text:
    No. 9788.
    Angelo Socola vs. Chess-Carley Company.
    A dealer in petroleum fluids, who fills an order for a barrel of 11 Puroline ” by delivering a barrel of “Gasoline” of 71° gravity, and brands tlie package as “Puroline,” is not guilty of deception, as the difference in the dangerous character and in the use of the two fluids is hardly measurable or perceptible; and the package containing the stamp “explosive and dangerous,” placed thereon by the inspector under the provisions of Act No. 37 of 1877, regulating the mode of inspecting coal and petroleum oils or fluids.
    In a case of a fire originating from the package of such goods, from which oil is drawn in the night by persons who enter the room with a burning lantern, the dealer will not be held responsible for the damages resulting from such fire.
    Positive testimony on a given point always predominates over negative testimony on the same point.
    APPEAL from the Civil District Court for tlie Parish of Orleans. Tissot, J.

      TS. H. MeGaleb and T. J. Bemmes & Legendn-e for Plaintiff and Appellant:
    L. The vendor of illuminating oils is liable to tbe vendee in damages for tbe destruction of property by fire caused by tbe volatilization and ignition of a barrel of gasoline sold as “puroline.” It. C. C. Art. 2445; Addison on Torts, pp. 850 and 851} 18 Ann. 232 j Tbompson on Negligence, vol. i, pp. 232 and 236. The vendor who is a dealer in dangerous agencies liable, though ignorant of the vices of the thing sold. Pothier, Contrat de Tente, Part II, Chap. J, Nos. 203, 213, 214 ; 2 Ann. R. Q. B, div. 102. The buyer may recover damages for injuries which result from selling property with a false warranty. Sutherland on Damages, vol. 2, p 435; Laurent, Tome 24, Nos. 294 and 295; 2 M. &T., 519; 4 M, & T. 337; Bonnin et Julien c, Gabriel, Dalloz, 3873, p. 55; L. R. 5 Ex. 1; 2 Selden 397; 11 Allen 579. A dealer in oil is responsible for injuries caused by an explosion. 104 Mass. 64.
    2. The article ordered, “puroline,” and the article delivered, gasoline, of a high specific gravity and very dangerous, are materially different, and the defendants are estopped from asserting their identity, because (1) of the statements contained in the charter of the ‘ ‘ Insurance Oil Tank Co., ” of which they are the controlling stockholders; (2) by representing and selling puroline as a patented article ; (3) by their circulars; and (4) by their price-cards, in which they are called by different names and sold at different prices. In dangerous agencies mere resemblance is not sufficient — absolute identity is requisite when the article sold is likely to do harm to life or property. 27 A. 713; Lewin’s Cro. Cas. 169. Stockholders are bound by the acts and representations of the corporation or its agents. 17 Tall, 623; § 17, Ereeman on Judgments; 13 Ann. 259; 28 Ann. 204; 18How.331; §139, Boone on Corporations; Bigelow on Estoppel, chap. XIX, p. 473; H. D. p. 512, No. 6.
    3. The defendant had no right to counterfeit the trade-mark “Puroline,” belonging to the Insurance Oil Tank Company, upon the barrel of gasoline shipped to plaintiff, and which caused the damage complained of.' The unauthorized use of this trade-mark was a fraud upon the purchaser. 33 Ann. 953; 24 Ann. 99; Sutherland on Damages, vol. 3, p. 629. An implied warranty is imposed on the vendor who sells an article with a trade-mark. Benjamin on Sales, p. 495; Pardessus, vol. 1, p. 126, No. 110; ib. 189, No. 163. A purchaser can maintain an action for deceit against his vendor for selling him an article under a false trade-mark. Croke's Jacobus; Upton on Trade-marks, pp. 10 and 11; Browne on Trade-marks, par. 63, 64, pp. 40, 41 and 42.
    4. The barrel delivered by defendant was not branded “Dangerous and Explosive” as required by the laws of this State (Act 37, Ex. Ses. 1877, p. 60), and was shipped on a passenger vessel, in violation of the penal statutes of the United States. .Rev. Stats, of the U. S., secs. 4474, 4476. These statutes are State inspection laws, passed under the police power. 9 Tall. 141; 97 U. S. 504.
    5. Defendants having suppressed and withheld the testimony of their clerk, who received the order for, and the drayman ■who hauled, the barrel of fluid in question, every presumption must be taken against them. 2 Ann. 288; 6 Ann. 166; 35 Ann. 694.
    6. The defendant cannot set up plaintiffs alleged contributory negligence as an ©reuse, because (1) they committed unlawful acts in failing to have the barrel marked as required by the State statute, and in shipping it in violation of the act of Congress, and (2) because they threw plaintiff off his guard. Par. 22 and 23, Beach on Contributory Negligence, pp. 69, 70and 71 ei- seq.: Thompson on Neg., vol. 1, p. 344; 9 Md. 108; 37 Ann. 31.

