text:
    No. 2548.
    William S. Pike v. Merchnts’ Mutual Insurance Company.
    Hawes & Bowen, of the city of Hew Orleans, transferred to W. S. Pike, as assignee of their creditors, the steamer “ Wm. Tabor,” of which they were sole owners. Pike effected an insurance on said steamer in the office of the defendant. A short time after, the master and mariners of the vessel committed barratry by causing her to be fraudulently stranded on the rocks near Key West. The vessel and cargo were brought to Key West, where a large portion of the cotton on board was condemned for salvage. The vessel then proceeded to Hew York, where, on her arrival, she was immediately libelled by the owners, ot the cotton for its non-delivery in consequence of the barratry of the master and marin ers. She was sold to satisfy the decree for damages, and the proceeds were insufficient to cover them.
    The instrument referred to purports to be a transfer or sale of the vessel, but the constituent elements of a contract, and not what the parties call it, must be considered in order to determine its character.
    An examination of that instrument shows that it was neither a sale, nor a contract of giving in payment, but an innominate contract imposing certain limitations upon the ownership of Hawes & Bowen, and conferring certain rights as to the vessel upon the assignee in behalf of their creditors. It has the features of the contract of pledge and of the contract of mandate. It was not a sale which divested Hawes & Bowen of their ownership. Therefore, as the creditors werenot the owners of thevessel, as they undoubtedly had an insurable interest in her, and as the policy was knowingly issued for their benefit, it follows that they can recover from the defendant through the plaintiff who is their representative, the loss resulting from the barratry of the master.
    The plea of the defense that the loss occurred by stranding, and that stranding is not covered by the policy unless produced by stress of weather, or some other unavoidable cause, can not be maintained. It was the barratrous conduct of the master which causod the stranding and the loss; barratry being insured against, and the vessel being a total loss-to the creditors, the plaintiff is entitled to recover.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      Hays & New, and J. A. Nosier, for plaintiff and appellant. T. Parsons, John Lathrop and Albert Voorhies, for defendant and appellee.
   Wyly, J.

In March 1867, Hawes & Bowen in this city transferred to W. S. Pike, as assignee of their creditors, the steamer “Wm. Tabor,” of which they were sole owners.

Pike sent the steamer to Galveston for the purpose of taking a cargo to New York.

On the sixteenth of March, he effected an insurance on said steamer at and from Galveston to New York, in the office of the defendant, for $20,000, paying the premium $301 50.

On the seventh of April, the “ Tabor ” departed from Galveston for New York with a full cargo of cotton.

In a short time thereafter, the master and other employes, colluding with certain wreckers, committed barratry in fraudulently causing said vessel to be stranded on the rocks, near Key West, that they might have the benefit of the salvage of the cargo on board.

The salvers subsequently brought the vessel and damaged cargo to Key West, where they were libeled, and by judgment of the court of Admiralty a large portion of the cotton was condemned for salvage, though certain of the salvers were excepted from the benefit of the decree by reason of their collusion with the captain. The Tabor ” then proceeded to New York where, within twenty-four hours after her arrival, she was libeled by the owners of the cotton for the non-delivery of the cargo as stipulated in the bills of lading, by reason of the barratry of the master and mariners. On the thirtieth of April, 1868, the vessel was condemned,, and subsequently it was sold to satisfy the decree for damages occasioned by the barratry aforesaid, and the proceeds were insufficient to discharge the amount of damages awarded to said libelants.

The plaintiff then brought this suit against the defendant to recover the amount of the insurance, alleging that the barratry of the master was one of the perils insured against — that the loss of the vessel, in this instance, by the sale of the United States Marshal, was the result of said barratrous conduct, and that the petitioner, in his representative capacity, is entitled to recover from the defendant the full amount of the insurance.

A copy of the transfer or act of agreement between Hawes & Bowen and their creditors in reference to the steamer “Wm. Tabor, ” is made part of the petition. The defendant denied generally the allegations of the plaintiff, “ with the exception of the facts:

Mrst — “ That the plaintiff was, at the time of the execution of the policy, the legal owner of said ship Tabor.

Second— “ The alleged barratry of the master of said vessel.

“ The defendant further denied specially, that the alleged loss, if any occurred, did occur from any stress of weather, collision or unavoidable causes. ”

The court rejected the demand of the plaintiff, on the theory: that if Pike is the representative of Hawes & Bowen, the owners of the “ Tabor,” he can not recover, because, in insuring, he was their agent and by the terms of the policy, as to the owners, the barratry of the master was not insured against — that if the converse doctrine be true, that is to say, if the assignment conveyed title to the creditors, in effecting insurance for whom it may concern, W. S. Pike was acting for the creditors, the owners, and therefore under the policy, he can not recover.

In the contract of insurance we find the following clause : “ Touching the adventures and perils which the insurers are content to bear and take upon themselves in this voyage, they are the seas, jettisms, fire, enemies, men-of-war, pirates overpowering, but no other thieves, restraints and detainments of all kings, princes or peoples of what nation or quality soever, barratry ( except embezzlement or theft) of the master, unless the insured be an owner of the vessel. ” * * *

The first question then is, in whose behalf was the insurance effected? Did Pike, in insuring “on account of whom it may concern” represent the owners of the vessel, or the creditors of the owners ?

This is the main point involved in the controversy. Assuming the correctness of the alternate proposition of the learned judge a quo, his conclusion is undoubtedly correct. But considering the stipulations of the transfer, or article of agreement, made pare of the petition, can we say that the ownership of the vessel passed to the creditors of Hawes & Bowen? If it did not, and the insurance was made in their behalf, they can certainly hold the insurers liable, under the contract, for the loss resulting from the barratry of the master. It is important, therefore, to determine the character of the contract between Hawes & Bowen and their creditors in regard to the steamer “ Wm. Tabor.”

The instrument purports to be a transier or sale of the vessel; but, the constituent elements of a contract, and not what the parties chose to call it, must be considered in order to determine its character.

The act was passed before a notary. It declares in substance that, being desirous of making such a disposition of their property as would be best for the interest of all their creditors and to avoid expenses and delays of litigation, Hawes & Bowen do sell and transfer unto Wm. S. Pike, all their right, title and interest in and to the Tabor ” and two other vessels. “It is hereby understood and agreed by all parties hereto that Pike, the said assignee, is to have power to sell and convey the interest of said Hawes & Bowen in said steamships, in such manner and on such terms as he may deem proper, exercising his own discretion and acting as he may think best for the creditors.” * * * “It is further understood and agreed that said assignee merely undertakes to act as agent of the creditors and is to be held responsible for no loss to them except that rsulting from bad faith and gross negligence in the discharge of his duties.” He is empowered to make such advances for and on account of said vessels as he may deem best to enhance their value and promote their sales, and secure the payment of the claims of all the creditors, and for such advances he is to be allowed eight per cent per annum interest. He is further authorized to pay certain outstanding privilege claims against said vessels and is to become subrogated thereto.

“ It is further understood and agreed that the creditors hereto signing their names do not release said Hawes & Bowen beyond the amount received from said assignee in payment of their claims.” Wm. S. Pike accepts the agreement with the limitation as to his responsibility, and he agrees to sell the vessels or make such disposition thereof “ as the interest of said creditors may require according to his judgment, and to pay over the proceeds of the same in full if the sums realized be sufficient, or pro rata, if not, to the several creditors. It is hereby understood and agreed that said assignee shall be allowed the commissions fixed by law for the compensation of syndics of insolvents.” The various creditors who sign the contract declare, that they approve of the conditions and transfer to W. S. Pike of the vessels, for the purposes specified, and “ agree to desist from legal proceedings against said Henees & Bowen, and to await the action of said assignee in their interest as aforesaid and hereby approve the stipulation of said assignee respecting his liability in the discharge of his duties.”

This instrument is neither a sale nor a contract of giving in payment, because, it does not contain an aggregatio mentivm as to a fixed price. Revised Code articles, 2439, 2655, 2659. It is not a donation inter vimos, nor is it au exchange of one thing for another. It is a conventional obligation, but not such as is competent to transfer the ownership of the thing. It is an innominate contract, imposing certain limitations upon the ownership of Hawes & Bowen, and conferring certain rights as to the vessel upon the assignee in behalf of their creditors.

It has the features of a contract of pledge, because the thing is delivered to secure the creditors of the owners, with power to sell and apply the proceeds to the payment of their claims. Besides the essentials of a contract of pledge, the instrument contains a stipulation in reference to an assignee, defining his powers and liabilities and fixing his salary. In this respect, it has the features of the contract of mandate.

