author: Nicholls, C. J.

text:
    No. 10,986.
    C. H. Starns et al. vs. Lavinia A. Hadnot et als.
    Where the notary before whom a marriage contract is alleged to have been executed, and which contract is averred to have been destroyed by fire, deposes that he remembers perfectly the act and its execution — that it declared that the parties thereto were about to be married, and that in view of the con templated marriage had agreed there should be no community between them; that the act was passed by him, duly signed by the parties and duly witnessed and recorded, proof of the fact that the parties were not married when the act was passed rests upon the recitals of the act of which the notary testifies he has a distinct recollection. These recitals bind both the parties and their heirs to tlieir verity. The force of this testimony is not weakened because at another point in his testimony he stated that he knew the parties were not then, married, because they came together to his office before the act was passed and told him they were about to be married, and the character of the act they desired passed. This fact, together with others specified, were simply explanatory of the vivid recollection of the witness of this particular act.
    If a marriage contract be proved to have been executed before the celebration of the marriage, the precise day of its execution is immaterial. Time is of the essence of the contract only with reference to its being prior to the marriage.
    In a contest between the heirs of a wife and those of a husband, where the plaintiffs and defendants are all children of the same mother, though by different husbands, the issue being whether or not the second marriage was contracted under a marriage contract, the declarations of the wife during the second marriage that such was the fact are admissible in corroboration of the testimony of the notary before whom the contract is alleged to have been passed, to tlie effect that such a contract was executed before him. A proper foundation for the introduction of secondary evidence, as in case of a destroyed instrument, having been laid, the testimony of the notary and the declarations of the wife were both admissible.

      4. The husband of one of the heirs of a succession can testify for or against a co-heir touching the latter’s interest in. the succession. Boisse vs. Diehson, 31 An. 741.
    5. Although the judge may have charged improperly, yet, if the evidence would not have authorized a different verdict, it will be upheld. 7 An. 678; 10 An. 150.
    6. As an act bad for one purpose may be good for another, the judgment rendered in a case may be pronounced an absolute nullity for want of jurisdiction, and yet the record therein may be legally admissible in another suit. The pleadings may contain admissions, or the rights of parties may otherwise be legally affected.
    7. A court can not assume, for the purpose of excluding from being admitted in evidence, the record of a suit in which a wife appears as a plaintiff, acting in her own interest and adversely to her husband, that the suit is really one in the interest of her husband; that the allegations of the petition are admissions in favor of her husband and really his own allegations. Charges to that effect can not be brought to bear by way of objection to evidence. The court was not called on to stop the trial of the ease and try separately issues raised by such objections.
    APPEAL from the Twelfth District Oourt, Parish of Grant. J.

      B. J. Bowman, for Plaintiffs and Appellants,
    cited: O. 0., Art. 2281; 21 An. 922, 343, 651; 23 An. 556; 1 Peters, 591, 599, 600; 2 N. S.' 666; 3 N. S. 636; O. P. 516; 5 R. 78; 8 R. 236.

      White & Thornton, for Defendants and Appellees,
    cited: O. C., Arts. 2325, 2328, 2329, 2332; 31 An. 110; 25 An. 429; 25 An. 426, 201; 27 An. 393; 12 R. 31; 4 An. 337; 32 An. 325; O. O. 2386, 2396, 2392-3-4-5.
   The opinion of the court was delivered by

Nicholls, C. J.

The plaintiffs, Charles H. Starns, George L. Starns and Philip Ursory, urge that the two former are the children of Martha E. Starns, and that the said Ursory is the heir of his deceased child, George Ursory, the issue of his marriage with Margaret A. Starns, the daughter of the said M. E. Starns; that Margaret A. Starns died leaving the said minor her sole heir, and the said minor died about the year 1886, leaving the said Ursory her sole heir.

That, subsequent to the death of her first husband, the father of C. H. and G. L. Starns and of the wife of Philip Ursory, the said M. E. Starns married Alfred O. Lewis, on or about the 30th November, 1856; that at the time of that marriage she owned a number of slaves and personal property, consisting of cattle and household furniture; that immediately after her marriage, Lewis moved all of said property to his plantation in Grant parish, where he and his wife resided until their respective deaths. That the said Lewis worked his farm with the joint labor of the said property belonging to his wife and his own, which consisted of about the same number of slaves and work stock, with the slaves until 1866 and with the stock until it was worn out; that Lewis had only two milk cows and calves, which were mingled with those of M. E. Starns, and the increase of said joint stock, at the death of M. E. Starns, amounted to about one hundred and sixty head; that at the death of the said Mrs. M. E. Starns, the community property between her and her husband Lewis consisted of a plantation on Red river in the parish of Red river, consisting of about thirteen hundred and nineteen acres of land, also the undivided half of a plantation on Red river, in the parish of Rapides, known as the Oorinne plantation, besides a number of mares, horses, colts, work stock and cattle; that Lewis failed to have any inventory made of the property of his wife at her death, but took possession of all of said community property as well as what remained of the property owned at their marriage; that he sold a portion of the cattle and left a portion, which with the said plantations have been taken possess’on of by her heirs and used by them; that the rent of the plantation in Red river parish has been worth twelve hundred dollars a year from 1876, and that of the undivided half of the planta - tion in Rapides parish one hundred ¡dollars per annum; that the cattle were worth twelve hundred dollars at the time they were disposed of, and would have been worth at the time of his death a much larger amount; that the work stock, mares and colts were worth six hundred dollars.

That Lewis left the following children, issue of his marriage with petitioner’s mother: Lavinia A., wife of John P. Hadnot; Luella D., wife of H. G. Goodwin, and Joseph P. and Alfred W. Lewis, and three minor children, issue of his marriage about the year 1880 with Julia Ferrand. The plaintiffs prayed that these parties be cited, and the said heirs of A. C. Lewis be decreed to account to the said community for the rent of the plantation in the parish of Red River, at $1200 a year, and for the rent of the undivided half of the plantation in Rapides at $100 per annum, and for the rent of each from 1876.

That the estate of A. O. Lewis be also decreed to account to the said community for the cattle, at the value of $1200, with 5 per cent, per annum interest from the time they were sold or disposed of by A. O. Lewis, for the work stock, mares and colts, at $700, with like interest, and that said community be partitioned, for trial by jury, and for general relief.

Defendants first pleaded the general issue. They then alleged that the property claimed to be community, and sought to be partitioned, was and is the separate property of the late A. O. Lewis, and that it was not and is not community property, as the plaintiffs have declared. That the said Alfred O. Lewis and Widow Martha E. Starns, their father and mother, just previous to their marriage, made and entered into a marriage contract, by and in which it was stipulated and contracted that no community of acquets and gains should exist between the contracting parties or future spouses, and that their property should be separate. That said contract was executed before Rosemond Le Gras, then a notary public in and for the parish of Rapides, on or about the 29th day of November, 1856, and that it was forthwith deposited by the said notary in the recorder’s office of Rapides parish, was duly recorded, and there remained, until it, together with the court house of that parish and all the records of said parish, were destroyed by fire in 1864. That the marriage contract was sought to be re-established in 1868, and was so re-established by a decree or judgment of the District Oourt of Rapides, in the year 1870, under the law providing for the reestablishment of the lost records by the said fire in 1864.

That their mother’died in the year 1876, leaving no property. That before her death, and in view of that event, she divided in kind all the property she owned and possessed, between her two sets of children and heirs, and that the plaintiffs then received and accepted their full part and share of all their mother’s property, and that they never claimed or pretended to claim or set up any other or further rights to any other property than that so divided by their mother and so accepted and received by them until after the death of Alfred O. Lewis in the latter part of the year 1889, and that their pretensions are stale and without foundation. They, therefore, prayed that plaintiffs’ demand be rejected.

Before the trial in the lower court the parties entered into an agreement to the effect that they shall at this trial try only the issue whether there was an ante-nuptial contract between Alfred C. Lewis and Martha E. Starns regulating the community of their marriage, and that all other issues in the case are to be held in abeyance.”

The special issue so submitted to the jury by consent, was by a division of nine to three in that body, determined in favor of the defendants, whereupon the District Court rendered a judgment that ‘ there is and was no community of acquets and gains existing between the late Martha E. and Alfred O. Lewis, and that plaintiffs’ demand be rejected at their costs.”

It was admitted between the parties that A. C. Lewis and Martha E. Starns were married on the 30th of November, 1856; that Mrs. Lewis died on the 22d of December, 1876, and that Mr. Lewis died on the 16th of December, 1888; also that the notary who passed the act did not make or keep a copy of the marriage contract or any of his acts, and that there is no copy of said marriage contract in existence.