      White & Saunders for Defendant and Appellee:
    The 13th paragraph of Art. 355(5 defines the term “ fault.” Now this term “fault ” is used in quite a number of Articles of the Code, as a general term denoting both ‘intentional and unintentional violation of another’s right. Eor example, Art. 2721 declares that the lessee is liable for injuries to the thing leased, sustained “ through his fault.” In Arts. 2071-2-3, relative to alternative obligations, “ fault ” is again used to denote either intentional or unintentional wrong doing. So, in Art. 1958, which declares that contracts are interpreted against him through whose “ negligence or fault” the obscurity arose. In this article the term is manifestly used as more especially denoting intentional wrong doing. And again it is used in this sense in Art. 2370, which provides that the hu§baLd is not liable where the dowry was not lost through his “ fault or neglect.”
    But the article in which the term is used in immediate connection with the subject we are now consideiing, is Art. 2315. This article declares that: “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.”
    The article just cited is a literal translation of Art. 1382 of the Code Napoleon. The commentators are all agreed that the term “faute” in this article means both intended and unintended infringement of the lights of others. For example, Mourlon, commenting on Art. 1382, says: “ La faute est un délit lorsque 1'argent du dommago l'a causé avec intention; un quasi-délit dans lo cas contraire.” (Yol. 2, p. 892.)
    So Marcadé, vol. 5, p. 265: “ La loi s’occupe simultanément des délits et des quasi-délits dans les Aits. 1382 et 1383, puisqu’elle y consaore ¿’obligation íésultant de tout acte préjudiciable et fantif sans distinguer se cct acte a été ou u’a pas été accompagné de ¿’intention de nuire.”
    And Laurent, vol, 20, p. 406: “La loiprend 3e mot'faute' dans sa plus large acception; ü comprend tontos les causes d’imputabilité, depnis le dol jusqu’a la plus légére imprudence; dono les délits aussi bien que les quasi-délits.”
    In other words, the term “ fault ” in our Code is “ nomen generalissimv/mand designates intentional wrongs as well as those which happen through negligence or inadvertence. “Fault” is thus the generic term; negligence a specific term. “Fault” denotes all wrongs, both intentional and unintentional; “negligence”denotes only unintentional wrongs.
    ■When, therefore, our Code defines “fault,” and distinguishes its several divisions, it is illogical to claim that the definition and division given are intended to apply also “negligence.”
    But it may b e urged though “ fault ” is sometimes used as a generic term, yet in the definition of it given in our Code it is taken in a narrower sense, as the equivalent of negligence.
    There does not seem to be any ground for this assumption, but if it were conceded, the only result would he to make the definition unmeaning. For, if we assume that by “ fault *’ is intended “ negligence ” in this definition and substitute the latter term for the former, the definition would then read thus: “The gross negligence is that which proceeds from inexcusably negligence or ignorance.”
    More briefly: “ G-ross negligence is inexcusable.”
    So is ordinary or slight negligence. The doer of an injury is liable whether his negligence was gross or ordinary. G-ross negligence and slight negligence would thus he confounded and identified by the very definition which is supposed to distinguish them.
    The assumption that “culpa ” is used and defined in the Homan law a» a technical term, signifying simply what “ negligence ” signifies in our law is, in our judgment, equally unfounded. The term “culpa ” is used in the Homan law with a signification as broad as that which “faute ” has in the French law, or which “ fault ” or “ wrong ” has in our law. For example: It was a rule of the Homan law that responsibility did not attach for failure to prevent an injury which it was out of the power of him who foresaw it. to prevent — *1 Chipa caret-, qv. i scü, sed prohíbe,re n<m potes/,r l. 50 de dieersis regvl'is. He is without fault, etc. And where vis major is declared to release from responsibility, the language is “ Jüjus vero nulla culpa est, culparerenecesse sit. (L. 169 Id.) That is, thougli the act was intended, it was without fault. So, a surgeon who deliberately abandons a patient, after amputating a limb, and when he must know that such abandonment will endanger the patient’s life, is declared to he c.ulpoe reus (Inst. Lib. TY, T. 3, 96), that is, guilty of a legal fault which, by hypothesis, is intentional, not inadvertent.
    The “culpa” to which the Aquilian law related was, of course, usually that form of “fault** which results from negligence. But, as wo have just seen, the term was, by no means, invariably used in this restricted sense. The definitions cited from the 16th title of the 30lh Boole of the Pandects, are unsatisfactory and of little value, as they are simply a few-pointed expressions taken from the context which showed the particular phase of “culpa” which the author was discussing. It seems, probable, however, as Pothier intimates in bis edition of the Pandects, that these definitions relate to negligent bleaches of duty in connection with the several contracts of bailment. The compaiison of great negligence with intentional wrong-doing, has a significance and propriety in these •particular relations which are altogether wanting in the ease of “culpa” unconnected with contract.
    We see, thon, that ‘ ‘culpa,” in the Homan law, is either “fault,” and thus a term of much wider significance than “negligence;” or else it is that phase of negligence which is shown in connection with the contracts of bailment, and so, in this restricted sense, as much too narrow, as in its more general sense it is too wide. In either sense it is not negligence unconnected with contract, and therefore is not the matter we are now discussing. We may remark here, that the mediaeval and modern attempts to classify and divide negligence have appeared in professed treaties on bailments, and the cases stated to establish and illustrate the divisions arc drawn from those contracts. The efforts to extend this classification and division to negligence, unconnected with contract, has given rise to infinite confusion.
    As the Homan law and code definition throw no light on the subject, we must consult the auglo-Araerican text writers and decisions, with whose principles and terminology our jurisprudence on the subject of negligence is much more closely connected than it is with the Homan law. Por it should he observed that the term “gross negligence or carelessness” appears not in the Code, hut in a very modern statute — one passed in 1877 The term is a recognized technical term, of every day occurrence in general American jurisprudence} and its meaning has been extensively discussed by courts and authors during the past half century. The literature on the subject is found in all the works on torts, negligence and damages, which make a part of the working library of every lawyer in the State. It is far more likely, then, that the term was used in the sense familiar to the Legislature which enacted the law, than in a sense which learned re* search might disputably and doubtfully give it in the Homan law.
    2d. The sense of gross negligence or carelessness in anglo-American jurisprudence.
    Modern judges and text writers have, with great unanimity, repudiated the attempt to engraft on the general law of negligence unconnected with contract the distinctions elaborated by mediaeval choialists as to negligence in connection with the several contiacts of bailment.
    Says Sutherland, «T. in Wells vs. H. K. Co., 24 2*. Y. 186: “It has been doubted of la1e whether the formal division or classification of negligence in the abstract into gross, ordinary and slight, recognized in the books, has been, useful; indeed, whether it has not tended to produce confusion. This classification of negligence which grew out of the classification of bailments, and which has been consideied more particularly applicable to questions of negligence between bailoi and bailee, is founded upon but one circumstance, that is, the circumstance of the benefit to the bailor, or to the bailee, or of mutualhenefit. This circumstance, either of mutual benefit, or of benefit to one or other of the parties only, being a circumstance common to all bailments, was made the foundation or principle oí the classification ; but it is evident, from the very nature of the subject, thatitis and must he a mere abstract, philosophical classification, of little or no use in practice. Courts deal with cases.”
    In another case (Perkins vs. Hailroad Co. p. 206), in the same volume, the organ of the Court savs: “I think, with Lord Denman, who, in Hinton vs. Dibbin (2 Q. B. 661), said: ‘It may well he doubted whether between gross negligence and negligence merely, any intelligible distinction exists.’ Judge Curtis (in 16 How. 474) also says: ‘It may be doubted whether the terms slight, ordinary and gross negligence can be usefully applied in practice.’
    “The difficulty of defining gross negligence, and the intrinsic uncertainty pertaining to the question, as one of law, and the utter impracticability of establishing any precise rule on the subject, renders it unsafe to base any legal decisions on distinctions of the degrees of negligence.”
    The Supreme Court of Massachusetts has announced the same view in Gill vs. Middleton, 105 Mass. 478, where they say: “Tbe law furnishes no definition of gross negligence, as distinguished from want of reasonable and ordinary care, which can b© of any practical utility. * * ,f The degrees of negligence, so often spoken of in the text books, do not admit of such precision and exactness of definition as to he of any practical advantage in the administration of justice, without a detail of the facts which they are intended to designate.”
    The Supreme Court of the United States has also reached the conclusion that the distinction between gross and ordinary negligence is impossible of definition or practical application.
    In Steamboat vs. King, 16 How. 474, tbe Court say: “It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree thus described not only may be confounded with another, but it is quite impracticable exactly to distinguish them. * * * If the law furnishes no definitions of the terms ‘gross negligence,’or ‘ordinary negligence,’ which can be applied iri practice, but leaves it to the jury to determine in each case what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned.”
    Subsequently, in K. K. Co. vs. Arms, 91 U. S. 494, they quote, with approval, the case last-cited. They say that they have there “expressed their disapprobation of these attempts to fix the degrees of negligence by legal definitions. ” Further on, after quoting, with approval, the English cases, they say, “* * hut, after all, it (gross negligence) means the absence of tbe care that was necessary under the circumstances.”
    The English cases are equally clear. In Wilson vs. Brett, 13 M. & W., 113, it is said that “gross negligence is ordinary negligence, with a vituperative epithet.” And in Gill vs. General, etc., Co. (L. K. C. P. 1), the Court, after repudiating the distinction between gross and ordinary negligence, remark; “Gross is a word of description, and not of definition, and it would be only introducing a source of confusion to use tbe expression, ‘gross negligence,’ instead of the equivalent, ‘a want of due care and skill.’ ”
    Finally, Chancellor Kent long ago declared that ‘gross neglect is tbe want of that care which every man of common sense, under the circumstances, takes of his own property. (2 Com. 560.) This definition, it will be observed, confounds^gross and ordinary negligence, as understood by plaintiff’s counsel. A recent English writer (Smith on Negligence, p, 21) remarks: “The words ‘ordinary’ and ‘reasonable’ are, no doubt, vague? but the subject is only further obscured by the introduction of the words, ‘gross’and‘slight,’because nobody can really say what they mean, though anybody may easily give to them some peculiar or exaggerated meaning.”
   The opinion of the Court was delivered by

Poché, J.

This is a suit for damages in the sum of $17,275, in which plaintiff appeals from a judgment rejecting his demand.

The principal facts are as follows :

A rice mill, situated iu tlie parish of Plaquemines, about 45 miles below this city, and owned by plaintiff, was totally destroyed by Are on the night of Septeihber 11, 1885.

The Are originated in a warehouse adjoining the mill, in which was stored a barrel of petroleum oil or fluid, used for illuminating purposes when the mill was run at night. While two of the mill employees were engaged, a short time after midnight, in drawing some oil from the barrel, in order to replenish the lamps of the mill, an apparently spontaneous combustion occurred in the room, which ignited the barrel. The Are then spread from the warehouse to the mill, which was in a short time destroyed with all its appurtenances.

The barrel of oil or fluid had been purchased by plaintiff from the defendant company, by which it had been shipped by boat to the mill on ihe 7th of September, according to plaintiff’s directions.

Tn his pleadings, plaintiff holds the defendant company responsible for the destruction of his mill, for the following reasons, substantially:

1st. That his order of September the 7th was for a barrel of “puroline,” a burning fluid extensively used in illuminating- sugar-houses and rice mills with safety, and that instead thereof, the defendant shipped to his mill a barrel of “gasoline,” an exceedingly dangerous fluid.

2d. That with .a fraudulent design the defendant caused the barrel of “gasoline” thus shipped to his mill, to be branded as “puroline,’> and purposely omitted to mark said barrel of oil, as “dangerous and explosive,” as required by law.

3d. That through the deception thus practiced on him by the defendant; plaintiff used said “gasoline” in his mill contrary to a prohibition against the use of the same, in the fire insurance policy which he held, in consequence of which he was .defeated in an action which he instituted in the Circuit Court of the United States, Eastern District of Louisiana, for the recovery of the amount of said policy.

4th. That the.Are resulted from defendant’s fraudulent substitution of “gasoline” for “puroline,” and not through the carelessness or negligence of plaintiff or of his employees.

Hence he claims damages for the value of his mill and appurtenances which he fixes at $11,275, and for the profits, which he lost by the fire during that season, in the sum of $6000.

The defense is a general denial, followed by the special averments that the article which was delivered to plaintiff was a fluid of the nature and quality which he had ordered; that the barrel was marked “explosive and dangerous ; ” that the damages sustained by plaintiff were brought about by his gross carelessness and negligence, in making use of said fluid in an improper manner.

The pivotal point in the controversy is the alleged deception practiced on the plaintiff by the defendant, in the substitution of “gasoline” for “puroline,” and designedly omitting- to brand the barrel with "the words “explosive and dangerous.”

