author: Roché, J.

text:
    No. 9668.
    British and American Mortgage Company vs. Mrs. E. J. Ralston and Husband, and Mrs. E. J. Ralston and Husband vs. British and American Mortgage Company. (Consolidated).
    Paragraph 4 of art. 739 of the Code of Practice, which empowers a seized debtor to arrest an executory process for the reason “that time has been granted him for paying the debt, although this circumstance be not mentioned in the contract ” has reference to. and contemplates only, an agreement made since the execution of the contract and not before. It may be enforced if made part of the contract as a suspensive condition depending upon the happening of an uncertain future event; but not when claimed to have been made before the contract.
    Such a previous stipulation, when not included in the contract, -Will be deemed as having been formally abandoned by the contracting parties.
    PPEAL from the Ninth District Court, Parish of Tensas. Leiois, J.

      Steele é Garrett for the British and American Mortgage Company, Appellant:
    That portion of art. 739. C. P., which provides that the debtor can arrest the sale “when time has been granted to him for paying the debt, although this circumstance he not mentioned in the contract,” has no reference to time granted before, but can only mean time granted after the date of the contract. It contemplates an agreement extending the time made subsequent to the contract. Tail vs. Moll et al., 37 Ann. 203; C. P. 739, part 4.
    An authentic act makes full pToof of what it contains as between the parties; so, without a special averment of fraud, error, ambiguity or the like, the correspondence or negotiations between the parties previous to the date of the contract is inadmissible, for the purpose of contradicting, varying or extending the terms of the authentic act. 0. C. 2236; Succession of Tete, 7 Aun. 95.

      Letters or statements by third persons, not parties to the contract in writing, are inadmissible for the purpose of affecting the written contract, particularly where the agency or authority of such third person is not shown.
    ■Where an amended petition, claiming damages, (being a matter of substance and materially changing the character of plaintiff’s action), was never served on defendants, or its allegations put at issue by default or answer, it will not be considered as forming any part of the pleadings. Levy et al. vs. Webber et al., 8 Ann. 439; Brown vs. Brown, 21 Ann. 461; 12 Ann. 60; 4 La. 13; 2 La. 130-392.
    An amended petition, containing matters of substance not served or put at issue, will not authorize the introduction of evidence; and there being no contestatio lists, a judgment based upon such amended petition is null. Levy et al. vs. Webber et al. 8 Ann. 439 ; Brown vs. Brown,21 Ann. 461; 12 Ann. 60; 4La. 13; 2 La 130-392.

      Win. F. & I). O. Méllen on the same side:
    1. In the case of a writ of seizure and sale there is no authority of law for coupling petitions for damages for the wrongful issue of such writs with the petition for injunction without bond, based on art. 739, C. P. Such petitions cannot be coupled with a motion to dissolve the sequestration. Calling such petitions amended petitions or amended oppositions does not change their nature.' They set up nothing in opposition.
    2. Without first converting the proceedings via executiva into proceedings via ordinaria, such petitions cannot be treated as demands in reconvention. Where a writ of seizure and sale has been obtained via executiva and the defendant obtains an injunction against the execution of such a writ on the ground that the time of payment had been extended, uuder C. P. art. 739, and the original plaintiff files his answer to the petition of defendant for the injunction, the petitioner for injunction cannot set up a claim to damages by an amended petition or a demand in reconvention, even though the original plaintiff be a non-resident of the parish and State.
    3. Nor can such amended petition be considered as a demand in reconvention against the petition for the writ of sequestration. There is no law authorizing a judgment for damages on the dissolution of a sequestration. • A new action is required on the sequestration bond. A petition for damages is not in suppont of a motion to dissolve a sequestration. Nuzum vs. Gore, 24 Ann. 208.
    4. That number of art. 739, C. P., which provides for an injunction without bond, in case of the extension of a debt, refers to an extension granted after the maturity of the debt, and not to that which may have been promised beforehand and is not embraced in the contract when signed. Vial vs. Moll, 37 Ann. 203.
    5. B makes a loan io R. B promises R that in case of overflow or other great disaster, R will receive kind treatment at his hands, and the notes will bo extended. Subsequently an overflow occurs, an extension is granted a first and again a second time. The extension being granted once by reason of overflow the promise lias been fulfilled, and is no longer obligatory,
    6. After two extensions granted by the creditor, and the second term granted having lapsed, th.e creditor was under no legal obligation to withhold proceedings. If the debtor believed she had a right to an additional extension by reas'on of overflow, it was her duty-to ask-'for such extension and inform the creditor of the overflow. The seizing creditor cannot be held to have been premature or to have rendered himself liable for damages under such circumstances in the absence of such request from the debtor.
    7. The-application of the money borrowed by the wife to the purchase of mules in the name of the husband for work stock on the plantation mortgaged, the giving of a bill of sale by the husband on these same mules, to secure his own debt for borrowed money or supplies were, under the other circumstances of this case, sufficient to arouse the suspicions of the creditor, and taken in connection with his right to sequestrate all property mortgaged to him on the maturity of the debt (Gest Atkinson vs. N. O. St. Louis and Chicago Railroad, 30 Ann. 28 and 29) there was sufficient warrant for the sequestration, and it should have been maintained.
    8. The record shows no proof of actual damages. The only evidence is of prospective, hypothetical, imaginary damages. The writ of seizure and sale was never served. It was enjoined as soon as issued. The writ of sequestration was served on six mules and several articles of movable property; but the seizure was only nominal. The property was on the instant turned over to the husband of the plaintiff living on the plantation, and by him turned over to fcho manager of the plantation. The plantation was never for a moment without the use of the articles seized. Bonner vs. Copley, 15 Ann. 304.
    9. * The judgment allows interest from judicial demaud. This is error. 1 Ann. 382 ; 15 Ann. 304: 37 Ann. 497.

      Wade li. Yowng for Mrs. E. J. Ralston and husband, Appellees.
   The opinion of the Court was delivered by

Roché, J.

Holding past due mortgage notes executed by Mrs. Ralston, plaintiffs sued out executory process on tbe property subjected thereto, and on the same day, they obtained, in aid of their executory proceedings, a writ of sequestration of several mules and other movable property attached to the mortgaged plantation.

Mrs. Ralston obtained an injunction on the executory process, before seizure, and without bond, on the ground that time had been granted her for paying the debt; and she filed a motion to dissolve the writ of sequestration on the ground that it had wrongfully issued, on allegations that were false and entirely unfounded.

In amended pleadings, which her counsel calls oppositions, and which the district judge treated as amounting together to an answer to the petition for the writ of seizure aud sale, she alleged great injury to result to her property, to her credit and to her probable future earnings, amounting to $10,000, from each of the writs which had been wrongfully obtained against her, and she prayed.for a judgment in damages therefor.

On motion of her counsel, the two cases, the motion to dissolve the writ of sequestration and all the pleadings and demands, were consolidated by order of the district court, and all were tried’' together, in an incongruous undefinable mass, resulting in a judgment which dissolved the writ of sequestration, perpetuated the preliminary.’injunction, and condemned the seizing creditors to pay to. their former debtor the sum of $3,175 and interests, as damages for their wrongful acts in their unlawful attempt to enforce payment of their claims against Mrs. Ralston.

The seizing creditors have appealed and the seized debtor has prayed for an amendment with a view to the increase of damages to the sum of ten thousand dollars, •' • •

The amount of the seizure was for four thousand dollars.

The mortgage on which the suit is based, was executed on the'23d of December, 1881, and was intended to secure a loan of $6,000 represented by three notes of $2,000 each, maturing respectively on the first days of January, 1883, 1884 and 1885.

The two writs were issued on the 17th of November, 1884, a short time previous to the maturity of the last note, hence the latter no(te was not in suit.

The agreement to grant time for paying the debt is alleged to result from the following letter written by the alleged agents of the plaintiff company:

New Orleans, November 9, 1881.

Gol. George Ralston, Waterproof, Tensas Parish, Louisiana :

Dear Sir — In case of overflow or any other great disaster, Mrs. Ralston may feel sure that she will receive kind and honorable treatment at our hands, and that the time of the notes will be extended.

You will oblige us by filling up and returning our regular form of application, one of which we sent you in our last.

Yours truly,

SHATTUCK & HOFFMAN.

The contention on the part of Mrs. Ralston is that Shattuck and Hoffman had full and unlimited power and authority to bind the plaintiffs in all contracts and stipulations, and that their consent to extend the payment of her notes in the event of an overflow was the condition precedent on which she had agreed to accept the proffered loan with mortgage bn her plantation, and that by reason of overflows which occurred in 1882,' 1883 and 1884, the anticipated suspensive condition went into full effect, and that therefore payment of the notes was not exigible when this suit was brought.

It appears, from a comparison of dates, that the letter relied on was written more than one month previous to the execution of the mortgage, and’tlie record shows that it formed a part of the negotiations which led to the contract as adopted on the 23rd of December, 1881. If tlicv condition mentioned had been adopted as a part of the contract, it would doubtless have been included in the act of mortgage.

Tlie maturity of each note is evidenced by the tenor of the same, and is authenticated in the act of mortgage which contains no suspensive condition whatever, and the authentic act must be held as containing the true and real agreement of the parties thereto. The fact that a previous project of a stipulation is not contained in the authentic act which evidences the final contract entered into by the parties is of itself, and must be held in law, as a conclusive indication of its abandonment by mutual consent.

