit to exercise the authority conferred on it to exempt from the payment of parochial licenses persons paying licenses to municipalities. Act No. 76 of 1884 amends and re-enacts Sections 1211 and 2778 R. S., and provides: “That the police juries of the several parishes of this State, the municipal authorities of the several towns and cities, and the city council of the city of New Orleans, shall have the exclusive power to make such rules and regulations for the sale, or the prohibition of the sale, of intoxicating liquors, as they may deem advisable, and to grant or withhold licenses for drinking houses and shops within the limits of any city, parish, ward of a parish, or town, as a majority of the legal voters of any city, ward of a parish, or town, may determine, by ballot; and the said ballot shall be taken whenever deemed necessary by the police juries of the several parishes, the municipal authorities' of the several cities and towns, and the city council of the city of New Orleans, provided, that said election shall not be held more than once a year, and provided, further, that whenever, at an election held under this section, the majority of the votes cast in a ward, if only a ward election has been held, or the majority of votes cast in a parish, if an election has been held for a whole parish, shall be against granting licenses for the sale of intoxicating liquors, said vote, or decision, shall govern and control the action of any ward, incorporated town, or city, within tiie limits of said ward, or parish, as the ease may be, as fully and completely as if said election had been held by the authority of said town or city.”

Considering these different provisions of the law, constitutional and statutory, together, we find no reason for supposing that it was intendea to vest in the majority of the voters of a parish, or in the majority of the voters of any subdivision of a parish, the power to exempt from tfce payment of a parochial license any person actually engaged in a business otherwise liable to that species of taxation.

It is true that the body of the voters in the parish of Tangipahoa decided that liquor should not be sold in the parish, and, so long as their decision remained effective the police jury was powerless to exact licenses for that business in any part of the parish. But those voters of- the parish who live in Pontchatoula thought proper to reverse that, decision in so far as their town is concerned, and, in doing so, they authorized the exaction of parochial licenses for liquor selling in Pontchatoula just as they authorized the exaction of State and municipal licenses, which the defendants admit that they have paid. If this were not so, we should have the singular spectacle presented of a temperance law so operating as to exempt retail liquor dealers in Pontchatoula from the payment of parish licenses for which all other calling? in the town are liable.

Judgment affirmed.


text:
    No. 14,118.
    In the Matter of the John Lange Land and Improvement Company, Limited.
    Syllabus.
    Application for appointment of a receiver under Act 159 of 1898 — Held, taking the case as presented and the proof administered in support thereof, no sufficient showing for the order is made.
    APPEAL from the Civil District Court, Parish of Orleans — Sommerville, J.

      A. J. Lewis, for Frank Lange, Petitioner, Appellant.

      Gage, Baldwin & Grdbites, for Defendant, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

Frank Lange, the petitioner, is a stockholder and director in the John Lange Land and Improvement Company, Limited.

He brought this action to dissolve and annul the charter of the corporation, and asked, as a preliminary step, the immediate appointment of a receiver to take charge of and administer the affairs of the corporation pending further proceedings in the case.

The application for the appointment of receiver is made under Act 159 of 1898.

The District Judge having ordered the company to show cause why a receiver should not be appointed (Section 2 of the Act of 1898) and this rule having been tried, there was judgment denying, for the present, the appointment of a receiver. No opinion of the trial Judge, or reasons for judgment, appear transcribed in the transcript. This left the cause to be tried on its merits — i. e., whether or not the dissolution and annulment of the charter should be decreed; and it also left open the question of appointment of a receiver later, should appropriate steps to that end be taken, or grounds develop justifying such appointment.

From the judgment refusing the immediate appointment of a receiver this appeal is prosecuted.

It is observed that besides asking the dissolution and annulment of the charter of the corporation, the petitioner prayed that Charles Lange, who was cited both as President of the company and individually, be ordered to render a full and complete account of all the property of every kind belonging to the estate of John Lange, deceased.