Its proper discussion involves an investigation of the difference which may exist between tlie dangerous and explosive character of the two fluids.

In this connection the voluminous record in the case discloses to our minds the following facts:

“Puroline” and “gasoline” as sold and used for illuminating purposes are both petroleum products, and both are gas generating fluids. From tiie testimony of chemists, and of other experts, and of dealers in such .articles, it appears to our entire satisfaction, that the difference of danger between “puroline” and “gasoline” of 74° gravity, is so slight and insignificant that it is hardly measurable, or, even perceptible.

It also appears that in the trade, orders for “puroline” are frequently and almost usually filled by delivering 74° “gasoline.” And circulars issued and distributed all over the State by different dealers in these articles, contain the statement that 74° “gasoline” is of the same gravity as “puroline.” In both, the danger is not from explosion while burning in lamps, hut from handling in the proximity of a light, on account of the gas which they generate and liberate from packages which are not air-tight, and which gas is inflammable.

Under the provisions of Act 37, approved April 2, 1877,. entitled an act“To provide for gauging and inspecting coal oils and.illuminating oils or fluids, derived wholly or in part from coal or petroleum, to regulate the sale or disposition of the same,” etc. An inspector is appointed in the city of New Orleans to carry out the purposes of the act.

Among other duties which are imposed on him by the act, the inspector is- required after inspection, to brand the barrel or other vessel con taiuing any such products of coal or petroleum, whose flashing point shall he less than 125°, with the words “ explosive and dangerous,” to he stamped with stencil or otherwise in a conspicuous place. •

Now the present inspector, who has been in office since 1880, testifies •that in hi's inspection he ranks “ puroline”. and “ gasoline ” alike as io the flashing point, and that he invariably brands them both as “ explosive and dangerous,” and from the testimony of his predecessor’s deputy, it appears that the same rule was followed in his time.

It is ill proof that plaintiff, who resides in this city, liad entrusted the management of his mill to' an agent who was to participate with him in the profits of the enterprise, and that the barrel of oil had been ordered at his request, which was based on his experience in the use of that kind of illuminating fluid. Plaintiff himself was not familiar with it, and was tlironghont these transactions guided by the judgment of his agent, to whom the bills for all supplies sent to the mill were forwarded, and they were paid only on his approval.

Now, it appears that on the 13th of August previous, a similar order had been filled by the defendant, who had shipped thereunder precisely the same article, which was delivered on the 7th of September, stamped in the same manner, and that the bill which the company presented described the goods delivered as “gasoline, 74°.” The bill was forwarded to the agent, the fluid was used by him, and no complaint was made by him or by plaintiff.

The agent had died before the trial of this case, and the Court is thus deprived of the benefit of his testimony on a subject peculiarly within his knowledge.

We conclude that the mere substitution of “gasoline, 74°,” for “ puroline,” under circumstances showing that the difference is only •in the name of the goods, was not deception or fraud on the part of defendant.

But plaintiff’s main.contention on this point is that the barrel under discussion was not branded in the manner required by law, with the werds explosive and dangerous,” and that the omission in that particular was part of the- scheme of deception practiced on him by the • defendant.

He rests that part of his case on the testimony of five witnesses, all employees in and about his mill, who testify that they saw' the barrel in question after it had been landed from the boat, and that it did not contain the words “explosive and dangerous.”

These witnesses were skilled laborers at rice-milling; neither of them was entrusted with the care or eoutrol of the lamps or of the -oil used therein ; that duty was incumbent on another employee, whose testimony w'as not taken. They did not, and they dd not even pretend that they did, examine the barrel in a particular manner, or with a definite object in view, and their testimony was given in April, 1886, more than six months after the fire; which had also destroyed the very barrel which was the subject matter of their testimony.

From impressions produced from the stencil plates used by the defendant and by the inspector, it appears that the company stamps one end of the barrels as follows: Insurance Oil Tank Co., New Orleans, La., Trade-mark Puroline, 95 and 97 Gravier street, N. O. I. O. T. Co;” and that the inspector brands on the other end the following words: “Eugene Legardeur, Gauger and Inspector coal oils (50) gallons, flashing point., 0 degrees; New Orleans, May, 1886. Explosive and dangerous.”

In both inscriptions the words are grouped together in a circular form, the circle in the inspector’s brand being not quite completed, so as to leave room for the address of the purchaser or consignee.

Now, the witnesses who have testified on this point, when asked lo specify the particular inscriptions which they had noticed on the barrel in question, all stated with striking unanimity that they had seen the following words: “ Chess-Carley Company, Puroline, 50 Galls.”

It thus appears that they saw words which are not at all in either stencil plate, which is branded puroline, and that they saw the word “gallons” on that end of the barrel which never contains that word according to the stencil plates. These circumstances illustrate the natural unreliability of human memory, as well as the innate weakness of negative testimony. The same uncertainty is further illustrated by the testimony of one of those witnesses, who had gone from this city to the mill on September 9, on a steamboat, and who could not remember the name of the boat on which he had made the journey, but who remembered specially the letters which were inscribed on the end of the barrel.

In contrast with this testimony which leaves the judicial mind in a state of painful uncertainty and doubt, we have that of the inspector and his deputy, and of several clerks, warehousemen and other employees of the defendant, who state positively that no barrel oil or fluid leaves the warehouse without inspection, and without the proper branch One of the clerks remembers the brand and the address of plaintiff on the barrel, which corresponds in date with the order of September 7, and with the entry in the shipping or delivery book.

Postive testimony on a given point always predominates over negative testimony on the same point. Story vs. Insurance Co., 37 Ann. 255; Guesnard vs. Bird, 33 Ann. 796.

We conclude that the barrel of oil shipped to plaintiff by the defendant on September 7, .1885, did contain in a conspicuous place the words “explosive and dangerous,” and that the company is not amenable in this suit to the penal clause in the act of 1877, which reads as follows: “Any person, firm, compauy or corporation, violating any of the provisions of this section, shall be liable to a penalty not exceeding the sum of two hundred dollars for each and every offense. It is further provided that, in the event of any injury or .damage to person or property resulting from or caused by such oil or fluid not so stamped, the party thus suffering shall have a right of action in damages against the person, firm, company or corporation selling, giving or delivering such oil or fluid, for the full amount of such injury or damage, together with all costs of court. * * * Provided further, that such injury or damage shall not have been the result oí gross negligence or carelessness.”

We now.reach the point at which we must consider what cause in our opinion led to the destruction of the mill.

As already shown in this opinion, the consumers of the oil or fluid which had been shipped to plaintiff on the 7th of September, 1885, were warned of its dangerous character under the authority of the State itself, by means of the stamp which she required from all dealers in that kind of illuminating oil.

It is also in proof that with every package containing such fluid, even when stamped with the trade-mark Puroline,” the dealers sent to their customers printed circulars containing directions for the proper use of the fluid.

These circulars contained cautions of which the following is a sample :

u Puroline is absolutely non-explosive, but like alcohol is inflammable ; therefore, the reservoir should not be filled when the gas is burning or near a flame. Lamps should always he filled in day time.”

It also appears that from the volatile character of the fluid, the principal danger was from the generating and liberating of gas, if the package was not air-tight. Hence in the warehouse great caution is exercised in that direction, in trying to make barrels as safe as possible by fresh paint outside and by means of glue inside.

All these circumstances and elements of danger were known to the agent, who, in consequence had placed the whole control and management of the lamps and fluids under the exclusive charge of one man, and had issued orders forbidding the handling of fluids in order to replenish the lamps, at night, or soon after 5 o’clock p. m.

But it happened that the man in charge of that department was sick at the time that the barrel was delivered at the landing during the night of September 7, and that the barrel was not stored for two days during which time it laid exposed to a September sun in Louisiana. It ceases to be a subject of wonder to acconnt for the gas which was subsequently liberated from that barrel.

Now, it appears that in spite of all these elements of danger, of all these warnings and 'conditions, and. in utter disregard and violation of the rules of the mill, two employees went into the room where that barrel was stored at midnight, with a burning lantern, in order to draw therefrom the fluid needed to replenish some of the lamps used in the mill. The result was the fire which destroyed the mill and subjected its owner to a heavy loss.

For the purpose of our decree it is not necessary that We should charge the loss to the gross carelessness or negligence of plaintiff, or of his employees, but we are thoroughly convinced that plaintiff has utterly failed to fasten responsibility therefor on the defendant company.

In view of plaintiff’s averment that, owing to the use of “gasoline” as an illuminating fluid in his mill, under the deception practiced on him or hie agent by the defendant, he had been defeated in his suit for the recovery of the insurance thereon, we have given full and more than ordinary consideration to every feature of his case, and to every circumstance which might tend to relieve him from the hardship of an entire loss, notwithstanding his prudent caution on the subject of insurance. But we are powerless to afford him any re-life on the score of his lost policy. We have no concern with the judgment rendered in that controversy by a court of competent jurisdiction and of his own choice.

