author: Poché, J.

text:
    No. 9223.
    Benjamin S. Story vs. The Hope Insurance Company.
    In an action on a policy of insurance, the act of tlie insurer who has knowledge of an increase of risk by a change of use of the insured premises, without objecting to the same or cancelling the policy, will be construed as a waiver of his right of forfeiture of the contract by reason of such increase of risk.
    Parol testimony is admissible to show such waive]’, although the policy contained a clause requiring the agreement of the insurer to be endorsed on the policy.
    If the insurer, after knowledge of the increase of risk, continues to receive premiums, he will be held to have waived the forfeiture.
    Positive testimony on a given point must predominate over negative testimony on the same-point.

      APPEAL from the Civil District Court for the Parish of Orleans.. Houston¡ J.

      Miller & Finney for Plaintiff and Appellee.

      Henry Denis for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

This is an action on a policy of insurance of five thousand dollars, on a building which was destroyed by fire on the 11th of' May, 1882.

The defense is a violation by the insured of an express condition of the policy, prohibiting an increase of risk by the insured without the express consent in writing of the company.

Defendant appeals from a judgment in favor of plaintiff.

The policy was issued in 1875, and was renewed annually for seven - years.

When the insurance began, the building was used as a warehouse-for the storing of sugar, molasses, moss and other non -hazardous articles. In November, 1877, under a change of tenants, the building-was occupied and used as a broom factory, which was operated by steam appliances, with the consent of the insured.

It is not disputed that this change increased the risk, and that, under ■ the rules of the company, it called for a higher rate of insurance. The record shows that the rate was not increased, but annual payments of " premiums were made and received under the same terms as contained in the original policy.

Plaintiff’s contention is, that the change was effected with the-knowledge and consent of the insurer who is thus estopped from in- ■ voking the forfeiture of the contract on account of the alleged violation of an important condition of the same!

That condition stipulated, among other acts of forfeiture, the use or-occupation of the insured.premises in a manner so as to increase the-risk, without the endorsement on the policy of the company’s written consent thereto.

The policy also contained the following clause, which had reference-to the condition just mentioned :

“ The use of general terms, or anything less than a distinct specific - agreement, clearly expressed and endorsed on this policy, shall not be-construed as a waiver of any printed or written condition or restriction, therein.”

Relying on these stipulations, defendant resisted the introduction of parol testimony in support of its alleged knowledge of, or consent to, the increase of risk resulting from the altered use of the insured building; and a bill of exceptions has been reserved from au adverse ruling.

1. The first and main contention in the ease involves, therefore, the proposition that, under the conditions of the policy in suit, parol evi •donee is inadmissible to prove any declarations or acts of the company which may be construed as a waiver of the conditions alleged to have been Violated by the insured, as operating the forfeiture of his light of recovery under the policy.

The jurisprudence of several of our sister States of the Union has ■established the rule that the party for whose benefit a condition has been stipulated in a written contract, can be successfully met with parol testimony to show that he has waived such condition, and the rule has been uniformly applied and invariably enforced in contracts of insurance; in which the waiver may be shown by express verbal .agreement, or implied from acts which are inconsistent with an intention to cancel the policy on account of the violation of any essential condition of the contract. Wood on Fire Insurance, Sec. 368, 873, 496.

All the authorities which we have examined with the care which the importance of the discussion imports, and several of which are quoted in another part of this opinion, have very correctly sanctioned the ■conclusion that receiving the premiums on a policy by the insured after knowledge of the increase of risk, is one of the most insurmountable obstacles in his attempt to invoke the forfeiture of the contract on the ground o.f such an increase of risk.

The contrary doctrine, under which the insurer, who would be notified of a change of use or occupation of the insured premises, would be allowed to continue to receive the annual premiums for five consecutive years as in the case in hand, and in the event of loss to •escape responsibility for a failure to have endorsed his consent on the policy, would-be glaringly inequitable and clearly monstrous.

The equitable rule is that any one is at liberty to waive any condition, stipulation or right which may exist in his favor—and in contracts •of insurance the practical effect of the rule has been interpreted to mean that the insurer who obtains knowledge of a broken condition, must express his assent or his dissent, and that his silence means assent. It is too plain for discussion that silent assent must of necessity be proved by parol testimony.

The reason of this ruling does not antagonize the general principle ■which excludes parol evidence to contradict or alter a written instrument- The effect of the testimony is not to deny the existence, or contradict the true meaning of the written instrument, but simply to show acts of the party to be benefited thereby, manifesting his intention to abandon or waive such benefit.' Among numerous authorities which have recognized this doctrine, we refer to the following-which are more directly in point: 26 Iowa, 9; Viele vs. Germania Insurance Co. 62 Illinois, 458; Reaper City Ins. Co. vs. Jones, 65 New York ; 6 Pitney vs. Glen’s Falls Ins. Co. 65 New York, 195; Peckner vs. Phœnix Insurance Company.; 4 Hun. N. Y. 413, Van Allen vs. Farmers’ Insurance Co.; 5 Hun. N. Y. 90, Hotchkiss vs. Germania Insurance Company.

Defendant’s able counsel concedes that the current of authority in our sister States is in the sense which we have indicated, but he contends that the issue must be tested exclusively under the provisions, of our Civil Code, which ignores the common law distinctions between deeds under seal or not, which distinctions, he asserts, underly the reasoning in the cases quoted from the State of New York; and he invokes, in a plausible argument, the effect of the clause which we herein transcribed from the policy in the first part of this opinion, as being the law which the parties have made unto themselves.

The proposition that contracts of insurance must of necessity abide the special provisions of our local laws is, in our opinion, unsound. Wisdom, as -well as sound public policy, strongly suggests that questions involved in such contracts, find a better solution in commercial law, and that, therefore, this Court cannot, without being recreant to its plain duty, attempt to resist the effect of the harmonious authorities of our sister States, dealing with a subject which does not admit of State or Territorial limits in its vast importance. But, when tested under our own laws, the argument does not gain any strength.

The restriction in Art. 2276 of our Code reads: u Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before or at the time of making them or since.”

We fail to perceive anything in this prohibition which militates against the rule which we herein enforce.

In allowing parol proof of the acts of the party in whose favor a condition has been stipulated in a written instrument, we see no effort to admit such evidence against or beyond the contents of the contract,, or of wlmt may have been said before, at the time or since, as making-part of the contract. We merely open the door to parol proof of acts •equivalent in law to a subsequent agreement to maintain the vitality of a written contract, which in the absence of such agreement or consent would have terminated, in the option of the innocent party by reason of prohibited acts on the part of the defaulting party.

In the recent case of Jauney vs. Brown, 36 Ann. 118, we had occasion to consider the effect of such testimony in connection with that Article of the Code—and in there held that a party to a written contract with another as common carriers, would be allowed to show .by parol evidence a subsequent agreement conferring on him certain privileges as managing partner—for the reason that the subsequent verbal agreement referred to a matter which formed no part of tiie written contract.

Similar rulings are found in our reports : 7 Robinson, 520; Cunningham vs. Caldwell; Mathias Lebat, 10 Rob. 94; Jamison vs. Ludlow, 3 Ann. 492.

Our construction of the clause so strenuously invoked by defendant as making law unto the parties, is that it is at most a condition and that as such, it can be waived by the party in whose favor it was stipulated. A similar clause figured in the policy dealt with in the case above quoted from the 02nd Illinois—and the rule was nevertheless enforced.

2. Having concluded to admit parol testimony in support of the alleged waiver of the company, we have now to consider the sufficiency of the evidence in the record.

Prom the fact that plaintiff’s agent swears that he made, the change ■with the consent of the President of the company, and that the latter •solemnly swears that he gave no consent; that under the rules of his company ho could not give such consent without an increased rate:— taken in connection with the avowal on both sides, that both witnesses are equally credible, the analysis of that testimony has not been free of difficulty.

' But, one witness swears affirmatively, and the other negatively. The assertion of a fact which has never had existence, cannot be consistent with truth, whereas the denial of a fact which has existence may, without violating truth, be the result of inattention or of a defective memory.

Hence, the rule that positive testimony on a given point, must always predominate over negative testimony on the same point. 33 Ann.. 796, Guensard vs. Bird.

But in addition to that consideration, in studying the testimony of tlio president of the company, we find that lie does not absolutely deny that the agent had imparted the information of the proposed -change ; the stress of his denial is levelled to an alleged agreement on the subject matter.

Hence we conclude that the testimony of the agent of the insurer on the question of knowledge of the company is practically uncontra- ■ dieted—and that it makes full proof of the alleged knowledge of the risk in the proper officer of the company.

That knowledge, followed by the company’s receipts of the premiums during five subsequent and consecutive years, affords one of the strongest cases of a clear waiver of the forfeiture of plaintiff’s rights of' recovery under his policy—and that waiver justifies the .judgment appealed from.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Manning, J.

license: Public Domain

text:
    No. 9310.
    The State of Louisiana vs. Lacy Bias.
    A jmvtial concealment of a dangerous weapon is a violation of tlio statute prohibiting carrying concealed weapons. It should be fully closed.
    A pistol half stuck in the pocket or about the clothes, even though a part of it may be visi hie, is carrying a concealed weapon within the meaning and intent of the slatute.
    The word ‘concealed’ has a statutory sen.se. contradistinguished from its ordinary meaning, and must be construed so as to give potential effect to the law.
    APPEAL from the Tenth District Court, Parish of Red River. Hall, J.

      M. J. Cunningham, Attorney General, and J. 0. Pugh, District Attorney, for the State, Appellee.

      Tj. B. Watkins for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was indicted for and convicted of carrying a concealed weapon, and was sentenced to imprisonment for one day and to pay a line of three hundred and five dollars. He relies for reversal upon what ho conceives to be an erroneous charge to the jury as to what is concealment of a dangerous weapon. The hill states;—

That the proof was that the accused carried a pistol with the barrel and cylinder stuck inside the waistband of his pants in front and leaving the handle and guard exposed, the accused.at the time wearing neither coat or vest.