In support of the position that there was a marriage contract between their father and mother, stipulating there should be no community and their property should be kept separate, defendants offered first the testimony of Rosemond Le Gras, the notary public, who, it is alleged, passed the marriage contract, taken in New Orleans under commission. Le Gras testified as follows: “ I was a resident of Alexandria, La., during the year 1856; I had resided there continually from 1830 to 1863. During that period I was mayor of the town, justice of the peace and notary public. I occupied those positions at different times and held that office for several years. I was intimately acquainted with Alfred C. Lewis; was also acquainted with Mrs. Widow Martha E. Starns, both of Rapides parish; knew them in 1856-and before that year, and I know that they did become husband and wife in the year 1856. They entered into a marriage contract before me as a notary public. Both parties were present and signed the marriage contract. It was witnessed and regularly drawn. I do not remember the witnesses at this time, but my impression is strong that W. B. Hyman, then attorney at law at Rapides parish, La., and afterward Chief Justice of the State of Louisiana, was one of said witnesses, because he was-the attorney and legal adviser of the late Alfred C. Lewis and the-Widow Starns. I remember distinctly that he was present when the marriage contract was passed and signed. It was stipulated in the marriage contract that there should be no community of acquets- and gains; that each should hold and manage their own separate-property. I remember these stipulations clearly. It was the object-of the marriage contract between the parties. I do not recollect-anything else in regard thereto excepting that it was a short act regularly witnessed and afterward recorded.”

On cross-examination by the plaintiffs, he stated: “I left the-parish of Rapides in the month of May, 1863, and have resided in Algiers, La., since that period, excepting two years that I resided near Amite, La. I knew it (the fact that A. C. Lewis and Martha E. Starns were married) from general report, from Mr. Lewis telling me that they were married and from both telling me at the time that the marriage contract was executed that they were about to be-married, and I never heard their marriage disputed. I became acquainted with the widow Starns some time before the marriage contract was executed between her and Mr. Lewis, but how long before that time I do not exactly remember. Wm. B. Hyman was the lawyer for the widow Starns some time before the marriage with A. O. Lewis and she used to come to his office to consult him; in that way I became acquainted with her. My office was at the corner' of Second street and Bayou Robert road, in Alexandria, La., and Mr. Hyman had his office adjoining mine and directly in the rear. The entrance to his office was directly through mine. Nor can I remember now the exact date of her marriage with Lewis. It was a short time after the presidential election of 1856, and I think in the month of November, as well as I can now remember. Of course it (the marriage contract) was not signed after their marriage, but prior thereto. If they had told me that they were married, I should have told them it was useless to make a- marriage contract. They both told me at that time that they were not married, but were about to be married. I have thought of all the circumstances attending the matter and I .feel confident it is impossible for me to have been mistaken when I said the marriage contract was-•executed and signed before the marriage was celebrated, and this because Judge Hyman, the legal adviser of the parties, was present and advising them of its execution, and because I also knew that it had to be signed before the marriage to be of any value, and of the parties telling me they were about to be married, and that they wanted their property to be kept separate and no community between them. I can not tell the exact date of the marriage contract, but am sure it was during cold weather and about the presidential election of 1856, that is shortly after said election, nor do I remember the day of the month and week nor the exact date that the wedding took place. I do not remember how long after the marriage contract was signed the marriage was celebrated. I was not present at the celebration of the marriage. The marriage contract was drawn and signed in my office at Alexandria, La. The Widow Starns and Mr. Lewis came into my office together and executed the act there. I do not remember to have read the act after it was recorded. No paper in relation to this matter has been sent me by any one that I have received. About the 24th or 25th of last April, 1889, Mr. H. G. Goodwin brought me a letter of introduction to my house, in Algiers, from Judge M. Ryan and John Olements, both of Alexandria, La. Goodwin at that time showed me a copy of a judgment rendered by Judge Osborne in the Rapides District Court. This judgment revived the marriage contract I had drawn between Mr. Lewis and the Widow Starns. The original contract it stated had been burned. That was the only paper he showed me except the letter of introduction, above mentioned. The only letter I have received is the letter of introduction hereinbefore referred to. The only paper shown me or which I have read was the judgment referred to in my answer to cross-interrogatory No. 9 and shown me by Mr. Goodwin. Mr. Goodwin is the only person I have seen or heard from in relation to the matter. I do not remember to have read said marriage contract since I caused it to have been recorded, over thirty-two years ago, but the recollection of that marriage contract had not faded from my memory. On the contrary I have a distinct recollection of it and the execution, because ic was the first and only marriage contract I executed during the period of my notarial office, and being also well acquainted with the parties, and my recollection of it has not been influenced in the slightest degree by the letter of introduction or the judgment of Judge Osborne, or the interview I had with Mr. Goodwin. Before Mr. Goodwin showed me the judgment I told him that I had a perfect recollection of the marriage contract, and it is not through anything he said or showed me that I give the date of said marriage contract. The marriage contract, as I have before stated, was not a long one. It declared that in view of the fact of the marriage about to be celebrated between them they were desirous of forming a marriage contract, and to that end had agreed that there should be no community of acquets and gains between them; that their property should ever remain separate. It made no provisions or statements of the kind of property that each of the parties had, or stipulations or agreement made about the husband taking the property of the wife, but to the contrary, each should retain and manage their separate property. Nothing was said about how the expenses of the family or household were to be borne. As before-stated, I was not present at the wedding, but their marriage was one of public notoriety and well known in town, and Mr. Lewis told me that the marriage had been consummated. I remember shortly after I had drawn the contract of asking Mr. Lewis: ‘Have you consummated your marriage?’ and was informed by him that he had.”

We have transcribed this testimony iu full, for the reason that the case turns principally upon it, and that its reception by the court was made the subject pf a bill by the plaintiff, the exceptions raised to this testimony being leveled at Le Gras’ answers to the fourth and fifth interrogatories, stating “ the marriage contract was before-marriage,” on the ground that the said answers show they are-impressions and not facts within the knowledge of witness; also upon the ground that the date of said contract is a part of the contents of said contract, and its contents can only be proved by knowlege derived from having read the instrument, from a knowledge of its contents, and on the- further ground that no fact contained in the contract, nor any future event, can be proved by the-declarations of the parties at the time made, or before the contract was executed.

We see no force in the objections urged. It would be difficult to-find testimony more direct and positive, and more clearly resting on a witness’ own knowledge. He stated that the parties went to - gether to his office for the purpose of having the act passed; that being so together they both told him they were about to be married,, and they wanted their propei’ty to be separate and no community .between them; that the act was passed by him; that he had a dis - tinct, and, as he says, a perfect recollection of the act and its execu•tion; that it (the act) declared that in view of the fact of the marriage about to be celebrated between them they were desirous of forming a marriage contract, and to that end had agreed that there .should be no community between them; that their property should forever remain separate; that the act was signed by the parties, was duly witnessed and duly recorded.

It will thus be seen that Le Gras remembers, as an independent, •substantive fact, that the same statement which they had made to him prior to the passage of the act, that they were about to be married, was embodied in the act itself as one of its recitals, with the further recital that the act was passed in view of that contemplated marriage. The proof of the fact that the marriage was not yet consummated does not, as plaintiffs suppose, rest upon the antecedent •declarations of Mrs. Starns and Lewis to Le Gras, but upon the re•citals of the act itself, to the verity of which the heirs of each and both are bound. C. O. 2236.

It is true that Le Gras refers to the declarations of the parties just ■prior to the act in connection with other facts, but he does so simply by way of explanation and as assigning reasons why his memory .should have been so retentive as to this particular act.

Mrs. Goodwin, the oldest, and Mrs. Hadnot, the second, of Lewis’ children, and John P. Hadnot, his son-in-law, were placed upon the .stand by defendants to corroborate Le Gras, and each testified to having heard Mrs. Starns say several times that there was a marriage contract, and that she was married under a marriage contract.

The testimony was excepted to so far as the daughters were concerned, on the ground that the declarations of the wife during marriage are not admissible in a suit of the heirs of the husband against her heirs by a former marriage, and so far as the son-in-law was •concerned, on the ground that his wife’s interest was inseparable from that of her co-heirs. The court overruled the exceptions as to the daughters, and admitted Hadnot’s testimony, but solely as evidence .on behalf of the co-heirs of the wife.

The plaintiffs reserved a bill.

The present suit not being one between Mrs. Lewis and her husband, but a litigation involving a settlement of the rights inter se of vtwo sets of children, all of them children of the same mother, and the object of the testimony being merely to establish facts corroborative of the testimony of Le Gras, we think that the declarations of the mother were admissible for that purpose. 6 An. 172; 14 An. 324.

In permitting the testimony of Hadnot to be introduced for the purpose it was offered, and in the restricted manner it was, there was no error.

In Boisse vs. Dickson, 31 An. 750, this court held that “ the husband of one of the co-heirs can testify for or against a co-heir, or for or against a creditor of a co-heir, touching the latter’s interest in the succession.”