We have even no means of ascertaining the precise ground on which the insurance company was relieved of the burden of its contract.

But, in so far as our record goes, we are inclined to think that the assertion that the judgment of the Circuit Court vested solely on the broken condition which prohibited the use of “gasoline” in the mill, is not borne out.

The condition in the policy reads : “ The generating or evaporating within the building, or contiguous thereto, of any substance for a burning gas, or the use of gasoline for lighting, is prohibited.”

Now, the Circuit Court may have had evidence satisfactory to show that under (lie prohibition there was no practical difference between “purolino” of 08° and “gasoline.” of 74°.

Wc noted also that in its answer the insurance company had set. up the additional defense, that plaintiff had run his mill at night without previously obtaining the company’s written consent. Tn its reasons for judgment tlie Circuit Court “finds the issues of fact in favor of the defendant,” and it is not a violent presumption to believe that the judge had considered both grounds of defense as good.

It is thus clear to our minds that that judgment and our decree are not absolutely irreconcilable, and both may stand in law and justice, on their respective grounds.

Judgment affirmed.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 9931.
    The World’s Industrial and Cotton Centennial Exposition vs. The Crescent City Railroad Company.
    ■When a party appeals, but fails to bring up his appeal in time, and it is filed after the return day and dismissed, he cannot, under another order, bring up a second appeal. The appeal will be considered as abandoned.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      (his A. Breaux and J?. M. Hudson for Plaintiff and Appellant.

      John M. Bonner for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

This is the second appeal in this case.

In the first appeal the transcript was not filed in time, and the appeal, on motion, was dismissed. Subsequently, the appellant filed a petition for an appeal and obtained another order, and under that order.brings up the present appeal.

There is a motion to dismiss the appeal, substantially on the ground that the first appeal having been dismissed because not filed in time, the appeal must be considered as abandoned, and that this second appeal should not he entertained.

The motion must prevail. We see nothing whatever to distinguish this case from those of Pierce vs. Cushing, 33 Ann. 810, and Sterling vs. Sterling, 35 Ann. 840, where, after a thorough review of our jurisprudence on this point, we reached a conclusion similar to the one now announced. Dncournau case, 3 Ann. 245; Ducournau vs. Levinstone, 4 Ann. 30; Brickell vs. Conner, 10 Ann. 235; Redmond vs. Mann, 29 Ann. 149.

Appeal dismissed.


text:
    No. 9861.
    The State of Louisiana vs. Quincy Travis et als., Principals, and W. E. Pratt et als., Accessories Before the Fact.
    Wiiere a number of persons are on trial charged in one indictment with arson — the burning of a court-house — some as principals and the others as accessories before the fact, evidence is admissible as against two of the parties to prove that, when the building was burned, there were two indictments on file therein against them for other crimes, in order to show a motive for the commission of the arson and as a circumstance going to establish tbeir guilt; and this fact can be proved without first showing a conspiracy between the parties. The question of conspiracy is not involved.
    Where there had been a conversation between a witness and one of the accused in a matter bearing on the charge being tried, itis permissible to give the entire conversation, and the witness is not to be restricted to what the accused said to him.
    Where, after the State had closed, a motion is made to discharge one of the accused for the purpose of malting him a witness for the others, on the gronml that no evidence had been adduced against him the determination of the motion rests largely within the discretion of the trial judge, and where it is refusod for the reasons stated by the judge that there was inculpatory evidence against him, the ruling will not be disturbed, unless it is made clear that it was unfounded and arbitrary.
    Where an indictment contains a charge against certain of the defendants as principals and another charge against others as accessories, it is sufficient that it close with the usual words *• contrary to the form of the statutes, etc ,” and this language need not be repeated after each count.
    APPEAL from the Fourth District Court, Parish of Winn. JBridger, J.
    If. J. GunningJmm, Attorney General, and Geo. Wear, District Attorney, for the State, Appellee.

      JB. P. Edwards and Patterson & Eormon for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

Quincy Travis and Richard Travis, as principals, and W. E. Pratt as accessory before the fact, were convicted of arson — the burning of the court-house of Winn parish — and appeal from a sentence imposed of seven years imprisonment at hard labor.

I.

Our attention is first called to several bills of exceptions, taken to the rulings of the trial judge.

The first bill shows:

'That against Butler and Pratt, it was offered to show “ that there were indictments pending and on file in the court-house at the time it was burned — offered for the purpose of proving a motive for the- arson charged and a circumstance tending to show their guilt.”

It was objected to on the ground that there had been no conspiracy proved, and that motive could not be proved until a conspiracy had been established.

The objection was overruled and the proof admitted.

The ruling was proper. There was no force or even pertinency in the objection.

The burning of the court-house had been proved; and the judge states that it had been shown that the burning was the act of an incendiary or incendiaries.

. The proof was offered solely against the two accused, who were under indictment for another offense, the indictments alleged to be on file in the court-house when burned.

There was no question of conspiracy in the matter. Had proof been offered of some statement made or some act done by one of the accused out of the presence of the other, intended or calculated to implicate the latter in the crime charged, then it would be proper and legitimate to invoke the principle that proof of such statement or act could not be shown to affect the accused not present until a conspiracy between the two had been shown at least by prima faoie proof.

Here the fact sought to be proved did not involve the act or the statement of either of the accused.

They were charged with the burning, or the procuring the burning <of the court-house, and it was important and entirely proper to show that there were documents in the building burned that involved and necessitated their prosecution for crime and therefore they were specially interested in destroying them and, in other words, that there was a powerful motive for the perpetration of the act charged against them; and that proof of such motive would, in itself, be á circumstance tending to establish their guilt. As stated there was no error in the ruling.

2. The second bill of exceptions shows that a witness on the stand was proceeding to relate a conversation between himself and Pratt, one of the accused, who, after testifying to a statement or proposition made to him by the accused, was on the point of giving the accused’s reply thereto, when such reply was objected to as irrelevant.

We think, under the facts detailed by the judge, that it was proper to give the entire conversation.

There is no rule of law that excludes the reply of a witness to a question, proposition or remark of an accused. If such reply or the fact or statement embraced in it is silently or expressly acquiesced in, it maybe just as legitimately used against the accused and affect him, as if the words were spoken by himself.

The testimony was properly admitted.

3. On the cross-examination of one of the State witnesses, he was asked about the arrest of a Mrs. Weaks, not a party to this prosecution, and how she was treated. It was objected to, and the court refused to permit the questions to be answerd. His ruling was correct, since the preferred evidence was clearly irrelevant and was offered solely in the interest of Kelly, one of the accused on trial, who was acquitted.

II.

There was a motion for a new trial filed and overruled. The grounds of the motion were :

1. That the verdict was contrary to the law and the evidence.

As we have often said before, we are powerless to review the ruling on this point. The trial judge asserts in the reasons for his ruling that this was not true; that the guilt of the parties was established beyond all doubt. We cannot gainsay it; in fact, can say nothing about the facts or the proof.

2. The second ground is to the effect: that, after the State’s evidence was closed, there was a motion to discharge Stringer, one of the parties tried, for the reason that there was no evidence inculpating him ; his discharge at this stage of the trial being desired in order to procure the testimony of Stringer’s wife in behalf of the other accused.

The judge refused the motion to discharge, for the reason stated by him that it was not true that there was no evidence against him (Stringer). That there was evidence against him and to such an extent, that no case was presented for a special verdict in his favor. The judge’s finding on this point is final. Wharton Cr. Law, 3d ed. p. 1036; 27 Ann. 395.

8. That, by the acquittal of Stringer, Mrs. Stringer has become a competent witness, and that on another trial the accused could prove by her an alibi. The accused swore to this, but they were not supported by the affidavit of Mrs. Stringer or any other corroborafiQn as required. State vs. Edward, 34 Ann. 1012. Besides, Stringer himself had sworn to the same effect, and that of his wife would have been merely cumulative. 6 Ann. 652; 7 Ann. 284.

The new trial was properly refused.

nr.

There was a motion in arrest of judgment, substantially on the ground that the information contained one charge against some of the accused as principals in the crime, and another charge against the others as accessories before the fact, and that the charge against each should have concluded with the words contrary to the form of the statutes and against the peace and dignity of the State.” Such language is found at the close of the indictment, and that suffices. Archbold, Cr. Prac., 8th ed., p. 71.

We can find no ground of relief for the accused in the entire proceedings.

Judgment affirmed.


text:
    No. 9910.
    J. W. Jacobs vs. Yale & Bowling.
    Where an appellee files an answer to ike appeal, wlierein lie seeks to increase the judgment in bis favor, be waives bis motion to dismiss the appeal for formal irregularities.
    One who sells an immovable to another, with full warranty, and afterward has conveyed to him an outstanding interest in the property, thereby cures the defect in bis original title, which enures to the benefit of bis vendee.
    If such outstanding interest is conveyed to the wife of the vendor, in community with him, it is the same as if conveyed to himself. Neither the wife or any vendee of bis acquires any title to this outstanding interest in the property.
    A PPEAL from the Eleventh District Court, parish of Natchitoches'. Pierson, J.