If the stipulation had been included in each of the notes or recited in the act of mortgage, the case would be entirely different and it would then fall under the authority of the case of Marsh vs. Foster, 11 Ann. 182, so confidently invoked by appellee’s counsel.

In that case, the clause providing for a suspensive condition depending upon the happening of a future event, was included in each of the mortgage notes, and the Court held that proof of the happening of the stipulated event would operate as a suspensive condition.

But, in this case, we are asked to hold that the maturity of notes determined at a fixed time by the contract, must be controlled by an agreement which forms no part of the contract, but which is of anterior date, and that under the 4th paragraph of art. 739 of the Code of Practice, an executory proceeding can be enjoined on a sworn allegation of some indefinite understanding between the parties previous to and making no part of the contract sought to be enforced.

Under such a construction authentic acts would be stripped of all the certainty and binding effect with which the law contemplates to surround them, when it declares that “the authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns,” “unless it be declared and proved a forgery.”

The agreement by which time has been granted for paying the debt held out by the Code to a seized debtor as a ground of injunction, refers unmistakably to a subsequent event, and not to an agreement which antedates the creation of the debt. How could anyone agree to grant time for the payment of a debt, before the maturity of the debt had been fixed or determined upon ? Hence, in the case of Vail vs. Moll, 37 Ann. 205, this Court said: “The portion of the article of the Code of Practice (739) which provides that the debtor can arrest the sale, where time has been granted to him, although this circumstance be not mentioned in the contract, can, have no reference to time granted before, and can only mean time granted after the date of the contract.’ On that point the Court was unanimous, the difference of opinion being only as to the status of the debt at the time that the alleged agreement to grant time had been made.

We are clear in our conviction that the ground of injunction advanced by the defendant in execution could find no sanction under the provisions of art. 739 of the Code of Practice.

But, in justice to plaintiffs, it must be observed, as it appears from the record, that they did not lack' in indulgence towards their debtor, whose notes were allowed to run from January, 1883, and January, 1884, to November, 1884, and who did not proceed until it appeared conclusive that their debtor had no means to pay the taxes on her property, or the arreared interests on her notes, or to defray the necessary expenses of cultivation.

In considering this point, we have assumed arguendo that Shattuck and Hoffman had the legal authority to contract in the name of plaintiffs, but we must not be understood as passing on that question, which is seriously controverted by plaintiffs, and which remains undecided. We yielded the benefit of the argument to the defendant in execution with the result as above announced.

. The ground on which plaintiffs rested their claim for a sequestration of the mules and other movables attached to the mortgaged plantation, was the fear that the same would be removed beyond the jurisdiction of the court during the pendency of their suit, and that fear rested on a bill of sale, (known as a chattel mortgage at common law), which had been made of these mules, to residents of the State of Mississippi by the defendant’s husband since the date of the mortgage, and for a debt which had not yet been satisfied when the executory process was begun.

That circumstance was more than sufficient to legally justify the fear which Article 275 of the Code of Practice contemplates; and no creditor could in reason or in law be expected or required to procrastinate until the mules had been removed to Mississippi, which could be accomplished in a few minutes, by merely crossing the river with them.

In this connection we note that in her testimony Mrs. Ralston states that the mules which were sequestered herein, were the lawful property of her husband.

If such be the case, her motion to dissolve that writ must fall because she is -without interest in the proceedings, and hence she can recover no damages whether the sequestration was wrongfully obtained or not; and if they arc part of the mortgaged plantation, the writ is good because it was based on sufficient grounds to justify the fear and belief that plaintiffs would otherwise have lost their recourse on them.

Having thus reached the conclusion that plaintiffs were legally entitled to both the writs which they sued out in this case, we are not concerned with the injury which their proceedings may have caused to their unfortunate debtor, who is, therefore, in no worse legal condition than all other debtors who cannot meet their just and past due liabilities, and whose property is in consequence subjected by law to the action of their creditors.

Under these views of the controversy we eliminate from discussion several important questions of practice involving the right of a defendant in execution to cumulate with an injunction under art. 739, Code of Practice, a demand in damages for a wrongful seizure; as well as the legal definition and classification of the amended pleadings interposed hy the defendant in execution under executory process.

It is therefore ordered, that the judgment appealed from be annulled, avoided and reversed. It is now ordered that the injunction herein granted to Mrs. Ralston, the defendant, he dissolved, that the writ of sequestration herein sued out hy plaintiffs he sustained, and the motion to dissolve it, overruled and dismissed, and the demand of defendant for damages he rejected, and that she he condemned to pay all costs in both courts.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 9546.
    Alexander Hill vs. Chicago, St. Louis and New Orleans Railroad Company.
    The legislature of the State has vested the city of Hew Orleans with authority to regulate the use of her streets and to authorize the establishment thereon of railroads operated by steam. The ordinance of 1871, Ho, 1031 A. S., authorizing the N. 0. Jackson anxLG. H. E.*E. Co. to use steam on its track on St. Joseph street, was a valid exercise of that power.
    The act of the General Assembly, Ho. 78 of 1870, never went into effect by reason of noncompliance with the terms of its concluding section; and even if it had gone into effect the proper construction of it would be that it was a mere negative of authority to use steam on St. Joseph street, under said act, but that it did not prohibit the ‘city from granting such authority. (
    In absence of any allegation or proof that defendant’s railroad is improperly constructed or conducted, or uses defective machinery, or, in any way, occasions injury not incident to the prudent and lawful exercise of its right, plaintiff is not entitled to the injunction or damages claimed.
    An action of damages will not lie for merely consequential injuries resulting from the pursuit of a business and exercise of rights, lawful in themselves, when they are exercised with prudence and caution and in a manner to cause no unnecessary injury. 8uch inconveniences or injuries must be borne as the tribute of individual inconvenience to the general good.
    Article 156 of the present Constitution is not applicable to this case.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus? J.

      James D. Hill and W. B. Sommerville for Plaintiff'and Appellee:
    1. The council of the city of Hew Orleans has the authority to grant to railroad companies the privileges of using the streets. Tilton vs, E. E. Co., 35 Ann. 1062; 27 Pa. 354.
    2. Act Ho. 78 of the extra session of 1870 provides that the defendant company shall have the right of way for the purposes of its railway — provided, steam shall not be used as a motive power on Delord'or St. Joseph street from Eampart street to the levee.

      3. The grant of power in the city charter is, by operation of this statute (Act Ho. 78) ■withdrawn from the municipal authority and exercised direot-ly hy the State. 19 Pa. 299 27 Pa. 354.
    4. Act Ho. 78 did not require the express assent of thedefendantcompany to make it operative. The exercise of corporate powers under it is an acceptance of the same in all of its parts. 32 Md. 27; 37 Md. 550 ; 11 Ind 104; 20 111. 001.
    5 -The express assent of the defendant company to accept and be subject to the constitution of the State under which it lived is not inquired to make an act. operative.
    6. The acquisition of the railroad by defendant from the late Hew Orleans, Jackson and Great Horthorn Railroad, after the railroad within the designated limits was in full operation, without objection from plaintiff, who stood by, cannot under the facts of this case, operate an estoppel against him, There could have been no preclusion, and no estoppel can be pleaded against a legislative prohibition. 27 Pa. 354.
    7 Acts of an individual or corporation, which are outside of legislative authority, may be enjoined by one injured thereby; much more when said act is in violation of a legislative prohibition.
    8. The damages herein claimed are predicated on continuous wrongful acts, to which prescription has no application. "Werges vs. Railroad, 35 Ann. 643; 7 Otto, 668.

      Farrar db Simonds and James Fentress for Defendant and Appellant:
    1. Our authority to lay down railroad track : Act of La. 1852, page 129, Charter Contract: Ordinance 1621. approved December 11,1869; and. Ho. 1468, H. S., May 22, 1869. To use steam: Ordinance 1031, Administration Series, August 16, 1873 ; Ordinance 8127, Administration Series, Hoveinber 9, 1882.
    2 The city had power to pass above ordinances.

      (a) By all the charters of Hew Orleans, prior to 1870, it is authorized to • ‘regulate,” etc. the streets. This necessarily implies the power to say what vehicles shall be allowed and under what regulations. Hrown & Co. vs. Duplessis, 14 Ann. 855.

      (b) The Act of 1870, granting new charter to city, expressly mentions locomotives in the streets and makes plain the powers of city. Sec. 12, and Sub-Secs. 2 and 11, Sec. 34.

      (c) The legislature, by general Act of 1852, authorizes railroad companies to organize and build railroads anywhere in the State, with only two exceptions :
    3. Hot to run over dwelling houses, etc. Voorhies’ Revised Statutes, Sec. 705.
    2. Hor through streets of municipality without the consent of Council, which once granted shall not be withdrawn. Ibid, See. 689 ; Act approved March 12,1852, Sec. 7.
    Here two things are manifest:

      (a) That the State grants them power to run anywhere in the State with the above conditions.
    (&) That the State expressly leaves municipal corporations the right to say, whether or . not railroads shall be allowed in their streets.
    The H. O. J. and G. H. R. R. was organized under this general law. See Act of La., approved April 22, 1853.
    The City Ordinance 1031, Administration Series, gives consent of city, and so the right and power is complete, both from State and city to the Hew Orleans, Jackson and Great Horthern Railroad. And defendant derives its rights by purchase under mortgage and decree of H. S. Courts. See Act of La. 89 of 1878.
   The opinion, of the Court was delivered hy

Fenner, J.