Tlie judge charged thus;—

I don’t regard the Supreme Court as having given all of the law on the subject, but only so much as was necessary for the decision of the-case then before them.”

'' I think the law was intended to prevent persons from carrying pistols or other dangerous weapons stuck in their clothes, even though a part of them may be exposed to view. And if you find that the defendant did carry a pistol stuck in his clothes or pockets, although a part may be exposed, you should find him guilty.”

The case to which the, judge alludes is State v. Smith, XI Ann. 633..

It was there said a partial concealment of the weapon which does not leave it in full open view is a violation of the statute, and the soundness of this ruling has never been questioned, however much juries have been influenced and trial-judges have, misled them by definitions-of the word 'concealed.’

Tn common parlance and even in philological import a thing concealed is a thing hidden, and therefore one might be correct in saying if it is-not hidden or is visible, then it is not concealed. But the word must be taken in its statutory seiise, that is, must be construed so as to give full and potential effect to the statute. The manifest object of the-statute was to prevent the carrying of dangerous weapons—to stamp-out a practice that has been and is fruitful of bloodshed, misery, and death—and yet so to prohibit the carrying as not to infringe the constitutional right co keep and bear arms.

The constitutional right is to bear arms openty, so that when one-meets an armed man there can be no mistake about the fact that he is armed. When wp see a man with musket to shoulder, or carbine slung-on back, or pistol belted to bis side, or such like, he is bearing arms in the constitutional sense. Of course there are other examples. These-are hut illustrations. There is no danger of any jury or court misinterpeting our statute prohibiting carrying concealed weapons, and confounding a case of lawful arms-bearing with one of carrying dangerous weapons concealed, unless, verbal distinctions are pressed too far ands they are misled by them. A pistol half stuck in a pocket or about the .clothes so that it is not fully exposed, even though a part of it may be-visible, is carrying a concealed weapon within the meaning and intent of the statute, and that is the language of the charge. We have nothing to do with the facts. The judge gave the jury good law. They applied it to the facts as seemed best to them.

Judgment affirmed.


author: Fennicr, J.

text:
    No. 9333.
    The State ex rel. Leon Gerson vs. R. W. Richardson, Judge Fifth District Court, Parish of Ouachita.
    When property attached has been sold in limine under C. P. 261, the ■proceeds take the place of the property and still continue to be “property attached,” and subject to the right of the defendant to bond “in •every stage of the suit,” under C. P. 259.
    Application for Mandamus.

      JBoatner £ Boat-tier and Farrar £ Kruttsehnidt for the Relator.
    Respondent in jproj)ria jpersona and by F'ranMin Garrett and W. F. £ B. O. Mellen.

   The opinion of the Court was deliver'd by

Fennicr, J.


author: Bermudez, C. J.

text:
    No. 9933.
    The State ex rel. Leon Gerson vs. R. W. Richardson, Judge Fifth District Court, Parish of Ouachita.
    ^Judgments rendered by this Court on the merits ot’ petitions for writs of mandaimix, pro Mbition and the like, are as much final judgments as any which it can render, and are, thoreforo, revisable on applications for a rehearing, seasonably and properly made.
    JjNb certified copy can issue, by the clerk, of final judgments which have not become executory, Such copies issue only after the lapse of six judicial days, in the absence of an application for a rehearing or after such has been refused. The contrary opinions in 18 Ann. 113. 2L Ann. 50, overruled.
    /'ll! Rule on the Clerk of this Court for Copy of Judgment.

      Boatner £ Boatner and Farrar £ Kruttsehnidt for Plaintiff on Rule.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a rule by relator on the clerk of this ■Court, to show cause, forthwith, why lie should not deliver to him a •certified copy of the judgment heroin rendered, making peremptory the m.andanms asked, although six judicial days have not elapsed since its rendition.

The ground upon which the mover rests his demand is, that the, judgment became final and executory at the moment of its rendition. He relies on the rulings in 18 Ann. 133 and in 32 Ann 1263.

Judgments are divided into interlocutory and final, C. P. 538, 539 whatever the court be, inferior or superior, that renders them.

The law allows the party cast bv a definitive judgment, the privilege of asking for a new trial in courts of original jurisdiction and for a rehearing in courts having an appellate or superior jurisdiction.

Articler912, C. P., provides that, in the interval between the day on which a judgment is rendered by the superior court and that on which it becomes final ( sixfjudicial days, C. P., 911) a party dissatisfied with it, may apply for a new hearing, and for this purpose shall present a petition stating reasons and citing authorities.

All the judgments which this Court renders are final and definitive, unless they he interlocutory decrees.

The rule of this Court provides that applications for a rehearing will be entertained only where the judgment disposes finally of the cause. Rule IN (7).

In the Succession of Edwards, 34 Ann. 22, this Court refused to entertain an application for a rehearing, when the decree complained of was one overruling a motion to dismiss.

The refusal was based on the ground that the decree was an interlocutory order and not a final judgment.

A judgment of this Court ordering or denying a mandamus, or prohibition, or relief, under an application for a eeriorari is as much a final judgment as any that can be pronounced by it in any other cause, civil or criminal.

Being such, it is open to an application for a rehearing. We find no warrant in law, reason or justice for the refusal to entertain such an application in that class of cases, although they be such as are to be tried and determined summarily.

The ruling invoked in 18 Ann. 113 sets forth no other reason for refusing to entertain the application than that the case “ is a mandamus-case.” It is brief, unsatisfactory and unsound.

The ruling in 32 Ann. 22 is correct, but inapplicable to the present, matter. The proceeding there was for a certiorari to ascertain the validity of an ex parte order in furtherance of which the relator had been committed for a contempt of court, it was in the nature of a habeas corpus proceeding, in which the law directs that if the court find that there is no cause for arrest or confinement, it shall immediately set the prisoner at liberty. The court annulled the order for the imprisonment of the relator who, therefore, was entitled to an instantaneous release. This could not be accomplished unless 'on production to the, sheriff of an authentic-copy of the judgment of the court which, under the terms of the law,had become immediately final and executory.

Our immediate predecessors, without, however, questioning the adverse. proposition claimed to have been established, have determined that an application for a rehearing could be entertained in a mandamus proceeding, saying: "In form and in substance that order is a decree by which the parties arc to he concluded and there is no-reason why, in such a case, a rehearing should not be granted to either the State or the relator.’’ The former decree was set aside and the judgment was reversed. Manning’s TJnreported Cases, 343; State ex rel. Samuel vs. Jumel.

On search, we find a, case in 21 Ann. 50, in which the then Court refused to entertain a petition .for a rehearing in a proceeding for a prohibition, “because the article, 851, C. P., declares that the court shall pronounce finally and summarily on the right of jurisdiction.” This was no reason why the judgment became at once final and why it was not review-able. All the judgments of this Court on the merits of a controversy are final, but review-able, on application for a rehearing. Neither is that ruling good authority.

The law- does not discriminate betw-een tbe final judgments rendered by this court and wo cannot do so. In tbe absence of any law or good reason, we, therefore, conclude that the judgment rendered in this case is such final judgment as can be. reviewed on an application for a rehearing, and that, until six judicial days have elapsed since its rendition, or the consent of the defendant has been exhibited, waiving such application; or such application, if any, has been refused, tbe relator is not entitled to require from tbe clerk tbe certified copy on which he insists.

It is, therefore, ordered that the rule herein be refused with costs.

Rehearing refused.


text:
    No. 9156.
    Virginia Bossier vs. S. P. Raines, Sheriff et als.
    In an appeal from, a judgment in an injunction suit, involving tlie debtor’s claim of a homestead under the act of 1865. previous to tlie recent amendments of the Constitution, the-test of the jurisdiction of the Supreme Court was in the value of the property claimed' as a homestead, and not in the amount of the judgment enjoined.
    Homestead exemptions being in derogation of common right, parties claiming thereunder mnst show by clear proof that they fill all tlie requirements of the law conferring such exemptions.
    A short residence on the property with a view to claim it as a homestead, but abandoned before the seizure will not be sufficient.

      APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

      Watlcins & Scarborough for Plaintiff and Appellant.

      Ohaplin, Dmnguet & Oha/plin for Defendants and Appellees.
    The original opinion and decree in this case were, on rehearing, set aside.
   On Rehearing.

Motion to Dismiss

The opinion of the Court was delivered by

Poché, J.

Plaintiff’s object in this suit is:

1. To obtain a decree annulling two judgments; one in favor of Haller & Bro. for the sum of $214.00, and auother in favor of Stephens in the sum of $290.00; both rendered against her pre-deceased husband and herself, on the ground that the debts sought to be enforced thereby, were debts of her husband.

2. To have her homestead rights recognized on a portion of the property seized in execution of said judgments, in ease the validity of the latter be maintained.

3. To enforce the rights of herself and of her minor children under the act known as the Homestead Act of 1852, in the event of her being defeated on both of her previous demands:

The point made in the motion is that the jurisdiction of this Court must be tested by the amount involved in the judgment sought tobe annulled or enjoined.

As shown in our previous opinion, the point applies successfully to the alleged nullity of the two judgments, the aggregate amount of which is not equal to the lower limit of our jurisdiction.

The motion must also prevail as to the demand for the sum of $1000.00 under the Act of 1852.

As the amount claimed does not exceed $1000.00, and as the prayer for the same is made in the alternative, it must therefore be treated as a separate demand, and hence it did not fall within our jurisdiction, as defined at the time that our previous opinion was rendered, anterior to the promulgation of the amendments to Art. 81 of the Constitution, which were promulgated on May 15, last past 1884. Nor. can it be maintained under our jurisdiction, as then amended, by operation of which we are vested with jurisdiction over all questions of homestead, irrespective of the amount involved. This point came up in the recent case of the State ex rel. John Davidson vs. the judges of the Court of Appeals, No. 9312, not yet published. In that case, after maturé reflection, we held that the amendment on this subject was not intended to cover claims arising under the provisions of the Act of 1852—erron-eously entitled a “Homestead Act.”