      B(/an c6 Pierson, for Plaintiffs and Appellants.

      W. J. McDonald and B. E. Buchner, for Defendants and Appel- • Icos.
   The opinion of the Court was delivered by

Todd, J.

There are two appeals in this case, one from an order dissolving an injuntion on bond, and another from a judgment on the merits.

Except on the ground of want of jurisdiction rations materice, embraced in one of the motions which we must notice on our own motion, we cannot consider these motions, since they were waived by the appellee’s answer to the appeal, wherein they asked that the judgment be affirmed, and for $300 damages for a frivolous appeal.

We could not grant these damages, or even affirm the judgment unless we take cognizance of the appeal. We could not affirm the judgment appealed from, and could not award the damages claimed except by a decree of this Court, and we could render no decree or judgment unless we recognized and maintained the appeal, and ignored the motion to dismiss.

The prayer of the petition is for the rescission of a sale, the recovery of $1675 paid on the price, and of $2040, the value of the improvements made by the vendee on the land sold, which shows plainly that this Court has jurisdiction of the cause.

The motion to dismiss appeal is therefore denied.

On the Merits.

Yale & Bowling, the defendant, to enforce a special mortgage securing the unpaid residue of the price of a tract of laud, sold by them to the plaintiff, obtained an order for the seizure and sale of the property. The plaintiff enjoined the execution of this order, on the ground that Yale & Bowling, his vendors, were not the owners of one undivided half of the land sold, and that he (plaintiff) was about being evicted therefrom, through a suit then pending in another court, to that end. He asked that the sale be rescinded, and that Yale & Bowling be compelled to return him the part of the price he had already paid, and compensate him for the value of his improvements on the land.

The defense substantially is :

That the plaintiff is under no real danger of eviction, that the suit referred to, purporting to be instituted to evict him, is a fictitions proceeding, gotten up by the plaintiff and his father-in-law, confederating with him for the purpose of defeating the collection of the debt, and defrauding them out of the same.

The facts bearing on this controversy are substantially these:

The land mentioned was conveyed in December, 1871, by one John Barron to his brother, L. Gr. Barron, Sr. This sale was made after the death of the wife of John Barron, and the property had been acquired during the marriage of said Barron and wife, and belonged to the community resulting from their marriage. On the 8th of February, 1882,'the property was mortgaged by L. Gr. Barron, Sr., to Yale & Bowling for $7000, and on the 29th of March following, was sold by Barron to Jacobs, the plaintiff, on terms of credit, the instalments of the price being evidenced by notes of the buyer.

On the 17th of April following, Jacobs reconveyed the property to Barron, and, on the same day, Barron transferred it to Yale & Bowling, in settlement of his indebtedness to them, and they then conveyed it to Jacobs for $3100, divided into two instalments of $1550 each. It is for the last instalment that the order of seizure and sale issued.

Jerome and L. G. Barron, Jr., purport to have conveyed to Mrs. L. J. Thompson, the wife of L. G. Barron, Sr., on the 4th of May, 1883, the undivided half of this land, claimed to have been inherited from their mother, Mary Barron, for the stipulated price of $800. The deed was passed in Texas, where the vendors lived at the time, and was procured by L. G. Barron, Sr., his wife, the deceased vendee, not being present.

In regard to this conveyance of the half interest, it is shown by the testimony of L. G. Barron, Jr., one of the alleged vendors, that no money was paid, that no -consideration passed, but that, using his language, He gave his uncle (L. G. Bairon, Sr.), the deed, to cure the defect in the title which his father, John Barron, had made to him, L. G. Barron, Sr.’’

If it had been a real sale it would not have conveyed the property to Mrs. Barron, but to the community of which, Barron, the husband, wras the head and master. And inasmuch as Barron had once sold this land to Jacobs and subsequently to Yale & Bowling, with full warranty, this conveyance -which cured the defect in his original title from John Barron, enured to the benefit of his subsequent vendees, and therefore leaves the complaint of Jacobs in the present suit, in which he resists the demand of the defendants, Yale & Bowling, without any foundation whatever.

This undivided half interest purporting to have been conveyed to Mrs. Barron was subsequently conveyed to one E. H. Carter, of Texas; and this Carter is the nominal plaintiff in the petitory action alleged to be pending in the United States Court of Shreveport, La., and through which Jacobs fears eviction from the premises.

It is evident from the character of the conveyance to Mrs. Barron, that she had no title to the land, and could convey none- to Carter. But Carter’s testimony was taken and is in the record, from which it appears that he knows nothing about this alleged purchase by him. He states in substance that he personally never bought the land, had never seen it, and knew nothing of its value ; that if there was a con-, veyance of the land to him, it must have been made with his agent at Shreveport ; but if it was made, he, Carter, had never been apprised of it.

We, are satisfied from these facts, and from other evidence in the record strongly corroborative, that this sale of an outstanding title in the land, and a suit for its recovery, and tlie threatened eviction of Jacobs from it, is a fraudulent scheme gotten up by Barron, the father-in-law of Jacobs, to enable him to resist the payment of tlie price be obligated himself to pay Yale & Bowling' for the property. We believe that Barron is the real person in interest, and Jacobs but a party interposed.

There is no reality or merit whatever in the defenses set up by Jacobs against tlie demaud of Yale & Bowling, and the process taken out by them to enforce it. Such seems to have been the conclusion of the district judge and we are satisfied that he was right.

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


author: Watkins, J.

text:
    No. 9918.
    Succession of Chas. M. Pilcher.—On Application to Homologate Account and Tableau of Distribution.
    ON MOTION TO DISMISS.
    Notwithstanding- the clerk’s certificate is not technically sufficient, and the transcript contains neither a statement of facts, note of tlie evidence, bill of exceptions nor assignment of errors — the appellant having been absent from and taken no part in tlie trial, though, constructively, a party to the proceedings — the appeal maybe likened to one brought up by a third person, resting his claim to relief upon questions of law alone, The irregularities in the mode of bringing up such appeal may be disregarded by the court when the questions relied upon as determining the right snificienfely^appear from ,the trun script.
    ON THE MERITS.
    In the absence of proof to the contrary, it will be assumed that every fact essential to the validity of the judgment, was proven in the court below.
    'A partnership once formed and put into action, becomes, in contemplation of law, a moral being, distinct from the persons who compose it.
    It is a civil person, which has peculiar rights and attributes. The partners are not. tlie owners of partnership property.
    It belongs to the ideal being, which has the control and administration thereof, to enable it to fulfill its legal duties and obligations The partners own the residuum.

    Partnership property — whether ordinary or commercial — is liable to creditors of the partnership in preference to those of the individual partners.
    Notwithstanding the interest of the deceased member of an ordinary partnership is subjected to administration as his other property, funds realized from the sale thereof cannot be withdrawn from partnership creditors and applied to minors’ claim to $1000.
    APPEAL from the Eighth District Court, parish of East Carroll. Delony, J.
    W. G. Wyly, for the Appellant.
    cJ. M, Kennedy, for the Administrator, Appellee,
   The opinion of the Court was delivered by

Watkins, J.

On Motion to Dismiss.

1st. That the clerk’s certificate is insufficient because it does not recite that the transcript contains “ all the evidence adduced on the trial.”

2d. The transcript is incomplete because it contains no note of evidence, no statement of the facts proven on the trial, and no bill of exceptions, nor assignment of errors filed in this Court.

An examination of the record discloses that the appellant was only, constructively,- a party to the record by newspaper publication of notice, and that he did not actually participate in the trial of the account and tableau of distribution.

Hence his appeal is to be viewed rather in the light of one taken by a third party resting his pietensions to relief upon the face of the papers, the correctness of which he concedes in point of fact, but the legality of which he puts at issue.

“Although a case, the transcript of which comes up without the evidence or any statement of facts, cannot be examined on the merits the court will consider and decide the questions of la/w presented by bills of exception.” 7 La. 173; 12 La. 415; 12 Ann. 332.

Under this view of the case, we have chosen to disregard the technical insufficiency of the certificate suggested — a fault not attributable to .the appellant — and proceed to the examination of the case.

Motion to dismiss overruled.

On the Merits.

The principal contention of the appellant is that the $1000 allowed the minor child of the deceased, who ivas at his death, in August, 1885, left in necessitous circumstances, is largely, if not entirely, taken from the proceeds of the sale of the interest of the deceased in the planting-partnership of Embry & Pilcher, of which he was a creditor for a large sum, with privilege and right of pledge upon the assets thereof.

Tt is shown, as well as conceded, that in any event the succession of the deceased is insolvent for a large amount.