Plaintiff, an extensive property holder on St. Joseph street in this city, averring that the defendant, without any warrant of law or color of lawful authority,” is and has beeu engaged in running steam locomotives and heavy trains of freight cars along railroad track operated by it on said street, thereby obstructing the ordinary use of the street, polluting the atmosphere with clouds of smoke, soot and dust, shaking and cracking the walls and ceiling óf his houses, thus injuring the same and impairing the value of his property, and establishing a nuisance, brings this action for an injunction to restrain defendant from running freight trains and steam engines along said street, and also to recover five thousand dollars as damages for injury sustained.

Defendant, for answer, pleads the general issue, and further specially denies the damage and avers that it was “duly authorized by acts of the legislature and by city ordinances to use and operate its trains on the said railroad track on St. Joseph street.”

From a judgment perpetuating the injunction and awarding $1,500 damages, the defendant has appealed.

The substantive ground of the relief sought by plaintiff lies in the allegation that defendant is acting “without any warrant of law or color of lawful authority.”

We have recently very considerately determined that “ the legislature has the power to authorize the building of a railroad on a street of a city, and may directly exercise this power or devolve it upon the local or municipal authorities.” Harrison vs. R. R. Co., 34 Ann. 462; Werges vs. R. R. Co., 35 Ann. 641; Tilton vs. R. R. Co., Id. 1062.

If, therefore, the defendant had, as alleged in its answer, lawful authority derived directly or indirectly from the legislature, to construct and operate the road complained of, the broad injunction applied for by plaintiff necessarily falls.

The petition contains no allegations tending to show that the railroad is improperly constructed, or improperly conducted, or uses defective machinery or in any way occasions injury which, by the use of proper means and care, might be avoided.

Such allegations might sustain a partial injunction tending to remedy the particular faults or defects complained of, but could not support the injunction prayed for, which could rest only on the ground that defendant was without lawful right to operate its steam railway at all, on said street.

As this is the most important question we shall first determine it, as conclusive of the right to the injunction.

The defendant sets up, as its authority for using steam on its railroad on St. Joseph street, an ordinance of the city of New Orleans, No. 1031, A. S., approved August 16, 1871, which expressly grants such authority, and under which defendant and its authors have continuously operated its steam trains from the year 1871.

Plaintiff claims that this ordinance was ultre vires and of no effect, by reason of its contravention of the terms of a law of the State, being Act No. 78 of 1870, entitled “an Act relative to the New Orleans, Jackson and Great Northern Railroad Company ” in the following terms:

“ Whereas, it is essential to the commercial prosperity of the State of Louisiana that the cost of transportation of freight should be reduced to the lowest point practicable; and

“ Whereas, there now exists an almost impossible break of about a mile between the Mississippi river * * and the depot and present terminus of the road * * ; therefore,

“ Section 1. Beit enacted, etc., That it shall be the-duty of the board of directors of the N. 0., J. and G. N. R. R. Co., within two years from the approval of this Act, to extend their track by the shortest and most practicable streets, from their present depot to the Mississippi river, along said river from the Pontchaftrain railroad depot, by the shortest or most practicable streets, to the elevator; thence to Louisiana avenue and back again, by the shortest or most practicable streets, to the N. O., J. and G. N. track, and to that end power and authority is hereby granted and conferred on them to construct and maintain such a line of track and use the same for con veyance of freight and passengers; provided, that steam shall not be used as motive power on Delord or St. Joseph streets, from Rampart to the levee.

“Sec. 2. Be it further enacted, etc., That this Act shall take effect as soon as the directors of said corporation so amend their rules and regulations relative to passengers as to comply with the requirements of the 18th article of the Constitution of this State; a certificate to that effect to be filed in the office of the Secretary of State.”

To the results claimed by plaintiff as flowing from this Act, defendant opposes two objections, viz:

1st. That under the terms of the concluding section, the Act never went into effect, because the amendment of the rules therein required was never made and the certificate to that effect was never filed in the office of the Secretary of State.

2d. That, in any event, the proper construction of the Act is a mere negation of any authority, under said Act, to use steam as a motive power on St. Joseph street, and that it does not and was not intended to prohibit the city of New Orleans from granting such power.

There can be no question that the general legislation of the State, prevailing from an ancient date, had vested the city of New Orleans with power to authorize the laying of railroad tracks in her streets and to authorize the use of steam conveyances thereon.

This results from the language of her various charters, even prior to that of 1870, which authorized the corporation to regulate “vehicles of every description” and “to determine through what streets the same shall pass; ” from the Act of 1852, providing “no railroad, plank road or canal shall be constructed through the streets of any incorporated city or town, without the consent of the municipal council thereof; ” and, to place the legislative meaning beyond doubt, from the city charter of 1870, adopted a few days before the Act 78 above referred to, which expressly mentions locomotives as among the subjects of regulation. Brown vs. Duplessis, 14 Ann. 842; Harrison vs. R. R., 34 Ann. 462; Werges vs. R. R., 35 Ann. 641; Tilton vs. R. R. Co., Id. 1062, in all of which cases this power of the city was expressly recognized.

It follows that, unless the legislative act referred to restrained the exercise of this power with reference to St. Joseph street, the city ordinance of 1871, conferred upon defendant full warrant of law to operate its road on that street by steam.

Now, by ordinances Nos. 1468 and 1621 of 1869, the city had already authorized the defendant to lay its track on St. Joseph street, but those ordinances contained the proviso that steam should not be used on that street or on Delord street.

This prohibition was, no doubt, the cause of the application to the General Assembly for further legislation which resulted in the Act of 1870. Doubtless, the General Assembly, being informed that the city had refused permission to irse steam on St. Joseph and Delord street8 and being unwilling to interfere with the discretion of the city autorities in regard to this subject, saw fit to impose the same restriction upon its own grant.

This proviso robbed the act of all benefit to the defendant’s author, the New Orleans, Jackson and Great Northern Railroad Company, and hence no steps were taken to carry it into effect, and it never went into effect for any purpose.

The company never amended its rules or filed a certificate to that effect in the office of the Secretary of State, which, by the terms of the act, were conditions precedent to the laws taking effect.

The law, therefore, remained a dead letter. The company never acted under it in any respect. The tracks required to be built, within two years, from the Pontchartrain depot to the elevator, and thence to Louisiana avenue and back to its depot, were never constructed and nobody ever complained of their non-construction. The company, the city and the State seem to have concurred in considering the act as of none effect. In 1871, the company again applied to the city tor permission to use steam on St. Joseph street and it was granted by ordinance No, 1031, A. S. Thereupon, the company commenced operating its road by steam, and has so continued over .since without interference from any public authority; and it was only in June, 1880, nine years afterwards, that the plaintiff, though he had been all the time a property owner on said street, bethought himself of judicially questioning defendant’s authority by filing this suit. In the meantime the road, with all its franchises, had been transferred from the New Orleans, Jackson and Great Northern Railroad Company to the purchasers, under a public judicial sale in foreclosure of a mortgage. These purchasers were organized into a corporation under the title of the New Orleans, Jackson and Northern Railroad Company by an act of the General Assembly, approved March 8, 1877.

This latter corporation was subsequently consolidated with the Mississippi Central Railroad Company; and by act of the General Assembly No. 89 of 1878, these consolidated companies were organized into the Chicago, St. Louis and New Orleans Railroad Company, the present defendant, with full recognition of its succession to the rights, privileges and franchises of the former corporation.

Now, during all this period the various companies were publicly and without dispute, operating steam on St. Joseph street, and yet the General Assembly in dealing with them in these several acts, raised no question as to their right.

We consider it thus fully established that all parties considered the proviso of the Act of 1870 as inoperative.

Indeed, we do not see how a different conclusion could be reached.

The Constitution or general laws provide for the time when legislative acts shall take effect, in absence of special provisions on that subject in the acts themselves. But no one has ever questioned the legislative power to fix the time at which, and the conditions under which, a statute shall go into effect, by provision in the act itself; and when it has exercised this authority, it must be respected, and the act does not take effect until such time has arrived or such conditions have been complied with.

Thus it has been decided that a statute passed to take effect only on a future fixed day, has no force whatever for any purpose until such day arrives. Price vs. Hopkins, 13 Mich. 318.

Here, the legislature provided, in unambiguous terms that the Act of 1870 should only take effect on the happening of certain explicit conditions which have never happened. How can it be said that the law has ever gone into effect ? If the company were claiming a privilege by virtue of such law, would it not be denied on showing that the condition had not been complied with? And must not the same rule apply when, by virtue of such law, an obligation or restraint is asserted against the company?

It is no answer to say that the assent of the company to accept and abide by the Constitution of the State is superfluous and unnecessary.

If it were a mere question of acceptance by the company, the answer might have force. But it is more than this; it is a question whether the law has ever taken effect. Acceptance by the company, however explicit, would entitle it to no rights and subject it to no obligations under the act, unless the act had gone into effect, because it requires two to make a bargain and the State’s assent is wanting so long as the conditions to which she chose to subject it have not happened.

This we think conclusive in itself.

But, on broader grounds, we are fully satisfied that defendant’s construction of the law is correct, even if the act had taken effect.

Considering the general policy of the State with reference to leaving the control of her streets to the city of New Orleans, and especially the charter of 1870, passed almost contemporaneously; considering the motives and purposes of the act and the conditions existing at the date of its passage; and considering the manifest interpretation of the act adopted by all parties, immediately after its passage and ever since, we are perfectly satisfied that the sole motive for the insertion of the proviso was the fact that the city had refused permission to use steam on the streets referred to; and that its sole meaning was to deny to the company the right to claim such privilege under the act and without consent of the city.