The motion to dismiss must therefore prevail as to those two demands.

But from the foregoing reasons it follows that we are clearly vested with jurisdiction over the claim of a homestead under the provisions -of the Act of 1865.

At the time that we rendered our previous opinion, we asserted jurisdiction on the ground that, from the pleadings and from the evidence, it appeared that the value of the property claimed as a homestead • exceeded one thousand dollars, and that this was the amount in dispute under that part of plaintiff’s suit. Gross vs. Routon, 33 Ann. 1046.

Now that the lower limit of our jurisdiction has been raised to two thousand dollars, we would be stripped of jurisdiction, were it not for the exceptional nature of the demand, over which we must retain jurisdiction by virtue of the amendment hereinabove referred to. The motion to dismiss must, therefore be denied as to that feature of the issues presented by the pleadings. Under these views our investigation

Ok the Merits

must be restricted to plaintiff’s claim of the tract q¡f land, which she inherited form her father’s succession, as a homestead under the Act •of 1865.

Her claim thereto is resisted on two grounds :

3. That she did not occupy the tract of land as a residence, within the requirements of the act.

2. That she conld not claim a homestead adversely to the judgment of Haller & Bro., because it enforced a contract entered into in 1861, as evidenced by a promissory note of that year, long previous to the enactment of the Homestead legislation of 1865.

1st. In our previous opinion we held that plaintiff had made suffi•cient proof of her residence on the tract of land in question. But a second examination of the voluminous record in the case has created a different impression on our minds and has led to a different conclusion. From the evidence it appears that from the date of her marriage to that of her husband’s death in 1875, plaintiff continuously resided with him in the town of Natchitoches where he filled several important public offices, including that of clerk of this Court when it held sessions at that place, and that after his death she continued to live in the same town, without interruption, until September, 1880, when she announced her intention to remove her residence to the “Tauzin tract” which she now claims as her homestead. But there was then, and there is yet, no residence on the place, and she soon abandoned the idea of occupying, with her five children, one of the three laborers’ cabins Ilion on the placó-

la July of the same year she bad made and registered a homestead declaration under the provisions of the Act of 1880, and her remora to the place was in furtherance thereof. But in point of fact she was unable to put up with the inevitable hardships which the evidently advised theory involved, and she returned to lier dwelling, her real borne- and the abode of her children in the town of Natchitoches, where-she was living in fact and in law, when the seizure was made.

It is too plain for argument that snob a mode of establishing a residence does not comply with the requirements of the Homestead Act of 1865. As wo had occasion to say in the case of Tilton vs. Vignes, 38 Ann. 240, that act “concedes an exemption'in derogation of common right, which should be strictly construed. Parties who claim a dispensation under its protective pale, must disclose and establish a clear case within its purview.” Plaintiff lias failed to place her case wit-hiu the scope of the rule.

Under these views we eliminate a discussion of the’ second ground-of resistance which defendants had invoked.

It is therefore ordered that our previous decree be set aside, and it is now ordered, adjudged and decreed that the judgment appealed from, be affirmed at plaintiff’s costs in both courts.


text:
    No. 9302.
    The State of Louisiana vs. E. B. Malone alias Kinch.

      A motion in arrest of judgment which charges no error aim refers to affidavits which are not in the record, is not enfitled to notice and is properly overruled.
    An assignment of errors filed long after the submission of the case and which, in itself, is. without merit, will not be considered.
    A PPEAL from tbe Criminal District Court for the parish of Orleans.. jl'V Loma it, J. --

      II. J. Cunningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee.
    Defendant and Appellant in. propria persona.

   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was prosecuted for petit larceny,, convicted and sentenced to two years at hard labor.

On appeal and since the submission of the case, he has filed an assignment of errors.

The record contains what is termed a motion in arrest.

Otherwise, the transcript does not show how the accused complains, of the verdict and judgment.

The transcript was filed on November 25, 1884. The case was fixed for and submitted on January 24th ultimo. The assignment was filed, on February 2d, instant. It charges that:

The defendant was without counsel learned in the law until the 23d of January, 1885; and

That there is error patent on the face of the record in overruling the-motion for a new trial, without fixing the same and out of the presence of the accused or his counsel.

The assignment was filed too late, and even if in time, has no merit.

Tlie record does not show that accused aslcod for the appointment of counsel and that the court refused his motion, and that a bill was re-served to the refusal of the judge.

Neither does it show that the motion for a new trial, which merely charged that the verdict was contrary to law and evidence, was not submitted by the accused, and that a bill was laken to the overruling of it by the judge.

It was offered by the defendant and acted upon by the judge after-wards.

It may well bo and it is, no doubt, the fact that the accused not only offered, but submitted it, and that the judge finding it of no merit, overruled it at once, in his presence, though he might have taken it. under advisement and overruled it out of the defendant’s presence.

The alleged motion in arrest is in the following terms, viz : (Title of cause)

‘•E. B. Malone, defendant, in person, in this case, presents this as his motion in arrest of judgment, with the affidavits annexed, why this honorable court should allow it to prevail and placed upon record.”

The affidavits referred to are not found in the transcript, which is certified as complete.

It is hardly necessary to say that such motion, which points to no error- or cause for arresting- the judgment, is entitled to little or no notice.

Judgment affirmed.

Rehearing refused.


text:
    No. 9323.
    The State of Louisiana vs. Witty Parce.
    'The following' question propounded in a case of murdor, by the district attorney to a loading State witness, not shown to be an unwilling -witness, is amenable to the two-fold objection of being a leading questiou, and also as intended or calculated to elicit from the witness an expression of opinion, and not a statement of facts within his knowledge, from which the jury alonéis authorized to draw inferences, or to form deductions: “Would the dofeudant, after having struck the deceased with a rail, have had time to pull his knife out of his pocket, open it and cut the man when he did ? ” As framed tho question is suggestive of the answer expected from tho witness. Besides, the witness should have been asked questions on facts which could assist tho jury in drawing their own inference—but the witness could not be permitted to give Ms own theory from the facts which he knew.
    APPEAL from the Tenth District Court Parish of Red River. Hall, J.

      M. <T. Gunninghain, Attorney General, for the State, Appellee.

      Egan <f; Egan for Defendant and Appellant.
   The opinion of tho Court was delivered by

Poché, J.

Convicted of murder, the defendant appeals fiom a sentence of death, and complains that he lias not liad a fair and impartial trial.

L We shall first treat of the following complaint:

Ilis counsel charge error in the ruling of the trial judge, who overruled their objection to the following question propounded by the ••district attorney to the leading State witness, and not an unwilling witness: “Would the defendant, after having struck the deceased with a rail, have had time to pull his knife, out of his pocket, open it and cut. the man when he did ”?

Tho question was assailed as illegal on two grounds :

1. That it was leading.

2. That it was intended to elicit an opinion from tho witness, and not the statement of a fact from which the jury alono could draw an inference or form an opinion.

It appears from the record that the theory of the State was, that when the accused entered into an altercation with the deceased, he had already drawn and opened his knife, a circumstance which tended to show premeditation and malice. The contention of the defense on the other hand, was in support of the theory that the accused drew -and opened his knife only during the altercation, as a circumstance ■which tended go rebut or disprove the charge of malice aforethought.

As malice is of the essence of murder, it will be at once perceived, that the answer to the question propounded was of vital importance in the case.

As we have already stated, the witness on the stand was the most important witness on behalf of the State, not an unwilling witness and was being interrogated by the State’s attorney. A careful analysis of" the question satisfies our minds that it was objection able under the circumstances, as a leading question.

To an ordinary witness it was strongly suggestive of the answer expected of him by the prosecuting attorney.

As worded and shaped, it was pregnant with the negative proposition, that during the space of time which intervened between the blow inflicted by the accused on the deceased with a piece ol rail, and the cutting, the accused could not have had, and had not had, the time-. “ to pull his knife out of his pocket and open it.” The intimation was so strong' that the witness could not have been mistaken as to the nature of the answer expected of him.

As to the second ground of objection, we consider that it is still stronger, and that it should o': itself have been considered sufficient to exclude the question.

The answer which could have been given by a simple no,” would have contained an opinion of the witness, on which the -State would have liad sufficient foundation to liave rested her whole theory of a preconceived intention of the defendant to use his knife for the purpose of killing the deceased.

It is argued that time is a question of fact, and that witnesses are universally allowed to state facts concerning time—or their approximation of the length of time which has intervened between certain acts. But, in this case the witness was not questioned as to time, bat as to the possibility in a man to perform two distinct operations; to-pull a knife out of his pocket and to open it, during the time intervening between two other and distinct acts.

The factwhichtheState was seeking to establish by the witness, could' liave been reached by other and strictly legal questions. For instance, lie might have been asked whether lie had seen anything, besides the rail in the hands of the accused when he struck the deceased with that rail, or he might have been asked how long a time elapsed between the blow with the rail and the act of cutting with the knife. From the answer given to the question, the district attorney could liave argued in support of his theory, and the jury could have drawn their own inference or made their own deductions.

The rule ou this subject is clearly defined by Mr. Greenleaf in the billowing language: “Witnesses, except in certain cases hereafter to be mentioned, are to be examined only as to matters of fact within their own knowledge, whether they consist of words or actions. Inferences or conclusions which may be drawn from facts a,re ordinarily to be drawn by the jury alone,” “except when the conclusion is an inference of skill or judgment.” Yol. 1. Sec 434. The rule has been applied in the sense which we adopt, in previous decisions of this Court.

Thus in the case of State vs. Ross, 32 Ann. 834, the following question was ruled to be improper and unwarranted: “ Was the discharge • of Scott Ross’pistol accidental, or did he fire off the same on purpose?” In ruling on the point the court said: “To enable the jury to come to a correct conclusion ou this point, it was proper that every fact, incident and circumstance connected therewith, should have been proved ; but it was not competent to assist them in their conclusion by showing what the witness thought on tiro subject before them in their •conclusion on this point. The question was clearly objectionable.” Poutz vs. Jones, 21 Ann. 726; McConnell vs. New Orleans, 15 Ann. 415; State vs. Brunetto, 13 Ann. 45.