His argument, predicated upon these facts, is that the judgment of homologation is erroneous in allowing the $1000, thus withdrawn from a fund that should be exclusively applied to the debts of the partnership, and only the surplus applied to debts of the deceased. He insists that from the total proceeds of Pilcher’s half of the partnership crop and movables, $7,287.11, he should be paid by preference over all other creditors his rent claim, mule hire and plantation supplies, $6,222.53; bearing the lessor’s privilege and supply lien.

Deducting his privileged claims “from the total process of Pilcher’s half of the crop and movables, there remains a balance of $1,064.58,” which appellant insists the court should have applied to the settlement of Pilcher’s half of the ordinary debts due by the planting partnership of Embry & Pilcher.

The appellant further complains that no tutor had been appointed to represent the minor, and that the act of the administrator in making the allowance in favor of the unrepresented minor was. a purely gratuitous one, and was only resorted to in, order to diminish the amount he would recover. In support of this theory he cites R. C. C. 3252, which is to the general effect that “ the widow or legal representative of the children shall be entitled to demand and receive from the-succession of the deceased husband or father * * $1000, etc.

I.

Considering the latter proposition first, it is sufficient to say that we undertook the examination of this case .upon the theory that the appeal only presented questions of laxo, and that the facts set out in the account and tableau contested appeared to be conceded.

We must presume in such case that the judge a quo had before him sufficient evidence to justify the-judgment rendered. This has become a familiar rule of construction. 26 Ann. 734, 148; 24 Ann. 20; 23 Ann. 504; 22 Ann. 118.

In the absence of proof to the contrary, we cannot assume that any fact essential to the validity of the judgment was wanting on the trial in the lower court.

In Nugent vs. Stark, 34 Ann. 631, this Court said: “It is no fault of the,appellee that the íecord does not contain the evidence which the judge says was heard.”

“She was not bound to have it taken in writing. The appellant, under the law and the jurisprudence, should have secured a statement of facts before- appealing.’’

II.

In support of his theory that partnership funds cannot be applied to the claim of Hie necessitous minor, and the commissions of the administrator, because they are, by law, consecrated to the payment of the debts of the partnership, which is insolvent, he cites Succession of Stauffer, 21 Ann. 520.

In that case the claim for $1000, Set up in favor of the necessitous widow and minor, was denied under very like circumstances to those presented here. Its allowance was opposed by the creditors of the partnership of Stauffer & Co., of which the deceased had been a member; and the opposition was sustained on the ground that the property of the partnership does not belong to either of the partners separately, but remains common stock, and a pledge for the payment of the debts of the firm, in preference to any claim against the individual partners.

In Smith vs. McMicken, 3 Ann. 322, the Court said : “The partnership once formed, and put into action, becomes, in contemplation of law, a moral being, distinct from the persons who compose it. It is a civil person, which has its peculiar rights and attributes. * * * * Hence, therefore, the partners are not the owners of the partnership property. The ideal being thus recognized by a fiction of law is the owner ; it has the right to control and administer the property, to enable it to fulfill its legal duties and obligations; and the respective parties, who associated themselves for the purposes of participating in tl.e profits which may accrue, are not owners of the property itself, but of the residuum which may be left from the entire partnership property, after the obligation of the partnership are discharged.” 33 Ann. 1128, City vs. Ganthreaux.

In the Succession of Cason, 33 Ann. 790, this Court, having under consideration the claim of the widow of the deceased for a similar allowance of $1000, maintained the principle announced in Succession of Stauffer, citing it.

It is true that the Court, in that case, allowed the claim against mortgage creditors of the community; but the decree rested upon the theory that “the community of property created by marriage, is not a ' partnership.” R. C. C. 2807.

It does not matter that effects under consideration were those of an ordinary partnership, and that the one-lialf interest therein of the deceased, passed under administration for settlement. R. C. C. 1144, 872.

R. C. C. 2823 provides: “The partnership of property is liable to the creditors of the partnership in preference to those of the individual partner; but the share of any partner may, in due course of law', be seized and sold to satisfy his individual creditors, subject to the debts of the partnership.’’

This article would seem to be in conflict writh the provisions of R. C. C. 3276, which' is as follows, viz :

“The charges against a .succession, such as funeral charges, law charges, lawyer’s fees for settling the succession, the thousand dollars secured in certain cases to the widow', and minor heirs of the deceased and all claims against the succession, originating after the death of the person whose succession is under administration, are to bo paid bcfoie tlie debts contracted by the deceased person, ” etc.

The seeming conflict between the two articles grows out of tiie idea that2>artnership debts are the debts of the deceased.

The partnership is a “moral being, distinct from the 2>ersons who compose it,” not alone as regards the ownership of the partnership 2>ro2>crty, but as regards the creation of, and liability for the partnership debts.

Hence money cannot be withdrawn from the funds of an ordinary 2>artnership for the purpose of satisfying the claims of the necessitous minor.

The administrator of the succession of Pilcher was entitled to the custody of them for the sole purpose of disbursing. them according to law.

It is therefore ordered, adjudged and decreed that the account tiled by the administrator be amended, and the claim and demand of $1000 in behalf of the minor be rejected and disallowed; and it is further ordered, adjudged and decreed that the account in all other respects bo approved and homologated at appellee’s cost.

Judgment amended.

Mr. Justice Todd dissents and reserves the right to iile his opinion hereafter.


author: Fenner, J.

text:
    No. 9898.
    Mary P. Dawson et al. vs. Spencer R. Thorpe.—Thomas Hickman et al., Warrantors.
    The eviction of a purchaser under a voidable tax sale, who, at the time of the purchase, held a mortgage on the property, renews the mortgage and relieves it from all effects of the extinguishment resulting from the mortgage creditor’s having acquired the ownership of the thing mortgaged.
    But this renewal is ineffective if the creditor has, iu the meantime, permitted the principal debt to secure which the mortgage was given, to become prescribed.
    The purchase by the mortgage creditor, while extinguishing the mortgage, did uot destroy the debt or affect the creditor’s right and power to enforce payment of it and to prevent its prescription. Having suffered the debt to become extinguished, bus mortgage is necessarily destroyed, and he has no more right to enforce it when the debt has been extinguished by prescription than if it had been extinguished by payment.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

      Scarborough & Carver and White & Saunders for Plaintiffs and Appellants.

      ■laclo d; Disniu/ces and K. A. Cross for Defendant and Appellee.

      C. Chaplin for the Warrantors.
   The opinion of the Court was delivered by

Fenner, J.

Under the view we take of the law applicable thereto, we are relieved from the necessity of stating all the facts and issues involved in this complicated case, and confine ourselves to the following facts which are undisputed :

1st. On October 13, 1866, Mrs. Blanchard executed a conventional mortgage upon the property now in controversy in favor of Mrs. Clark for a debt of $8031 with interest, then acknowledged to be duo but rendered exigible only on October 15, 1867.

2d. On May 31, 187?, Mrs. Clark sold to Dr. Thomas H. Patterson her above-mentioned debt and mortgage.

3d. On July 6, 1872, Dr. Thos. H. Patterson bought, at a tax sale, the property on which his mortgage rested and entered into possession thereof as owner.

4th. In 3878, the heirs of Mrs. Blanchard brought a suit against the heirs of Dr. Patterson, who had succeeded him in the title and possession of the property, to annul the tax sale under which he held and to recover the property.

5th, The abovementioned litigation resulted in a final decree rendered by this Court in November, 1883, (35 Ann. 1086) by the effect of which the tax title was annulled, and the heirs of Mrs. Blanchard recovered the property subject, however, to the condition of reimbursing to defendants the sum of $9894.88 with interest from date of judgment in district court, being excess of reimbursement allowed defendants for taxes and improvements over the rents and revenues.

6th, On the 18th of October, 1883, the heirs of Blanchard sold the property to the defendant, S. R- Thorpe, for the price of $21,000 and out of the cash payment the amount of the judgment in favor of Patterson’s heirs, exceeding $10,000, was paid to aud accepted by. them.

7th. On the day preceding the final consummation of this sale, viz: On October 17,1883, the heirs of Patterson had caused to be reinscribed against the property the old Ciarle mortgage of I860, heretofore mentioned, which had been first inscribed in 1867, and had never before been reinscribed.

In September, 1885, the present suit was brought, which is an hypothecary action instituted by the heirs of Patterson against defendant, as third possessor, to enforce the aforesaid conventional mortgage.

Numerous defenses are set up, among which the one which was sustained by the judge a quo was the prescription of ten years, pleaded in extinguishment of the principal obligation secured by the mortgage.

There is no dispute that the debt became due in 1867, and that nearly eighteen years had expired before any demand of payment was made, or any step taken of any kind to interrupt prescription.