To hold otherwise would lead to the absurd consequences: 1st. That while leaving the city full power to permit the use of steam on any other street, the legislature had exempted these particular obscure streets therefrom; 2d. That, even on these streets, the city might grant the right to use steam to any person or corporation other than this company, to which alone the restriction applies.

On every ground, we are satisfied that the Act of 1870 operated no restriction on the power of the city to authorize defendant to use steam on St. Joseph street; and that the ordinance of 1871 constituted defendant’s full warrant of law for that purpose.

On the question of damages, we have already noted the entire, absence of any allegations in plaintiff’s petition laying any other legal basis of defendant’s liability for damages except the charge that it was operating its road without lawful authority.

The evidence is equally deficient of proof that the defendant is guiF'.T of' any fault in the construction or operation of its road or in the machinery used, or occasions any injury which could be avoided or which is not necessarily incident to the prudent exercise of its right.

That some inconvenience is occasioned to plaintiff by the noise of the trains and by the smoke and soot of the engines (which, however, are shown to be as nearly smokeless as any suited to the purpose) and by the jarring of the houses, cannot be questioned. So it may be possible that the price of property on the street may have been somewhat impaired by the establishment of this railroad thereon, though it is evident that plaintiff’s witnesses exaggerate the influence of this cause and ignore other causes which account in great measure for the depression.

But these are merely consequential injuries for which defendant, who is merely “ doing a lawful act in a lawful manner,” cannot be hold responsible.

In England, the doctrine is unqualified, that “an action will not lie on behalf of a plaintiff who has sustained inj ury from the execution of powers and authorities given by an act of parliament, those powers being exercised with judgment and caution." 2d Addison on Torts, sec. 1040, and authorities there cited.

In those States of this Union whose constitutions contain restrictions on the power of taking property without compensation, the doctrine is subject to corresponding restriction, and where property is taken even with legislative authority, the party is entitled to compensation. What constitutes the “taking of property” is well discussed and authorities reviewed in the works of Cooley and Wood. See Cooley Const Lim. 4th ed., p. 676 et seq., Wood, Nuisance, secs. 752, 753 et seq.

The best authorities agree that mere consequential injuries, not occasioned by fault or neglect but incident to the prudent exercise of the right conferred, are not included.

We have hitherto recognized the rule, saying: The defendant company, having established its lawful authority, “is entitled to the protection of the rule which exonerates a party from responsibility in damages for injury done to another in the pursuit of a legal right or in the performance of a lawful act, when such injury is not traced to or caused by his negligence or culpable carelessness.” Werges vs. R. R. Co., 35 Ann. 646.

In the language of another Court: “Every great public improvement must, almost of necessity, more or less affect individual convenience and property; and when the injury sustained is remote and consequential, it is damnum absque injuria, and is to be borne as part of the price to be paid for the advantages of the social condition.” Lansing vs. Smith, 8 Cow, 149.

The injuries established by plaintiff are of this character and must submit to tins rule.

The article 156 of the present Constitution of this State, has no application to the present case, and its construction is not involved.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and it is now decreed that there be judgment dismissing plaintiff’s demand with costs in both courts.

Watkins, J., not having heard the argument, takes no part.


author: Poché, J.

text:
    No. 1139.
    The State of Louisiana vs. Westley Gauthreaux et als.
    An accused is not entitled to compulsory process for obtaining witnesses in bis favor, in support of a motion for a new trial.
    The provision of the Constitution (Art. 8) touching witnesses in criminal cases, applies to witnesses on the question of the guilt or innocence of the accused, and has no reference to motions for now trials or other proceedings connected with a criminal cause.
    The Supreme Court will not disturb the rulings of trial judges, in their manuer of fixing and hearing motions for new trials or similar proceedings unless the same appear on their face arbitrary or glaringly unjust.
    Evidence intended to impeach the testimony of witnesses on the trial is not a legal ground for a motion for a new trial on the ground of newly discovered evidence.
    A PPEAL from the Twenty-second District Court, Parish of Ascenf\ sion. Duffel, J.

      M. J. Cunningham, Attorney General, and J. L. Gaudet, District Attorney, for the State, Appellee:
    ON MOTION TO DISMISS.
    Appeals in criminal oases will be dismissed unless the record is filed in the Supreme Court within ten days from the granting of the order of appeal.

      A motion for a. new trial on tlie ground of newly discovered evidence must be refused when the affidavit of the accused shows that the evidence, so far from being newly discovered, was known to him all the while. Such motion must be supported by other testimony in addition to the affidavit of the accused. His alone will not suffice. State vs. J. J. Cot* toil, 36 Ann. 980.
    Hewly discovered evidence tending to impeach or discredit a witness who has testified in the case affords no legal ground for setting aside the verdict and granting a new trial* State vs. Lou. Young and Joseph E. Barbo, 34 Ann. 346; State vs. Henderson, 35 Ann. 45.

      IS. iV*. Pugh for Defendants and Appellants.
   Tlie opinion of the Court was delivered by

Poché, J.

Westley Gautlireaux seeks relief from a sentence for murder without capital punishment, on the ground that lie was improperly denied a new trial.

He also complains of the judge’s refusal to fix a day for tlie hearing of liis motion for a new trial, which was predicated on alleged newly discovered evidence, and of his refusal to issue process intended to secure the attendance at that hearing of the witnesses whose evidence he claimed to have discovered since tlie trial.

The record shows that the verdict of tlie jury was rendered on May the 18th, and the motion for a new trial was presented on tlie 19th of the same month. The judge ordered tlie motion to be taken up instcmter, and after hearing he overruled it.

It is charged that the ruling was erroneous and injurious to the accused, and the rules of the court are in tlie record to show that the judge violated his own rules. But the very rule invoked by the-accused authorizes the judge to fix certain motions for trial instcmter..

But the method of hearing motions for new trials is a matter which must be left to the sound discretion of the trial judge, and surely this Court cannot be expected to review every movement of a. district court in the disposition of its business.

If tlie mere reading of a motion for a new trial imparts to tlie judge, who has followed up and directed the whole trial, sufficient knowledge-to intelligently dispose of the matters suggested in the motion, he cannot be arbitrarily required to delay his ruling- for the purpose of further hearing in the premises.

In Boasso’s case recently decided in New Orleans, this Court, upheld tlie trial judge in liis refusal to hear argument of counsel in support of a motion for a new trial, tlie judge stating that he was. already familiar with and ready to dispose of the questions submitted in the motion.

There is no merit in defendant’s contention that he had the constitutional right to “compulsory process for obtaining witnesses in his favor,” in support of a motion for a new trial. That provision (Constitution, art. 8) has reference to witnesses for the trial of the guilt or innocence of the accused, and surely does not cover the hearing of every motion or other proceeding incidental to or connected with the main trial.

Under the interpretation suggested by defendant, accused parties would soon monopolize the time of the court and form a constant procession of witnesses to the court-house, whose presence and whose hearing would indefinitely procrastinate and eventually paralyze the administration of justice.

His contention finds no support in Hyland’s case, 36 Ann. 88, on which he relies. The ruling in that case was that the trial judge should hear the witnesses whom the accused produces in support of •the averments of his motion for a new trial, and his refusal in that case to hear them was discountenanced. But nothing in the opinion justifies the inference that in such a proceeding the accused is entitled to process for witnesses. The substance of the ruling is that the .judge must either hear the witnesses if produced or receive and consider their affidavits in corroboration of that of the accused.

But in the instant case the defendant did not present or annex the affidavit of the.witnesses referred to in his motion, or of any other person in support of his motion.

And his reasons for his failure to comply with that rule of law aie ■not satisfactory.

The fact that he was in prison and that he had been taken by surprise by the nature of the testimony produced against him at the trial could with as much reason be urged by all convicted parties, and yet the rule is absolute and has always been enforced in criminal jurisprudence. State vs. Cotton, 36 Ann. 980; State vs. Jung & Britto, 34 Ann. 346.

But notwithstanding this material omission of the defendant in the matter of his motion, we have considered the nature of the alleged newly discovered evidence which he therein sets up.

Its intended effect was double in its scope.

By one set of witnesses he proposed to show justification for the homicide with which he was charged, and by another set he proposed to impeach the testimony of ■witnesses who liad sworn to certain admissions made by him in connection with the crime for which ho was prosecuted.

■ The witnesses whom he desired to produce in support of his alleged justification were in the same house with him at the time of the homicide, and their alleged version of the deed must have been known to him at the timo as the truth of the facts which he holds out, and hence •their testimony canuot he considered as newly discovered evidence.

If it he true, as he contends, that the deceased was about to break •into the liouse of the person who is represented as having called on the accused for assistance, he must have known these things not only ■at the time of his trial, hut at the very moment of the homicide; and ■the credulity of courts cannot be strained to the point of believing that such evidonce was discovered only since the trial.

The intention to impeach the testimony of witnesses as given at the trial is not a legal ground for a new trial. The rule has been too long in force and is too firmly settled in jurisprudence to require any argument in its support at this time. Waterman’s Criminal Digest, p. 459, sec. 208; State vs. Fahey, 35 Ann. 9; State vs. Diskin, 35 Ann. 46.

From the record it appears that the accused had six days within which to prepare his motion for a new trial and to secure either the presence or the affidavits of witnesses whose testimony lio pretends to have discovered since his trial, and his failure to present them or their •corroborating affidavits must he attributed to his own laches, and cannot he traced to the rulings of the trial judge, who has committed no -errors under the law.