Defendants offered in evidence a certified copy of the record and the judgment therein in a suit of Martha E. Starns vs. Alfred O. Lewis, her husband, No. 1426 of the District Court for the parish of Rapides, reviving the marriage contract between herself and her ' said husband, and certificate showing that said judgment was recorded in the mortgage book of Rapides parish, on the 17th March, 1871, as rem ipsam, and for the purpose of proving that it stood on the public records as a contract between the parties during their lifetime until it was annulled in 1891.

Defendant objected to the same on the ground “that the judgment rendered was declared an absolute nullity by the Supreme Court, and that as rem ipsam it is inadmissible because it is. wholly irrelevant to the issues in this case; also that the declarations of the wife made in favor of the husband during the marriage are inadmissible against her or her heirs in a contest between the heirs of the wife and the' heirs of the husband, and that the allegations of the petition in that suit are the allegations of Alfred C. Lewis, and not of Mrs. Lewis, which plaintiff offered to prove by the deposition of M. Ryan.” The court overruled the objections and the defendant excepted.

It does not follow as the result of a decree pronouncing a judgment to be an absolute nullity, that the pleadings, record and judgment should thereafter become absolutely worthless for all purposes as evidence. That an act bad for one purpose may be good for another has been frequently decided. A familiar illustration of this is found in the matter of prescription which a judicial demand interrupts, although instituted in a court without jurisdiction and dismissed on that ground. Assuming it to be true, as charged in plaintiffs’ exception, that the declarations of a wife made in favor of her husband during the marriage are inadmissible against her or her heirs in a contest between the heirs of the wife and the heirs of the husband, the allegations of the petition introduced in this case do not show on their face any declarations of the wife in favor of her husband; so far from this, she was (apparently, at least) as a plaintiff acting adversely to him and in her own interest. Whether as a matter of fact, it was to her advantage or not, at the time the petition was filed to have claimed there was no community between herself and her husband we are not prepared to say. We can not collaterally, on a mere qnestion as to the admissibility of the record in evidence, act upon an assumption that such a position then taken would inure to her husband’s benefit and work to her harm. For the same reason we can not presume that the allegations Of the petition are not her allegations, but those of her husband.

It would appear that the district judge was not willing to stop the trial of the case and enter into an examination of that side issue, and no exception was taken to this exercise by him of his discretion in the manner of conducting cases before him. Plaintiffs were subsequently given an opportunity to introduce testimony in support of their contention on that subject. We do not think the record was irrelevant. What effectwas to be given to it, was a different matter —one which the court could not prejudge. The annulling of the judgment for want of jurisdiction in the Rapides court, did not undo the effect of the petition if it contained admissions or took positions inconsistent with those now advanced by the plaintiffs. As we have said, on its face, it is a petition in the name of the mother of all these parties, in which she affirmatively states the prior existence of the marriage contract and its destruction by fire, and makes its reestablishment or revival her cause of action in the case. Independently of this, the record was relevant in support of the position taken by the defendants, that plaintiff’s demand was stale, and that they purposely delayed questioning the existence of the marriage contract for years after their mother’s death, and until after that of their stepfather, Lewis.

But whilst the record was legally admitted in evidence, it may be well to say that the decision in this case has not been made to rest upon anything in it. Defendants introduced other testitimony to which we do not deem it necessary to specially refer. Plaintiffs rely mainly upon the testimony of Judge Ryan, that of Thomas and of George Cannon, and, that of Mrs. Gregory and of G. L. Starns. Judge Ryan’s testimony was to the effect that he was the attorney who brought the suit of Starns vs. Lewis (the revival suit), that A. C. Lewis employed him, that he did not remember to have seen the plaintiff in that, suit and that he learned the facts set forth in the petition therein from A. O. Lewis.

G. L. Starns, one of the plaintiffs, testified that his mother had never told him anything about a marriage contract between herself and Mr. ■ Lewis, and he had never heard her mention it to any one. Thomas Connor, one of the brothers of Mrs. Lewis (Starns), testified that his sister did not go to Alexandria at any time with Mr. Lewis before her marriage, that she did not go there with any one during or from the first visit of Mr. A. C. Lewis before her marriage, nor by herself during that period; that his sister was married at their mother’s house and he was at the wedding; that there was no marriage contract passed between them before the wedding ; that he never heard any marriage contract talked about or mentioned during any time of the ¿carriage in the family; that he saw his sister often after her marriage; saw her once or twice a year, and visited her at her home in Grant parish; that she visited her mother after her marriage, the first visit after her marriage being one of about seven weeks; that was about twelve months after her marriage; that he did not recollect how often she visited her mother after that; that he accompanied her on those trips, coming and going; that she was intimate with him as brother and sister; that she never mentioned to him at any time during those trips, or while at her mother’s, that there was a marriage contract between herself and A. C. Lewis; she never mentioned it in his presence. That his sister’s slaves and property were taken to Mr. Lewis’ home; that the slaves and stock were at work on his farm every time he went to Mr. Lewis’; that he supposed Mr. Lewis worked them, as they were on his farm and he having charge of them at the time; that he was born in September, 1840; that he had gone several times with his sister to Alexandria before her marriage with Mr. Lewis; sometimes she would go there to purchase goods; that he was present at the wedding of his sister and Mr. Lewis; that he stated there was no marriage contract, because he was present at the wedding and that was the reason he so stated; that if there had been a marriage contract, of course he would have seen certainly; that was the only reason he had for saying there was no marriage contract between his sister and Mr. Lewis; that he never heard his sister or Mr. Lewis say anything about a marriage contract; that his sister could not have gone to Alexandria during the period from Mr. Lewis’ first visit until her marriage to him without he or his brother knowing it; that one or the other always accompanied her.

The testimony of George Cannon was substantially the same as that of his brother, but less positive as to his sister not having gone to Alexandria prior to her marriage and after her engagement to Mr. Lewis — on which point he said: She did not go there with Mr. Lewis during any time that he was addressing her that he knew of or remembered ; she did not go there with any one else that he knew of during that time. When she went to Alexandria the witness sometimes went with her, and when he did not go, his brother went; he never knew of her going alone.” He made the same statement which his brother did as to his sister having never mentioned to himself or in the family that there was a marriage contract between herself and Mr. Lewis. He declared there was no marriage contract executed between his sister and Mr. Lewis at the time of their marriage — that there was none made at his mother’s at any time before the marriage, and he did not know of any made anywhere. Referring to this statement in the latter part of his testimony he said that he stated there was no marriage contract because he saw nothing performed at the time of the marriage except the ceremony by the minister; that a marriage contract is done before a notary public and there was no notary public there at the time of the marriage; that his reason for saying there was no marriage contract was because there was no notary public and no act passed at the time of the wedding that he saw — those were his reasons for saying so; that he was eighteen years old, and he thought he would have known a marriage contract if he had seen one. He subsequently added: “ The factthat his sister did not go to Alexandria was another reason why he stated there was no marriage contract.” This witness was the oldest brother of Mrs. Lewis. The sister, Mrs. Gregory, merely stated that she was at the wedding, and that Mrs. Starns never told her anything about a marriage contract.

Before stating our own conclusions in the case, we are called upon to notice the bill of exceptions taken by the plaintiff to the judge’s •charge to the jury. The bill declares that on the trial of the suit the court charged the jury that they must believe the one who swears affirmatively to the existence of a fact, to the testimony of one or more witnesses who swear negatively,- and that the illustration of the defendant’s counsel of this principle was most happy; and that if A, B, O and D are standing on the street, and A testifies that he saw E pass them and B, C and D testify that they did not see E pass, their testimony is of the weakest negative character and •does not disprove the fact of B’s passing them. A’s testimony on the other hand is not only affirmative but conclusive proof of that particular fact — E’s passing them. The district judge on this subject says: “ When instructing the jury as to the effect they should give to certain testimony, the court charged the jury that affirmative testimony -should outweigh negative testimony; and I gave them the reasons of the law therefor. I also instructed them that positive and conclusive evidence was that which established conclusively the matter in dispute; that to rebut that kind of proof, it required evidence of equal dignity, and I gave as one of the illustrations A, B, O and D are standing on the street; A testified that he saw E pass; B, 0 and D testify that they did not see E pass. Their testimony is of the weakest negative character. A’s testimony, on the other hand, is not only affirmative, but conclusive proof of that particular fact. I further said that counsel representing the defendants had presented ■them in his argument a happy illustration of this rule of evidence It was necessary to thus clearly present this legal construction of ■evidence to the jury, and it was perfectly pertinent to the ease on trial. Le Gras, the notary before whom the ante-nuptial contract had been executed, had sworn positively to its execution. Other witnesses swore that though they were present at the wedding they ■saw no such contract entered into and signed by the contracting parties. This evidence was negative and weak, and it was proper to place a parallel case before the jury that they might appreciate its -character and force, and this had to be done without comment upon matters or facts in the case about to be given them.