It seems that Charles Lange had been the administrator of John Langejs Succession; that this succession had been a proceeding pending in another Division of the Civil District Court of the Parish of Orleans; that it had there been administered; and that an account filed by the administrator had been homologated, the administrator discharged, and the heirs recognized and sent into possession.

It seems further that, following this, the heirs (all save certain minors) had organized the John Lange Land and Improvement Company, Limited, and to this company they had made conveyance of the property acquired by inheritance from their dead ancestor, John Lange.

To the rule to show cause why a receiver should not be immediately appointed, the defendants excepted to all that portion of the petition— allegations and prayer — referring to the administration of the Succession of John Lange, on the ground that jurisdiction thereof was vested into another division of the court.

There was no error in the ruling of the trial Judge sustaining this exception.

Besides, the suit against the John Lange Land and Improvement Company for the appointment of a receiver and for the annulment of the charter of the corporation, was no place to call upon Charles Lange, the discharged administrator of the Succession of John Lange, for an account of the property and effects which had belonged to the estate.

To the demand for the appointment of a receiver, the company answered denying that any grounds existed for such appointment, and averred that the affairs of the corporation had not been mismanaged and no wrong had been done the petitioner.

We are not here concerned about the merits of the case — whether or not there is ground for dissolving and annulling the charter of the company. The sustaining of the exception left that as the only issue on the merits.

There is no prayer that the corporation be decreed not to have been organized according to law, and no prayer for a decree that it is pursuing a business, occupation or calling contrary to law, though there are allegations in the petition to this effect.

On the contrary, judged by the prayer for relief, plaintiff’s petition proceeds upon the theory that there was a corporation organized under a charter, and that it was pursuing a lawful business. It is this corporation which is asked to be dissolved, this charter that is asked to be annulled.

The issue here presented is whether, on the showing made, a receiver should have been immediately appointed.

We find that the Act of 1898 authorizes the appointment of a receiver at th'e instance of a stockholder when the corporation has been legally dissolved and the appointment of a receiver to liquidate its affairs is requested by a majority in amount of the stockholders.

That is not this case. Here the corporation has not been dissolved, and a majority in amount of the stockholders have asked no action.

A receiver may, likewise, be appointed at the instance of a stockholder or creditor when the directors or other officers of the corporation are jeopardizing the rights of stockholders or creditors by mismanagement or misusing the property or funds of the corporation.

The testimony offered herein does not establish this condition of affairs.

The statute, also, authorizes a receiver when the corporation has been, adjudged not organized according to law, or where it is pursuing a business or calling contrary to law.

Here, as we have seen, there is no prayer that this corporation be adjudged not organized according to law, or adjudged to be pursuing a calling contrary to law.

The statute, further, authorizes a receiver when a majority of the stockholders are violating the charter rights of the minority and putting their interests in imminent danger.

The proof administered does not establish this ground.

Other grounds for the appontment of receivers are recited by the Act of 1898, but the instant ease, as presented, does not come within any of them.

We do not find error in the judgment appealed from and thé same is affirmed.


text:
    No. 13,748.
    State ex rel. A. Brittin vs. City of New Orleans.
    Syllabus.
    1. The receiver having been appointed at the Instance of the city of New Orleans for the stated purpose of closing this litigation, and having as yet taken no steps towards accomplishing that purpose, the city of New Orleans Is not III a position to say that the litigation Is terminated and that the receivership is not necessary.
    2. There being debts of the defunct corporation, and also assets, subject to be reduced to possession and distributed to the creditors, a receivership would seem to be necessary.
    3. The receiver of a defunct corporation that owes debts and has assets should be clothed with the power to'reduce to possession and to distribute to the creditors all the assets of the corporation of which he is receiver, to be found within the jurisdiction of the court that has appointed him.
    4. The taxes imposed in the years 1869 to 1876, both inclusive, for the use of the late corporation known as the Board of Metropolitan Police, constitute one fund, out of which the warrants and certificates issued by the said Board are entitled to be paid indiscriminately.
    C. The powers of a receiver may be enlarged on his own motion, or even on the court’s own motion.
    APPEAL from the Civil District Court, Parish of Orleans.— Thearcl, J.