Judgment affirmed.


author: Todd, J. Pociié, J.

text:
    No. 1140.
    Succession of Mrs. Mary A. Myrick. Provisional Account and Oppositions Thereto.
    An administrator is not compelled to sell the working animals to pay the debts apart from the plantation. They aro immovablo by destination, and if they die during the term of the administration the administrator is not to be charged with their value in the absence of fault or negligence on his part.
    Nor should an administrator be charged with the animal rents of the plantation, where, after the proper efforts, he has been unable to lease the plantation to a suitable tenant, and has been compelled to work the place on account of the succession. In such case ho is subject to no charge for rents or for failure to make adequate crops where it is not shown that such failure is attributable to his fault.
    APPEAL from the Twenty-seventh District Court, Parish of Rich-land. Montgomery, J. ad hoe.

      JR. G. Oobb for the Administrator, Appellant.

      Wells <& Toler for Opponent Watson.

      Potts & Hudson for Tutor, Myrick:
    1. The administrator should, within ten days after Ms appointment, advertise and sell all’ the personal property of the succession. O. C. 1163,1049,1051.
    2. If he fail to sell when required by law to do so and the property wastes or perishes, he-must account or pay for the property.
    3. He should leaso the real estate if not necessary to sell it and account for the revenues If he made no effort to leaso and use the property himself, he must pay customary rents.
    4 The wife cannot hind herself nor her property for the debts of her husband. C. 0.. 2398 ; 33 Ann. 1009 and case.
    5. The law forbidding such contracts is prohibitory. 14 Ann. 9 L. 590.
    6. Mamed women are never estopped when sought to he made liable for the debts of their hushaDds, and many show the true nature of the contract. 14 Ann. 168; 16 Ann. 11; 12 Ann. £52; 12 R. 84; 1 Ann. 429; 2 Ann. 756; 14 Ann. 169; 4 R. 508; 33 Ann. 1009.
    7. The heirs have all the rights of the deceased. C. C. 945; 7 R. 183; 15 Ann. 528; 19 Ann. 75; 33 Ann. 1009.
    8. Heither can the wife indulge in wild and ruinous speculations and bind bor property.* therefor. 34 Ann. 976; 16 Ann. 214; 29 Aim. 75.
    Jf. J. Jjiddell for Opponent Slayden :
    1. The doctrine of estoppel is applicable to married women whenever they seek to perpetrate deliberate frauds. 33 Ann. 626 ; 37 Ann. 327.
    2. An estoppel which binds the deceased married woman, will bind her legal heirs. 1 G-reen, § 523.
    3. "Where a married woman has compromised a pending litigation, and confessed judgment in favor of one who is a solidary mortgage creditor of herself and unmarried brother whereby she obtains the reduction of her debt and the surrender of the mortgage notes, which she uses in purchasing her brother’s entire landed estate; her nephew and niece* claiming as her heirs at law will be estopped from denying the consideration of the confession of judgment.
    4. "Wherever a person by declarations and acts induces another to believe in a certain condition of things, or to change or alter his position for the worse, neither that person or his heirs will be heard to deny his acts or declarations so acted on. 26 Ann. 289; 2 Ann. 500; 26 Ann. 298; 28 Ann. 138; 30 Ann. 53; 32 Ann. 1103; 33 Ann. 624; 33 Ann. 408 ; 38 Ann. 324; Big on Stoppel, 473, 477.
    5. A married woman with her husband’s consent may become surety for any other person. 2 Ann. 903.
    6. A married woman may become surety with her husband’s consent for a person with whom he is engaged, in a partnei'ship. 33 Arm. 924 ; 4 Ann. 377; 19 Ann. 48; 2 Ann. 903.
    7. The right to annul a confession of judgment on the part of the wife, given with the husband’s consent, for the reason that the judgment confessed was for a community debt is a right personal to the wife or her forced heirs, and cannot be exercised by tliosewhom the law calls to the inheritance in default of ascendants or descendants. 5 Ann. 309; 3 Ann. 426.
   Tlie opinion of tlie Court was delivered "by

Todd, J.

Mrs. Mary A. Myrick died in the parish of Richland in 1880, and her surviving husband, Benj. Myrick, was appointed administrator of her succession the same year.

On the 26th of November 1884, the administrator filed a provisional •account of his administration. This was opposed by the legal heirs of the deceased — minors acting through their tutor, Ed. Myrick — also by two creditors, Slayden and Watson.

I.

There were certain grounds of opposition urged by both heirs and •creditors.

They were: 1st. Charging the administrator with the loss of a uiumber of working animals that had died during the term of his administration and valued at $470, and also for 25 head of cattle that likewise died; and 2d. With five years’ rentals of the plantation at $1500 per annum.

It is not charged that the mules and cattle died from neglect of the •administrator — and such was not the case; but that he was liable for •their value because he had failed to sell them seasonably to- pay the •debts of the succession.

The administrator took charge of the plantation stocked and ready for cultivation. There was little or no movable property, strictly ■speaking, belonging to the succession. The mules, which it is contended he should have sold in ten days after his appointment, were the working animals of the plantation, and therefore immovable by •destination — in legal contemplation, a part of the plantation. It was no more the administrator’s duty to have sold these working animals •and small stock of cattle than it was to have disposed of the farming implements, mill, gin stand, machinery, and thus denude the plantation of everything required for its successful cultivation.

It was his duty to have leased the plantation if he could, but we are satisfied from the testimony of the administrator and of Ed. Myrick, the tutor of the opposing heirs, that this was impossible. The plantation contained at least 400 acres of open land — a large plantation for that section of the country, inhabited principally by men of small means, who, as a general rule, had more land than they could cultivate themselves.

The situation was such that the administrator was compelled to cultivate the plantation himself or abandon it to waste and ruin. He •adopted the former and doubtless wise alternative to cultivate it himself on account of the succession, which he did; and though it resulted unfavorably and produced no revenue for the succession, yet it pre•served this valuable in good condition and saved it from great injury, if not the total ruin that might have resulted from its abandonment.

Besides, it was entirely within the power of the heirs, who were-present and represented by their tutor, and the creditors, who are now making their complaint for the first time, to have had this property sold had they desired it, by making application therefor and procuring the required order for its sale; but they were silent all those years,, uttering no disapproval and evidently acquiescing in the course pursued by the administrator.

We find no reason and know of no law, wider these circumstances,. that would compel the administrator to pay for the mules and cattle that died, or for the rent of the plantation ; and the judgment of the-lower court, so far as it imposes the former liabilities upon him, must-be reversed.

II.

The administrator asked credit in his account for certain privileged-debts and necessary charges paid by him. They consist mainly of the expenses of last illness, of funeral expenses, law charges, taxes, blacksmith’s account for repairing machinery, etc., amounting in the aggregate to $1086.28. These items were not opposed and were accompanied by proper vouchers, and their correctness proved by direct testimony, and yet they were rejected. This error must be corrected and the proper credit given for these items.

III.

The administrator has placed in his account as a just claim against the succession a judgment against the deceased, rendered on her confession for $8,600, subject to a credit for $1,950, in favor of Beaumont,. Fakes & Co., and then held by W. J. Sla-yden under assignment from them.

For several years after his marriage, the plantation in question was cultivated by Myrick on his own account. That was before his wife had' obtained a judgment separating her in property from him. By an examination of the record of the proceedings in the suit wherein Slayden’s-. judgment was rendered, it will appear that the consideration of the judgment was a debt of her husband’s- It was an account for advances, made to the husband of plantation supplies, etc., whilst a community existed between the spouses and when Myrick was cultivating the plantation on his own account. Mrs. Myrick, according to this record,, owed no part of the debt for which she confessed judgment. It further appears, however, from the evidence in the record that in 1871, Myrick,. who had been cultivating the plantation on his own account, formed a planting partnership with his brother-in-law John F. Raines, under the-firm name of Myrick & Raines, who continued planting together for-several j'ears. As collateral security for debts owing by this firm, Mr. Myrick and John F. Raines executed their note in solido for $4,000 in favor of Beaumont, Fakes & Co., tlie factors of tlie planting partnership of Myrick & Raines, secured by mortgage.

The account for supplies for which Mrs. Myrick confessed judgment was in part the consideration for which this mortgage note was given. At the date of this judgment, Jno. F. Raines was dead, and his succession was under administration, and his one-half interest in the plantation was to be offered for sale. The creditors of the firm mentioned, Beaumont, Fakes & Co., agreed that if Mrs. Myrick would confess the judgment in their favor above mentioned, that they would surrender to her the mortgage note of $4,000 of herself and brother they held, and also a like one of $500. This was done, and with these Mrs. Myrick purchased the.one-half interest of her deceased brother in the plantation.

Under these facts, a special plea of estoppel is urged against the right of Mrs. Myrick or her heirs repudiating the judgment confessed by her or questioning her liability under it.

It is true that Mrs. Myrick by confessing judgment for this debt, though a debt she did not owe, obtained the moans by which she acquired half interest of her brother in the plantation — in other words she exchanged her confessed judgment for the notes which proved available in her hands to secure for her property of value surpassing the amount of the judgment she had confessed, thus realizing full and complete consideration for it. We axe convinced that the heirs of Mrs. Myrick cannot now consistently deny that the judgment should be recognized as valid and binding against her; and that the same was properly reported in the administrator’s account as a valid debt against her succession subject to the credit stated. 84 Ann. 1171; 37 Ann. 679. This crodit we see no reason to reduce as asked to do in the motion to amend.