By the express terms of the agreement the creditors do not release Hawes & Bowen from any part of their liabilities; but they “ agree to desist from legal proceedings against them and to await the action of the assignee,” who undertakes to sell the vessel or make such disposition thereof “ as the interest of said creditors may require according to his judgment, and to pay over the proceeds in full if the sums realized be sufficient, or pro rata if not, to the creditors.” Under the contract the title remained in Hawes & Bowen who, on paying their creditors, could have demanded the restitution of the vessel, at any time before the consummation of the contemplated sale by the assignee. As the creditors were not the owners of the vessel, and as it is proved that the policy was knowingly issued for their benefit, they can recover from the defendant the loss resulting from the barratry of the master.

As pledgees, the creditors undoubtedly had an insurable interest.

The defendant contends however, that the plaintiffs ought not to recover for the loss resulting from the barratrous stranding of the vessel, because, that clause of the policy insuring against the barratry of the master, is modified or limited by a subsequent clause, declaring that the insurer shall not be liable for any expense arising from the stranding or the grounding of the vessel, unless such stranding be caused from “stress of weather, collisions, or other unavoidable causes.” It is true the policy contains the stipulation that: “This company shall not be liable for any loss or damage arising from, occasioned by, or occurring in consequence of, the bursting of any of the boilers, or collapsing of any of the flues, or the breaking of any of the machinery of said steamer, nor shall the said company be liable for any expenses arising from stranding or grounding of said steamer, unless such stranding or grounding be caused from stress of weather, or from collisions, or other unavoidable causes.”

As the instrument should be construed so as to give effect if possible to every part of it, we do not see in the clause just quoted, any limitation on the one insuring against loss from the barratrous conduct of the master.

The stipulation that the company would not take the risk resulting from accidents to the machinery, nor consent to be held liable for losses resulting from Stranding or grounding the vessel, unless the same occurred from “stress of weather, collisions or other unavoidable causes,” does not in our opinion, have any reference to the clause insuring against the barratrous conduct of the master. The barratry of the master, without reference to the manner of committing it, is mentioned as one of the perils insured against, and there is nothing in the clause relied on, that can fairly be construed to except the peril of barratry, where the master ehoses to commit it in a particular way, that is to say, by stranding the vessel.

There is no force in the objection that the plaintiff can not deny that he is the owner of the vessel, because of the averments of the petition and the admission in the statement of the facts. The contract between Hawes & Bowen and the plaintiff is annexed to and made part of the petition, and in the statement of facts it is “ admitted that the title to the ship is as per document annexed to and made part of the petition.”

The defendant, however, contends that the loss was not the proximate, but the remote result of the barratry and, therefore, the plaintiff can not recover.

The rule is that: All the consequences naturally flowing from the peril insured against, or incident thereto, are properly attributable to the peril itself.” 1 Story Eep. 164.

The barratrous conduct of the master caused the stranding of the vessel and the damage to the cargo, and the natural consequences thereof were, the claim for salvage, the libel of the vessel and its sale by the marshal, resulting in a total loss to the assured. The condemnation and forfeiture of the vessel was the legal consequence of the barratrous conduct of the master, because, if there had been no barratry, there would have been no foundation for the action, or for the libel of the vessel.

That the cargo was not insured is of no consequence.

The right of the consignees or the owners to libel the vessel for the damage and non-delivery of the cargo was, in this case, a direct consequence of the barratrous stranding of the vessel. 14 Pet. 99.

The failure to comply with the terms of the bills of lading, occasioned by the barratry, subjected the vessel to seizure and condemnation, and resulted in a total loss to the assured.

It is therefore ordered, that the judgment appealed from be set aside and annulled and it is now ordered, that the plaintiff, as assignee for the creditors of Hawes & Bowen, recover judgment against the defendant for the sum of twenty thousand dollars, with legal interest from judicial demand and costs of both courts.

On Rehearing.

Morgan, J.

There can be no sale without a price. In the deed from Hawes & Bowen no price is stipulated. The debt, nor any part thereof, due from Hawes & Bowen to Pike, or to their other creditors was not discharged by the transfer. In fact, the Tabor was only placed in Pike’s hands that it might be used for the benefit of Pike and his co-creditors. The legal ownership remained in Hawes & Bowen. The creditors joined in this act. This was necessary in order that the vessel should be sent forward on a voyage. They were willing to trust her under Pike’s control. They probably would not have allowed her to leave port subject to the control of Hawes & Bowen. They would not have released the seizure then upon her and leave her under Hawes & Bowen’s control.

Hawes & Bowen were not to be released from their indebtedness except in so far as the vessels transferred might go towards discharging the same. Pike was to sell the vessel or make such disposition of her as the interests of the creditors might require, and to pay over the proceeds to the creditors.

Pike was therefore, the trustee of Hawes & Bowen. He was at the same time the agent of the creditors, and had the right, as it was his duty, to act in their interest.

The Tabor was sent on a voyage from Galveston to New York; Pike effected an insurance on her, for account of whom it may concern. The insurance was effected through Alexander Brother, and was made, as he informed the insurance company, in the interest of the creditors of Hawes & Bowen, and the insurance was accepted for them. It was therefore the creditors of Hawes & Bowen, and not the owners of the labor, who were insured. That the creditors, stating their interest, could insure with the consent of the insurer, can not be questioned. Hawes & Bowen, the owners were not insured. The amount insured does not cover the sums due to the creditors. Barratry of the master was insured against, unless the insured be- an owner of the vessel. Plaintiffs not being the owners of the vessel, if the loss occurred from the barratry of the master, they are covered by the policy.

It is set up by the defense that, as the loss occurred by stranding, and as it is expressly stipulated that the company shall not be liable for any expenses arising from stranding or grounding, unless such stranding or grounding be caused from stress of weather, or from collisions or other unavoidable causes, and as the stranding was not the result of any of these causes, the loss is not covered by the policy.

The vessel was stranded in consequence of a leak; the leak was occasioned by the act of the master.- It was the barratrous conduct of the master which caused the leak. The stranding was an incident to this barratrous conduct. It was therefore the barratrous conduct which caused the loss, and barratry being insured against, the company is liable.

The cargo of the ship was badly injured as the result of the barratrous acts of the captain. A large portion of it had to be sold. When the ship reached New York she was libeled and condemned to be sold to pay the damages, and she was sold. Practically, therefore, as to the creditors, she was a total loss. This loss can be traced directly to the acts of the captain, in a matter covered by the policy, and therefore, entitles the plaintiff to recover.

Good faith lies at the bottom of all contracts. It was the creditors of Hawes & Bowen whom the insurance company contracted to protect, and good faith requires that they should be held to their contract. It is their interest which is now protected.

Por these reasons, in addition to those already given, it is now-ordered that, our former judgment remain undisturbed.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 3450.
    Louisiana State Bank v. Hibernia Bank and Germania National Bank.
    ‘Clayton, Williams & Co. absconded after being permitted to draw from tbe Louisiana State Bank $5000 on the forged checks which they had deposited in said bank for collection. They had a cash balance already to their credit.
    If the advance had been made to Clayton, Williams & Co. after the certification of the checks, or if the plaintiff had parted with its money in consequence thereof, there would be no doubt as to the liability of defendants. But it happens that the plaintiff: paid out its money on the faith of the deposit of the forged checks, at least one hour and a half before the defendants gave the certification, or even had knowledge of the existence of the forged checks. The loss therefore was not the consequence of the certificate.
    The plaintiff, holder of the forged checks, was promptly notified of the forging, as soon as discovered, and within six hours after the certification. Whether or not the plaintiff would have succeeded in capturing Clayton, Williams & Co., the forgers, and would have recovered the money, if the defendants had detected .the forgery as soon as the checks were presented for certification, is not established with sufficient certainty to enable the plaintiff to recover, assuming that to be a good ground for recovering judgment, of which no opinion is expressed.
    Appeal from the Fourth District Court, parish of Orleans. Théard,

    J.

      John McOownell, 0. Boselvus, William B. Bunt, for plaintiff and appellee. J. Ad. Bonier, Gilmore & Sons, O. B. Buddeelce, for defendants and appellants.
   Wyly, J.

This suit was brought to recover of the defendants $4685 40, the amount of loss sustained by the plaintiff on certain forged checks that were certified by the defendants to be good. The main ground of action is that if the defendants had detected the forgery when the checks were presented for certification, or had refused to certify them, the plaintiff would have had the party committing the forgery arrested, and would have captured the $4685 40 which the plaintiff had advanced on said forged checks.

The facts, as stated by the counsel of the plaintiff, are as follows:

. On the third of December, 1870, a person representing himself as a member of the firm of Clayton, Williams & Co., occupying the store No. 49 Delta street, presented himself at the Louisiana State Bank and opened an account by depositing to the credit of his firm the sum of $815 in cash.

On the tenth of December, one week after the account was opened, the firm made two deposits oí checks, the first amounting to $9857 63 and the second to $10,280 71, and during the day presented a check for $5000, which was paid by the teller, P. Helm.