Tlie only reliance of plaintiffs to defeat this plea of prescription rests on the application of the principle announced in Art. 3409 of the Civil Code : “ The servitudes and incorporeal rights which the third possessor held on the property before his possession of it, are renewed after his relinquishment, or after the sale under execution made upon him. His own creditors, after those who held their titles under the preceding proprietors, exercise their rights of mortgage in their order on the property relinquished or sold at auction.”

In a learned and equitable opinion, this Court has extended this principle so as to cover the case of an evicted purchaser. N. O. Ins. Assn. vs. Labranche, 31 Ann. 839; Spencer vs. Goodman, 33 Ann. 398.

But, what is the principle % Under the language of the Code, the revival only extends to “ the servitudes and incorporeal rights which the third possessor held on the property;” and the application of it in the Labranche case is correctly announced in the syllabus, as follows : “ Pre-emption of a mortgage cannot take place pending the possession of the mortgaged property by the mortgage creditor, who holds under a voidable tax sale; and should such sale be annulled, the mortgage will revive with the rank which it held at the date of the sale.”

And what are the reasons on which the principle rests'? They are well expressed in the Labranche case, as follows: “The principle that no one can mortgage unto himself his own property is axiomatic, res sua nemini servit; and to say that one must reinscribe against himself would be compelling the doing of that which the law says cannot be done.”

The Civil Code prescribes several methods by which mortgages are extinguished, amongst which one is : “ by the creditor acquiring the ownership of the thing mortgaged;” and another is, “ by the extinction of the debt for which the mortgage was given.”

It is obvious that the principle under discussion applies exclusively to the first method of extinction, and relieves from its consequences alone. In other words, the law declares that, by the effect of the mortgagee’s acquisition of the property, the mortgage was extinguished; that, therefore, while holding the title, it was an impossible and vain thing for him to reinscribe a mortgage against his own property ; and hence, that when the former owner and mortgage debtor annuls and destroys his title, justice requires that the supposed extinguishment of the mortgage by the title should cease with the destruction of the title, and the effects of such extinguishment in the failure to reinscribe should also cease.

The principle, in this point of view, is supported by the three eqiritable maxims, “lex neminem eogit ctcl impossibilia autvana,” “contra non valentem, etc.,” and the “restitutio ad integrum.”

But it is perfectly clear that the acquisition of the property by Patterson under the tax sale had not the slightest effect upon the debt due by Mrs. Blanchard to him. Had the price paid by him for the property gone to the satisfaction of that debt, to that extent the principle of restitutio ad integrum would have received its effect in the requirement that the heirs of Mrs. Blanchard would have had to repay the same as a condition precedent to the recovery of the property.

But there was no such application of the price. The debt due to Patterson was entirely unaffected by the sale. Nothing prevented his suing the heirs of Blanchard and recovering judgment against them, and from satisfying the same out of any property liable therefor. That debt might have been paid, remitted, novated or extinguished by any of the modes of extinguishing obligations, and amongst others it was subjected to extinguishment by prescription.

It has been so extinguished, and, under the express language of paragraph 4, art. 3411 C. C., this extinguished' the mortgage.

The revival of the mortgage under art. 3409 is no more effectual when the debt secured by the mortgage has been prescribed, than it would be if the debt had been paid. The one mode of extinction of the debt is just as effectual as the other.

This extinction of the debt destroyed the mortgage not only under the terms of Art. 3411 already referred to,, but under the emphatic language of Art. 3285, which declares:

“ Consequently, it is essentially necessary to the existence of a mortgage, that there shall be a principal debt to serve as a foundation for it. Hence it happens that, in all cases, where the principal debt is extinguished, the mortgage disappears with it.”

How are we to disregard these mandatory provisions of the law ?

Counsel for plaintiffs contend that the decision in City Bank vs. Houston, 2 Ann. 114, establishes an exception to the above rules of the Code and shows that a mortgage may exist without any principal debt to support it.

Our study of that decision leads us to the conclusion that the court held that the debt was not extinguished, and that the bankrupt court had no power to extinguish it, in so far as it was secured by the mortgage. The court likened the prohibition in the Bankrupt act against destroying mortgages, etc., to the provision exempting fiduciary debts from the operation of the act; and held that the mortgage debt, to the extent of the security, was similarly exempt from the operation of the act.

But were this otherwise, that cas6 would be clearly distinguishable from the instant one on other principles.

It is further claimed that the rule contra non valentón should defeat the prescription in this case, because if Patterson had sought to interrupt prescription by suit, he would have been compelled to pretermit his mortgage claim, and would thereby have abandoned and destroyed it. We cannot assent to the proposition.

It may be true, as a general rule, that by suing and obtaining a judgment for a debt, without asserting the mortgage by which it is secured, the creditor might be presumed to have abandoned the latter; but this presumption would by no means apply in a case when, at the time of the suit, the creditor held ownership of the mortgaged property. If the debt had been kept alive, the revival of the mortgage on eviction would have attached to the debt in whatever shape it might exist, under the very principles of the Labranche case.

We have reflected on this case in every light and can find no ground on which plaintiff’s mortgage can escape the extinguishment resultiug from the extinction of the principal debt.

If the renewal of their mortgage free from the effects of the extinguishment resulting from the mortgagee’s ownership, when the latter is destroyed, becomes ineffective, it results from their failure to keep their debt alive, which the ownership of Patterson did not prevent them from doing, and from the effect of which the eviction cannot be. lieve them.

Judgment affirmed.

Watkins, J. recused himself.


author: Bermudez, C. J.

text:
    No. 9817.
    Succession of Eliza Vance. On Petition of City of New Orleans.
    "Bequests fov pious uses are higlily favored by law.
    An unincorporated institution, organized, administered and maintained by a municipal corporation, and known as 11 The Insane Asylum,” maybe the object of a charitable bequest.
    A legacy to such an establishment is intended for the relief of the indigent insane of the city, and vests, at the testator's death, in the municipal corporation for the use and benefit of the unfortunate cared for by it.
    An unconditional legacy, once vested, cannot be divested. After it has passed, it cannot revert.
    'The municipal corporation may subsequently discontinue such institution as a locus. It may confine and keep such persons in another local and special institution.
    By such discontinuance the legacy does not lapse and revert.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      W. H. Sogers, City Attorney, for the City of New Orleans, Appellant.

      Beovy & Beovy, JB. B. Zruttsehnitt and J. P. Blair, for the Executor ■•and other Defendants, Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit by the city of NeAv Orleans for the ■recovery of a legacy made for the benefit of the indigent insane in her ■charge.

The defense is, that there is no such bequest in the will; that, Avhile -there Avas a gift to a certain named institution, “The Insane Asylum,” .yet, before acceptance, or demand for the legacy, this institution passed out of existence, leaving no representative; that, having voluntarily abolished the asylum, the city has deprived herself of the only character in Avhich she had any right to receive the legacy, and has rendered impossible the performance of the conditions attached thereto.

From a judgment dismissing her petition, the city prosecutes this appeal.

From the admissions of counsel, the folloAving are the important facts from which the controversy arises:

Mrs. Vance left a will, by which she bequeathed $300 to each of four -charitable institutions, all of the city of New Orleans, one of which was “the Insane Asylum,'1'1 and directed that any residue of her estate, after payment of the legacies, he divided, share and share alike, between five grandchildren and the four institutions alluded to.

At the date of Mrs. Vance’s death, there was in the city of New Orleans an institution known as the Insane Asylum, which was unincorporated and under municipal control.

Before the legacy was accepted by the asylum, that institution rvasdiscontinued and its inmates transferred to the State Insane Asylum, at Jackson, in this State.

Subsequently, relying on .an ordinance of the city of New Orleans purporting to have transferred to the State Asylum all the rights of the city, as particular and residuary legatee, the State Asylum claimed the legacies.

It is also admitted that in such Insane Asylum were housed the indigent insane of New Orleans, and that after discontinuing caring for them in that place, the city has provided for their detention in the Louisiana Retreat,'a special institution which receives persons afflicted with mental affections; and that the city pays for the same.

The legacy claimed exceeds $2000.

Other admissions were made, which it is unnecessary to particularize.

It forms part of the judicial history of this succession that the right urged by the State Asylum to the legacy in question was not recognized — the court holding that the fund bequeathed to the Insane Asylum of New Orleans could not be diverted by the city to another institution under the administration of a State Board.

Apprehending, after the decision was rendered, that the executor of Mrs. Yance would distribute the amount of the legacy among the grandchildren of the deceased and the three other institutions, as residuary legatees, the city sued out an injunction and claimed the legacy.

In order to arrive at a correct conclusion on the subject, the following questions must be considered:

1st. What was the intention of the testatrix?

2d. Has the legacy to the Insane Asylum passed at her death to that institution ?

3d. If it has, can it be claimed to have reverted ?

4th. Even if it could, has tire event arisen upon which the return could take place ?

I.