      Charles Louque, for L. H. Hubert, Receiver, Plaintiff, Appellee.

      Samuel L. Gilmore, City Attorney, and Frank B. Thomas, Assistant City Attorney, for Defendant, Appellant.
   The opinion of the court was delivered by

Provosty, J.

This is an appeal from an order granting enlarged powers to the receiver heretofore appointed to have charge of the affairs of the defunct corporation known as the Board of Metropolitan Police.

In 1868 the Legislature created a Metropolitan Police District, and placed the government and control thereof in a Board known as the Board of Metropolitan Police. Said act and the acts supplementary thereto required said Board to make annually an estimate of the expense of maintaining a police force in said district, and to apportion the same to the several cities and parishes within said district; and required said cities and parishes to provide the means for promptly paying the amounts thus apportioned to them. The City of New Orleans was one- of the cities within said district. Under the apportionments made for the years 1869, 1870, 1871, 1872, 1873, 1874, 1875, and 1876, the amount payable by the City of New Orleans was approximately $800,000 per year. The said Board went out of existence in 1877, leaving a large outstanding indebtedness represented by warrants issued to policemen, etc., and large claims against the city for amounts due under the yearly apportionments; which amounts had thus remained unpaid because of the non-collection of the taxes imposed to meet the payments.

The present suit of State ex rel. A. Brittin vs. City of New Orleans, was instituted in 1877. The relator alleging himself to be the holder of warrants issued by the said defunct Board for salaries of policemen for the month of November, 1876, to the amount of $9,842.65, and that the city had collected and had on hand $26,000 of the funds provided by law for paying said warrants, prayed for a mandamus to the city to pay the said debt out of the said fund. The order for mandamus was signed by the judge, but was not further acted on. A month later the same relator filed a supplemental petition in which he prayed for the appointment of a receiver upon the following allegations, to-wit: That the city had collected the taxes imposed for the use of the said defunct Board, and that there was no existing law by which she could pay same to the creditors of said defunct Board; that he was interested as a holder of certificates of indebtedness of the said Board in the distribution of the accrued and accruing collections made and being made of said taxes; that the said fund so received, exceeding $10,000, was claimed by divers parties, and that in order to preserve the said fund for the interest of all parties concerned, and to insure the receipt of the taxes properly applicable to said fund, and to make proper distribution thereof, a receiver should be appointed to take and receive the taxes collected as aforesaid for the years 1874, 1875 and 1876, and the taxes hereafter to be collected for the same year3. The City of New Orleans informally consented to the appointment of the receiver and he was accordingly appointed.

The prayer was that the receiver should be authorized to demand and receive the amounts collected on the taxes of the years-1874, 1875 and 1876; and the appointment was made according to the prayer. Why the powers of the receiver were thus restricted to three out of the eight years for which taxes were imposed does not now appear.

The receiver brought suit against the City of New Orleans on her liability to account for these taxes of 1874, 1875 and 1876, and recovered judgment for some $80,000. This amount he distributed pro rata to the creditors, after satisfying privileged claims. Afterwards he applied to the court for an enlargement of his powers, so as to enable him to demand of the city the-collections of the taxes of the other years. The court made an order granting the application. Shortly afterwards the receiver died, and a number of creditors applied for the appointment of a successor with the same enlarged powers, and the appointment was accordingly made. This granting of enlarged powers and this appointing of a successor to the late receiver had been done ex parte, without notice to the City of New Orleans. On this ground of want of notice the city caused the order to be set aside. This was in May, 1891.

In this condition matters remained until December, 1899, when the city herself applied to the court for. the appointment of a successor to the late receiver. In the application it was stated that the appointment was asked to be made “for the purpose of closing this litigation.” Accordingly the present receiver was appointed; and the present application for enlarged powers is his first act towards closing the litigation, except that in October, 1900, a suit was filed against him by a Mrs. Begue, a holder of warrants of the late Board, and judgment was rendered against him for some $5,000.