Later in the same day, say at near two o’clock, a second check was presented for $10,000, which was not paid. Helm, the teller, who paid the check for $5000, explains that he did so because the checks deposited were of firms he knew to be of good financial standing, but when the check for $10,000 was presented, that he went to the cashier, Mr. Dupuy, and asked whether he should pay it; and adds: “Generally on Saturday we did not pay checks when the deposit was made in checks. When large amounts were asked we generally asked a certified check, or that they should bring the cash money.”

Mr. Dupuy, the cashier, told Williams to call on Monday, and that in the meantime he would get the checks certified, but that it was not usual to draw such large amounts on .only check deposits.

The cashier, Mr. Dupuy, then gave directions to the teller to get the cheeks out, and have them sent to the banks severally upon which they were drawn to be certified.

At about three o’clock the runner of the bank, H. Rolling, started with the checks, and returned, in about fifteen or twenty minutes and reported that the Hibernia Bank had certified the checks drawn on them ; that the Merchants’ Bank said the check on them was good and they would pay it next Monday morning, and that the teller of the Canal Bank said he was too busy then, but to come back in five minutes and they would certify or pay the check on them.

Being thus assured that these checks were “good,” the plaintiffs were prepared, and the teller informs us would certainly have paid Clayton, Williams & Co. to the full amount of their deposit, if they had returned and demanded it.

Clayton, Williams & Co., however, did not return. They made their escape-with the money already obtained by them on forged checks from plaintiff and other banks amounting to $30,000.

Within si;x hours after the certification of the checks the defendants discovered the forgery, and they promptly communicated the information to the plaintiff or its agents.

When Clayton, Williams & Co. were permitted to draw the $5000 on the forged checks which they deposited with plaintiff for collection, they had a cash balance already to their credit amounting to $314 60. The loss sustained by the plaintiff was therefore the amount claimed, $4685 40.

The court below gave judgment for the plaintiff, and the defendants appeal.

If the advance had been made to Clayton, Williams & Co. after the certification of the checks, or if the plaintiff had parted with its money in consequence thereof, there would be no doubt as to the liability of the defendant. But the truth is, the plaintiff paid out its money on the faith of the deposit of the forged checks at least one hour and a half -before the defendants gave the certification, or even had knowledge of the existence of the forged ckecks.

In our opinion the plaintiff ought not to recover, because the loss of which it complains was incurred before the certification of the checks by the defendants, and not in consequence thereof.

This case is like that of McKeleroy & Bradford v. Southern Bank of Kentucky, 14 An. 458, and must be controlled by it. There the holder before acceptance of the forged bill, was promptly notified of the forgery as soon as it was discovered by the drawees, which was twenty-two days after acceptance and payment. Here the holder of the forged check was promptly notified of the forgery and within six hours after the certification.

Whether or not the plaintiff would have succeeded in capturing Clayton, Williams & Co., the forgers, and have recovered the money, if the defendants had detected the forgery as soon as the checks were presented for certification, is not established with sufficient legal certainty to enable the plaintiff to recover, assuming that to be a good ground for recovering judgment, of which we express no opinion.

We will remark, however, that there seems to be little merit in the complaint that the defendants’ mistake in certifying the checks forged by plaintiff’s own customers, Clayton, Williams & Co., deprived the ■ plaintiff of an early opportunity to search for and capture them. The plaintiff accepted Clayton, Williams & Co. as depositors without knowing anything of them, or making any inquiry as to their standing and honesty. If the plaintiff has lost in dealing with its own customers on the faith of a deposit of uncertified forged checks, it is a misfortune; and'the fact that the defendants afterwards in error certified the checks, can not avail to shift the loss from the plaintiff to them.

It is therefore ordered that the judgment be annulled, and it is now ordered that there be judgment herein for the defendants, and that plaintiff pay costs of both courts.

Rehearing refused.


text:
    No. 5065.
    Mrs. Mary E. Feltus v. Blanchin & Giraud.
    The mortgage note, -which is the object of this suit, was granted by plaintiff in injunction ■under the authorization of the judge, pursuant to the act of 1855. She therefore occupies no better position than a femme sole. If there was a want of consideration, it devolved on hor to prove it.
    The plaintiff excepted to the ruling of the court refusing to allow her to prove that her plantation was cultivated by her husband and his brothers during the years 1868 and 1869, and therefore the supplies furnished by the defendants did not inure to her benefit.
    The court a qua did not err in refusing the evidence, because it would have contradicted her judicial admissions in the petition for injunction.
    Appeal from the Second Judicial District Court, parish of Plaque-mines. Pardee, J.

      Philips & Ogden, for plaintiff and appellant. Scmibola & JXicros, for defendants and appellees.
   Wyly, J.

The plaintiff injoined the executory process of the de’fendants on her mortgage note for $8373 82, on the ground that the consideration thereof did not inure to her separate benefit; that the marital authority of her husband caused her to sign said mortgage note, and that it was given for the payment of his debts. It was also alleged that the mortgage was a continuing guarantee, and that the account of the defendant contains usurious interest and illegal charges. The court gave judgment dissolving the injunction and allowing the seizure and sale to be proceeded with, for the sum of $3970 58. Prom this judgment the plaintiff appeals.

The mortgage was granted under the authorization of the judge, pursuant to the act of 1855. Tile plaintiff therefore occupies no better position than a femme sole. If there was a want of consideration, it devolved on her to prove it.

The plaintiff excepted to the ruling of the court refusing to allow her to prove that her plantation was cultivated by her husband and his brothers during the years 1868 and 1869, and therefore the supplies furnished by the defendants did not inure to her benefit.

We think the court did not err in refusing the evidence, because it would contradict her judicial admissions in the petition for injunction. Upon examining the evidence, we find it fully supports the judgment of the' court below.

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 3370.
    Edward T. Denechaud v. Jean Trisconi.
    Tko defendant clearly had no right to make material alterations in the leased premises without express permission. The injunction he appeals from did not restrain him from the exercise of any of the privileges and facilities he was entitled to by the terms of the-lease.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      Wooldridge & Thomas, for plaintiff and appellee. Hornor Benedict, for defendant and appellant.
   Taliaferro, J.

The defendant appeals from a judgment perpetuating an injunction.

In October, 1869, the plaintiff being the lessee of the Washington Hotel at Milneburg, on Lake Pontchartrain, sublet to the defendant, for the term of two years, to commence on the first day of January then next ensuing (1870), “the lower part of the Washington Hotel, comprising the.bar room, saloon and appurtenances, cellar and sleeping room attached thereto,” etc. It appears that it had been usual ■with prior sub-tenants leasing the bar room and saloon on the basement story of the building to set out during the warm season, in the yard and garden around the hotel, tables with the usual refreshments required by visitors at that time of the year, and that,this privilege was considered to be an appendage or appurtenance of the bar room. Much is said on the part of the defendant about an infringement of this privilege by the plaintiff. This privilege or right is not accorded to the defendant by the lease, but he was not prohibited from the exercise of it by the injunction taken out against him by the plaintiff. The grounds on which the injunction was taken out were these: The Pontchartrain Railroad Company, who own the hotel and adjoining grounds, erected within a short distance of the hotel a pavilion for public resort, where visitors were furnished refreshments, music and amusements of various kinds. This building was completed and opened to the public on the first of June, 1870. It was leased to the plaintiff. A fence separated it from the hotel. The intervening space between the pavilion and the hotel had formed part of the lake, and was covered with water previous to its being filled up by the company. The true bone of contention between these litigants seems to have been in regard to obtaining custom to their respective establishments, the plaintiff desiring to have things so arranged that persons coming from the pavilion to the hotel would necessarily pass to his restaurant on the second story, while the defendant desired an arrangement that would bring them to his saloon on the basement.

The plaintiff, it seems, closed the gate letting through the fence on the way from the hotel to the pavilion, and made another gate within a short distance, and through which the pathway led more directly to the stairway leading up into the restaurant. The main purpose of the injunction, it seems, was to prevent the defendant from reopening a gate through the fence at the place the plaintiff had closed the former one. At a point less directly between the pavilion and the hotel, the defendant did of his own accord open a gate through the fence, and this gate was not closed, although the injunction restrained the defendant “from making any further alterations in the premises known as the Washington Hotel,” and ordered him “to forthwith place the premises in the condition they were at the time lie leased the same from the plaintiff.”

The defendant clearly had no right to make material alterations in the leased premises without express permission. The injunction did not restrain him from the exercise of any of the privileges and facilities he was entitled to by the terms of the lease. His right to set tables in the yard or garden of the hotel was not interfered with. The pavilion was not built at tlie time the contract of lease took place between the parties, and none of tlie advantages that might accrue from it to either were in their contemplation when their contract was entered into.

We think the judgment of the court below should remain unchanged.

Judgment affirmed.