Our conclusion is, therefore, that the question propounded was ■ amenable to the two-fold objection, which was levelled against it, and that the proceeding must have been injurious to the accused.

Wo note (lie judge’s statement that the answer had already been given when the objection was made, and that it came too late. This is an error. The judge must rule on the objection when made, and if he finds it supported by law, he must inform the jury that the question was improper, and that the answer which it had elicited was not before them as evidence in the case. State vs. Davis, 34 Ann. 351. It appears from the bill that the objection was made as soon as the dei'oudant’s counsel could seize the import and bearing of the question, .and as soon as he could rise to his feet.

This reason of the judge is manifestly an after-thought, for in point -of fact he did rule on the merits of the objection, and he held the •question as legal and proper.

From the foregoing considerations, we are forced to conclude that the accused is entitled to relief at our hands.

The-record contains numerous other complaints, but. under the views which we have taken of the case, they lose all practical importance, ■although several of them appear to us as serious. But, as they are not likely to recur in the subsequent ■ proceedings, which will follow this -opinion, we- find it unnecessary to pass upon them. We must state, however, that we have maturely considered the very able and exhaustive charge of the .judge, in connection with several bills of exception taken by his refusal to give certain special charges suggested by counsel for the accused and that we find no error on that score.

It is therefore ordered, that the verdict of the jury be set aside and that the judgment appealed from be annulled and reversed, and that; ■this ease be remanded to the lower court for further proceedings ac■cording to law.


author: Bermudez, C. J. Todd, J.

text:
    No. 9263.
    Citizens’ Bank of Louisiana vs. Fred. Freitag—F. Thomas and People’s Bank Called in Warranty.
    A purchaser at a judicial sale to foreclose a conventional mortgage, has a right to call the seizing creditor in warranty, to defend a suit, the object of which is to evict him.
    ■Such purchaser is entitled to restitution of the price paid, first from the seized debtor, and next, for deficiency, from the seizing creditor, where the sale is annulled.
    The seizing creditor, under article. C. P., 713. escapes liability if the purchaser is obliged to ijuit the property on the hypothecary action of a creditor having a legal or judicial mortgage on all the property of the party in execution, hut lie must he held where the action is on a conventional mortgage.
    A PPEAL from tlie Civil District Court for the Parish of Orleans xl. Eight or, J.

      Miller t6 Finney and ri. Bitot, Jr. fortbe Citizens’ Bank, Plaintiff and Appellee.

      Albert Voorhies for F. Freitag, Defendant and Appellee.

      F. Howard MeGalebtor the People’s Bank, Warrantor and Appellant.
   Tlie opinion of the Court was delivered by

Bermudez, C. J.

This is an action by the Citizens’ Bank to enforce payment of certain contributions and a mortgage in her favor, origin.ally consented to secure the payment of thirty shares of her stock. The proceeding is via ordinaria and is directed against Freitag, as actual possessor, under an adjudication of the property sought to be subjected.

The defense denies liability, admits the adjudication, but charges its nullity. It avers payment to the plaintiff and -to the seizing creditor, for which subrogation is prayed to the rights of the bank, and reimbursement is asked from the seized debtor and the seizing creditor, who are both called in warranty.

Tliomas, the former, having been cited and failing to enter appearance, a default was taken, which joined issue as to him.

The People’s Bank, the latter, (seizing creditor) excepted to the call,, on the grounds of absence of privity and of no cause of action, pleading eventually the general issue and prescription.

The lower court gave judgment for the Citizens’ Bank, but annulling the adjudication, The defendant was decreed entitled to recover the price and contributions from Thomas, and next, the price only, from the People’s Bank for any deficiency, on a writ returned unsatisfied against Thomas; provided, the amount do not exceed $976. The judgment passed on other matters, which it is unnecessary presently to-mention.

The People’s Bank alone appeals aud none of the appellees ask any amendment; so that the only question presented, is simply :

Whether the judgment is correct or not as concerns the People’s Bank ?

The facts established by the record are the following :

In 1843, Guex became a stockholder of the Citizens’ Bank aud consented a mortgage on his property, to secure the stock subscribed for. This property and the shares, together with the mortgage and the obligations consequent upon the issuing of a stock-loan note, passed after divers conveyances to F. Thomas.

In January, 1871, Thomas borrowed $1000 from the People’s Bank and mortgaged the properly to secure that loan.

In the following year, the debt having matured and remaining unpaid, the bank proceeded against Thomas. The property was seized and advertised, without mentioning the stock, the conditions being the assumption of the stock-loan note and payment of the balance in cash.

The property was adjudicated to Freitag for $1475, who, in settlement, assumed the stock-loan note, $420, and paid in cash $1055, which were applied to the payment of costs -and taxes, netting $976, which were paid over to the People’s Bank.

Since then Freitag has paid contributions to the Citizens’ Bank, but in 1884, being considered in default for additional ones, amounting to $180, he was sued in the present proceeding by the bank, who prayed for judgment allowing that amount and recognizing her mortgage on the property as security for the thirty shares originally subscribed for,. say $3000.

As was before said, Freitag answered alleging the nullity of the adjudication to him and praying for recovery of amounts disbursed by him. Thomas made no appearance and the People’s Bank excepted,.. pleaded general issue and prescription. The court rendered a judgment, of which no one complains save the People’s Bank.

We deem it unnecessary specially to notice the exception of the People’s Bank which does notappear to be insisted upon, no doubt because it presents no merits.

Under the averments of the answer and call in warranty, Ereitag' had a right to summon the People’s Bank to defend the suit of the Citizens’ Bank against him, on a mortgage affecting real estate which had been adjudicated to him at a judicial sale, provoked by the People’s Bank, as a mortgage creditor of the defendant, Thomas, who was-at the time its undisputed owner. The People’s Bank is bound to warrant, to such purchaser, the possession and enjoyment of the property and in the event of his eviction, to return the price. Had Ereitag” failed to call the bank in warranty, he might have lost the redress allowed him by law. C. P. 714.

This is so apparent as a matter of law that the People’s Bank strives to' estop the defendant, on the ground that what he has alleged as causes susceptible of vitiating the adjudication, has not had that effect in consequence of the ratification of the transfer and of a waiver or abandonment of the objections.

In point, either of fact or of averment, the Citizens’ Bank, in whose favor the nullities charged existed, namely, that the stock was not sold with the property and that the amount of adjudication did not cover the debt secured by anterior mortgage—has not ratified the adjudication.

If the bank has sued Ereitag, and not Thomas, it is because of authority derived under section 24 of their charter, which provides, that “all property mortgaged to the said corporation, for any purpose, may be seized and sold at any time, according to law, in whosoever hands or possession the same may be, notwithstanding any alienation thereof or change of possession, by succession or descent to heirs, or legatees, by last will and testament, or otherwise, in the same manner as if the same was in the possession of the original mortgager.

Besides, the bank in her petition charges that Ereitag is the actual possessor and asks that the mortgage be enforced against him as such,, praying that he be cited in that capacity.

Receiving subsequently from him contributions called for, cannot be considered as, opposable to the bank, a ratification of the adjudication of the title to him. The property, as to the bank, might then well be considered as belonging to-Thomas, while in the possession of Ereitag,, as adjudicatee or otherwise, and it was optional with the bank to proceed against either, or even against both.

On the other hand, while it is true, that the sheriff’s deed which Freitag accepted, states that the certificate of. mortgage against Thomas was read, containing mention of registry of G-uex’ mortgage to the Citizens’ Bank, and incorporates the recited inscription and that Freitag may be considered as guilty of omissions and commisions, it does not follow that, as certain as his eviction is, in case of non-payment to the bank, he is not entitled to recover from the People’s Bank the price which ho paid to the sheriff and which went to that bank.

The law provides, as a rule, that the purchaser evicted from property purchased under execution, shall have his recourse ior reimbursement against both the debtor and the creditor; but upon judgment obtained jointly for that purpose, the purchaser shall first take execution against the debtor, and upon the return thereof no property found, he shall then be at liberty to take out execution against the seizing creditor. R. C. C. 2621.

The code, as construed by this Court, goes so far as to extend protection to one who purchases, aware at the time of the sale, that the thing sold belonged to another, even where there is exclusion of warranty. While it refuses, by implication, damages in case of eviction, it recognizes the equitable right to recover the price, unless it was excluded by formal stipulation, or, the purchaser bought expressly at his peril and risk.

In order to escape liability to the purchaser for restitution of the price, the vendor should, as a rule, affirmatively establish actual knowledge by the former of the danger of eviction, either by direct proof or by implication from collateral facts so strong as to be equivalent to positive evidence. B. C. C. 2542, 2505, 1965; 3 Ann. 326; 16 Ann. 45; 17 Ann. 50; 5 B. 76; 5 Ann. 314; 34 Ann. 649; C. R. 1599, 1629, 1630; Duranton 16, § 362; Troplong Vo. 482.

Article, R. C. C., 2621, (2599) must be interpreted with articles 711 and 713, C. P., in which it is incorporated with a modification. Taken together as one provision of law on the subject, they announce the immunity of the seizing creditor from liability, as warrantor, only where the property belonged to a person other than the party in whose hands it was taken, and where the eviction is the result of an hypothecary 'action by a creditor who had a legal or judicial mortgage.

In the jiresent controversy the property adjudicated, actually did belong to Thomas, the defendant, at the time it was adjudicated to Freidrag; the mortgage asserted and enforced was neither legal nor judicial, "but conventional and there is implied warranty.

On the plea of prescription, it suffices to say that, as the warrantor ■was called to defend tbe pending eviction, in the same proceeding, the .-time required to debar the action in warranty lias hardly begun to run and that this defense is without foundation; prescription in such cases' ■dates only from eviction.