IV.

There is a claim allowed by the account in favor of R. U. L. Watson. It was for a number of mules and wagon bought of Huson by Mrs. Myrick, for which she executed her obligation to deliver ten bales of cotton after she was separate in property from her husband. The debt is a just one and the deceased was clearly liable for it.

There was also a claim for $860, in favor of Thomas Jones, recognized in the account as a just debt against the succession. We are satisfied that the debt is a just one. The creditor, however, moves an amendment to the judgment because the same allowed only the principal. He is entitled to tlie amendment sought, allowing legal interest from 1st of January, 1880.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed :

1. In so far as it rejects the credit claimed by the administrator for the working animals and the cattle that died during the term of his administration, $470.

2. In so far as it rejects the credit claimed for the privilege debts and necessary charges aggregating $1,186.28.

In so far as it fails to allow interest on the claim of Thomas Jones for $860, on which legal interest is now allowed from the 1st of January, 1880.

4. In so far as it charges the administrator with the depreciation in the value of the mules on hand, $114; and that in all other respects the judgment appealed from be affirmed, opponents to pay costs of their respective oppositions in both courts.

On Rehearing.

Pociié, J.

After a second hearing of this case and a second examination of the record, we reach the conclusion that we had committed no error in our previous opinion.

It is, therefore, ordered that our decree remain undisturbed.


text:
    No. 1141.
    James A. Lusk, for use of A. Donan, vs. Thomas J. Powell.
    When tlio legal mortgage of a minor on tlie property of Ins tutor was originally inscribed after the majority of the former, failure to reinscribe within ten years operates the peremption of the mortgage, which cannot thereafter be enforced against property formerly belonging to the tutor, in. the hands of a third possessor.
    APPEAL from the Twenty-seventh District Court, Parish of West Carroll. Williams, J.

      O. T. Bunn for Plaintiff and Appellant:
    1. In selling land at tax sale all the requirements fixed by law must be rigidly complied with on pain of nullity. The necessary proceedings step by step must appear in the tax deed. Louque, 715, 5, 716, 16; 19 Ann. 185.
    2. Mortgages perempt. They do not prescribe. The doctrine of prescription is stricti juris. The mode of cancelling a perempted mortgage being fixed by law, this mode is exclusive. Prescription against a perempted mortgage can only be urged in the manner pointed out by law. The party must have the recorder to cancel it. !R. S. 450.
    43. Mortgage is an accessory obligation made to secure the performance of the principal obligation. It takes its vitality from the principal debt and continues to exist as long as the principal debt is kept alive. 37 Ann. 88, 809; 25 Ann. 644; 23 Ann. 244; 33 Ann. 1453; 30 Ann. 404, 853; 31 Ann. 284.
    4. Minor’s mortgage against bis tutor is specially exempted from reinscription. As long as it preserves its character of a minor’s mortgage against the tutor on account of the tutorship, reinscription is not required by law. It is only when settlement is made contradictory between the minor and tutor and the claim is merged in a judgment that reinscription becomes necessary.
    'The minor’s mortgage against his tutor is exempted, from reinscription on grounds of public policy. The minor’s mortgage is excepted from reinscription for the same reason that other mortgages are exempted under the law. The Poydras Legacy, the Mortgages of Stock Banks, etc. B. S. 2399, 2340, 2341; 5 Ann. 590.

      Newman & Gray and H. P. Wells for Defendant and Appellee:
    "Where a mortgage once recorded is not reinscribed within the ton years prescribed by law, it perempts and ceases to have effect against ohird persons. The pondency of a suit to enforce a mortgage does not obviate the necessity of its reinscription. 30 Ann. 11; 25 Ann. 148; 20 Ann. 508; 23 Ann. 587.
    When a person reaches the age of majority, the laws of proscription which provide for his protection during his minority cease to govern his actions and rights, and he is subject to the same laws of prescription as other persons. The law dispensing with the registry of the tacit mortgage of minors ceases to protect them the moment they roach their majority. 34 Ann. p. 1042; 35 Ann. p. 945.
    The action of the minor against his tutor is prescribed by four years to begin from the day of his majority, and the tacit mortgage given by law against the property of the tutor is extinguished by the same length of time. B. C. O. 362; 20 Ann. p. 510 ; 4 Ann. 488; 9 Ann. 43.
    A mortgage resting on property sold for taxes cannot be enforced. If the formalities of law were observed for the tax sales, the effect of such a sale is to extinguish the mortgage. 28 A nn. 352; 35 Ann. 506; dissenting opinion of Judge Wyly, 29 Ann. 112.
   The opinion of the Court was delivered by

Fenner, J.

This is an action to enforce a minor’s mortgage on property in the hands of a third possessor.

The mortgage was inscribed in 1869, after the plaintiff had attained the age of majority, and was not reinscribed within ten years. By "this failure to reinscribe, tlie mortgage perempted and the effect of the -original registry ceased. C. C. 3369.

The exception in favor of minors, married women and interdicted persons, made in the concluding paragraph of the article, lias no application to a case like the present, where the disability had ceased when the original registry was made. This lias been deliberately and repeatedly decided. Lemle vs. Thompson, 34 Ann. 1041; Smith vs. Thompson, 35 Ann. 943; Watson vs. Boudurant, 30 Ann. 11.

While we listened with interest and attention to the argument of plaintiff’s counsel in favor of a reversal of the jurisprudence of this Court on this and other points, we are not convinced of the propriety -of doing so, and prefer to hold our course in antiguas vías.

Judgment affirmed.


author: Todd, J.

text:
    No. 1146.
    The State of Louisiana vs. Charles Robertson alias Lewis Robertson.
    A person to whom complaint has been made by the victim of a rape, when placed on the witness stand, cannot be permitted to repeat all the details of the outrage and the name-of the ravisher as reported to her, but can only testify as to the fact of the complaint being made and as to the condition of the victim when making the complaint. Such testimony is not to be regarded as independent and original evidence to establish the guilt of the accused, but its purpose is to support the testimony of the person outraged.
    The counsel for one accused of such crime, who seeks to impeach the testimony of the principal witness by showing contradictions between the statements of such witness made on the preliminary examination and those made on the trial, should be permitted to-read-parts of the previous deposition and ask the wituoss if she had so testified, and should not be compelled first to read to her the entire deposition out of the presence of' the court and jury,
    APPEAL from the Criminal District Court for the Parish of Orleans. Homan, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      J. J. Foley for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant appeals from a sentence of imprisonment, at hard labor'for life on conviction for rape.

The grounds of his appeal appear in two bills of exception found in the record.

I.

One is to the following effect:

The only direct testimony against the accused touching the commission of the offense charged was that of the alleged victim of the outrage.

Another witness was called by the State, who stated that the prosecutrix made complaint to her of the commission of the offense soon after its alleged occurrence, and was proceeding to repeat the details-of the affair and to give the name of the offender as told her by the prosecutrix, when objection was made to such disclosures by the witness, on the ground that the matters about which the witness was proceeding to testify were not a part of the res gestee and were therefore inadmissible. The objection was overruled and the witness permitted to state that the prosecutrix said that the accused was the perpetrator-of the outrage upon her.

This was error.

The object of calling this witness was not to furnish original or independent proof to support the charge itself, but the sole purpose and; effect of such evidence was to sustain the testimony of the prosecutrix —tiie principal witness.

We find in Bishop on Criminal Procedure the following expression» on this point:

“The principal witness therefore in these cases stands in a particularly delicate situation before the jury; and the law has defined by what methods and within what limits her testimony may be supported' or impeached. * * * After this principal witness has testified1 against the accused, the government may introduce witnesses to sustain her evidence of complaint made by her recently after the occurrence of the alleged outrage, together with evidence, if there is such,, of marks of violence seen on her person. But according to the general doctrine, the particulars of the offense, as she stated them, and file-name of the person charged by her with committing the crime, cannot thus be produced.” And this doctrine is supported by frequent adjudications.

II.

The prosecutrix or principal witness had testified before the recorder-at the preliminary trial, and her testimony had been reduced to writing. On the trial before the district court, and on the cross-examination of this witness, the attorney for the accused produced this previous-testimony of the witness given before the recorder, and with a view of laying a foundation for impeaching the testimony of the witness just taken on the trial, by showing discrepancies or contradictions-between it and that of the preliminary examination, read to the witness parts of said previous testimony, to be followed by the inquiry whether she had so testified, when objection was made to this mode-of proceeding — on what ground it does not appear- — and the objection was sustained.

It appears from the bill of exceptions that the trial judge required the counsel to let the witness read the whole of her said previous testimony, if she could read, andif not (such was the casein this instance)then to take the witness into another room, with the district attorney, under charge of a deputy sheriff, and there to read to the witness the whole of her testimony — and then return to the court-room and in presence of the jury and ask the witness if the testimony read to her-was correct or not; and then if it appeared that the testimony had been read over to the witness by the recorder before she signed if, and had been signed by her, and had been duly certified as correct by the recorder, and having been admitted to be correct by the witness, that then the whole of said testimony might be read to the jury, but that; lie would not allow counsel to read a part of tlie testimony or even tlie whole of it before the witness bad tlius been given an opportunity to say whether that was tlie evidence given by her before the recorder-To such ruling of the judge tlie counsel reserved his bill.