Reheating refused.


author: Ludeling, C. J.

text:
    No. 3388.
    Mrs. Regina Phillips v. The Louisiana Equitable Life Insurance Company.
    Tlie insurance company, defendant in this case, refuses to pay, on the ground that the policy excepted liability, “if the insured should die by his own hands/’ and it alleges that he committed suicide.
    It is evident that these words can not be interpreted m their literal sense, for they would exempt the company from liability if the insured came to his death by the accidental discharge of a gun or pistol in the hands of the insured, or if he took poison through a mistake, while they would not exempt the company from liability if the insured were to commit suicide by jumping into a precipice or a river. Therefore the intention of the parties must be sought in order to exi>lain the latent ambiguity of the words, and the court thinks that the common intent was to exempt the company from liability from the vol/wnta/)'y destruction of the insured by whatever moans accomplished.
    It is not believed that, by the expression above mentioned, tlie parties intended to exempt the risk that the insured might become insane, and might, when in that state, commit suicide.
    The test of responsibility in civil, as well as in criminal cases, is the state of the actor’s reason or mental faculties. Therefore, if the deceased were insane when he committed the act of self-destruction, no responsibility attached to his act.
    The onus of proof is on the party who affirms the fact that the insured died by his own hand, and this has not been legally proved in this case.
    It is true that the witnesses who testify as to his death express it as their opinion that he killed himself or committed suicide, but their opinions can not be regarded as evidence of the fact; nor do the facts and circumstances proved point to the voluntary self-destruction of the insured, to the exclusion of all other reasonable hypothesis. But if that fact were established, the plaintiff lias proved that tlie deceased was insane at the time of and belore his death.
    Appeal from tlie Seventh District Court, parish of Orleans. Col-lens, J.

      Cotton & Levy and A. B. Phillips, for plaintiff and appellee. Breaux, Fenner & Hall, for defendant and appellant.
   Ludeling, C. J.

This action was instituted to recover the amount of a policy of insurance on the life oí H. F. Morse, issued on the fourth of October, 1869. Morse died at Abbeville, Louisiana, on the fifteenth of March, 1870.

Proof of his death was made by his widow, and payment was declined, on the grounds that tue proof furnished of the death also proved he had committed suicide, and that the policy excepted liability of the company “if he should die by his own hands.”

The questions presented for solution are new in this State. They are:

First — What is the meaning of the exception, “ if he die by his own hands ?”

Second — Did the assured take his own life, and was the policy avoided thereby ?

I. It is evident the words can not be interpreted in their literal sense, for they would exempt the company from liability if the insured came to his death by the accidental discharge of a gun or pistol in the hands of the insured, or if he took poison through a mistake, while they would not exempt the company from liability if the insured were to commit suicide by jumping from a precipice or into the river. Therefore the intention of the parties must be sought in order to explain the latent ambiguity of the words. C. C. 1945, 1950. This common intent, we think, was to exempt the company from liability for the voluntary self-destruction of the insured, by whatever means, accomplished

The defendant ingeniously argues that this clause or proviso of the policy should be interpreted to mean any suicide, and especially suicide superinduced by insanity, as the voluntary suicide of one not insane would be such a fraud upon the company that the insured could not recover even in the absence of the proviso; and he cites the case in 27 Penn. Report, p. 466, Hartman v. Keystone Insurance Company. We can not agree with him. We do not believe the parties intended to exempt the risk that the insured might become insane and might, when in that state, commit suicide. But we think that it was to guard against the possibility of the very fraud spoken of by the counsel that the clause was inserted in the policy. The test of responsibility in civil, as well as in criminal cases, is the state of the actor’s reason or mental.faculties. Blackstone, vol. iv. pp. 21 and 189; C. C. art. 1788, 1789. Therefore if the defendant were insane when he committed the act of self-destruction, no responsibility attached to his act.

II. Did the insured die by his own hand? The onus of proof is on the party who affirms this fact. And we do not think it has been legally proved. It is true that the witnesses who testify as to his death express it as their opinion that be killed himself or committed suicide; but their opinions can not be regarded as evidence of the fact. Nor do the facts and circumstances proved point to the voluntary self-destruction of the insured, to the exclusion of all other reasonable hypothesis. All the facts and circumstances proved, in regard to his death, are that he retired to his room at bedtime, and about one o’clock at night the report of a pistol was heard. When tiie inmates of the house came to the room, the insured was found in a reclining posture on the sofa and a pistol was lying on the floor near by. He had been shot in the mouth. It is possible that he might have shot himself accidentally, or that an enemy might have found him sleeping with his mouth open and shot him in the mouth to avert suspicion. The ’evidence, being circumstantial only, proves nothing since it does not exclude all other reasonable hypothesis. But if that fact were established the plaintiff has proved that the deceased was insane at the time of and before his death. See Reynolds on Life Insurance, page 105, et seq., Mutual Life Insurance Company of New York in error v. Mary Terry, decided by the Supreme Court of the United States in April, 1873.

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

Rehearing refused.


author: Taliaferro, J. Wyly, J.,

text:
    No. 4768.
    State ex rel. T. Wharton Collens v. Charles Clinton, Auditor.
    The same reason upon which, the power of the Legislature rests to increase the number of courts in Row Orleans, exists for the power it possesses to decrease the number.
    Article 83 of the Constitution of 1868 announces that the General Assembly may establish in Row Orleans as many district courts as the public interests may require, wholly irre. spective of any particular number of courts. It may diminish or increase that number according to its discretion.
    If it be granted that article 83 of the constitution must be considered and interpreted in connection with the other articles of the same instrument’ on the same subject matter, to wit: articles 81, 84, 97,110, 122 and 158, it is important not to overlook that article 83, so far as relates to the organization of the district courts of Kew Orleans, is express and special. It is a well recognized rule that general legislation does not control special legislation on the same subject matter.
    All those articles which treat of district courts, tenure of office, removal of judges, etc., as a general subject, must be subordinated to article 83, so far as their provisions are in conflict or inconsistent with the special provisions of article 83, in relation to the district courts of Rew Orleans. By this rule it is possible to harmonize, and give effect to, each and every one of the articles that have been enumerated, instead of becoming bewildered in a labyrinth of difficulties, vainly endeavoring to limit and circumscribe the special provisions of article 83, by giving a controlling power over them to the general provisions of the other articles.
    The abolishment of the court over which the relator presided was a legislative act, which the General Assembly of Louisiana had the constitutional power and right to perform. That act was not an ex post facto law. There was no obligation or contract violated. It was simply the exercise of a power and discretion with which the General Assembly was clothed before and at the time the relator came into office.
    Appeal from, the Superior District Court, parish of Orleans. HawMns, J.

      Lea, Firnney & Miller, for relator and appellant. J. Q. A. Fellows, A. P. Field, Attorney General, for defendant and appellee.
   Taliaferro, J.

The relator prayed for a writ of mandamus ordering the Auditor of Public Accounts to issue to him a warrant for $ 1250, the amount of one quarter’s salary, alleged to be due to the relator as judge of the Seventh District Court of New Orleans, on the thirty-first day of December, 1872, and also for the further sum of $1250 for salary due him on the thirty-first of March, 1873.

The Attorney General, for the Auditor, filed an exception that the relator had no cause of action. The court below made the mandamus peremptory to the extent of ordering the Auditor to issue his warrant in favor of the relator for salary due him prior to the fourteenth December, 1872, but discharged it in so far as it required the Auditor to issue a warrant for salary alleged to be due subsequent to that time. The relator has appealed. From the statement of facts found in the record it appears that the relator was elected judge of the Seventh District Court of New Orleans on November 4, 1872; was commissioned and took the oath of office ; that he entered upon the discharge of the duties of the office and continued to discharge those duties until the going into effect of an act of the Legislature passed on the fourteenth of December, 1872, abolishing the Seventh District Court of New Orleans. The relator specially charges that the said act of the Legislature is unconstitutional, void and without effect. The solution of this question is necessary in the decision of this case.

Looking to article 83 of the constitution, we should consider the reason upon which it rests and the purposes which the framers of the constitution intended it should accomplish. There were six district courts in New Orleans when the constitution of 1868 went into effect. The growth of the city, the increase of its population and business, a possible increase of litigation might render it desirable, and it might become important to the public interests that the number of district courts should be increased. On the other hand, a stationary condition or a retrograding state in the amount of population, or even a decrease of litigation might require a decrease in the number of the courts. The same reason upon which the power of the Legislature rests to increase the number of courts in New Orleans exists for the power it possesses to decrease the number. Article 83 announces that the General Assembly may establish as many district courts as the public interests may require. It is within its discretion to determine how many district courts in New Orleans the public interests may require. If it should decide that the public interests require, more than seven district courts in New Orleans it may establish more. If it should decide that the public interests require a smaller number of district courts than seven, it has equally the right to establish a smaller number. The constitution vests in the Legislature the power to establish the number of district courts in New Orleans which in the judgment of the Legislature it may determine the public interests requires, wholly irrespective of any particular number of courts. The ever changing state of human affairs imposes upon the Legislature the duty of adapting its legislation to the various phases which the condition of the country and the wants of the community may from time to time assume. Upon this great principle the eighty-third article of the organic law empowers the General Assembly to increase in New Orleans the number of district courts whenever in its judgment the enforcement of the laws, the ends of justice, and the dispatch of the business of courts may require such increase; and in like manner to decrease the number when in its discretion public interests and public economy may require a decrease.