After mature deliberation, we reach the conclusion that the appellant has no occasion to complain.

It is therefore ordered and decreed, that the'judgment appealed ■from be affirmed with costs.

I concur in the decree.

Todd, J.


text:
    No. 9389.
    Succesion of Josiah Stanbrough, on Opposition to Final Account. and J. M. Stanbrough for Use, etc., vs. S. B. and J. T. McClellan et als. (Consolidated.)
    ¿Succession representatives and tutors who are not surviving partners iu community or ordinary partnership, or legatees, or heirs, are absolutely prohibited from purchasing any property entrusted to their administiation. The fact that they are mortgage creditors does not form an exception in tlieir favor. The prohibition which derives from five Roman law extends to all purchases, whether the sale was provoked by the succession representative, or by a creditor, whether in, or out of, the moriría proceedings. Under the express letter of the prohibitory laws, the purchases are reprobated and are absolute nullities, whether made directly or by moans of a third or interposed person, whether for good or improper motives.
    A PPEAL from tbe Eighth District Court Parish of Madison. XX Hough, J.

      A. L. Slack for J. M. Stanbrough, Plaintiff and Appellant.

      A. Hye Spencer for T. B. Adams, Defendant and Appellees.

      J. Tyson Lane and John B. Stone for tbe Executors and Appellees.
   Tlie opinion of tlie Court was delivered by

Bermudez, C. J.

Ths main question presented for solution, both by tlie opposition to tbe account and by tlie direct suit, which are consolidated, involves the validity of the adjudication made of succession property under executory process by a mortgage creditor, to one who is ■charged as being a person interposed, and acquiring for account of the •executors.

The opposition and the direct suit together seek to fasten a liability on the executors for rents and revenues of the place since the adjudication..

The following are the facts disclosed by the record:

Mrs. Josiah Stanbrough, who owned the property in question, died in February, 1880,leaving a will by which she bequeathed it to her husband, encumbered with two mortgage claims. The first in rank for $2400 was in favor of T. L. Maxwell, the next one fox- $1063, in favor of S. B. and J. T. McClellan.

Josiah Stanbrough died in December following leaving a will by which ho bequeathed the property to his nephew, a minor, subject to a usufruct which, soon after, determined by the death of the usufructuary.

He appointed as his executors, S. B. and J. T. McClellan, the second mortgage creditors.

The wills were produced in court and ordered to be executed. The executors qualified and had an inventory taken, in which the property-was described and appraised as belonging to the deceased.

Maxwell, remaining unpaid, caused the property to be seized and olferred for sale. It was adjudicated to Thos. B. Adams for $3450 cash,, which were paid.

The executors then filed an account in which they stated the assets- and liabilities of the estate, charging their commission on the amount of the inventory. The amount of sale of the property figured among-the assets, but the amount due the executors as second mortgage creditors, does not appear among the liabilities. The account exhibits a deficit in favor of the executors.

The account was opposed by James M. Stanbrough, for the use of Ms minor son, Jesse, who is the nephew and legatee of Josiah Stanbrough. Subsequently, he brought a direct action against S. B. and J.. T. McClellan and Thos. B. Adams.

Both the opposition and the direct suit charge, that the adjudication of the property, under the executory proceedings of Maxwell, was-made to Adams for account of the McClellans, who, as executors, could not legally purchase.'

The defense is, that the adjudication to Adams, was bona fide and that he acquired title for his own account, and in no way, for that of the executors.

From an adverse judgment, the opponent and plaintiff has appealed..

We do not propose to enter into any discussion to justify our conclusion as to the facts elicited on the trial, which we believe to be well founded.

It is satisfactorily shown, that the executors were mortgage creditors, second in rank; that the property mortgaged to secure their •claim was inventoried, and passed into their possession as executors; -that they charged their commission on the appraisement of it in the inventory; that they were anxious to protect themselves, as such creditors and to that end, determined upon buying tire property; that ascertaining they could not legally do so, and not having in readiness the cash required to bid in the property, which was to have brought ■enough to cover the first mortgage creditor—they made arrangements to borrow the amount in the shape of an advance to them by Erankenbusli & Borland, title to the property to be put in the name of Thos. B. Adams, their nephew and employee; who, at some future time would transfer it to them; thac the amount was advanced and charged ■to the executors, and the reimbursement thereof secured by Adams on ■the property, the latter assuming, besides, to make good to the executors the amount of their claim, as second mortgage creditors; that A'dams had not the means to buy and has not paid the price of adjudi ■ tion, or the amount secured by him, by mortgage on the property.

It is also established, that plie plantation was rented and yielded .revenues. We deem it unnecessary presently to state specifically what the varying evidence,-on that subject, may be considered to have proved.

It is manifest to our minds that the adjudication was made to Adams, for account of the executors, as charged in the proceedings.

It is clear that, had the executors been surviving partners in community or ordinary partnership, or heirs or legatees of the deceased, the purchase so made could be considered as valid and binding as though made by any disinterested third party.

But the fact is that they occupied neither of these positions, and were simply creditors of the deceased-

The law, as found in the Code of 1825, as next amended, and as now incorporated in Art. R. C. C. 1146 and 1790, prohibits all succession representatives and tutors from purchasing by themselves, or by means ■of a third person, any property, movable or immovable, intrusted to their administrators, under pain of nullity and of responsibility in •damages. The prohibition extends to all sales, whether the same be provoked by the succession representatives, or procured by a creditor whether in or out of the mortuaria proceedings.

Executors who are creditors cannot be recognized the right of purchasing such property, without assuming to add to the law a circumstance justifying such purchase, which it never entered the mind of' the law-giver to incorporate into it.

It cannot be claimed, that in the case presented, the property was-not entrusted to their administration; that the sheriff and not they had possession of it.

The law does not discriminate and we are powerless to do so-Besides, the property was under their control and in their custody.

They had it inventoried and they were empowered .by the will, to-take immediate possession of it. They charged a commission on its appraisement, because they had the seisin of it.

The prohibition to purchase is a rule of almost every system of' jurisprudence against persons acting in a fiduciary capacity. The same person cannot be buyer and seller. The law will not permit such, agents to occupy a position in which the presumption is they would-sacrifice the interests of others to their own. What they are forbidden from doing directly themselves, they are not allowed to do through, third persons.

In the elaborate and highly instructive opinion of the U. S. Supreme-Court in Michaud vs. Girod, 4 How. 503, the philosophy and wisdom of the rule, considered in a Louisiana case, are admirably expounded..

The rule derives from the Roman law and comes down to ns through, the French and Spanish law. Tutor rem pupilli emere non potest; idemque porrigendum est ad similia, i. e. ad euratores, proeu/ratores et qui negotia aliena gerunt. Dig. L., 18 t., 1 1. 34 (7); Inst. L. 1, t. 21, 23; C. N., 159, 6; Siete Partidas, title V. 1. 4.

It is also well founded in the common law of England and of the United States.

The prohibition has been uniformly and rigorously enforced by this Court in a number of cases in which such purchases were reprobated and set at nought. 15 L. 397; 6 L. 782; 2 Ann. 782; 15 Ann. 581,641 ? 16 Ann. 135; 21 Ann. 38 ; 24 Ann. 482 ; 27 Ann. 241, 491; 33 Ann. 746 35 Ann. 919.

Permitting executors, whether creditors or not, to purchase property entrusted to them, unless in the exceptional instances specified by law,, would be to arrogate to ourselves the right of judicial legislation and to open a wide door for evil temptations and the perpetration of injurious frauds. It would be an abuse deserving severe condemnation.

It is not proved, and we have no reason to assume that the executors-acted through improper motives; but intention or design, however otherwise irreprehensible, is immaterial. It is the fact of the purchase which must be ascertained and made as though it never was. The law-giver solemnly forbids discrimination.

When, to prevent fraud, or from any motives of public good, the law declares certain acts void, its provisions are not to be dispensed with, on the ground that the particular act in question has been proved not to be fraudulent, or not to be contrary to public good. R. C. C. 19; 36 Ann. 788.

Applying these principles to the case under consideration, we conclude :

The two items : of the proceeds of the sale, and of the difference between the adjudication and the appraisement of the property in the inventory must be stricken from the account.

The executors must be held responsible for the rents and revenues of the plantation from the date of the adjudication, to the day of the the sale of the same, in due course of administration.

We do not consider that, under the anomalous pleadings, the evidence on the trial and the contingencies which may have since occured or may arise, we can, in justice to the parties, now state with precision, the extent of that liability for rent and revenues. Wo merely declare it.

Neither can we pass upon the other different grounds of the opposition and of the petition.

We deem that, in order to subserve better the ends of justice, it is much preferable to reject in toto the account presented, without prejudice to the right of the executors, on the one hand, and of the opponent on the other, the former to render another account final in character, in which they will restate the assets, including the rents and revenues and the liabilities of the succession, embracing whatever just claims they and others may have against the estate; and the latter (opponent) the right of opposing the account to be thus rendered, either to increase the stated assets or decrease the items of indebtedness or liabilities, or both, or otherwise—and to non suit the plaintiff in the direct action, except as regards the prayer for the nullity.of the adjudication to Adams.

On the whole, we reach the conclusions that the opposition to the acr count should be sustained, so as to reject the same, and that the praye of the petition should be allowed, so that the adjudication attacked be annulled and the property recovered, and in other respects the.plaintiff be non suited.

We will proceed to decree in consonance.

It is therefore ordered and decreed, that the judgment appealed from be reversed aud annulled," and be replaced by the following judgment.

•It is ordered aud decreed, that the opposition to the account be sustained, so as to reject the said account, subject to the reserve of rights hereinabove made in favor of the executors and of the opponent.