This application for enlarged powers was made and was granted contradictorily with the city. The prayer of the receiver is that his powers be so enlarged as to enable him to demand of the city and receive the amounts collected on the taxes imposed for all the years during which taxes were imposed for the use of the defunct Board.

The city having herself provoked the appointment of this receiver, is not in a position to say that the litigation has terminated and that a receiver is not necessary to wind up the litigation; and since there is a receiver, it is obvious that he should have all necessary powers to reduce to possession the assets that the receivership may be entitled to claim and receive. The city cannot deny that there are such assets, nor that there are debts of the defunct Board still outstanding, nor that she is liable to an accounting for the taxes in question. Because heretofore an amount has been recovered and distributed, is no reason why all other amounts that may be due should- not be in like manner recovered and distributed. We think, therefore, that the enlarged powers were properly granted.

Warrants of the defunct Board are not limited for their payment to the taxes of the years during which they were issued; but may come against the taxes of any of the years during which taxes were imposed; in other words, the taxes of the several years from 1869 to 1876, inclusive, constitute one fund out of which the warrants of the defunct Board are payable. This point was settled by the decision of this court in the cases of Fischer vs. School Directors, 44th Ann. 187; 45 Ann. 342.

The powers of a receiver may be enlarged on his own application, or even on the court’s own motion. A. & E. Ency., Vol. 20, p. 88.

It is therefore ordered, adjudged and decreed, that the judgment herein be affirmed at the cost of the appellant.


author: Monroe, J. Blanchard, J.,

text:
    No. 13,712.
    Mrs. A. DeGrilleau et al. vs. Mrs. Lisette Boehm, Wife of William E. Seebold.
    Syllabus.
    1. This court Is a court of record, and, sitting as an appellate tribunal, exercises jurisdiction only of matters which appear from the record to have been presented to, and considered by, the court of first instance.

      2. Where a defendant in rule pleads thereto in the District Court, in writing, whether the pleading be called an exception or answer, and, thereafter, and without further pleading, participates in the trial of the rule upon its merits, and there is nothing in the record to show the contrary, this court must presume that the only defense offered in the District Court was that presented by the pleading filed, and hence, that the only issues to be determined on the appeal are those which are so presented.
    3. In this case, the sheriff having taken a rule on the seizing creditor, the trustee in bankruptcy of the defendant, the city of New Orleans and the State of Louisiana, to show cause why certain funds, realized by him under execution, should not be distributed, the trustee objected and excepted to the proceeding upon two distinct grounds, and in writing, and, the objection being overruled, participated in the trial on the merits without further pleading. Held, that, on the appeal, taken by such trustee, from the judgment rendered, this court can take cognizance only of the issues raised by the pleadings filed, and that if the objections presented by such pleadings are abandoned the judgment will be affirmed.
    APPEAL from the Civil District Court, Parish of Orleans. — St. Paul, J.

      Dinkelspiel & Hart, for H. B. MeMauray, Civil Sheriff for the Parish of Orleans, Plaintiff in Rule, Appellee.

      Carroll é Carroll, for Mrs. A. DeGrilleau et al. Plaintiffs, Defendants in Rule, Appellees.

      Francis C. Zacharie. for State Tax Collector, Plaintiff, Defendant in Rule, Appellee.

      Florance & Posen, for C. O. Wilcox, Trustee of Mrs. Lisette See-bold, Bankrupt, Defendant in Rule, Appellant.

      Arthur McGuirh, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for City of New Orleans, Defendant in Rule, Appellee.
   The opinion of the court was delivered by

Monroe, J.

It appears from the record in this case that, upon the 13th of March, 1900, judgment, by confession, was entered in the Civil District Court of the Parish of Orleans in favor of the plaintiffs and against defendant in the sum of $2,974.99, on a claim for the rent of a store in New Orleans, and, the delays being waived, execution issued upon the same day and the contents of the store were seized, together with the right of occupancy during the unexpired term of the defendant’s lease, and, after due advertisement sold, by the sheriff, who received the proceeds.