We are told this article of the constitution must be considered and interpreted in connection with the other articles oí the constitution on the same subject matter, the articles 81, 84, 97, 110, 122 and 158. Granted. Bub let us not overlook an important feature that is presented in this discussion, and that is, that article 83, so far as it relates to the organization of the district courts of New Orleans, is express and special. It is a well recognized rule that general legislation does not control special legislation on the same subiect matter. All those articles that treat of district courts, tenure of office, removal of judges, etc., as a general subject must be subordinated to article 83, so far as their provisions are in conflict or inconsistent with the special provisions of article 83 in relation to the district courts of New Orleans. By this rule we harmonize and give effect to each and every one of the articles we have just, enumerated, instead of becoming bewildered in a labyrinth of difficulties, vainly endeavoring to limit and circumbscribe the special provisions of article 83, by giving a controlling power over them to the general provisions of the other articles.

Articles 81 and 97 prescribe the manner and form of removing judges, which can only be done by impeachment or address, without any reference to the continuance of the office. These articles contemplate the removal of judges for mal-conduct in office, or for gross neglect in performing their duties, or for other causes. But can this article be invoked in behalf of an incumbent who, ex necessitate rei, ceases to exercise judicial functions from the abolishment of the court over which he presided ? Article 83, as we have seen, clothes the General Assembly with the power to establish in New Orleans the number of district courts it may deem requisite for the public interests, and that it is nob restricted to the establishment of any number. The case under consideration is in point. There were, previous to the act of the Legislature of fourteenth December, 1872, eight district courts of New Orleans. The General Assembly reduced the number to seven by abolishing two of those courts and establishing another. The General Assembly chose to establish seven district courts in New Orleans, deeming that number sufficient to subserve the public interests. There being eight, how else could it make the number seven without abolishing one of those courts? The warrant for so doing is clearly granted not only by the obvious spirit and meaning of that portion of article 83, which relates exclusively to the district courts of New Orleans, hut even by its very letter. The sentence is : “ For each district there shall be one district court, except in the parish of Orleans, in which the General Assembly may establish as many district courts as the public interests may require.” Does this language mean that the General Assembly has only the power to increase the number of district courts in New Orleans, and is powerless to abolish or dispense with one or more of those courts in order to Recrease the number, however much the public interests might demand it? _ Such an interpretation is surely not logical or sound.

It would seem, from the line of argument employed to deny the right or power of the General Assembly to reduce the number of district courts in New Orleans, that while it is contended that all the articles of the constitution bearing upon the subject of district courts, the term of office of the district judges, etc., should be talcen and construed together, still those using that argument rely upon each of those articles of a general character, separately considered, without its connection with all. They say in substance, quoting from article 84: “ The judges of the district courts shall hold their office for the term of four years,” therefore the Legislature can not deprive a district judge of his right to hold his office four years. This article separately considered renders the tenure of office of district judges absolutely fixed and irrevocable. The incumbent can not be removed for any cause whatever, because the article reads, “the district judges shall hold their office for four years,” and there is not in the article one word that authorizes the office they hold to be vacated. But what becomes of such a construction when we turn to articles 81 and 97'? We find that the tenure of office for four years is not absolute, but contingent upon good conduct and upon events that might authorize removal by address for reasonable cause.

All the judges of Louisiana hold their offices contingent upon the arising of causes which the constitution declares shall be ground for removal or dismissal. The district judges of New Orleans, by the special provision contained in article 83 of the constitution relating to the district courts of the city, hold office upon a contingency special and personal to them, namely, the happening of a stat-o of things that would authorize the General Assembly in its discretion to reduce the number of courts, when, in such an event, a judge or judges of the district courts of New Orleans, superseded by a legislative act sanctioned by the constitution, would become necessarily functus officio. There is in such a case no removal of an incumbent, because when the court he presided over is abolished, the office that appertained to that court ceases to exist and there is no office from which he could be removed. And where is there good and valid ground for complaint in such a case ? It might be characterized as one of the ills or inconveniences of office holding; but that there is a violation of right in such a case can not be maintained. The paramount law of the State confers the power upon the General Assembly to create or abolish district courts in New Orleans in the public interest. If in the exercise of that power an individual should be put to loss or inconvenience by losing the office he held, where is the wrong ? Did the office belong to him 1 Shall his convenience and interests be consulted rather than the public welfare 1 Is it meet that an unnecessary expense and burden should be kept upon the community to maintain a court not needed in order that the officeholder may be indulged in continuing in office 1 The judge who is elected or appointed to the office of district judge in the parish of Orleans, is elected or appointed to that office subject to this •contingency, that may or may not happen during his term. He accepts the office subject to its vacation, if the General Assembly determine that the public interests require it.

There seems to exist a belief that the incumbent of a public office •acquires what is frequently called a vested right, in the sense that he holds an absolute, indefeasible title or right to the office. Surely, while the provisions of the organic law that are intended to give efficiency and stability to the tenure of office, are to be sacredly maintained, we may not disregard other portions of that law, which for special reasons applying to particular offices, render incidentally the tenure of those offices precarious through paramount considerations of the public good.

The relator in this case, it appears, was elected to the office of district judge of the Seventh District Court of New Orleans at the general election in November, 1872. The State Constitution of 1868, containing the provisions in regard to the district courts of New Orleans which we have had under review, was then, as it is now, the paramount law of Louisiana. The abolishment of the court over which he presided was a legislative act, which the General Assembly of Louisiana had the constitutional power and right to perform. That act was not an ex post facto law. There was no contract or obligation violated by it. It was simply the exercise of a power and discretion with which the General Assembly was clothed before and at the time the relator came into office. Subject to the exercise of this power he sought and obtained the office which he filled. He has no just ground therefore to set up a violation of his constitutional rights. When the law was-enacted which dispensed with the Seventh District Court of New Orleans, he ceased to be the judge of that court, which, when the law abolishing it was promulgated, became a thing of the past. He was no longer authorized to exercise the functions of a judge. He was no longer called 'upon to discharge the duties of a district judge. His claim for the salary which appertained to the office as long as it existed, is a just claim. His demand for salary after the office became extinct is not one that can be recognized.

From the operation of just and wholesome laws, real as well as imaginary hardships often arise, and frequently results occur which may cause regret from personal or private considerations. In the present case the act of the Legislature of fourteenth December, 1872, operates adversely to the interests of an able and upright judge; but no exception can on that account be taken to the law itself. Private advantage and private interests must yield to public advantage and public interests. We must give laws their proper force how much soever in isolated cases their operation may be opposed to individual interests.

We conclude that the decree of the court a qua in this case was correctly rendered.

Judgment affirmed.

Wyly, J.,

dissenting. I adopt as my dissenting opinion in this ease the following argument, submitted by Judge Collens:

The Seventh District Court for the parish of Orleans is one of the conrts created by the State Constitution. At the general election held on fourth November, 1872, the relator was duly elected by the people to be judge of that court for the four ensuing years, and he was duly inducted into office. On the fourteenth December following the Legislature passed an act abolishing this court, and another court entitled the Eighth District Court, which had been created by statute. At the same time and by the same act the Legislature created the Superior District Court. The question is, was the act so far as it undertakes to abolish the Seventh District Court, constitutional? I am convinced that it is not.

I can not admit the rule of interpretation by which a single article of the constitution is made to override and defeat the general and unqualified provisions manifestly intended to insure the independence of the judiciary. I think, on the contrary, that we should seek to give force and effect to every article and disposition of the instrument; and that there is no difficulty in construing article 83 with all the rest so as to give effect to the whole, and moreover to the clear spirit and policy indicated throughout. That article 83 contains a special clause in regard to the creation of additional courts in the parish of Orleans there can be no doubt, but there is nothing else in that article which deprives the judges of the protection given in the most unqualified manner by articles 81, 84, 97, 122, 158, and the other clauses of article 83, defining the tenure, term of office, election, mode and cause of removal, salary, and jurisdiction of the judges.