We have no hesitation in saying that the counsel was proceeding regularly and properly when thus summarily stopped. We know of no law and have referred to none which requires all this circumlocution and circuity of action imposed by the trial judge as a condition precedent to the accomplishment of the purpose had in view by the counsel of the accused. He was, in our opinion, strictly in line when these requirements were made upon him, and he was entirely justifiable in declining to accede to them.

We are satisfied that the accused was seriously prejudiced by these erroneous rulings, and by reason of the same tlie case must be remanded.

It is therefore ordered, adjudged and decreed that the verdict of the jury in the lower court be set aside, and the sentence of the court be avoided and reversed, and the case remanded to be proceeded with according to law and the views herein expressed.


author: Watkins, J.

text:
    No. 1142.
    Lucinda and A. McGuire Williams and Husbands vs. The Western Star Lodge No. 24 of Free and Accepted Masons of Monroe.
    1. Private corporations must bo authorized by tlie legislature or established according to law. When legally established, they may hold real estate, and receive legacies and donations.
    They may enact statutes and by laws for their government.
    The right of succession is inherent to their nature, and they transmit their successions and their rights of property.
    2. A corporation cannot fulfill another office of public or personal trust.
    A corporation legally established may be dissolved by an act of the legislature, if they deem it necessary for the public interest.
    3. The Grand Lodge was incorporated by an act of the legislature in 1816, and given full powers to hold real estate and to receive donations and legacies. It also chartered all such subordinate lodges as the Grand Lodge had at that time created, and conferred upon them equal powers.
    By the act of 1819, all lodges that had been organized in the initerfan, were likewise incorporated, and those which might be subsequently organized also. '
    4. As a general rule the question as to the forfeiture, or dissolution of charters and acts of incorporation is one which concerns the public order, and the corporation is presumed to oxist for all purposes of justice until the forfeiture is declared by the judgment of a compotent court in some proceeding to which the State is a party.
    5. New legislation cannot be engrafted upon different and distinct subject matter by way of amendment without mention being made of the object in the title; but any subject matter that is germaen to the original text may "be incorporated without being amenable to this objection, if it be stated in the title what particular law is to be thereby amended or reversed.
    6. Every disposition by which the donee or the legatee is charged to preserve for or to return to a third person is null; though a disposition by which a third person is called to take the gift in case the donee does not take it is valid; and so is a disposition by which the usufruct is given to one and the naked'property to another.
    7. The intention of the testator must principally be endeavored to be ascertained without departing from the proper signification of the terms of the testament, and same must be understood in the sense in which it can have effect rather than that in which it can have none. The intention of the testator must prevail over the grammatical meaning of the words employed in tlie testament, if from other dispositions contained therein or other words employed, it is manifest that he had another thought than that the terms employed in a particular disposition would otherwise convey
    8. “Legacies to pious uses ” are those which are destined to some work of piety, or object of charity, and are highly favored by the law, on account of their motives for sacred uses and their advantage to the public weal.
    APPEAL from the Fifth District Court, Parish of Ouachita. Young, J.

      Buckling & Stillman for Plaintiffs and Appellants.

      Potts & Hudson; Stubbs <& Bussell and Boatner & Boatner for Defendants and Appellees.
   The opinion of the Court was delivered by

Watkins, J.

Tlie plaintiffs, alleging themselves to be universal legatees under the last will of Louisa L. McGuire, deceased, seek to have item third of said testament declared null and of no effect, on the following grounds, viz:

1st. Because the testatrix gave and bequeathed to the Western Star Lodge No. 24 of Free and Accepted Masons, of Monroe, La., her plantation on Bayou de Suard, requesting among other things, “that the net revenues of said property be used by said lodge for the support and education of the necessitous widows and orphans of deceased Masons,” and that said clause or item of the testament was incorporated into it through undue influence and contrary to her real wishes.

2d. That same is null and void because it contains substitutions, and fidei commissa, and invests said defendant lodge with a title stripped forever of use and right of disposal-, creating a tenure which has no warrant in the laws of Louisiana;” takes the plantation out of the reach of commerce; changes the nature of the title she transmits, and creates a perpetuity unauthorized by law and against the intent and policy of the State, and at variance with its settled jurisprudence thereof.

3d. The Western Star Lodge No. 24, F. and A. Masons, of Monroe, is not an incorporated institution or corporation organized under the laws of this State, and had not the capacity to take or receive a legacy or bequest of the testatrix, and same lapsed- — if otherwise valid— •'for the want of a donee with capacity to receive; and if same was in•corporated, it was and is only authorized “to manage its own affairs,” and “cannot fulfill any office of personal trust;” and that the item ■complained of constitutes said lodge a trustee for the necessitous wid•ows of deceased Masons, and for whom said lodge is required to manage and control the plantation bequeathed, contrary to law, and the purposes for which said Lodge was organized.

They complain of the act of the testamentary executors in surrendering the property to the Lodge, and allege that they, in addition, surrendered lots 4, 5 and 6 of sec. 10, township 18, range 4, containing 128 acres, which is not a part of the McGuire plantation, and was not •embraced in the clause or item three of the testament.

All of the members of the Western Star Lodge are enumerated in petition, and their prayer is “that the Western Star Lodge No. 24 of P. and A. Masons, of Monroe, and the several members thereof, as well as the testamentary executors and lessee, be cited; and they as universal legatees under said will, be declared the owners of said plantation and revenues, with legal interest, and that the executors render an account.

The defendants join in an exception of no cause of action, which was referred to the merits, and they thereafter file separate answers.

The answer on the part of the lodge is that it was organized and instituted on the authority of the Grand Lodge of the State, duly chartered by the legislature thereof, and whereby it was vested with full ■power, authority and capacity to receive, take and apply bequests and -donations, for the uses and purposes intended by the institution of the .Masonic order.

It admits the receipt of the plantation in controversy from the executors of the will of Mrs. McGuire, and the lots mentioned as separate therefrom, though insisting that same formed a part of the plantation and were anciently purchased for the purpose of timber use, and which is frequently overflowed and of little value otherwise.

It specially denies that the item of the testament complained of contains either a substitution or fitlei commissum, and “avers that said ■donation was made to it (said Lodge) simply, directly and unconditionally, without any restraint as to its future disposition, and that it now owns and holds the same in fee simple and in its own right and in ■ absolute and unconditional oicnership,” and a prayer is made for the rejection of all of the plaintiffs’ demand; and in the event of judgment against the Lodge that there he an allowance in its favor of the sum of $2200, for the reimbursement of expenditures, betterments, taxes and repairs.

The executors, in substance, adopt the answer of the Lodge and insist upon their exception.

I.

The question first to be considered is whether in 1882, when the testatrix died, the Western Star Lodge No. 24, E. and A. M., was an incorporated institution, possessing the capacity to take and receive this bequest. It is argued that this question is vital; and if the defen-dant Lodge cannot show its incorporation and capacity to take and receive the bequest in question the controversy is at an end.

Private corporations must “be authorized by the Legislature, or established according to law.” R. C. C. 432.

Corporations legally established “may possess an estate,” and “are •capable of receiving legacies and donations;” and “may enact statutes and regulations for their owm government.” R. C. C. 433.

The right of succession is inherent to the nature of corporations, and they transmit to their successions their rights and property. R. C. C. 434.

A corporation cannot fulfill another office of personal trust. R. C. C. 441.

A corporation legally established may be dissolved by an act of the Legislature, if they deem it necessary or convenient to the public interest. R. C. C. 447.

From the record it appears that on the 18th of March, 1816, the Legislature of the State incorporated the Grand Lodge of the State of Louisiana, upon the petition of certain members thereof, for the purposes of the promotion of the good of the craft, and the dissemination ■of charity and benevolence; and which declared “that the several persons hereinbefore named, and others who are or may become members of the said Grand Lodge, and their succession, shall be and they wre -hereby deemed to be a body corporate and politic in name and deed, by the style of the Grand Lodge of the State of Louisiana, and by the ■said name and style shall have perpetual succession * * * * and shall have full power to make, alter, amend and change such by-laws' as may be agreed on by the members of same.”

It was further enacted that said Grand Lodge shall have full power “ to take, hold and enjoy real and personal property * * * * an¿ to receive, take and apply any bequest or donation as may be made to and for the uses and purposes intended by the said institution.”

It further provided “that all the regular lodges already constituted,, under the power and jurisdiction of the Grand Lodge, are hereby declared to be bodies corporate and politic in name and deed * * * with equal powers to those which are heieby given to the said Grand Lodge, so long as said Lodges remain under the power and jurisdiction of said Grand Lodge,” etc.

The record further discloses that on the 11th of February, 1819, the legislature enacted an act supplemental to the act of 1816, the provisions of which are “ that all the regular lodges which have been constituted by the Grand Lodge of the State of Louisiana since the passage of the act to which this is a supplement, as well as all the regular-lodges "which shall be hereafter constituted by the .same, are hereby declared to be bodies corporate and politic * * with equal powers, to those which are given to the said Grand Lodge by the said act, etc.”

The record also discloses that on the 20th of April, 1872, the act of March 18, 1816, was further amended and supplemented by the legislature by conferring upon the Grand Lodge of the State power to sell, mortgage or otherwise encumber any species of property; to borrow money upon mortgage of real estate, or pledge of personal property ; to issue boards, etc., “and that these powers shall attach to all the regular lodges which have heretofore been or shall hereafter be constituted by the said Grand Lodge, etc.”