Plaintiffs’ ground of exception was “that the jury are the exclusive judges of the facts and the weight of testimony, and the court is not permitted to comment on the evidence.”

We can readily imagine a case in which this charge as to affirmative and negative testimony, with the broad statement made by the judge, without qualification or explanation as to the conclusive force of the former as against the latter, would not only be erroneous but so injurious as to necessitate either a new trial or an absolute reversal of the judgment, particularly when coupled with such direct approving reference by the court as was made here to what had been said by the counsel of one of the parties. The charge complained of is open to some criticism, but under the conclusions which we have ourselves reached with all the evidence before us we feel it our duty to close this protracted litigation.

This court has held that although the judge may have charged improperly, yet if the evidence would not have authorized a different verdict, it will be upheld. Staekpole vs. Wickham, 7 An. 658; N. O. Opelousas R. R. Co. vs. Lagarde, 10 An. 150; Hennen’s Digest, p. 98, No. 27.

We do not see how, in the case at bar, the jury could have reached any other conclusion than that which it did.

Some stress is laid by the plaintiffs upon an uncertainty as to the precise day on which the marriage contract was executed. It is charged that there is a variance between that alleged and that sworn to. Defendants’ claim is that the contract was an ante-nuptial contract, passed on or about the 29th November, 1856. Time is certainly of the essence of a marriage contract, but only to the extent of requiring that the execution of the act should antedate the celebration of the marriage. That fact being established, it is immaterial whether the contract was passed on one day rather than another.

Plaintiffs urge with great earnestness that the employment by Lewis of the wife’s slaves, horses and mules on his own plantation in the making of crops is inconsistent with the idea of there being no community between the spouses. If in point of fact the marriage contract was executed, as we hold it was, the subsequent action of the parties did not alter the situation as to community rights. Lewis’ succession may have come under some obligation from the facts stated, but if such there be, it is of an entirely different character from that asserted in plaintiffs’ petition.

In rendering judgment in the case the District Oourt rejected plaintiffs’ demand; the demand so rejected, under the agreement already referred to, between. the parties, must be held, construed and limited to the demand as to the special issue submitted to the jury, and must apply to none other.

As was said by Judge Porter, in his-closing remarks in the case of DeEnde vs. Moore, 2 N. S. 357: We have gone into this subject more at length than usual or necessary, not because we felt any •doubts on the law (or the facts), but because it is important in the administration of justice not only that we should arrive at correct conclusions, but that we should also, as far as it is practicable, render the grounds on which we have come to these conclusions satisfactory to others.

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment of the District Court, with the construction and limitation herein placed upon it, bé and the same is hereby affirmed, and the cause remanded to the District Court for further proceedings, at appellants’ costs.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 11,078.
    E. A. Tullos vs. A. A. Lane.
    1. A party is not allowed to amend his pleadings’of course — he must apply for and obtain leave from the court to do so.

      2. Article 185 of the Constitution in fixing the qualification of electors has reference to the acquisition of the right to vote, and does not furnish an inflexible rule under which that right, when once gained, should be held to have been lost.
    The right when once gained is subject, of course, tobe lost by absence — absence unexplained is a fact which enters largely in the determination of a question of that character, but absence is not always and necesssarily the controlling factor.
    -3. An absence which a party all the while intended as merely temporary, to be and actually followed by resumption of the former residence,.will not be considered an abandonment of the former residence.
    4. Voters may accept the registrar’s defacto, as they accept the commissioner’s defacto, and they are no more forced to inquire into the qualifications de jw'e of the registrar than the qualifications dejivre of the commissioners.
    5. Although it is grossly irregular and improper in a registrar of voters to place his registration books in the possession and under the control of persons not legally authorized to register voters, it does not follow that where such parties have under verbal authority from the registrar registered persons unquestionably entitled to vote, that the latter should be considered as not having been registered at all, and that their votes should be held illegal and thrown out. Irregularity of registration and utter absence of registration are different things.
    •8. Where registration has been carried on under verbal authority from the registrar by persons not having Ilegal authority so to do, and there is no charge of fraud or discrimination against any voter — no allegation of injury actually re-suiting — no attempt to challenge the voters so registered or to purge the registration books, voters actually entitled to vote-can not after the election be deprived of their constitutional right to have participated therein, by the simple fact of itself, that the person who registered them was not legally author.zed to do so.

      1. Legal voters can not be forced to disclose the names of the persons tor whom they voted.
    8. The requirement of the third paragraph of Article 185 of the Constitution as one of the qualifications for a voter that he should be an actual resident of the ward or predinet in which he offers to vote at least thirty days next preceding the election is as imperative as that of being an actual resident of the parish for six months and of the State for one year, but where, as a matter of fact, there is thegreatest uncertainty as to where the ward lines really are, the court would not feel justified in disturbing the vote as cast, particularly where parties have registered after due inquiry upon the advice of the registering officers, and where the office voted for not being a ward office there is no reason for imputing any wrong motive in the selection of wards.
    9. The decision of the court of the first instance upon a question of fact prevails unless manifestly erroneous.
    APPEAL from the Fourth District Court, Parish of Jackson.. J.

      Graham & Halstead for Plaintiff and Appellant:
    Suffrage is not a natural, but a political right, and the registration — according to law — is in this State a mandatory prerequisite to its exercise; and in a contest, where defendant impeaches by his pleadings and evidence the election returns, and the evidence fails to' show with legal certainty his election, he must be ousted from the office — whether the plaintiff succeeds in proving his own right to the office or not, and in such case the burden of proof is on defendant. Mc-Crary, p. 210; Am. and Eng. Ene., p. 433, No. 24, pp. 826, 334; Act 58 of 1S77, Sec. 24.
    No person except the assessor and the clerk of registration have authority to place names on the books of registration. Act 123, Sees. 29 and 30, of 1880; see Sec. 23, ! Act 101 of 1877.
    The voter must be an actual resident. Art 185, Const. 1879; McCrary, pp. 52, 53, 65; Am. and Eng. Ene., p. 278-9, Nos. 39-40; Act 123,11880, Sec. 6; seejauthorlties cited in body of brief. On interpretation of laws: See Arts. 13,18 and 66; 12 An. lot and 835.
    When to prevent fraud, or for any other motives of public good, the law declares certain acts void, its provisions are not to be dispensed with on the ground that the particular act in question has been proved not to be fraudulent, or not to be contrary to the public good. O. C., Art. 19.

      B. E. Milling and Stubbs & Bussell for Defendant and Appellee.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaintiff and defendant were two of seven candidates for the office of sheriff of che parish of Jackson. The defendant was returned elected over plaintiff by a plurality of three votes, and has been commissioned and qualified as sheriff.

The plaintiff in this action contests the election, and prays that he, and not defendant, be decreed to have been elected sheriff. The grounds set up are, that persons who were not residents and electors of the parish, and were not actual residents of the ward in which they offered to vote, for thirty days next preceding the election, were allowed to vote, and did illegally vote, for defendant at the Vernon box. That registration was not closed according to law, but was continued up to the day of the election, and even on that day. That parties other than the registrar and his clerk, who had no legal right or authority to do so, illegally registered a large number of persons, who were allowed to vote under their illegal registration, and voted for defendant. That the illegal votes so cast changed the legal result, and but for them plaintiff was elected.

It appears that by inadvertence in the preparation of the pleadings, a number of names which plaintiff had intended to have inserted in his petition, (among'others which he alleged to be those of illegal voters), were omitted, and that on discovering the fact he at once, and before service, made out a list of the same, and requested the clerk to be permitted to annex it to his petition as part thereof, but that this officer refused this request, on the ground that the papers had already been filed, and could not be added to. That thereupon the plaintiff drew up a supplemental petition, in which he set out these names, and, alleging the fact of the omission, prayed that the amended petition be filed and served on the defendant, which was accordingly done.

■When the defendant ascertained that plaintiff had filed a contest against him, he himself, although returned and qualified as sheriff, brought suit against Tullos.

In his petition he alleged that he had been elected and returned as sheriff; that the returns on their face only showed him to have been elected by three majority, whereas, in fact and in truth, he was elected by a plurality of 200 votes. In order to reach this result he attacked the election held at several polling places for reasons stated, and the legality of the votes cast thereat, declaring them to have been illegally cast for plaintiff." He- prayed that the elections at these precincts be declared fraudulent, null and void, as also the returns from the same, and the tally sheets and statements (which he declared were not sworn to nor certified) ; that the votes at these boxes be thrown out; that he be decreed to have been elected by a plurality of 200 votes, and quieted in the possession of his office.