Our Code has long ago recognized and laid down the wise rules which prevail in all civilized countries and which have been steadily followed, as much as practicable, namely: that in the interpretation of wills the intention of the testator must be principally endeavored to be ascertained, and that a disposition must be understood in the sense in which it can have effect, rather than in that in which it can have none. R. C. C. 1712, 1713.

G-uided by the light of these texts of law, as well as by numerous precedents and the views of commentators on similar provisions in other systems, we once endeavored to find and we then formulated what we conceived to be the intention of the testatrix, namely: when the interpretation of her will was first before us on the claim of the State Asylum.

We then said, after rejecting the pretensions of the State Asylum, as transferree:

It may be that the legacy and the residuary bequest have not absolutely lapsed. The ordinance of the city council assigning them to the opponent is null; but it is not necessarily a renunciation of them. Whether the council can or will accept and administer the fund for the benefit of those for whom the testatrix intended it, is a matter not of present concern to us.

If the indigent insane of the city are the sole recipients of it, there seems to be no satisfactory reason why the legacy and bequest shall not be maintained.

The locus where these unfortunates are detained is not a material consideration.

“ The object of the testatrix was to relieve their destitution and assuage the rigor of their lamentable condition. The city council is the administrator of the fund she has donated for that purpose.”

We were then and we are now satisfied, that the intention of the testatrix was to cooperate in the relief of the indigent insane, for whom the city was bound to make provision.

In her mind, it must have been a matter of no significance whatever, whether those persons were attended to in this or that building, in this •or that locality, by these or those municipal or other employees, or servants, or nurses. Her object was to relieve suffering humanity in that class of human beings, and to that charitable purpose she devoted part •of her worldly goods.

II.

The fact is patent that, at the death of Mrs. Vance, persons of that denomination were being taken care of by the city, and were housed in a particular place, specially set apart for their custody and maintenance, under municipal supervision.

It is admitted that this asylum was not incorporated and was under the city’s control. Indeed, as it was not a corporation or independent being, it had to be so. It had in itself no life, no legal existence. It had, therefore, no inherent rights and could be subjected to no legal obligation, but it could well be an object of charity; though it could neither accept or reject a gift.

Established, provided for and administered by the city, out of her own revenues, served by subordinates appointed and removable at-pleasure by the city, that institution formed part of the municipal machinery,- as much as the jail, the court house, and was nothing but a-municipal or corporate functionary. In other words, it was the city herself.

While writing on public institutions, Laurent says:

Quand le Code parle d’etablissements publics il place toujours en premióre ligne, les hospices. C’est une institution nécessaire, puisqu’il y aura toujours des miseres humaines aux quelles il faut porter reméde. Cependant personne ne dira qu’elle forme une personne naturelle.

Les administrations municipalles nomment une commission qui dirige les divers établissements de cliaritó et gere les biens qui leur sont affectés.

C’est la société qui exerce la cliaritó par l’intermódiaire des hospices.” Vol. 1, No. 295, p. 378.

III.

The executor puts himself out of court by the very attitude which, he assumes when he charges that the legacy has returned to the succession, by reason of the discontinuance of the asylum. He thereby impliedly admits that the legacy has passed from the succession to-the legatee, but insists that it has returned.

This cannot be under our system of law, which forbids giving and not giving. Had the testatrix thus stipulated, however, that condition, being prohibited, would have been illegal, and as such dealt with or reputed as not written.

If the legacy has passed, as it surely has, then the succession liasbeen divested absolutely and the legatee has acquired.

An unconditional legatee cannot, after vesting, be divested under any contingency.

It is, therefore, clear that, although the insane asylum was not incorporated, the legacy could take effect, and that it has passed from the succession of the deceased to the city of New Orleans for the use- and benefit of her indigent insane.

IV.

If it be true, then, that the legacy, at the death of Mrs. Vance,, passed and vested, and if it could be said that it was made contingent on a condition sanctioned by law, could it be urged that it had lapsed, because of the discontinuance of the asylum 7

It is perfectly true that legatees and heirs benefit by the failure of legacies which they were bound to discharge. R. C. C. 1704, 1709; but it is no less so that those legatees and heirs are thus benefited only where the legacy has been rejected and was made to one incapable of receiving it. R. C. C. 1703, 1709.

In the instant case, however, the insane asylum could be an object of charity, the legacy was not rejected, but accepted, and suit was brought to recover it; the testatrix has not expressed any contingency for the caducity of the legacy, and the municipal corporation which administered the institution is still in existence, ministering unto the necessities of her indigent insane.

The Supreme Court of this State has, in a remarkable litigation, well said that legacies of this class are known to the civil law from the formation of Christianity, as legacies for pious uses, and are an element in the polity of municipal administrations in all countries which have preserved the features and jurisprudence of Roman civilization. They are highly favored by law on account of their motives for sacred usages and their advantage to the public weal and the great consideration which the law attaches to these legacies controls tribunals in their interpretation of them, and has secured for their support a doctrine of approximation which is coeval with their existence. McDonogh’s will case, 8 Ann. 246.

It is under the authority of the article which is now No. 1549 of the Revised Code, which declares that donations made for the benefit of a hospital, or the poor of a community, or of establishments of public utility, shall be accepted by the administrators of the same, that the Supreme Court has allowed a bequest to the orphans of a municipality to be recovered by the city of New Orleans. Succession of Mary, 2 R. 438. It is under the same authority that, in another celebrated controversy, the city was recognized the right to receive the residue of a large estate, which the testator had directed to be applied to the-erection, maintenance and support of a suitable asylum in the city, to be used solely for Protestant widows and orphans, to be called Fink's Asylum. 12 Ann. 301. See, also, 8 Ann. 171; 17 La. 46; J. P. V. 1886, p. 967.

Withal, those propositions of law are admitted, but it is argued that the city has no right except as administrator of the asylum, and then only sub modo, under condition of applying the gift to the use and benefit of this particular institution. It is further urged that, as the city lias, by her voluntary act, abolished the asylum before acceptance of the legacy, she has thereby lost the character of administrator and rendered impossible the performance of the conditions attached to the gift, the city is without any title to the legacy she is seeking to recover.

We do not view the matter in that light.

As was well said by this Court, when it passed on the pretensions of the State Insane Asylum, under the transfer of rights attempted to be made, the locus where the indigent insane of the city are detained, is not a material consideration. The object of the testatrix was to re • lieve their destitution and mitigate their lamentable condition. The city council is the administrator of the fund which she donated for that purpose.

It is admitted that the city of New Orleans no longer does what she formerly has done and was doing when Mrs. Yance died, viz: confine and keep her indigent insane in a specially assigned building and place, but this circumstance does not militate adversely to her present claim.

The discontinuance may be justified for reasons which have not been proved, but which can be easily realized. She may have done so either because the building was too small, needed repairs or improvements of which she could not defray the expense, or because it was located in an improper spot, or because the inmates were not sufficiently well cared for, or because the depleted municipal treasury would not afford adequate means to relieve existing evils, or because she found it more advantageous, pecuniarily, morally and physically, to have her indigent insane committed and maintained in a special institution within her limits, easy to supervise, which receives a like class of unfortunates.

Non constat that the city will not some time resume the direct control over her indigent insane, which she exercised over them when Mrs. Yance died.

The fact is patent that since the city has discontinued keeping her insane in a building under the management of her subordinates, she has made arrangements with the Louisiana Retreat for the admission and care of her insane, and that this substitution, which has for its special object to take charge of such persons, receives and provides for them, for a money consideration which the city actually pays.

There exists no parity between this case and that of the succession of Nicholson, 37 Ann. 346. There this Court held that incorporated institutions claiming directly a charitable bequest must show that it •comes witliin tlie terms and conditions of tlie will. Here tlie question is not one of identity; it is simply one of existence or not, one wliieli is practically : whether a municipal corporation lias a right to claim a legacy made to an institution at a time under its direct management and which lias been discontinued as a distinct organization after the •death of the testator.

There is no dispute that if the Insane Asylum which was in being at that date, existed to-day in the same conditions, the city would have a right to recover.

But we have said that the place, mode or manner in which the insane of the city are maintained is insignificant, the intention or object of the testatrix being the relief of those persons of whom the city takes ■charge and for whom she provides.

We therefore conclude that the legacy made by the deceased for such relief having once vested, cannot he and has not been divested; and that consequently the city is entitled to recover it, the same to be used •exclusively in furtherance of the benevolence of the testatrix.

Melius valeat quam per eat.

It is therefore ordered and decreed, that the judgment appealed from be reversed, and it is now ordered and decreed that the city of New Orleans recover of tlie succession of Mrs. Eliza Vance the particular and residuary legacies, with legal interest from judicial demand, the sums bequeathed when received to be exclusively applied by the city for the relief of her indigent insane, in furtherance of the will of the testatrix.

It is further ordered and decreed that the injunction originally issued but subsequently dissolved, be reinstated and perpetuated, the succession to pay costs in both courts.