It is further ordered and decreed, that the adjudication of the tl Joan” plantation, described in the proceedings, to Thos. B. Adams, on the 15th of April, 1882, for thirty-four hundred and fifty dollars, ($3450) by the sheriff, be declared to be an absolute nullity, and not to have transferred any title of ownership to said Adams ; that said plantation be declared not to have ceased to belong to the succession •of Josiah Stanbrough, and that the same remain to bo therein disposed of according .to law; that, after the sale of said property, the executors do render a final account in accordance with the views hereinabove expressed, under the reserve in their favor and in that ot the opponent; that the plaintiff in the direct suit be non suited as to claims other than that for the nullity of the adjudication aforesaid.

It is finally ordered and decreed, that said S. B. and J. T. McLellan pay the costs of the account and opposition in both courts, and that they, the said executors, with the said Adams, pay the costs in the direct suit, below and on appeal.

Rehearing refused.


text:
    No. 9291.
    The Butchers’ Union and Slaughterhouse Company vs. Stoddard Howell.
    It is an essential condition precedent for the recovery of damages on a bond furnished for an injunction, that the injunction be decided to have been wrongfully obtained. ,
    A judgment which recognizes that an injunction was properly sued out and which dissolves it, owing to the happening of events subsequently occurring, isnot one deciding that the injunction was wrongfully obtained and cannot serve as a foundation for a claim in damages.
    PPEAL from the Civil District Court for the Parish of Orleans, Jjasa/rm, J. ---

      JB. R. Forman and F. AT. McCaleb for Plaintiff and Appellee.

      Thos. J. Semines aud Robert Mott for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action for the recovery of damages claimed to have been sustained in consequence of the wrongful obtaining- of an injunction.

The substantial averment, on which the claim is based, is: That S. Howell, maliciously and illegally obtained an injunction against the Butchers’ Union and Slaughterhouse Company, giving B. Saloy, as surety on the bond required bylaw; that such injunction was subsequently judicially dissolved as having been wrongfully obtained; that the said company has sustained in various ways, damages exceeding •twenty thousand dollars, which it is entitled to recover in full from the ■principal, Howell, and to the extent of five thousand dollars in solido from the surety, Saloy, such being the amount of the bond furnished for the injunction.

After exceptions and answer, the case was tried by a jury, who returned a verdict against Howell for $13,810, and against Saloy for $5000, with interest against each. From the judgment in accordance ■therewith, the defendants appeal.

The decision of this controversy depends upon the solution of the questions: Whether the injunction was dissolved as having been wrongfully obtained, and, if so, whether it was palpably misused and has caused damage to the plaintiff.

The statement of the case in which the injunction was obtained and ■dissolved, is to be found in 36 Ann. p. 63.

The object of that injunction was to prevent the establishment and maintenance of a slaughterhouse in the Third District of the city and the cutting of the levee, as an incident to the business, for the purpose of discharging into the liver the impure- liquids and substances ■or refuse of the slaughterhouse.

The application for the injunction was grounded on the averment that there was no law of the State, or ordinance of the city, concurred in by the Board of Health, which authorized the enterprise in the lo•cality, which authority was an indispensable condition precedent; that the defendants were about to erect and carry on a slaughterhouse there, without such authority, and that the construction and maintenance of such a house would be a nuisance which should be prevented. 33 Ann. 940; 36 Ann. 63.

The suit was brought and the injunction allowed and issued on the 13th of November, 1880. Although a rule had been shortly after taken to dissolve the injunction, it was not until December 23, 1881, that the writ was pressed to be dissolved, on the ground that concurrent legislation by the city and the Board of Health on November 25, previous (1881), had removed all impediments to the construction and mainten.ance of the slaughterhouse.

The district court dissolved the injunction except as to the euttingof the levee, which was not to take place until municipal authority had been procured.

On appeal, this Court found that the city authorities had not acted, on the matter when this injunction was obtained; but, since then and before the trial, they enacted ordinances that had beeu approved by the Board of Health, under which the location of a slaughterhouse at-this point is permitted and declared that the defendant (the present plaintiff) was without authority to place the slaughterhouse at this-spot, until the city authorities had exercised the power delegated tothemin'the matter.” 36 Ann. p. 63.

The conrt, considering that the authority given by the city and the-Board of Health after the injunction had issued met legal exigencies,, thought it should dissolve the writ. It did so, condemning the company, however, to pay all costs incurred before the passage of the city ordinances; and the plaintiff, Howell, to pay those incurred subsequently.

The condition of the bond furnished to obtain the injunction is-averred to be, and in reality is, that the principal and surety therein shall pay to the company all such damages as it may recover against them, in case it should be decided that the injunction was wrongfully obtained.

Now the record does not show that any judgment was ever rendered,, deciding that the injunction had been wrongfully obtained.' It shows-that the injunction was simply dissolved. .

The mere dissolution of an injunction does not necessarily imply that the injunction was wrongfully obtained.

In this very case in which it issued, this Court held that it was properly sought and granted; because at the time it was asked and allowed, the Slaughterhouse Company had no authority to locate its establishments in the described portion of the city.

If Howell then had a right to ask and obtain the injunction, the-exercise of that right could inflict no damage.

It is essential to a recovery on the bond that the injunction be-decided to have been wrongfully obtained; in other words: That the plaintiff who procured the writ be judicially declaied not to have been-originally entitled to it. 76 N. Y. 600; 15 Hen. 305 ; 61 I-Iow. N. J.. Pj actice R. 40.

It has also been Held that, if when the bill was filed, there was good-cause for the injunction, subsequent events justifying its dissolution, will not subject the party who obtained it or his surety to a claim in damages. 40 N. J. L. 340.

In a case in this State, in which an injunction had been taken against executory process for the price of sale, on the ground of the fear of' eviction, it appearing that the suit to evict having been decided in favor of the title before the injunction was tried, this court held on good reasoning and authority that the subsequent proper dissolution of the injunction in favor of the title could not and did not render the parties liable in damages. It emphatically said that the decision did not determine, expressly or by implication, that the injunction had been “ wrongfully obtained ” which by the terms of the bond and of the lawr formed the condition of liability. 35 Ann. 375; Carrol vs. Read heimer.

It is laid down, therefore, as a uniform rule on this subject, that whenever an injunction was rightfully obtained upon sufficient grounds, but is afterwards dissolved upon the removal of those grounds, complainant should not be required to pay damages upon the dissolution, having had good cause for the injunction in the first instance. Y. High on Injunctions § 980, p. 565, Ed. 1874, and authorities in note; lb. § 1650' Ed. 1880 chap, xxxii p. 1081. See also Davis vs. Millaudon, 14 Ann. 808; 15 Ann. 81; 19 Ann. 78; 10 Ben. Monroe (Ky.) 372 ; 71 N. Y. 109;. 55 Miss, 567.

The condition of the bond not having happened, that is, the injunction never having been decided to have been wrongfully obtained, it-is clear that, neither the surety nor the principal can be held responsible on it.

It is true that after the municipal authority had been granted, with the concnrrence of the Board of Health, which authority did not exist when the injunction was asked, there was no valid reason for its-continuance and that Howell perhaps ought himself to have dissolved it, recovering his costs; but his failure to have done so, does not make him, or the surety, liable in damages on the bond from and after the granting of the authority. Doing so would be injecting a condition into the law and the bond, which never was designed to form part of it and which was not incorporated into it, viz: The payment of' damages, in the double alternative event: .1. That the injunction was decided to have been wrongfully obtained-, 2. That, if properly obtained, it was wrongfully maintained, in consequence of a fact arisen since the granting of the injunction and the signing of the bond.

The obligations growing out of the bond cannot be enlarged, or-made more onerous. The parties are entitled to stand strictly on tlieterms of the contract, beyond which their liability cannot be extended-

‘If Howell be notliable on the bond, how can he be held, unless it be that he acted with malice, without probable cause; that he has palpably misused the harsh remedy to which he has resorted, and which Was decided to have been wrongfully obtained. Responsibility could be saddled upon him only in the same manner that it might be fastened upon one misusing the remedy of provisional seizure and even of injunction in certain exceptional instances, which issue wthout bond. C. P. 284 et seg. 295; 739 et scq. In the case of misuse of provisional .seizure, the condition precedent for the recovery of damages is likewise that it be decided to have been wrongfully obtained. C. P. 295.

The words of the law as to Howell, C. P. 295, like those of the law •and bond as to Saloy, C. P. 304, express the only condition on which a liabilty can be affixed for wrong done. The plaintiff in the provisional ■seizure “shall be personally responsible for all damages suffered by the defendant, should the seizure have been wrongfully obtained.” The words of the law relative to injunctions are exactly the same.

In that class of cases, the jurisprudence is settled that where the writ issues without malice and with probable cause, no damages are allowable. 6 Ann. 402 ; 8 Ann. 481; 16 Ann. 1; 6 Ann. 178, 775. This ■doctrine has been applied even where a bond has been furnished. 14 Ann. 808.

It is, no doubt, the duty of the court to mulct in damages those who wantonly abuse the equitable remedy of injunction. 11 L. 486; 2 Ann. 360 ; 5 Ann. 155; 23 Ann. 436; but, in ordef to recover, it is not only indispensable to aver, but also tuprove both malice and want of probable cause. A palpably wrongful abuse of the remedy as well as the damages claimed, must besides be well established. H. D. p. 823 ; L. D. 381. vo. Malicious Prosecution ; also 71 N. Y. 109; 10 B. Mons. 17 ; -55 Miss! 567 ; 30 Ann. 1228 ; Manning’s Unrep Cases 38.

The rule has been announced even to be, that one may proceed to ■enforce a legal right in a civil action and that though he did it maliciously, he is not liable therefor, if there be probable cause or ground for it. V. Palmer vs. Foley, 71 N. Y. 109, and authorities there cited.

Far from disclosing malice and waut of probable cause and palpable wrongful use, the record unequivocally shows and this Court has de■clared in the injunction suit itself, that, when the ■writ issued, the •company was without authority to place the slaughterhouse at the -spot in question, and that as the previous authority was essential and had not then been procured, the plaintiff had a right to complain, and that the writ properly issued. This was so much the sense of the ■court, that it prorated the costs, sentencing the company (o those anterior to the passage of the ordinances and the-plaintiff to those afterwards incurred. 36 Ann. 63; 33 Ann. 940.