Thereafter, and whilst said proceeds were still in the hands of the sheriff, the defendant went' into bankruptcy, and, upon June 7th, proceedings were taken in the State and Federal Courts, as follows:

The sheriff took a rule, in the State court, alleging that he was in possession of $2,059.03, proceeds of property sold by him under execution in the above entitled suit; that O. O. Wilcox, the trustee of the bankrupt defendant, was claiming the same; that the City of New Orleans and the State of Louisiana were demanding the payment of taxes therefrom; and that the plaintiffs in the case had notified him not to pay said money to said trustee; and he prayed that the parties named be ordered to show cause why the court should not direct him as to the disposition thereof.

The trustee, Wilcox, presented a petition to the Circuit Court of the United States, alleging the seizure and sale, for rent, and the fact that the sheriff was in possession of the proceeds, as has been stated; that the defendant had made a surrender in bankruptcy of all of her property, including the said proceeds; that the adjudication in bankruptcy operated a stay of proceedings in the suit in which said seizure had been made; that the proceeding in the State court was founded upon a claim from which the discharge in bankruptcy would operate a release; that the levy by the sheriff had been made within four months prior to the adjudication in bankruptcy and was discharged thereby; and that the sheriff was about to distribute said proceeds and should be enjoined from so doing and ordered to turn the same over to the petitioner as the trustee of the bankrupt. Upon this petition, a rule nisi was issued, and a restraining order was made and served, directing that the funds in question should be held until the further order of the court. And, in the meantime, the rule taken by the sheriff was also duly served.

The plaintiffs herein appeared in the United States Court, in answer to the rule nisi, and showed cause why the injunction prayed for should not issue; and, upon June 15th, the application of the trustee was denied and the restraining order rescinded, and from this ruling the trustee appealed. Thereafter, upon July 3rd, the rule taken by the sheriff having been reassigned for that day, was called for trial in the State court, and the trustee made an appearance, as follows: “C. O. Wilcox, trustee of Mrs. Lisette Seebold, bankrupt, excepts to this rule and objects to its trial; (1) Because there is pending an appeal, with supersedeas from the United States Circuit Court for the Eastern District of Louisiana to the Circuit Court of Appeals for the Fifth Circuit (from a judgment on) a rule, coupled with a restraining order, issued by the United States Court aforesaid, on the application of exceptor, directing the sheriff of Orleans to pay over the funds in question herein to said trustee of said bankrupt, and that said sheriff remains restrained thereby. (2) That no judgment can be rendered in this matter during vacation, it being a judgment requiring signature and ordering payment of money and being final in nature.”

From the note of evidence made at that time, it does not appear that the trustee made any other than the foregoing defense to the sheriff’s rule to distribute. On the contrary, the recitals of the note, in so far as they bear upon that question, are as follows: “Mr. Florance, on behalf of the trustee in bankruptcy of Mrs. Seebold, files an exception” (which is set forth as given above, after which the note proceeds.) “The court rules as follows: The property sold under fi. fa. issued in this case, the proceeds of which are in the hands of the sheriff, having been seized before the bankruptcy proceedings were instituted, the first objection is overruled; as to the second objection, as to the trying of the case at this time, the court will allow the testimony to he taken to-day, and take the matter under advisement.” There is nothing to indicate that any further grounds of defense were set up on behalf of the trustee, either in writing or orally, but the note of evidence contains the further recital that, “Mr. Florance, on behalf of C. O. Wilcox, trustee of Mrs. Lisette Seebold, bankrupt, and reserving the exception, hereinbefore filed, to the jurisdiction of this court on the trial of this rule, offers in evidence, in support thereof, the motion and order of appeal and supersedeas in the case No. 12,878 of the United States Circuit Court for the Eastern District of Louisiana. And it is admitted that this motion for appeal and supersedeas has been perfected by the filing of the motion and bond. But this admission is made with the express reservation that an appeal and supersedeas from a restraining order is unheard of, and cannot operate to stay proceedings in this court.”