The relator was elected for four years, and it is provided that during that term of office his territorial jurisdiction shall remain unchanged; that he shall hold his office during that term; that in the meantime his salary shall not be increased or diminished, and that he shall not be removed except by impeachment or suspension. There is no inconsistency to force us to hold that any exception has been made in regard to the courts of the parish of Orleans, unless the expressions of article 83 be made to mean more than they say, and that the Legislature may abolish the constitutional courts as well as create additional ones. The rule of interpretation is the converse of the one adopted by the court. Exceptions should be strictly construed, not_ enlarged, particularly when they derogate from the general principles and guarantees of right, liberty and independence. The result, from enlarging or adding to the exception, is to make the constitution, in its most vital and paramount elements, self-contradictory, and different in different parts of the State. True, the phrase “until otherwise provided by law,” in article 83, refers to the number of courts; but the power of the Legislature, in this respect, is defined by the provision allowing the creation of “ as many as the public interests may require.” The very fact that the possible necessity of a greater number is expressly foreseen, but no lesser uumber expressly permitted, confirms this construction.

Even the construction in favor of the power to diminish the constitutional number does not hold good in this case, for it would not apply to the facts. The constitutional number is seven ; the eighth was an additional court created by statute. The act of fourteenth December, 1872, is made to abolish these two, the seventh and the eighth, and to create another, the superior court, in their stead. Thus there would be still seven district courts, but the effect is nevertheless that one of the constitutional courts is abolished, though there is no actual diminution of the number. Even such reduction “as the public interests may require” below the seven created by the constitution, is not intended or effected ; and yet the seventh one is not the one established by the constitution. The operation of the act plainly is to accomplish indirectly and under a false pretense what could not have been done directly. A judge elected by the people for four years has been legislated out of office, and another legislated into his place. If there were a frank and bona fide diminution of the number of courts established by the constitution, or if the superior court were an additional one, there would be no ground for charging the act of the Legislature with being colorable; but by the mockis operandi the superior court has really become the seventh one, and a palpable, though indirect, evasion of the constitution is perpetrated.

All such devices and colorable attempts have been condemned by the wisest judges of this country. The courts of our sister States have invariably maintained judges in their office during the term for which they were elected or appointed, déspite such legislation as this ; and have decided that changes, such as attempted in this instance, could, if at all, only take effect after the expiration of a constitutional term. 3 Cranch 160; 1 How. 316; 6 Wall. 39; 7 How. 458 ; 13 An. 345; 23 Ill. 547; 62 Penn. 345 ; 21 An. 491; 23 An. 784; 6 Cow. 651; 9 Cow. 640; 1 Cow. 564; 3 Serj. & R. 155; 4 Met. 237 ; 2 Denio 274; 14 Wis. 163; 65 N. C. 603; 9 Watts 200; 65 Penn. 76; 2 Sand. 640; 15 Iowa 538; Cooley on Cons. p. 46; 4 Ark. 220; 6 Serj. & R. 322; 5 Serj. & R. 403; 14 An. 198.


author: Taliaferro, J. Howell, J.,

text:
    No. 5074.
    Robinson Mumford v. Mrs. S. T. Bowman and Husband.
    The acceptance of a succession is express, when in an authentic dr private instrument, or in some judicial proceeding, the purpose of the heir is declared in terms so clear and distinct that no doubt can exist of his intention to accept under the responsibilities that result from an acceptance pure and simple. To incur the liability arising from an acceptance pure and simple, something more than styling himself heir in some written act, authentic or judicial, must appear in the instrument, in order to bind the party absolutely to pay all the debts of the succession out of his own means.
    Both in the express and tacit acceptance it must be made clear, that it was the intention of the party assuming the quality of heir to abide the disadvanta’ges, if any should arise, of accepting simply and purely, as well as to enjoy the benefits that might accrue from it. In the one case, the intention is to be found in a fair interpretation of the terms and expressions of written instruments; in the other, it is to be inferr d from acts, the motives of which can not be ascribed to any other purpose.
    The subject matter of the written acts in which, by styling herself heir, it is contended in this case that the defendant became bound for the debts of the succession, presents collateral issues not involving the question of heirship, and in no manner relating to the acceptance of the succession.
    The term heir has several significations. Sometimes it refers to one who has formally accepted a succession, and taken possession thereof; sometimes to one who is called to succeed, but still retains the faculty of accepting or renouncing, and it is frequently used as applied to one who has formally renounced. Hence, the use of the word heir in itself is of but little moment. It is the object and mtent manifested by its use that is the material thing.
    Appeal from tbe Seventh Judicial District Court, parish of West Feliciana. Semes, J.

      W. W. Lealce, Race, Foster & S. T. Merrielc, for plaintiff and appellant. Thomas Butler, William S. Sunt, for defendant and appellee.
   Taliaferro, J.

The plaintiff in this case having a large claim against the succession of Daniel Turnbull, deceased, obtained a judgment upon it. He received as his final distributive share as a creditor the sum of S1519 93, the estate being insolvent. He now sues Mrs. Bowman, a daughter of Daniel Turnbull, alleging that as heir of her father she accepted his succession purely and simply, and has thereby rendered herself liable for its debts. He sets out that she has assumed the quality of heir in certain written acts and judicial proceedings which he refers to. He also charges that the defendant has taken possession of certain sugar kettles and a quantity of fire bricks, the property of the succession, and converted the same to her own use without accounting for their value; and by this act he alleges she has become liable as an heir accepting purely and simply.

The answer is a general denial. The defendant specially denies that she ever accepted the succession as charged by the plaintiff.

There was judgment in favor of,the defendant, and'the plaintiff has appealed.

The judge a quo has diligently reviewed the several written acts and judicial proceedings in which the plaintiff alleges the defendant has assumed the character of heir, and from his reference to them we give their character:

The first written act relied on by the plaintiff, as amounting to an express acceptance, is the one marked A, and appears to be a compromise between defendant and the representatives of her deceased brother, who but for their renunciation would have been their coheirs. This compromise was based upon a suit, No. 72, then pending in the-parish court, wherein the defendant was plaintiff against Mrs. Caroline B. Turnbull, natural tutrix of her (the plaintiff’s) minor nephews. It sought to force them to a collation and partition with her of a large-donation.” The judicial proceedings adduced in evidence by the plaintiff are marked B, C and D. “ The first of these is an opposition-to the application of Mrs. Caroline B. Turnbull, tutrix, for letters of' administration on the succession of Daniel Turnbull; claims that her mother is the qualified executrix, and that if an administrator has to-be appointed, she, the opponent, is entitled to it by preference over all others.

The next is an intervention in the suit of Mrs. Lapice, a creditor, to annul and set aside a certain judgment of homologation of an account of the executors of Daniel Turnbull’s estate, in which Mrs. Bowman, joins the executrix and acquiesces in the judgment of homologation.

In the last she opposes some very large claims against the succession,, placed on a tableau or classification of debts by the executrix. In-these and other judicial proceedings the defendant styles herself “the legal forced heir of her father, Daniel Turnbull;” “the only heir of' said deceased of age,” and “one of the legal forced heirs of her father, Daniel Turnbull, and a legatee under his will.”

The only inquiry in this case is, has the defendant accepted the succession of her father purely and simply in the manner contemplated. by law to render an heir personally liable, out of his individual property or means, for the debts of the estate which he accepts1? Article 988 of the Civil Code declares: “ The simple acceptance may be either express or tacit. It is express when the heir assumes the quality of heir, in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding. It is tacit when some act is done by the heir which necessarily supposes his intention to accept, and which he would have no right to do but in his quality of heir.”

We understand that the acceptance is express when in an authentic or private instrument, or in some judicial proceeding, the purpose of the heir is declared in terms so clear and distinct that no doubt can exist of his intention to accept under the responsibilities that result from an acceptance pure and simple. We imagine that to incur the liability arising from an acceptance pure and simple, something more than merely styling himself heir in some written act, authentic or judicial, must appear in the instrument in order to bind the party absolutely to pay all the debts of the succession out of his own means. The responsibility of accepting purely and simply would in many cases prove serious, and in some it might, as in the case under consideration, be ruinous. Therefore it would seem that in an express acceptance, the purport of the instrument must be clear that the party intended, without legal formalities, to assume all the responsibilities of a pure and simple acceptance, as well as all the advantages of heir-ship. This, we think, becomes apparent by considering the last clause of the article 998 and the article 990, which treat of the tacit acceptance. The tacit acceptance is a matter of inference, but to warrant the inference ‘‘it is necessary that the intention should be united to the fact, or rather be manifested by the fact, in order that the acceptance be inferred.” '

Both in the express and'tacit acceptance it must be made clear that it was the intention of the party assuming the quality of heir to abide the disadvantages, if any should arise, of accepting purely and simply as well as to enjoy the benefits that might arise from it. In the one case, the intention is to be found in a fair interpretation of the terms- and expressions of written instruments; in the other, it is to be inferred from acts, the motives of which can not properly be ascribed to-any other purpose.