When the District Oourt convened the defendant herein filed a motion to strike out the supplemental petition on the ground that it had been filed in vacation and without the permission of the court. This motion was sustained, but with permission to plaintiff to file it at that time. It does not seem to have been thereafter served on the defendant.

Defendant filed an answer to the present suit, in which he first pleaded the general issue and next proceeded to attack the elections at the Coontown, Embray’s Tan Yard and Smart’s Store polling places on the same grounds which he had urged in his petition against Tullos, one of which (we omitted to say) was that the commissioners at these polls had not taken any oath. He also prayed, as in the petition filed by him, that the whole vote at these boxes (and under all contingencies the specially named iliegal votes cast thereat) and the returns therefrom be not counted, but be set aside, that plaintiffs’ petition be rejected, that he be decreed elected by a plurality of two hundred votes and placed in the possession of his office.

Turning now to the proceeding instituted by the defendant herein against Tullos, we find that the latter’s first move was to file an exception of no cause of action, with a prayer that the petition be dismissed ; but that shortly afterward he waived the exception, filed an answer and prayed that Lane’s suit be consolidated with his own; that thereupon Lane made a motion to discontinue his suit, but that on objection made by Tullos the motion was refused and the cases ordered to be consolidated. The district judge assigned as his reason for this ruling that the answer in that suit contained a reconventional demand which could not be prejudiced by any action of the plaintiff therein. He also stated that he had no recollection of any mention at the time of the offer of discontinuance that the costs had been paid, or that any receipts for costs were shown.

Tullos’ answer in Lane’s suit was substantially and practically identical with the petition which he had filed against him but amplified. He availed himself of the opportunity afforded him by that proceeding to insert in this answer the names which he had, as already stated, omitted in his own petition, and to raise a new ground of attack which he had not urged before, which was to the effect that a number of persons had been illegally allowed to register and vote outside of the wards in which they actually resided, and that these persons had voted for Lane.

When the court, after sustaining defendant’s motion to strike out plaintiff’s supplemental petition, allowed the same to stand as an amendment from the new date, the defendant Lane asked leave to file an amended answer himself, in which he declared that he was surprised at plaintiff’s answer in his suit; that it had recently come to his knowledge that a large number of persons whom he named had been illegally allowed to vote- for the plaintiff out of the wards in which they actually resided.

The court refused to allow the amendment, on the ground that it was made too late. The case went to trial under these pleadings, and resulted in a judgment- in favor of the defendant. The plaintiff has appealed.

The first point we are called on to consider is the action of the court below in striking out plaintiff’s amended or supplemental petition on the ground that it was filed in vacation and without the consent of the court. Whilst this ruling was correct (2 Martin 296), plaintiff obtained the full benefit of the amendment under his answer in the Lane suit, and the view we have taken of the law in the cáse, as to the matters therein contained, makes this supplemental petition unimportant.

The next question is as to whether the court below was right in refusing to allow the discontinuanc9 of Lane’s suit against Tullos, and in ordering it consolidated with the present one. The plaintiff contends that a proceeding involving a contest of election does not fall under the terms of Article 532 of the Code of Practice, by which the plaintiff, until the moment the jury is about to withdraw, is at liberty, on paying the costs, to discontinue his suit, that such an action once commenced must proceed to judgment by reason of the public interests which are affected by the issues raised, and in view of the special fact that the defendant in this particular case had filed a plea in reconvention.

Plairtiff cites McCrary on Elections, Sec. 419, in support of his contention. That writer in the section cited says: “A contested election, whatever the form of the proceeding may be, is in its essence a proceeding in which the people — the constituency — are primarily and principally interested. It is not a suit for the adjudication of private right simply. It follows that the parties to the record can not by stipulation or otherwise discontinue or compromise a case of this character without the consent and approval of the court or tribunal trying it. Nor should such consent ever be given unless the court giving it is sufficiently advised to be able to say that it is for the interest of the people to do so.”

Whilst we do not think it absolutely necessary to pass on this question, we do not think it improper to refer to the points raised on this special issue.

The general question stands affected by Act No. 40 of the General Assembly of this State of 1873, which is to the effect, “That whenever any suit is pending in any of the courts of this State wherein the title to any office is involved or wherein there is any contest for the possession of any office and the same is untried, it shall be lawful for the plaintiff, no matter what may be the matter of the pleadings, to discontinue such suit cn the payment of the costs,” and by the particular fact that at the moment the plaintiff in that suit offered to discontinue, there existed substantially and practically an issue in another suit instituted by the defendant which more than covered the particular question attempted to be raised by Lane in this rather peculiar proceeding of his.

The evident purpose of the defendant in filing an answer therein was to attempt through the same to raise an additional issue in his own suit without the necessity of service of petition and attendant delays which he obviously felt he would not be permitted to raise 'under a direct application for an amendment of his pleadings at that late stage of the proceedings.

The object was made manifest by the immediate application for a consolidation of the two suits. In refusing the discontinuance the district judge practically granted the plaintiff the right of amending his pleadings and going to trial on the amendment without citation or issue joined thereon, when he would not have allowed this under other circumstances in all probability.

The discontinuance of plaintiff’s action would have left Tullos’ contest of election still standing on the docket unaffected by the withdrawal of Lane’s petition — the reason, therefore, of the rule laid down by McCrary did not apply in this particular case. The rejection of Lane’s application was substantially to leave Tullos with two suits on the docket of the same court on the same cause of action, as against which Lane could have pleaded an exception of lis pendens.

It admits of great doubt whether even without the statute of 1873 the court should not have allowed the discontinuance under the exceptional features of the case and the character of the so-called re-conventional demand; but with that statute on the books and under the circumstances of the case we think the application should have been granted. The plaintiff, Tullos, has obtained the full benefit of the pudge’s ruling, but the conclusions we have reached render it harmless to the defendant.

We have examined the record very carefully and we are of the opinion that the judgment of the District Oourt is correct.

The plaintiff claims “that at the Vernon precinct J. H. Trantom, W. E. Upchurch, G. W. Edmonson, Sam Pearce and A. H. Bunnell voted for the defendant, Lane; that these five votes were illegal, and should not have been received or counted, for the reason that they were actual residents of other parishes, and were not actually residing either in the parish or in the ward of the parish in which they voted, for thirty days preceding the election.

The evidence adduced in reference to these parties bring their eases under the operation of the rule announced in Carter vs. Put main, Ill., 30 N. E. Rep. 681, which declares that an absence, tvhich the party all the while intended as merely temporary, to be followed by the resumption of the former residence, will not be considered an abandonment 'of the former residence.

Article 185 of the Constitution, in defining the requirements necessary for being a voter in this State, has reference to the acquisition of the right to vote, and does not furnish an inflexible rule under which that right, when once acquired, should be held to have been lost.

The right once gained is subject,.of course, to be lost by absence. Absence unexplained is undoubtedly a fact which enters very largely into the determination of a question of that character, but absence is not necessarily and always the controlling factor.

Plaintiff next claims that a number of persons who voted at the general election in Jackson parish were illegally registered by persons other than the assessor or his clerk; that the votes of such of these persons as have been affirmatively shown to have been cast for defendant should be deducted from the count for Lane, whilst those which could not be fixed as having been cast for a particular candidate should be pro-rated, upon the authority cited in the American and English Encyclopedia of Law, verbo “Elections,” page 433, Sec. 24, page 309, Sec. 461 and 462.

Plaintiff establishes the fact alleged by him that quite a number of persons were registered by persons other than the Registrar of Voters and his clerk, but his contention that they are to be considered as not having been registered at all, and therefore as coming under the operation of the law which allows only to registered persons the right to vote, is not well founded. “Irregularity” of registration and “utter absence of registration” are very different things.

The testimony in this case shows that the registrar of the parish of Jackson not only did not have any very high sense of the obligation which rested on him in the' matter of registration, but that he was culpably negligent in the performance of his duties. Living some five or six miles away from the court house of Jackson parish, he left his registration boobs in the possession and under the control of persons to whom he gave verbal authority to register in his place, which was done accordingly. It is not even alleged, and still less proved, that any person so registered was not in fact entitled to registry, or that there was any discrimination against any candidate. It is not claimed nor shown that there was any fraud perpetrated, or really any injury suffered, by this proceeding, grossly irregular as it was. The parties registered were unquestionably entitled to vote, and plaintiff rests upon the ground that the fact of itself and by itself made the votes illegal.

We do not think so. McCrary in his work on elections, under Sec. 105, refers approvingly to the decisions in White vs. Baker and State vs. Eromer, where it was held that voters may accept the registrars de facto as they accept the inspectors de facto, and that- they are no more bound to inquire into the qualifications de jure of the registrars than into the qualifications de jure of the inspectors. The registrar of voters having placed his books in the hands and under the control of the parties so registering, the public had the right to assume that they were clothed with rightful authority in the premises, and innocent voters should not be made to suffer and be deprived of their constitutional right to be heard in the selection of their sheriff by this negligence and this want of proper performance of duty by the registrar.