This view of the case renders unnecessary an investigation into the question of the quantum, of damages alleged to have heen sustained-If wrong was done, if injury was suffered, it must be viewed as dam-nun absque injuria for which we are impotent to award relief.

It is therefore ordered and decreed, that the verdict of the jury be quashed and set aside, that the judgment thereon and appealed from be avoided, reversed and annulled; and, it is now ordered and adjudged, that the demand of plaintiif be rejected, with judgment in favor of defendants, with costs in both courts.

Rehearing refused.


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    No. 9355.
    The State of Louisiana ex rel. The New Orleans Gas Light Company vs. The Judge of the Second City Court of New Orleans.
    Xu the exercise of its plenarjr powers of control and general supervision over inferior courts* under Article 90 of the Constitution, this Court can issue the conservatory writs therein mentioned, as well in appealable as in unappealable cases, in which other courts would be impotent to afford relief.
    An order dissolving an injunction on bond, should not he rescinded ex parte. Llie pro ceeding to revoke it should be carried on contradictorily. A decree proprio motu, setting it aside, without hearing, is irregular and void.

      ^ IMPLICATION for Certiorari and Prohibition,

      T. J. Semines & Payne for the Relator.

      A. A. Ker and J. Duvigneaud for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a certiorari.

The complaint is that the city judge, after dissolving- an injunction on bond, has, proprio motu, and without hearing the defendant in the case, rescinded the decree; that in thus acting ex parte, he has disregarded the form prescribed by law and the practice in such oases;, that his action is illegal and that the rescinding order is a nullity.

' Prayer is accordingly made that the rescinding order he annulled.

Tiie city judge makes return, excepting to the jurisdiction of this-Court over this matter which grows out of a case which he says is appealable from his court to the Civil District Court.

He does not deny any of the facts alleged and does not claim that, under the showing made, the relator, if this Court has jurisdiction, is not entitled to the relief sought.

The city judge does not insist upon the validity of the proceeding -complained of. So that the only question submitted strictly is, whether this Court has or not jurisdiction over the case now pre••sented.

When we originally had occasion to consider the meaning, purport ■ and extent of the plenary powers of “ control and general supervision” vested for the first time in this Court by the Constitution, Article 90, 'we concluded that the object of this provision was to fill a gap which had been long felt and deprecated in the administration of justice, in .a number of cases, in which the appellate court had often acicnowledged its impotence, its want of right to issue the writs, its authority being restricted to cases in which the same were necessary and invoked in aid of their appellate jurisdiction, we declared that Article ■90 had emancipated this Court from all previous restraints.

We formally announced that, although the Court of Practice confined the power to issue the writs against inferior judges, to courts .having immediate jurisdiction over such judges, we were not bound by the restriction, removed, as it was, by the constitutional provision, 'to say nothing of an article of the C.P., on the subject of certiorari, which declares that the mandate is only granted where there lies no appeal. Art. 857.

We therefore held that we would exercise that supervisory juris•■diction, through the remedial writs under Article 90, whether the cases before the inferior courts -were or not appealable. We said substantially:

The use of this power must be regulated by the discretion of the court, which should be most carefully administered and exercised only in cases where there is a flagrant usurpation of authority, or where •serious injury may accrue to the parties to whom no other remedies are afforded, or where the intermediate courts are without power to grant relief. 32 Ann. 552, 555. We have since uniformly been accordingly governed. State ex rel. Murray vs. Judge, 30 Ann. 580-1.

It therefore becomes needless to determine of the character of the ■case before the city court, in point of importance, which the relator represents as being unappealable, while the city judge declares it to be appealable.

It is worthy of note that the original and amended Articles 95, 104 •and 128 of the Constitution, confer on courts of appeal the right to issue like writs, only in aid of their appellate jurisdiction. It is likewise to he observed that the recently adopted amendment of Articles 130 and 135 relative to the districts and city courts in the parish of Orleans is silent on the subject. It does not expressly confer those powers on the district court, which has since been clothed with an appellate jurisdiction over city courts., in matters exceeding twenty-five ■dollars. 1

It is clear that neither the courts of appeal, nor the district court, which are necessarily vested with all incidental powers required for the exercise of their jurisdiction, although the same be not expressly reserved or delegated, C. P. 130, 877, could not issue the writs, when not invoked in aid of théir appellate jurisdiction. The case now before us is not one in which, in its present stage, the district court ■could thus interfere. The interference would not be justified, as needed in aid of, that is to enforce their appellate jurisdiction.

We doubt very much, to say the least, whether, on appeal, the appellate court could question and passupon the correctness of the rulings of ■this Court on an issue presented and determined by it in the exercise of the powers conferred on it by Article 90. The final decrees of this Court could not be permitted to be thus thwarted by an inferior court. Manning’s Unrep. Cases, p. 388. Were it otherwise, the decrees and judgments of this Court, might eventually be upturned by an inferior court, an event which jrablic order demands, should not and therefore must not happen.

Although the city judge has not returned, maintaining the validity, of the decree'eomplained of, and might be considered as admitting its irregularity and nullity, we think we are authorized to say, that it appears to have been made in disregard of the well settled rule that, as decrees and judgments are the property of those in whose favor the same have been rendered, proceedings to annul them and divest such ownership are necessary and that they should be carried on contradictorily; that therefore, such decrees and judgments'should not be revoked and set aside proprio motu, or ex parte by the court in which they were made, where the contradictory proceeding is not an absolute impossibility. State ex rel. Moore vs. Judge 22d Judicial District, 37 Ann. p. —.

For those reasons the relator is entitled to the relief sought.

Tt is, therefore, ordered and adjudged that the order made by the city judge, rescinding- that which dissolved the injunction issued in .the case, described in the petition herein, be annulled, avoided and set Aside and that said city judge be perpetually enjoined from giving any ■effect which would otherwise result therefrom.


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    No. 9275.
    James P. Gallaher and Wife v. The Crescent City Rail Road Company.
    A car driver can be charged justly with negligence, only where he fails to observe or do something he ought to see or do, and would notice or do with ordinary vigilance; where he fails to be prepared for something visible, or at least of probable occurrence, or that might be reasonably expected of iiim.
    If the accident happen from a sudden and unanticipated act, which is the result of the thoughtless impulse of a child, of which human foresight could not be prescient, no liability attaches to the drivor ox to Ms employer.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      B. It. Forman for Plaintiffs and Appellees.

      John ill. Bonner for Defendant and Appellant:
    1.The only right of action these plaintiffs have is based on the injuries sustained by the child, and which it could have sued for, if it had not been killed. They have no right of action on their own account for the death of the child. 6 Ann. 495 ; 11 Ann, 5; 17 Ann. 244; 27 Ann. 716; 32 Ann. 617; 33 Ann. 643; 34 Aun. 914; 35 Ann. 708; 95 XT. S. 756.
    2.Where death of the child is instantaneous, there is no conscious suffering and no right of action to survive. R. C- C. 2315; 9 Cush 108; 125 Mass. 90,93; 6 Caldw,. Tenn. 45.
    3.The negligence of the defendant must he affirmatively approved. It cannot be presumed without proof. 44 Pa. St. 377; 35 Ann. 498.
    Where a little child runs against the car and is run over by the hind wheel, after the mule and the front part of the car has passed, it is not negligence in the driver if he did not see it when he had no reason to expect it would he there. 36 Mo. 489; 42 E. T. 459; 47 111. 66, 267; 47 Pa. St. 300; 88 Pa. St. 520; 92 Pa. St. 431; 23 Ann. 729;' 34 Ann. 160;-56 Ind. 396.
    4.Children can be guilty of imputable contributory negligence wMch will bar a recovery on their part. English Cases, 9 Exch. 302; El. Bl. and El. 719; 7C.B, E. S. 287; 2 H. and C. 744; L. R. 1 Exch. 239; American Cases, 21 Wend. 615; 29 Barb. 234 ; 36 Barb. 230 ; 49 Barb. 529 ; 1E.D. Smith, 74, 60 E. Z. 333; 33 How. Pr. 193 ; 4 Allen 283 ; 9 Allen 401; 8 Gray 123; 27lnd. 513; 28 Ind. 287; 58 Me. 384; 52 Cal. 602; 38 Wis. 613; 29 Minn. 336; Sher. and Red. on Eeg. § 49 ; Cooley on Torts p. 682, note.
    5.Those States that give aright of action to the child, deny an action when the parent sues. Pierce on Railroads p. 338, note 1; 10 Cent L. J. 272: 48 Pa. St. 918; 57 Pai St. 172; 24 Ohio 690; Thompson on Eeg- p. 1191 § 37.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action in damages for the killing of a child of plaintiffs, about three years old, by one of the cars of the defendant company.

The damages are assesed at $ 20,000; half for the suffering endured, by the child, and half for the loss of its services.

Charges of negligence usual in such, cases are made against the • driver, for whose acts the company is sought to be held liable.

The defense admits the killing, but denies responsibility, as the ■driver was guilty of no dereliction of duty. It charges contributory negligence against the plaintiffs, with which the child is taxable, and .avers that death was instantaneous.

From a verdict and judgment thereon for $900 with interest, against it, the company has appealed, the plaintiffs praying for.an amendment •and increase of the judgment.

The evidence establishes to our satisfaction the following facts:

The plaintiffs reside on Tchoupitoulas street, which is a street of ordinary width, almost on a level, and on which are laid two tracks, with a proper distance between them. One of the tracks is used by the •cars of the defendant company .going up, and the other by those going • down. The former is on the lake, and the latter on the river, side of the city.

In the afternoon of the 18th of April, 1888', Mrs. Gallaher left the child in charge of no one, in her room, the doors of which had not been locked or shut so as to prevent the child from going out. The house lies on the river side and fronts on the street.

Mrs. Gallaher went across the street for some purpose or other.

The child missed her mother and left the room to go on the sidewalk, when she saw her mother on the other side of the street.