The other parties, defendant in rule, having filed their answers, the trial proceeded, and, upon July 10th, the rule was made absolute, and the sheriff was ordered to pay to the city and State the taxes claimed by them, respectively, and to turn the balance of the funds in his hands over to the plaintiff in the suit. And from this judgment the trustee has appealed. It is admitted in this court that the Circuit Court of Appeals subsequently affirmed the judgment of the Circuit Court, dismissing the trustee’s application for an injunction, etc., and the objections urged by the trustee to the trial of the rule in the State court, based on the pendency of the appeal to said Circuit Court of Appeals, and to the effect that said rule could be tried only in term time, have been specifically abandoned; and the trustee relies here, exclusively, upon other grounds, which, so far as appears from the record, were never presented to, or considered by, the District Court, from which this appeal comes. Under these circumstances, and as this court is a court of record, and is sitting in this case as an appellate tribunal, with jurisdiction only of matters which have been passed on by the court of first instance, and as all such matters, so far as the record discloses, have been withdrawn from the controversy by the admission of the counsel for the appellant, we have no further function to discharge than to affirm the judgment appealed from. It may be, and no doubt is, a common practice in the District Courts for a defendant in rule to answer orally, and, where no appeal is contemplated, the practice has its advantages. But the practice is equally common for such defendant to present all of his defenses at one and the same time, where the defenses presented are reduced to writing, whether in the form of exceptions or answer, and when the party goes to trial upon the merits of the rule, without further pleading, this court cannot do otherwise, on the appeal, and particularly in the absence of anything in the record to show the contrary, than to presume that all the defenses that were urged are disclosed by the record.

Judgment affirmed.

Rehearing refused.

Blanchard, J.,

dissents, holding that it having been brought to the attention of the State court that proceedings in bankruptcy have been taken, all proceedings in the State court are stayed and all matters at issue are to be referred to the court seized of the bankruptcy proceedings.


text:
    No. 13,692.
    Morris Wolf vs. Mrs. M. E. Edwards.
    Syllabus.
    An act done by a party prior to the petition for his or her interdiction cannot be annulled except upon proof that the cause of such interdiction notoriously existed at the time when the act was done, or that the person who dealt with the party of unsound mind could not have been deceived as to the state of his or her mind.
    APPEAL from the Civil District Court, Parish of Orleans- —St. Paul, J.

      Dart & Eernan, for Plaintiff, Appellee.

      William, 8. Parherson, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

This is a proceeding via ordinaria for the collection of a mortgage note of seven thousand dollars, with interest, attorney’s fees, etc. Judgment for the amount of the note is asked, with recognition and enforcement of the special mortgage securing the same.

The defense, in effect, is that the defendant was non compos mentis when she executed the note and mortgage; that soon thereafter she was interdicted; that the judgment of interdiction was duly published; that Geo. A. Hero, from whom the plaintiff acquired the note, was, by his situation, surroundings and information, charged with knowledge of her mental incapacity at the time the note and mortgage were executed and at the time he negotiated the note; and that his vendee of the note (plaintiff herein), having acquired the note after the publication of the judgment of interdiction, is likewise chargeable with knowledge of the facts and cannot recover without proof of consideration for the note having enured to the benefit of the maker.

The suit was brought against the curator of the interdict and it is he who urges the above defense.

The judgment of the trial court was in favor of the plaintiff and the curator prosecutes this appeal.

Ruling — We find that this note and mortgage were executed on the 22nd of March, 1899. The note is in the usual form, drawn by the maker to her own order and by her endorsed, and paraphed by the notary to identify it with the act of mortgage.

Mrs. Edwards, against whom at-that time no interdiction proceedings were pending, appeared at the office of the notary, accompanied by her two sons, one of whom was yet a minor.

The notary was a lawyer as well as notary and at the request of these parties he took the necessary steps to emancipate the minor.

The petition for emancipation was drawn, the mother and tutrix signed a written consent to the emancipation, the parties, including the mother, went before the Judge, and on the showing made, with the parties before him, he entered up and signed a judgment of emancipation.