To revert now to the written instruments in which it is alleged the defendant assumed unqualifiedly the character of heir, we find by the document A, before referred to, that the donation which was required to be collated was made in 1854 by Daniel Turnbull and his wife to their son, William Turnbull, and consisted of a large tract of land and a great number of slaves. This donation was made at a time when the donor was in affluent circumstances, and most likely before the creditors of Daniel Turnbull became such, for none of them have complained of it. This donation contained a stipulation that its value was to be collated with coheirs on the decease of the donors. The representatives of the donee and their coheir were alone concerned. The property donated did not belong to the succession of Daniel Turn-bull. His creditors had no interest in it. The proceedings had no relation to his succession. The creditors of Daniel Turnbull were not parties to these proceedings, and were not bound by them. Then it is of no moment to them, the defendant’s styling herself the heir of Daniel Turnbull. It is palpable that in this act of compromise there is nothing showing her intention to accept his succession purely and simply. Neither is there evinced in the judicial proceedings already referred to, marked B, C and D, the intention of the defendant to accept purely and simply the succession of her father. That succession, by one of the great events of the late war, became hopelessly insolvent by the general emancipation of slaves. The greater part of the ample fortune of. Daniel Turnbull consisted of slaves. His lands depreciated in value. His large plantation, like many others, became a wreck. These facts were well known to the defendant. It is shown that she never acted in business matters, sounding in law or legal proceedings, without legal advice.

On tlie death of Daniel Turnbull, an inventory was made of his estate. The surviving widow, executrix of the will, together with her co-executor, took the estate in charge. An account was filed by them in March, 1865, and homologated by the clerk, and Towles, the executor, was discharged. In 1867 the executrix filed a provisional account, and in 1872 a final account and tableau of distribution, which were homologated.

Thus, then, it is seen that there was an inventory legally made of the succession of Daniel Turnbull; that it has been administered by the executrix, and its assets distributed according to law. It has not been shown that the defendant has ever had possession of the effects. But if she had taken possession, it may well be questioned whether the formal inventory of the succession, made under judicial authority, would not protect her from liability beyond its assets, according to article 1006 of the Civil Code: “An heir of age accepting simply is bound personally for all the debts, '* * * unless before acting as heir he make a true and faithful inventory of the effects of the succession,” etc.

The allegation that the defendant caused to be removed from the plantation of the estate sugar kettles and a lot of fire bricks is not sustained by the evidence. On the other side, it is shown that those articles were removed by the consent of the executrix, who authorized the husband of the defendant to remove them, and that the removal was unknown to the defendant.

The subject matter of the written acts, in which, by styling herself heir, it is contended the defendant became bound for the debts of the succession, presents collateral issues not involving the question of heirship, and in no manner relating to the acceptance of the succession. In the language of the learned judge who decided this case in the court a qua, “ the term heir has several significations. Sometimes it refers to one who has formally accepted a succession and taken possession thereof; sometimes to one who is called to succeed, but still retains the faculty of accepting or renouncing, and it is frequently used as applied to one who has formally renounced. C. C. 1017 et al. Hence the use of the word heir is in itself of but little moment. It is the object and intent manifested by its use that is the natural thing. Thus in Prance it has been held that ‘when I give through an officer of the law a legal notification to my cousins, that I also am an heir of our deceased uncle, and that I object to the seals being raised without notice to me, it is clear that I do not accept, although I have taken the title and quality of heir, for here the word heir evidently signifies capable of inheriting.’ 3 Marcadé, Tit. Des Sue., No. 204, and decisions there quoted.” '

****** * * *

“That when the effects of the succession have never been in the possession of the heir, but are administered by another, under an inventory duly made, the heir who has neither accepted simply nor renounced, but remains silent, is, after full administration and payment of debts and legacies, entitled to the residuum; that being thus entitled to this residuum, he has such an interest in increasing it that he may intervene and oppose an account of the administrator, which allowed claims not due by the succession, and, if he can, defeat them; %at although in this judicial proceeding he style himself ‘heir,’ he is presumed to appear as beneficiary heir, and does not thereby incur the penalty pronounced by article 998 of the Civil Code.”

We see no error in the decree of the district court.

Judgment affirmed.

Howell, J.,

dissenting. The express acceptance is, “ when the heir assumes the quality of heir, in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding.” R. C. C. 988, ¶ 2.

When Mrs. Bowman, in June, 1866, intervened in the judicial proceedings relating to her father’s succession, she did so as heir, assuming the quality of heir, and opposed certain other judicial proceedings, which she believed would impair or prejudice her rights as heir, and in doing this she did not qualify in any manner the assumption or assertion of her heirship. She declared in emphatic or unqualified terms “that she is one of the legal forced heirs of her father, Daniel Turnbull, deceased, and a legatee under his will,” and in another place “she admits that she is the only forced heir of said deceased of age,”' acquiesces in the judgment homologating the account of the executrix, and asks that the demand of a creditor for annulling said judgment be dismissed. These are proceedings and demands which she could institute and urge only as heir, and were so institutéd and presented in the belief at the time, as I think, that the succession would prove to be valuable.

Having assumed the quality of heir, in an unqualified manner, in those judicial proceedings, after the inventory was made, she became liable for her share of the debts, and could not afterwards be relieved by her own acts. The articles 1010 et seq., cited by her counsel, do not, in my opinion, apply to the state of facts which exists in this case.

I think the court has given an interpretation to article 988 of the Code which its terms do not sustain, and very different from the one given to it in the case of Le Cesne v. Cottin, 2 N. S. 475.

Rehearing refused.


author: Morgan, J.

text:
    No. 4959.
    Mrs. Louisa Reich, Wife of Rhodor, v. Hyacinthe Rosselin, et als.
    Plaintiff applied for authority to borrow money to a judge of competent jurisdiction, and was by him authorized to borrow it. The act of mortgage was not consummated until her authority to borrow had been obtained. If any force, threats, or improper influences were brought to bear upon her by her husband, it does not appear that the defendant, who loaned the money upon the faith of the authorization of the judge and the security of the mortgage was, in any manner, a party to it. The plaintiffs injunction to prevent the sale of her property must be dissolved.
    Appeal from the Fourth District Court, parish of Orleans. Lynch, J.

      JE. 0. Mix, for plaintiff and appellee. Jerome Meunier, for defendant and appellant.
   Morgan, J.

Plaintiff seeks to injoin the sale of her property, which has been advertised under an order of seizure and sale. She says she was forced by her husband to effect the mortgage for which she is now being proceeded against, and that none of it inured to her benefit, but went, exclusively, to her husband. She applied for authority to borrow the money to a judge of competent jurisdiction, and was by him authorized to borrow it. The act of mortgage was not consummated until her authority to borrow had been obtained. If any force, threats, or improper influences were brought to bear upon her by her husband, it does not appear that the defendant, who loaned the money upon the faith of the authorization of the judge and the security of the mortgage,, was, in any manner, a party to it.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, that there be judgment for the defendant, and that the injunction herein granted be dissolved, with costs in botli courts.

Rehearing refused.


text:
    No. 4922.
    Succession of Jean Marie Sarniquet and Interdiction of Philomena Sarniquet. (Consolidated).

      Jjx 1867, in opposition to an application of tlie natural tutrix of Philomena Sarniquet for-a sale ot property belonging to the succession of Jean Marie Sarniquet, father of said PhBomena, Joseph Sarniquet set up, without success, his title as sole legal heir of his deceased brother, said Jean Marie Sarniquet. The issue is therefore, res judicata. He can not now reviye the question by bringing suit and allegiug that Philomena Sarniquetls not the legitimate daughter of Jean Marie Sarniquet and not entitled to his property.
    The prescription of ten years is also pleaded correctly. Phi’omena Sarniquet, now of ags„ but an idiot, has, through her tutrix, been in possession of the property as heir for twenty years. Hence the prescription of ten years is a complete bar to the action.
    Appeal from the Second District Court, parish of Orleans. Tissoi, J.

      W. JE. Murphy for plaintiff and appellee. Julien A. Seghers, for defendants and appellants.
   Wyly, J.

In 1852, Jean Marie Sarniquet died leaving a small succession and a surviving widow and three minor children.

In December of that year, Mrs. Sarniquet was confirmed as natural tutrix and in that capacity and as widow in community she was put in possession of the property belonging to said succession.

Since then all the children have died except one, Philomena, who is of age, but an idiot, residing in Kentucky,-where she was interdicted and John Blackburn appointed her guardian.- In 1871, John Blackburn brought suit in the Secoud District Court praying to be recognized as guardian and to be put in possession of all the property belonging to said tutorship on the ground that said interdicted person is the sole surviving heir of Jean Marie Sarniquet. He also prayed for the saleof the property and for authority to remove the proceeds arising from said sale to Kentucky where be lives and where he was appointed guardian.