There is no evidence that these votes were challenged at the polls or before. It was only when the adverse result of the vote was ascertained that objections were raised. These votes not being illegal no inquiry could be made as to the person for whom they voted. The question as to whether they should have been pro-rated, had they been illegally cast is not a question in this litigation.

The plaintiff claims that a number of persons voted for Lane who voted outside of the wards in which they resided, and that these votes should be struck out. He relies upon the third paragraph of Article 185 of the Constitution, which, referring to the qualifications of a voter, declares: “He shall be an actual resident of the ward or precinct in which he offers to vote at least thirty days next preceding the election.”

It can not be denied that the obligation of being an actual resident of the ward in which a person offers to vote during the time fixed is as imperatively required as that of being an actual resident of the parish for six months and of the State for a year, but the case before us rests more on a question of fact than of law.

The evidence shows such a condition of uncertainty as to where the ward . lines really are in the parish of Jackson that we would not feel at all justified in disturbing, on this score, the vote as cast. Some of the persons who were so registered did so after inquiry as to where the lines were and under the advice of the registering officers, and the evidence even shows that the polling place forWard 3 of the parish was located by the police jury itself at Bear Greek Church, which, as far as we can judge from the record, was probably a few yards inside of the line of Ward 2.

The office voted for not being a ward office, we see no reason for imputing any wrong motive for the selection of wards in which to vote.

We question very much, besides, whether the plaintiff would gain any advantage over the defendant from striking out such votes unper our analysis of the testimony on this branch of the controversy.

The facts of this case were closely considered, beyond doubt, by the district judge, and we see no reason to believe he reached an erroneous conclusion.

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


author: Fenner, J.

text:
    No. 11,119.
    F. J. Gasquet vs. Board of Directors of City Schools.
    •1. All questions as to thevalidity of the school certificates herein involved, as to the authority under which they wore issued, and as to the right of the owner thereof to proceed against the School Board and recover the precise judgment herein asked, were settled by our decision in Fisher vs. School Board, and will not be reopened.
    2. These certificates were not payable at any fixed date,-but out of particular funds, and only when such funds so applicable are actually covered, into the treasury, and prescription only runs from the date when such funds were found in the treasury. It is not proved, and we can not assume, that such funds existed beyond the termof either the five or ten years’ prescription. Kingbridge vs. Otoe, 124 U. S. 459.
    3. The title of plaintiff depends on proof of endorsement of the certificates by parties to whom they were payable. As to the mass of certificates,sufficient proof is made, but as to certain designated classes proof is wanting*
    APPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      Lauque & McGloin for Plaintiff and Appellee:
    1. Where an acknowledgment without a date appears, the burthen is upon the party pleading prescription, to establish the date. 31 An. 89; lo An. 332; 12 An. 151; 10 An. 673; 10 R. 53; 30 An. 207.
    2. In default of such proof of date, the acknowledgment will be held good to interrupt. Same authorities.
    3. The stamping, by the State of Louisiana, on certificates in favor of claims against the School Board of New Orleans, of payment of the State’s pro rata, interrupts prescription.
    4. Where an annual tax is levied to pay certain claims, and the creditor can be paid only out of the proceeds of such tax; until it is made to appear that there was a fund to pay the claim, prescription can not run. King Bridge Company vs. Otoe Company, 124 U. S. 459.
    H. G. Cage and E. A. O'Sullivan, City Attorney, for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The plaintiff sues as owner of school certificates issued by the board of directors of city schools for unpaid salaries of teachers, and expenses of maintaining the public schools of the city for the years 1872 to 1879, inclusive.

We have compared these certificates with those sued on in the case of Fisher vs. School Board, recently decided by us, and reported at 44 An; 185 and find them to be in all respects of the same character as to form and as to the authority by which they were issued.

Precisely the same relief is asked in this case as was granted in that.

We are bound to hold that all questions as to the intrinsic validity of such certificates, as to the authority under which they were issued and as to the right of the owner thereof to proceed against the school board, and to recover the precise judgment; herein asked, are conclusively settled by that opinion. In these respects there is no difference between the two cases except in the names of the plaintiffs, and we cannot hold that there is one law for Fisher and another for Gasquet. That decision silences several of defendant’s contentions and leaves open but two new questions.

1. The pleas of prescription.

2. The sufficiency of the proof of plaintiff’s title to the certificates.

We think the pleas of prescription are not well founded. Act 36 of 1873 makes it very clear that the claims evidenced by these certificates were not payable absolutely or at any particular time. They are payable only out of the revenues of the years for which they are issued, and only when said revenues are collected and in the manner therein provided; and the act further declared that “No writ of fi. fa. or mandamus shall lie for seizure of any school moneys, or to direct or enforce its paying out otherwise than in the manner and sequence required in this act.”

This law formed a part of the contracts out of which the claims arose, and deprived the claimants of any legal remedy to enforce payment except out of particular revenues when actually collected and covered into the treasury.

The case is very much stronger and clearer than that of King Bridge Oo. vs. Otoe Qo., 124 U. S. 459, in which the Supreme Court of the United States held that county warrants, payable only when there are funds in the treasury applicable thereto, are not actionable until the money for its payment is collected, and, therefore, not subject to the statute of limitations except from the same time.

There is neither allegation nor proof in this case that there have been, at any particular time, funds in the school board treasury applicable to the payment of these claims, and we can not assume that such funds existed beyond the term of either five or ten years. The party who pleads prescription is bound to prove the facts necessary to sustain it. Phipps vs. Snodgrass, 31 An. 89; Succession of Montamat, 15 An. 332; Laidlaw vs. Landry, 12 An. 151; Malveau vs. Lavergne, 10 An. 673; Andrews vs. Rhodes, 10 R. 53.

There is nothing to suggest that plaintiff or his authors have “ slept upon their rights.” If they had it would have been easy for defendant to prove it. The present action itself is not properly an action of debt, but is, in effect, simply an action to compel recognition of the certificates as entitled to participation in the distribution of the funds applicable thereto now or hereafter collected.

The certificates sued on are about 1200 in number, and they are made payable to certain individuals named therein. They are not negotiable in terms, and the endorsements by the payees only operate as assignments, and proof thereof is essential to establish a legal title in the third holder. The evidence, however, shows that these certificates, when endorsed, passed from hand to hand as marketable securities, and that both the State and city had followed the custom of recognizing the holders of the endorsed certificates as entitled to their benefit, without particular proof of the genuineness of the endorsements, and both had adopted the rule of paying nothing without the actual production of the certificates. All of these certificates bear stamps evidencing partial payments of the quota due by the State. Nothing in the evidence suggests the slightest impeachment of the validity and good faith of plaintiff’s title, and the mere fact of his possession, under the circumstances, is a persuasive element of proof, and under the established custom of the city and State not to pay without production of the certificates, is a protection against double demands.

We are not, therefore, disposed to insist on too great strictness, and the evidence brought up is, in our opinion, sufficient to establish the genuineness of the endorsements on nearly all the certificates.

The main witness is one C. W. Boothby, who, during most of the period covered by the certificates, had been superintendent of the public schools, or a member of the board and chairman of the committee on teachers, in which capacity he received weekly and monthly reports and many other communications from the teachers, and al3o had the duty of superintending the pay rolls and seeing that they were properly signed by the teachers and other employees.

He thus, from constant inspection, became, naturally, well acquainted with their signatures, and we find nothing incredible in his ability to recall them when exhibited to him, even after the lapse of years. He was subjected to a very rigid cross-examination, was unquestionably tripped in certain instances, and it must be admitted his testimony is open to some of the severe criticism which is heaped upon it; but, notwithstanding this, we remain under the conviction that, as to the mass of the certificates, his testimony is trustworthy and sufficient.

There are, however, a number of. certificates as to which judgment of non-suit must be given.

We classify these as follows:

1. The certificates in the names of the following parties, specially referred to in the testimony, and as to which there is a clear failure of proof of endorsement, viz.: W..T. Richards, Mrs. M. Hanson, Mrs. D. Murr, Philip Vedon, Mrs. Hingman, Edward Jones, Mrs. Byrnes, Mrs. A. A. Fayerweather, Francis Rohl, Mrs. Maleonson, D. Curry, Cora P. Beecher to order of P.' A. Herbert, Miss M. W. Clinchey, A. K. Joseph, Mrs. D. Newell, Mrs. K. M. Stainslaus, N. A. Auguste, M. A. Nugent, Mrs. V. A, .Vincent, Mrs. Rosa Marquet (the one marked F), Mrs. C. Smith,. Miss F. Snodgrass, C. H. Wash-burn, M. A. Stewart, Miss A. Snodgrass, Miss C. O’Rourke (D 11),, Miss Vandyke (D 12), and Mrs. D. R.' Miller.