The purpose of this was to relieve the younger son of the disabilities of minority, to the end of making a settlement with him of his interest in the estate of his deceased father, administered by his mother tutrix, and, following this settlement, to have erased and canceled the legal mortgages existing on the mother’s property in his favor.

It appears that a settlement was effected and in due course the mortgages were canceled and erased.

On the day the judgment of emancipation was signed, at the request of Mrs. Edwards, or that of the older son made in her presence, the notary prepared the mortgage in question here, and the note sued on, with other notes, and the same were signed and executed by her. There was merely a nominal mortgagee. The notes were intended for negotiation to other parties. In other words, they were to be put upon the market.

The notes, it seems, were left in charge of the notary until the 3rd of April, 18’99, at which time the older son, Daniel Edwards, called and obtained the delivery to him of two of them, and these two, aggregating $14,000, he negotiated, the same day, to George A. Hero, who paid him therefor in cash (check) $4,874, and delivered up to him a notó for $9000 drawn by Mrs. Mary E. Edwards, the defendant herein, and endorsed by Daniel Edwards, which note he (Hero) held for value paid before maturity.

One of the notes thus acquired by Hero forms the basis of this suit.

It was payable one year after date and drew 7 per cent, interest iron, date.

Hero kept the two notes until December 27th, 1899, and then negotiated them to the plaintiff herein, who paid him therefor in cash on that day $14,762.20. The one sued on matured March 22, 1900, ana not being paid was protested and this suit followed.

Interdiction proceedings against Mrs. Edwards, taken at the instance of her married daughters, were begun April 11, 1899, and culminated April 26th in a judgment of interdiction. This judgment was published in two of the New Orleans newspapers from and inclusive ot •May 4th to and inclusive of June 3rd. All the parties reside in New Orleans.

It thus appears that when the note and mortgage were executed, and when Geo. A. Hero acquired the same, no interdiction proceedings against Mrs. Edwards had been taken.

It appears, further, that the time at which the plaintiff, Wolf, acquired the note was after judgment of interdiction had been pronounced and published.

Though Wolf acquired the note from Hero subsequent to the interdiction and its publication, he is entitled to claim and assert the same rights in and to it that his transferror had.

In point of fact Wolf had no knowledge whatever of the mental unsoundness of the maker of the note, nor of the interdiction proceedings that had been taken, nor of the judgment of interdiction. He had not seen or been told of the publication of this judgment. He bought the note as an investment, in good faith, for value before its maturity.

Mrs. Edwards executed the note and mortgage twenty days before she was proceeded against for interdiction, and thirty-five days before the judgment interdicting her was rendered.

Hero acquired the note sued on eight days before the interdiction proceedings began and twenty-three days before the judgment was rendered.

The plain codal provisions of the law are determinative of the controversy.

Article 402 of the Civil Code declares:—

“No act anterior to the petition for the interdiction shall be annulled, except where it shall be proved that the cause of such interdiction notoriously existed at the time when the acts, the validity of which is contested, were made or done, or that the party who contracted with the interdicted person could not have been deceived as to the situation of his mind.” To the same effect is Article 1788 of the Code.

There is no proof in this record that any cause for interdiction of Mrs. Edwards notoriously existed either at the time she executed the note, or at the time Hero acquired the same. Nor is there proof that Hero, at either date, knew of her mental unsoundness.

Hero acquired the note, paying value therefor before its maturity, from one in apparent legitimate possession of it, to-wit: — the son of the maker.

The circumstance that he and this son were brothers-in-law — had both married into the family of Mr. O. C. Oliver — is not sufficient to charge him with knowledge of the mental unsoundness of the mother of his brother-in-law,, supposing it to be true that such mental unsoundness existed at the time the note was executed and at the time he negotiated it.

Neither is it sufficient to charge him with knowledge that the instrument originated in fraud and illegality on the part of the son, if it be true that such was the ease.

It is shown that Mrs. Edwards had been in the habit of lending her name and credit to her son, and that Hero had repeatedly, prior to his acquisition of the note sued on, discounted her paper at the request of the son.

Judgment affirmed.

Rehearing refused.