This was opposed by Joseph Sarniquet, a brother of the deceased, on several grounds, and the court sustained the opposition so far as to require the mother of the interdicted person, who was her tutrix, to be made party, which was done. Subsequently, Joseph Sarniquet brought suit, alleging that Philomena Sarniquet was not the legitimate daughter of Jean Marie Sarniquet and is therefere not entitled to the property; he also prayed to be recognized as heir and put in possession, On the ground that he is a brother of the deceased and his sole legal heir.

In bar of this action the tutrix and John Blackburn, guardian, pleaded :

First — Res judicata.

Second — The prescription of ten years. Pending the issue, J oseph Sarniquet was appointed administrator of the succession of Jean Marie Sarniquet. It was then agreed that the cases should be consolidated and all the issues be tried together. The tutrix and John Blackburn guardian, reserving the benefit of the exception pleaded in bar of Joseph Sarniquet’s demand,-answered to the merits. The court gave judgment in favor of Joseph Sarniquet recognizing him as sole heir and ordering him to be put in possession. From this judgment the tutrix and John Blackburn have appealed.

We think the court erred in not sustaining the exception pleaded in bar of Joseph Sarniquet’s demand.

In 1867, in opposition to an application of the tutrix for a sale of 'the property in question, he set up, without success, his title as legal heir of his brother, Jean Marie Sarniquet. The issue is res judicata. Besides, Philomena Sarniquet, through her tutrix, has been in possession of the. property as heir for twenty years. The prescription of ten years is a ■complete bar to the action.

John Blackburn, guardian, is entitled to the property and should be (recognized and put in possession.

It is therefore ordered, that the judgment appealed from be annulled, and it is now ordered, that the demand of Joseph Sarniquet be rejected, and it is ordered that John Blackburn be recognized as guardian of Philomena Sarniquet and that he be put in possession of the property; that he be authorized to sell it according to law and to remove the proceeds and all moneys belonging to said Philomena Sarniquet to Kentucky, where he was appointed guardian.

It is further ordered that Joseph Sarniquet pay costs of this appeal, and also costs of his suit to be recognized as heir, and costs of the application for administration in the court below; the other costs in the court below to be paid out of the funds of Philomena Sarniquet the interdicted person.

Rehearing refused.


text:
    No. 4924.
    State of Louisiana v. O. H. Shonhausen.
    The defendant alleges that the words “ paper currency of the United States,” do not describe the statutory offense of robbery.
    The charge in the indictment is the felonious and violent taking of “ the sum of seventeen hundred and forty-five dollars in paper currency of the United States of America.” This comes vithin the law. R. S. sec. 810.
    The objection that the words “promissory note of the value of three hundred dollars,” do not conform to the statute, because not showing that it was for the payment of any specific property, is not well founded.
    Section 1051 makes it sufficient to describe “the instrument, matter or thing by any name or designation by which the same may be usually known without setting out any copy or fac svtnile of the whole or any part of such instrument, matter or thing.”
    This law, as stated in 10 An. 230, cited by defendant, is an exception to the general rule of the common law as to description, and is complied with in the indictment here.
    The defendant’s bill of exceptions to the refusal of the judge to grant a continuance to enable the counsel appointed to represent hfin to prepare the defense, can not be maintained. It seems there wore throe days between the appointment and the trial This is sufficient time when no special cause is shown for longer delay, nor is such a delay essential in itself.
    Ro law authorizes to move for attachments against absent jurors on the list, in order to bring a greater number, when there are enough present to complete the panel. It is a matter in the judge’s discretion; and the non-attendance of some of the jurors summoned and not excused, is not good cause tor a refusal to go to trial.
    The judge a quo did not err when refusing to admit an affidavit against the wifo of the defendant, charging her with receiving stolen property, being a part of the property described in the indictment. It was introducing a new issue from the one at the bar.
    There was no error in refusing to allow the defendant to propound to his own witness certain questions which are specified in his bill of exceptions. If intended to impeach the witness, they were not allowable to the party introducing him. Otherwise, they were irrelevant to the issue.
    The court instructed the jury in the general charge that: “To constitute robbery there should be actual or constructive force.” This was correct, and substantially what the counsel asked.
    The court was also asked to charge that, “in the proof of taking, it is necessary to show that the goods were actually in the possession of the accused.” The court, in giving the charge, added the words, “or constructively” after the word “actually” and before the word “ in.” There was no error in this.
    The bill of exceptions to permitting a witness to refer to his books, out of the presence of the court, in order to refresh bis memory, was not well taken.
    The jury found the accused guilty of robbery and larceny on the indictment containing the two counts, and hereupon, on motion of the Attorney General, a nolle prosequi was entered on the second count as to larceny, and the accused was discharged there.rom. There is no error in this proceeding.
    Appeal from the First District Court, parish of Orleans. Abell, J. Criminal case.

      A. P. Meld, Attorney General, for the State, appellee. Walter H. Sogers, for defendant and appellant.
   Ludeling, C. J.

The defendant has appealed from a judgment sentencing him to ten years’ imprisonment at hard labor, and assigned as error.

I. The words “paper currency of the United States of America,” do not describe the statutory offense of robbery.

The objects in the statute are: the robbery or larceny of “Bank notes, obligations or bonds, bills obligatory or bills of exchange, promissory notes for the payment of any specific property, paper bills of credit, certificates granted by or under the authority of this State or of the United States, or any of them, shall be punished,” etc. Revised Statutes 5 810.

The charge in the indictment is the felonious and violent taking of ‘‘■the sum of $1745 in paper currency of the United States of America.” This comes within the law; but if there were a fatal variance as to Shis object or item, it would not vitiate the indictment as to the next.

II. The words promissory note of the value of three hundred dollars” do not conform to the statute, not showing that it was “for the payment of any specific property.”

Section 1051, R. S., makes it sufficient to describe the “instrument, matter or thing by any name or designation by which (he same may be usually known, without setting out any copy or fao simile of the whole or any part of such instrument, matter or thing.”

This law, as stated in 10 An. 230, cited by defendant, is an exception to the general rule of the common law as to description, and is complied with in the indictment here.

The defendant insists upon his bill of exceptions to the refusal of the judge to grant a continuance to enable the counsel appointed to represent him to prepare the defense. It seems there were three days between the appointment arid the trial. This is sufficient time, where no special cause is shown for longer delay. Nor is such a delay essential in itself.

The next bill is to the refusal of the judge to grant a continuance to have two absent jurors attached, and for the return of twelve others then sitting in their room in another case. The judge adds that the defendant had the whole panel to select from, except two or three who were absent, before talesmen were called.

As said in State v. Baldwin, 11 An. 81, no law authorizes to move for attachments against absent jurors on the list, in order to bring in a greater number, where there are enough present to complete the panel. It is a matter in the judge’s discretion; and the non-attendance of aome of the jurors, summoned and not excused, is not good cause for a refusal to go to trial. State v. Johnson, 11 An. 422.

A bill was taken to the refusal to admit an affidavit against the wife of the defendant, charging her with receiving stolen property, being a part of the property described in the indictment herein. The judge did not err. It was introducing a new issue outside of the one at bar. Nor was there error in the refusal to allow defendant to propound the following questions to his own witness, a detective police officer, to wit:

First — “Did you execute or attempt to execute the search warrant based on the affidavit against Rosa Schonhausen, made by Officer Smith against the person or property of said Mrs. Schonhausen, and if yea, with what result?”

Second — -“Did you not say to the accused, after his arrest and while in your custody, not to be afraid about his affair; that you had the girls (referring to female witnesses for the State) fixed all right?”

Third — “Did you say to the accused that you would give him one thousand dollars if he would give evidence against Julius Socha, his former employer, and one of the parties indicted with the said accused?”

If intended to impeach the witness, it was not allowable for the party introducing him; otherwise they were irrelevant to the issue.

Counsel for accused asked the court to charge the jury that “to constitute robbery, there must be actual violence inflicted on the person robbed, or such demonstrations or threats under such circumstances as to create in him reasonable apprehension of bodily injury.” The court instructed the jury in the general charge that “to constitute robbery, there should be actual or constructive force,” and repeated it when asked as above. This was correct, and substantially what the counsel asked. Greenleaf on Evidence, vol. 3, § 229.

The court was also asked to charge that, “in the proof of taking, it is necessary to show that the goods were actually in the accused’s possession.” The court, in giving the charge, added- the words “or constructively” after the word “actually” and before the word “in.” There was no error in this. See Greenleaf on Evidence, vol. 3, § 228.

The bill of exceptions to permitting a witness to refer to his books, nut of the presence of the court, in order to refresh his memory, was not well taken. Greenleaf on Evidence, vol. 1, § 437.

The jury found the accused guilty of robbery and larceny on the indictment containing the two counts, whereupon, on motion' of the Attorney General, a nolle prosequi was entered on the second count as to larceny, and the accused was discharged therefrom. There was no «error in this. 4 An. 31, 434.

Judgment affirmed.

Rehearing refused.