It betook her to go to her mother, and in her eagerness to meet her, she at once moved in the direction in which she had seen her.

At that moment, car No. 24 of the defendant company was coming dowm the street on the river side track.

The driver was at his post and apparently attentive to his duty.

The child moved at straight angle with the track, from the gutter to the car, which was then rolling along at an ordinary gait.

The child did not move so as to be on the track itself, but was between the gutter and the side rail nearer the river.

The car passed, a jolt was heard, the car continued to roll on and stopped some ten feet further than the spot, where the jolt had been heard. The child had been run over! Its head was on the outside river rail and the whole of its body, with the face down, was stretched outside -of the track, on the river side, almost perpendicular thereto on the ;space between the gutter and the rail. The head had been run over .and crushed from the ear to the mouth, and almost severed from the •body. The hind wheel on the right of the car had blood on it.

It is not shown, as claimed, that there was an iron bar connecting-the two wheels on the outside.

The testimony is conflicting as far as it tends to show that the child was or not on the track in front of the mule and car so as to be seen by the driver; but it is manifest that it could not have been there,owing to the position in which the body was found after the accident. Had it been on the track it would have been run over and crushed by mule and car, and its body would have been found, for the most part, between the rails of the track.

The probability is, that the child had already started from the gutter towards the middle of the street to cross it, when the car, which it had not seen, was passing; that- when it saw the car it was frightened, stared, and halted on the narrow space between the gutter and the track, nearer the rail, so that the room between it and the track was a few feet only; that the driver either did not notice the child, or saw it standing motionless, apparently waiting for the car to pass, before moving further towards the other side of the street; that the child, by a quite natural misconception or miscalculation, unexpectedly, thoughtlessly, suddenly moved forward from whore it was standing, supposing it could do so securely, but unfortunately the child tottered and tripped on the side of the rolling car, falling between the two wheels, was run over by the hack wheel and died on the spot.

It is glaring that, had there been an iron rod between the front and rear wheels, running lengthwise of the car and low down, it would have been almost impossible for the child to have fallen between the side wheels.

The theory is inadmissible that the child was run over by tbe two wheels. It is urged to show that the child, previous to falling, was in front of the car, and therefore could and should have been seen by the driver, who, for not seeing, or seeing, not stopping in time, is guilty of negligence. The theory is destroyed by the fact that it is proved that there was discovered no blood on the front wheel, but that some was found on the back one only.

Had tho child’s body been run over by the front wheel, as it surely was by tho rear one, the front wheel—owing to the softness of the frame of a child of such tender years, which would have instantly burst and bled on crushing—would likewise have been more or less spattered with blood, or shown some other traces of a collision with the mangled body.

Under such a state of things, the driver cannot he legally charged with negligence, so as to hold the company answerable for the injury sustained.

In the case of Hearn, 34 Ann. 163, this Court held that a driver can be justly charged with negligence only when he fails to observe something he ought to see and would see with ordinary vigilance, when he fails to be prepared for something visible, or at least of probable occurrence, or that might reasonably be expected to happen.

This was said after a full review of the law and precedents applicable to that suit, which is germane to the present one, it being one in which damages were claimed for the Wiling of a younger child. After a reconsideration of the authorities bearing on the subject, we see no reason to alter the rule thus announced or to deviate in its application. V. also Montfort vs. Schmidt, 36 Ann. 750.

We find, in kindred cases, the company has been relieved from liability, the courts holding, if the driver had seen the child on the street approaching the car, and in such proximity that the child might reach the track before the car passed, it was not negligence not to stop the ear. 92 Pa. St. 431.

Also that, where the accident happens from the sudden and unanticipated act of tire child itself, which could neither be foreseen nor guarded against, and it is a fact that the thoughtless impulse of the child may bring about such accident, the company is not liable. 88 Pa. 520.

Also that, where there is nothing to show that the driver knew the child was approaching the car, or had any reason to apprehend the child was there, no recovery can be had. 36 Mo. 492.

Also that the driver is not guilty of negligence for omitting to keep a constant watch on each side of the car to the rear of the front platform, to see that no one is injured by coming laterally in collision with the side of the car. 42 N. Y. 459.

The view thus taken by us of the facts and of the law governing the-determination of this case, renders it unnecessary to pass upon the questions of contributory negligence and of instantaneous death, set up by the company, in further defense.

The defendants’ counsel explains the verdict of the jury by saying that they were misguided by an erroneous charge of the district judge. This is not an impossibility.

It is therefore ordered and decreed that the verdict of the jury be quashed and set aside, and the judgment on it be annulled and reversed; and it is now ordered and adjudged that the demand of plaintiff be rejected, with judgment in favor of the defendant company, with costs in both courts. :

Rehearing refused.


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    No. 9332.
    The State of Louisiana vs. Alexander Maas.
    Any fraudulent making or alteration of any writing mentioned in our statute, or writing in-eluded, in tlie terms therein used, constitutes the crime of forgery.
    It is not necessary to set out in the indictment the particular acts that constitute the crime, but is sufficient to charge that the defendant did feloniously forge a certain cheque.
    The charge that the defendant forged a cheque or hill of exchange is not vicious for duplicity. A cheque may be described in an indictment for forgery as a cheque or hill of exchange.
    The object of our statute in permitting the forged instrument to be described by its ordinary designation was to exclude the need of designating it hy its exact legal name.
    APPEAL form tlie Sixth District Court, Parish of Morehouse. Brigham, J.

      M. J. Ommimghmx, Attornejr General, for the State, Appellee.

      David Todd for Defendant aud Appellant.
   The opinion of the Court was delivered hy

Manning, J.

Prom a conviction of forgery and sentence to hard labour the defendant appeals and assigns as error that the court overruled Ms motion in arrest of judgment, made on the grounds that the indictment failed to set out the facts or acts which constituted the crime of forgery, and that the forgery charged was of a cheque or bill of exchange which he alleges is duplicity in pleading.

Our statutes have wisely liberalised criminal pleadings in the interests of public justice without abridging the protection of innocent persons accused of crime. The technical rules governing the structure of indictments had been extended by judicial construction until the system became a contrivance to facilitate the escape of criminals rather than a means of ensuring their punishment, and England led the way for the abolition of most of the useless and cumbrous requirements of the common law and simplified criminal pleading so intelligently that her statutes have been copied by most of our States.

Thus in indictments for forgery it was formerly necessary to set out the forged instrument or a fac simile thereof, and to give its appropriate designation, and it was sacramental that the particular person whom the accused intended to defraud should be mentioned. These former essentials are now dispensed with and it is now sufficient to describe the forged instrument by any name or designation by which it may be usually known, and neither a copy nor fac simile nor any description otherwise of it or of its value is now necessary. Rev. Stats, .see. 1049. Neither need the name of any person intended to be defrauded be mentioned, nor need it be proved that the intention was to defraud any particular person, but merely that the forgery was committed with intent to defraud. Ibid sec. 1052. The punishment of this crime is provided for in our statute by the words whoever shall forge or counterfeit or falsely make or alter * * * a bill of exchange, promissory note, order for the payment of money,” etc., leaving us to ascertain what forgery is from the common law definitions as was enacted in the Act of 1805. State vs. Smith, 30 Ann. 847. Blackstone defines it as the fraudulent making or alteration of a writing to the prejudice of another man’s right. Any fraudulent making or alteration of any of the writings set out in our statute, Rev. Stat. sec. 833, feloniously done with intent to defraud constitutes the crime of forgery, and it is no more necessary to set out the facts or acts that constitute the crime than it is to set out the definition of forgery instead of using the word forge. The statute says “whoever shall forge” and we know what acts constitute forgery from the common-law definition of it. The indictment is sufficiently explicit therefore when it charges that the accused “ did feloniously and falsely forge a certain cheque or bill of exchange for the sum of one hundred dollars with the felonious intent thereby to defraud.”

The contention of the defendant goes even further than this and is that the indictment must charge in what respect or particular the writing has been forged, i. e. whether the name was forged, or a figure altered or inserted, or any other act done that constitutes forgery, and this for the purpose of putting the accused on his guard. This would be a very convenient rule for him, for if the forgery charged should be one of these acts and the forgery proved should be another an acquittal would follow. The statute only requires that forging the writing be charged generally and any act of forgery proved will sustain it.”

It is true the common law required the facts or acts of an accused party to be set out in an indictment so that it might be seen whether' they amounted to or constituted the crime of forgery, and those of our American States that retain the common law unaltered yet require such acts to be set out. But this requirement and many others were dispensed with by a statute of Victoria and the sections of our statutes above quoted are copies of some of the clauses of that Act. The indictment of the defendant is copied from one of the forms given by Archbold.

It would be strange indeed if our law still required the ancient form of indictment for forgery and the recital of the specific acts that constitute it, when it has not only dispensed with, setting out the forged instrument or a fao simile, but has also dispensed with any description of it otherwise and even the value need not be stated, nor the person who was intended to be defrauded.

Tlie second error assigned is in the use of the words “cheque or bill of exchange” and the argument is that they are not one and the same but in law two different instruments.

The object of our statute in permitting the forged instrument to be described by its ordinafy designation was to exclude the need of designating it by its exact legal name. In point of fact the word “cheque” does not occur in our statute. Rev. Stats, sec. 833, but the words “order for the payment of money” include it, and therefore the statute is to be read as if “cheque” by name was inserted. Now it has been held that a bank cheque may be described in an indictment for forgery as an order for the payment of money or as a bill of exchange. State v. Morton, 27 Vermont, 310, or it may be described as a warrant and order for it is both. 3 Waterman’s Archb. Cr. Pr. & PI. 558-9. So a description of the forged instrument as a warrant or order is not ■charging the offence disjunctively and affords no ground to arrest the judgment. State v. Holley, 1 Brevard 35, and the words warrant and order in an indictment for forgery are synonymous with warrant or order. State v. Jones, 1 McMullan, 236.

This ground of error is therefore not maintainable.

Judgment affirmed.