2. All the certificates which are. not endorsed by the original! parties but by others per procuration or power of attorney from: them. As to these, in most instances, the signatures of the agents; are not proven, and in none is the agency established.

3. One or more certificates which are not endorsed at all.

We can not undertake to make the researches and calculations necessary to ascertain the precise amount to be deducted from the judgment, but will so frame our decree as to remit that matter to the lower court.

It is therefore adjudged and decreed that the judgment appealed from be amended by deducting from, the total amount thereof the amount of the three classes of certificates specifically described in the body of this opinion; that as to such certificates there be judgment of non-suit, and that in other respects the judgment be and the same is hereby affirmed; and it is further ordered that this case be remanded to the lower court, with instructions to take proper steps to ascertain the amount of the certificates ordered to be deducted as above, and to deduct the same from the judgment heretofore rendered, and to enter judgment for the amount thus remaining due, with non-suit as to the deducted certificates — appellee to pay costs of this appeal, and of the further proceedings in the lower .court necessary to ascertain the amount of his judgment.


text:
    No. 11.136.
    City of New Orleans vs. Arthur Leibe.
    A building contraetoi is not exempted from license under Article 206 of the Constitution, because, in connection with Ills business as contractor, he does some mechanical labor. Affirming City vs. X^ohlman and City vs. McNally, is An.
    APPEAL from the First City Court of New Orleans. Childress, J.

      Geo. W. Flynn, Assistant City Attorney, and E. A. O’Sullivan, City Attorney, for Plaintiff and Appellee.
    JET. IT. Bryan for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The claim is for license as a building contractor. The defence is that the party is a carpenter, exempt under Article 206 of the Oonstitution.

On the facts the case can not be distinguished from those of Oity vs. Pohlman and Oity vs. McNally, recently decided, and the same law must be applied, rejecting the exemption claimed.

Judgment affirmed.


author: Fenner, j.

text:
    No. 11,152.
    Lehman, Stern & Co. vs. M. A. Broussard et als.
    1. The prei’eguisites prescribed by law in attachment proceedings must be strictly construed and rigidly enforced.
    2. It is well settled that an attachment bond for less than the amount prescribed by law is fatal to the attachment, and a fortiori must be a bond for no amount whatever.
    3. The principle that judicial bonds are to be construed by the law under which they are given, rejecting surplusage and supplying omissions, does not apply to such a case where the question is not as to the eventual liability of parties to such bonds after they have accomplished tlieir purpose, but whether the conditions precedent prescribed by law and essential to the maintenance of the attachment have been strictly complied with. Such compliance cannot be eked out by presumptions and implications, or by collateral evidence.
    4. Legal service of citation and order of attachment on defendant is a necessary condition precedent to the seizure, without which the attachment can not stand.
    5. The return of a domiciliary service which does not state the name of the person on whom made, nor whether he knew or how he ascertained the name, nor that he was living at the domicil, is fatally defective.
    6. So a domiciliary service made at a store of defendant, without stating that the store was kept at his domicil, can not stand.
    7. When the husband has been sued and cited jointly with the wife, and has appeared with her in any manner in the case, his authorization of her defence is implied. ^
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Mouton, J.

      Henry L. Garland, Jr., Kenneth, Baillio & White, Saunders & Parlange for Plaintiffs and Appellants:'
    1. Where original petition is filed and the citation of husband is asked for, but clerk fails to make such citation, the cause in lower court should be continued to have husband properly cited.
    2. Where subsequently a supplemental petition was filed praying for writs of attachment and garnishment, and the citation is addressed to wife and hnsband by name and served at their domicil, the wife will be properly in court quoad such supplemental petition
    3. Where return on citation does not specifically say that the papers were served on A, but the whole trend of the return so indicates, he being only person mentioned co nomine and living in the house and being over 14 years, and where, further, the return on the writ of attachment recites the service of all the papers on A, including petition and citation, said returns being by same deputy, on same day and in same suit and at same place, may be read together and each supply ambiguities in the other.
    4. As the husband may authorize his wife at any time before trial on merits, he may be cited at any time to authorize her. 26 An. — ; 39 An. 435; 11 An. 503.
    5. Where a record reeks with fraud, the attaching creditor will be protected in his attachment from effects of court officers performing their functions in a clumsy manner.
    6. Where the husband, as agent of his wife, makes declarations at the time of a series of sales for cash, on eve of suit, to relatives and friends, to the effect that he sold to protect himself, an attachment against his wife, the plaintiff’s debtor, will be maintained.

      7. Where the son of the defendant comes in as a third opponent and claims 115 bales of cotton or proceeds, which he shipped to New Orleans in his own name at the end of the crop year, and a few days before his mother divested herself of nearly all her property by a series of sales for cash for much loss than their value, he must clearly prove his title to said cotton by unimpeachable evidence; and where said son is a young man 26 years of age, resides with his mother, is her clerk and book-kecx»er, is the manager of a small peddling business, is not shown to have any property of his own and obtains the goods he peddled from his mother’s store, and said store shipped the same to the market, his claim to said cotton will be denied and held to be a pure simulation and subject to the claims of his mother’s creditors.
    8. Where defendants in action of simulation and fraud fail to testify to clear up much which lies within their knowledge, all the presumptions of law are against them. 83 An, 1065.
    9. Where a married woman, separated in property from her husband, who is and has been for years hopelessly insolvent, appoints him her agent to manage a store which she owns, which is assessed in her name and the goods in which are insured in her name, and said agent, acting under said power, runs up a multitude of accounts and executes notes necessary in said business and incidental thereto, she will be bound by his acts to plaintiffs, who deal with her husband only as agent under a power given specially to them, who gave credit to her exclusively, who carry her name, not his, on their books, and whose correspondence is addressed to her. In such a case the wife who bought the store years ago under a judgment against her husband, who has since been hopelessly insolvent, can not pretend that said business does not belong to her.
    10. The declarations of the husband as agent are binding on. wife, and where they clearly establish fraudulent design in disposition of property will be sufficient to maintain an attachment issued against her. 38 An. 424; 102 U. S. 268; 114IT. S. 561.
    11. Garnishees, not parties to amotion to d ssolve an attachment, are not necessary parties to an appeal from a judgment thereon, where no proceedings were taken against them in such motion or connected therein, and where no judgment is presently asked against them. Nor are defendants in the revocatory act on, pure and simple, necessary parties to such appeal. They have no interest in such appeal. 16 An. 324; 23 An. 260; 27 An. 201; 14 An. 373; 27 An. 244.
    12. Amount of plaintiffs’ claim is test of jurisdiction in third oppositions. 34 An. 1047.
    13. Where petition and evidence thereunder claims $3304.97 against main defendant, this court has jurisdiction.
    14. Inaccuracies in appeal bond which are evidently clerical errors and which are not sufficient to prevent appellee from recovering from surety on such bond, will not be sufficient to dismiss appeal. 40 An. 227; 35 An. 348.
    15. When appeal is returnable by law on “third Monday in January,” and appellees are cited for that day, and where petition asks for appeal returnable that day, the recital in the bond, otherwise perfectly identified with the suit and judgment appealed from, that the appeal is returnable “third day in January,” the appeal will not be dismissed for such inaccuracy in the bond, which is manifestly clerical.
    16. Amount of a suspensive appeal bond is fixed by law; and need not be fixed by the judge. 39 An. 580; 1 R. 824; 10 An. 318.

      17. Where a bond of $5000 is given for a suspensive appeal under an order for a suspensive and devolutive appeal, the appeal will be sustained either as a suspensive or devolutive appeal. 35 An. 987; 38 An. 634; 27 An. 97.

      C, DeBaillon and O. H. Mouion, for Defendants and Appellants:
    1. The remedy by attachment must strictly pursue all the forms of law, on pain of nullity. C. P. 206; 3 L. 17, Lacey vs. Kinley; 3 E. 233, Putman vs. Banking Co.; 8 N. S. 354, Williams vs. Kimball; 7 N. S. 160, Love vs. Dickson; 10M. 472, Stock - ton vs. Haslnck; 8 An. 186, Erwin vs. Com. & E. E. Bank.
    2. In attachment proceedings the first step to be taken is to serve the process of citation in the manner required by law. O. P. 206„253, 254, 190, 192; 3 E. 233, Put-man vs Banking Co.; 8 N. S. 354, Williams vs. Kimball; 3 An. 186, Erwin vs. Coin. & E. E. Bank.
    8.A prayer for a writ of attachment does not dispense with a citation of defendant. A citation is required in all cases, and particularly in cases of attachment. C. P. 170, 172, 206, 251, 253; 8 N. S. 354, Williams vs. Kimball; 3 An. 354,'Erwin vs. Bank.
    4. The pretended service of citation in this case is radically defective.
    5. It fails to show that service was made on defendant in person or at his domicil — in fact, it fails to show where and <>n whom the pretended service was made. The service must be made on defendant in person or at his domicil. C. P. 1S7,188, 198,190, 223; 32 An. 467, Walker vs. Barelli.
    6. It fails to show where the domicil or house inhabited by defendant is situated. C. P. 201; 21 An. 630, Arnault vs. St. Julien; 21 An. 613, Cole vs. Hocha.
    7. It fails to state upon whom the service was made. C. P. 201, 188,189,190; 21 An. 513, Cole vs. Hocha; 42 An. 227, Whitney vs. Lumber Co.
    8. The protended service of writ of attachment alleged to have been made January — 1891, is radically defective.
    9. The service is alleged or stated to have been made at the store of M. A. Bro msard, and not at his domicil. C. P. 187, 188, 189, 190, 253; 35 An. 101, Adams vs. Basile; 21 An. 613. Cole vs. Hocha.
    10. It fails to show where the store is situated. C. P. 201; 21 630, An. Arnault by St. Julien; 21 An. 613, Cole vs. Hocha; 35 An. 101, Adams vs. Basile; 42 An. 227, Whitney vs. Lumber Co.
    11. It fails to show whether D. Bonnemaison was known to the sheriff at the time of the pretended service, or whether the sheriff learnt his name by interrogating him. C. P. 301, 202; 42 An. 227, Whitney vs. Lumber Co ; 21 An. 213, Cole vs. Hocha; 15 An. 462, Erazel vs. Cooper.
    12. It fails to state if D. Bonnemaison resided with the defendant.
    13. No legal bond was given — it is a prerequisite of attachment proceedings. See Brief, pp. 13,17.
   The opinion of the conrt was delivered by

Fenner, j.

This is an appeal taken by plaintiff from a judgment dissolving an attachment.

The grounds of the motion to dissolve are, first, that the attachment issued without legal bond, and, second, that neither the petition for attachment nor the citation-, nor the writs of attachment were legally served on the defendant.

1. The attachment bond is not given for any named sum of money. It recites that “ Lehman, Stern & Co., as principal, and P. Gerac, as surety, acknowledge to owe A. M. Martin, or his successors in office, clerk of the Twenty-fifth Judicial District Court, the full sum-for the payment of which, well and truly to be made, we hereby bind ourselves,” etc.

This is not the bond required by the statute, which provides that ‘ a creditor, or his agent, praying such attachment, must, besides, annex to his petition his obligation in favor of the clerk for a sum equal to that which he claims, with the surety of one good and solvent person,” etc. Act No. 17 of 1880.

It has been so often held that attachments are strieti juris and can only issue in the particular cases provided by law, and that all formalities and requirements prescribed must be strictly complied with under pain of nullity, that a reference to the digest is a sufficient citation of authority. 1 Hennen’s Dig., p. 120.

It has been repeatedly held that where the bond is for an amount less than that prescribed by law the attachment falls. Thus this court set aside an attachment where the bond for $5000 was only $57 less than the required amount, saying “ those who invoke process of this kind have been uniformly required to fulfil the minutest requirement.” Yale vs. Cole, 31 An. 687.

The same course was pursued in another case where, referring to the bond, the court said: “This prerequisite must be strictly construed and rigidly enforced. The remedy by attachment is" an extraordinary one; dispossessing the party of his property before his indebtedness is judicially ascertained, upon the ex parte showing of his adversary. Hence it has been repeatedly held that the legal prerequisites must be fully complied with under pain of nullity.’! Planters’ Bank vs. Byrne, 3 An. 687; see also Graham vs. Buckhalter, 2 An. 415; Williams vs. Barrow, 3 La. 57.

It is impossible to hold that, though a bond for less than the amount required is fatally defective, a bond for no amount whatever can stand. We can not apply the principle that “ judicial bonds must be tested by the law directing them to be taken; that which is superadded must be rejected and that which is omitted supplied.” This rule has been applied to added or omitted conditions in bail bonds and in bonds for the release of sequestered or attached property, where the bonds had accomplished their purpose and the sureties were held bound by legal conditions. Emanuel vs. Mann, 14 An. 53; King vs. Baker, 7 An. 570; Baker vs. Morrison, 4 An. 373; Welsh vs. Barron, 9 Rob. 355; Slocomb vs. Robert, 16 La. 173.

It has also been applied in the case of injunction bonds. Mason vs. Fuller, 12 An. 68; Eysralenne vs. Bank, 3 An. 663; Breedlove vs. Johnston, 2 N. S. 517.

These, however, were eases in which, the injunction having taken effect, the question arose on the liability of the security on the bond. Moreover, injunction is an equitable remedy and is not subject to the same strictness as attachments.

The rule has never been applied in cases involving the validity of attachments taken out on such insufficient bonds. The question here is, not whether the surety on such bond might be held liable eventually, but whether the precedent conditions prescribed by law, and without which the attachment can not stand, have been complied with. Obviously they have not. The law requires a bond for a specified amount. The requirement is to be strictly construed and rigidly enforced. A bond for a less amount is fatal. A priori a bond for no amount at all is equally so. The bond required by law was not furnished. It is not to be eked out by presumptions and implications.

The same reasons repel the attempt to cure the deficiency by reference to the affidavit of the surety. The law requires the amount to be specified in the bond, not in an affidavit separately filed.

2. The judge rested his decision on the insufficiency of the service of the citations, petitions and order of attachment.

The law imperatively requires such service as a condition precedent to seizure. C. P., Arts. 251, 253, 256; Putnam vs. Banking Company, 3 Rob. 232.

There was no timely legal service in this case.

The return on the citation is as follows:

“ Received this original, together with certified copies of supplementary petitions and citations, on the 26th day of January, A. D. 1891, * * * and service was duly made on Mrs. M. A. Broussard and to her husband, J. Bonnemaison, at their domicil, because, on inquiry from Dominique Bonnemaison, as to the whereabouts of Mrs. M. A. Broussard, and being informed by him, he being over the age of fourteen years, and residing with her, that he did not know where she was, she having left the day previous; on inquiry from other parties residing in the house I could obtain no further information, the house being her domicil. Service was made on the 27th day of same month and year; distance, about ten miles from the court house of said parish. Signed, L. G. Breaux, Deputy Sheriff.”

It is radically defective in several respects.

1. It does not state the name of the person on whom service was made, or whether such person’s name was known to him, or how he ascertained his name. C. P., Art. 201; O’Hara vs. Lumber Co., 42 An. 226.

2. Nor does it state that such person resided at the domicil. C. P. 189; Cole vs. Rocha, 21 An. 613; Pilié vs. Kenner, 16 La. 570; Kendrick vs. Kendrick, 19 La. 36; Oakey vs. Drummond, 4 An. 363; Corcoran vs. Riddell, 7 An. 268; Feasel vs. Cooper, 15 An. 462.

The return on the writ of attachment is as follows:

“ Received the within this 26th day of January, 1891, and proceeded on the following day to serve the same, and did so by handing a certified copy of petition and a certified copy of citation and order of attachment, by handing it to Dominique Bonnemaison, a man over the age of 14 years old, in the store owned by Mrs. M. A. Broussard^ seized, and owned by her, he being at the time apparently in charge of the business of said store, and who stated to me, on inquiry, that Mrs. M. A. Broussard had left, and that he did not know her whereabouts; distant, about 10 miles from court house of said parish, hereunto annexed. Signed, L. G. Breaux, Deputy Sheriff.”

This return falls under our ruling in a similar case, in which we said: “This return does not show a domiciliary • service. If the store was kept at the domicil of the defendant, and the person on whom the process was served lived or resided therein, the sheriff should have so stated distinctly, with mention of the apparent age of the person and the source of his knowledge of the circumstances attending the service.” Adams vs. Basile, 35 An. 101.

The judge did not err in holding such defective services to be fatal to the attachment. Putnam vs. Banking Co., 3 Rob. 232 ; Lacey vs. Kinley, 3 La. 17.

We find no merit in the suggestion that the wife was not authorized by her husband to make the motion to dissolve. The husband had been made a party defendant and cited for the purpose of authorizing his wife.

He had appeared in the ease by filing his answer to a subpoena duces tecum,, and had joined his wife in a motion for commission to take testimony, filed on the same day that the motion to dissolve was filed.

This is sufficient evidence of his knowledge and authorization. It showed a sufficient appearance of the husband in the suit to confirm the implication of authority resulting from his being joined and cited with her. Stone vs. Tew, 9 Rob. 193; Chiasson vs. Dulplantier, 10 La. 574.

Besides it does not lie in the mouth of plaintiffs to deny the authorization of the husband, because the entire validity of their own proceedings depends thereon.

Judgment affirmed.