It is obvious that these statutes confer full and plenary power upon the Grand Lodge and upon all other lodges which have been constituted by the Grand Lodge since their enactment, to take and receive; to use and dispose of such property as is designated in the testamentary bequest under consideration.

But it is earnestly argued by plaintiffs’ counsel that the laws of 1816 and 1819 were repealed by the provisions of art. 123 of the Constitution of 1845, which forbade the creation of corporations by the legislature,, coupled with the provisions of art. 142 of the same instrument which contains the usual repealing clause.

A similar provision is contained in the Constitution of 1879; but we consider that same did not have the effect claimed for the quoted provision of the Constitution of 1845. It was not an express repeal, and cannot be fairly construed into a repeal by implication.

The object the framers of those two instruments evidently had in view was to remedy the existing evil, of permitting the legislature to create an unlimited number of private corporations to the great detriment of the public interest. It certainly- was not their qmrpose to thereby annihilate all the private corporations in the State, and without regaTd to the disastrous results such a sweeping repeal might produce.

This Court’s predecessors have, in at least one well considered case, maintained a contrary view to the one that is pressed upon our attention by plaintiffs’ counsel. We refer to the case of Polar Star Lodge No. 1 vs. Polar Star Lodge No. 1, 16 Ann. 53 et seq. In that case the-Court said: “In 1816, the legislature, by a general law, incorporated' the Grand Lodge of Louisiana, and all other lodges under its jurisdiction, so long as said lodges should remain under the power and jurisdiction of said Grand Lodge.”

“In 1819, the power conferred by the legislature upon the Grand' Lodge to create masonic corporations under its jurisdiction is in these-words, viz: Be it enacted, etc., That all the regular lodges, which have been constituted by the Grand Lodge of the State of Louisiana since the passage of the act to which this is a supplement (1816) as well as all the regular lodges which shall be hereafter constituted by the same, are hereby declared to be bodies corporate and politic, in name and deed * * with equal powers to those given to said Grand! Lodge by said act, etc. * * * In February, 1855, the Grand Lodge-granted a charter to the Polar Star Lodge No. 1. This Lodge, being-the only masonic body of that name, continued to act under the jurisdiction of the Grand Lodge until 3868.”

Again: “As a general rule, the question as to the forfeiture or dissolution of charters and acts of incorporation is one which concerns the public order, and the corporation is presumed to exist for all purposes of' justice until the forfeiture is declared by the judgment of the court in some proceeding in which the State is a party. No provision lias been, made, which we recollect, for the surrender of charters, except those in 1812, in relation to banks. Whether the Grand Lodge has the power to declare the forfeiture of Masonic charters granted by itself, or to-receive the surrender of the same, is not now necessary to determine; for it does not appear that it has accepted the surrender of the charter of 1855, nor declared the forfeiture of the same. It must, therefore, be-assumed that it. still exists.”

The authority of that case is seriously questioned by plaintiffs’ counsel; but, in our opinion, without avail. That suit was .brought to-annul a donation of real property. It was made a question therein whether the plaintiff was the same corporation as that formed in 1855, or one having its origin since the donation was made in 1858.

It is obvious that this question was a vital one in that case; and if the plaintiff could not trace back its origin to a time, anterior to the date of the act of donation, that the controversy therein was ended. .The Court in that case used this argument, and we think with propriety:

“ It is further argued by the plaintiffs’ counsel that the Western Star Lodge No. 24 is only an auxiliary corporation and possessed, as such, •only such corporate powers as have been delegated to it by the Grand Lodge. This is an error. The acts of the Legislature, above quoted, not only declares that the Grand Lodge is a body corporate and politic, but it likewise declares that all the regular lodges which have been •constituted by the Grand Lodge, as well as all the regular lodges which shall be hereafter constituted by the same, 'are hereby declared to be bodies politic and corporate,’ etc. While some may be subordinate Masonic bodies, they are at the same time independent corporations — each one deriving its charter from the State by and through acts of the Legislature.”

It is also insisted that Act No. 72 of 1872, amending act of 1816, is unconstitutional, because same does not express its “object or objects in its title.” Art. 114 of Const. 1868 ; and strong reliance is placed on 5 Ann. 93 and 11 Ann. 723, as bearing out the contention. In our view that act was not essential to the existence or perpetuity of the Western Star Lodge No. 24.

While it is true that new legislation upon a distinct and different subject matter cannot be incorporated into an existing statute by icay of amendment, without mention being made of its object in the title, it is equally true that any subject matter that is germain to the original text may be thus incorporated without being open to objection.

The title of Act No. 72 of 1872 is as follows, viz: “An act to amend the second section of an act entitled an act incorporating the Grand Lodge of the State of Louisiana, etc.” The section thus amended confers upon the Grand Lodge the power to take, hold and enjoy real and personal property, and to receive, take and apply any bequest or donation; and its amendment consists solely in the enlargement of the powers thereby conferred, by authorizing it to sell, mortgage, encumber or pledge such property, and to borrow money on the faith of it, and to issue bonds or other obligations to pay money. This amendment was clearly indicated in the title of the act, and the act itself is not amenable to the objection urged against it.

We are therefore of the opinion that the Western Star Lodge No. 24, F. and A. M., was, at the'date of the probate of Mrs. McGuire’s will, a private corporation, chartered by the legislature and possessing at the time full power and capacity to take and receive the bequest therein contained. We are also of the opinion that no formal acceptance by the lodge of the charter conferred by a legislative enactment ■was at all necessary; the fact, that the lodge acted under its charter from the Grand Lodge furnishes conclusive proof of such acceptance ; •and the record furnishes abundant evidence that said lodge has so acted through a long series of years, and is so acting at this time. It •has also accepted the bequest in express terms and is now in the enjoyment of the property.

II.

The plaintiffs are universal and residuary legatees 01 testamentary heirs, and are themselves recipients of the bounty of the decedent. They occupy the same position as creditors or simple heirs of the deceased and have no right to sue for the reduction of any donation made by the deceased, unless it be of such dispositions as are reprobated by law. E. C. C. 1504, 1519.

The clause or item of the testament coinplained:ofas nulbahd void beads as follows, viz: “I give and bequeath to Western Star Lodge No. 24, F. and A. Masons of Monroe, my plantation on bayou de Suard in ‘the parish of Ouachita, desiring and requesting that after the payment of the first year’s revenues, after my death, to Aunaretto Williams, as •directed in item one, and the securing of a home for Eliza Yinson to the value of five hundred dollars the net revenues of said property be ■used by said lodge for the support and education of the necessitous widows and orphans of deceased Masons, within the jurisdiction of ■said lodge.

“I further give and bequeath to Western Star Lodge No. 24 the diamond pin given by the late Mr. Pargoud to my husbaud, E. F. McGuire, ■the lodge to make such disposition of it as they shall see proper.”

The plaintiffs allege that this item is null and void, because it coiL tains substitutions and fidei commissa and invests said lodge with a title that is stripped forever of use and the right of disposing of same, thereby creating a trust or tenure which has no warrant in law and takes the property bequeathed out of commerce.

On the other hand, the lodge contends that-said item three contains neither a substitution nor a fidei commission, but that it conveys to the lodge an absolute, unqualified and indefensable title in fee simple to the property bequeathed for the purposes and objects of that institution.

The lodge announces that the objects of Masonry are charity to all •mankind, and especially to members of the order and their families; assistance to the distressed and unfortunate and the poor and needful, -and aid to the widows and orphans of decéásed members of the craft, •within their own jurisdiction and beyond it; in so far as they are able.

Let us see whether the item of the testament under consideration is •amenable to the charge preferred against it.

The code provides that: “Substitutions and fidei commissa are and remain prohibited. Every disposition by -which the donee, the heir or the legatee is charged to preserve for or to return a thing to a third, person is null, even with regard to the donee, the instituted heir or the-legatee.” R. C. C. 1520.

The disposition by which a third person is called to take the gift in. case the donee does not take it, is not a substitution. R. C. C. 1521.

The same is true of a disposition by which the usufruct is given to> one, and the naked ownership to another. R. C. C. 1522.

To which class docs this disposition belong, if either 9

The Code has provided a rule for the interpretation of acts of last will. It declares that the “intention of the testator must principally be endeavored to be ascertained without departing from the proper signification of the terms of the testament.” R. C. C. 1712.

“A disposition must be understood in the sense in which it can have effect rather than that in which it can have none.” R. C. C. 1713.

In 8 Ann. 172, The State of Louisiana vs. The Executors of John McDonogh the Court said: “The intention of the testator must prevail over the grammatical meaning of the words which he has used; provided his intention is ascertained by dispositions contained, and words used in the will, and it is manifest that he had another object,, and another thought than that which the terms used in a particular disposition would otherwise convey.

“When the sense of a particular disposition, resulting from the entire instrument has been ascertained, courts may go further in cases of' testaments than in cases of contracts, in disregarding the grammatical meaning of the words used, so far indeed as to supply words omitted, which may be done whenever the obvious meaning and the other parts of the will restore these words naturally.”

Applying these simple rules to the interpretation of this disposition in question, and what is the result 9

Can we ascertain the intention of the testatrix without departing from the terms of the will 9

Can such a construction be adopted and give this disposition effect 9 If the true intention of the testatrix prevails over the grammatical signification of the words used in the will, is the idea of it containing a trust, a substitution, or fidei commissum, forfeited or overcome 9

Does it show that Western Star Lodge No. 24, F. and A. M., “is charged to preserve for or to return the thing — the plantation bequeathed —to a third person 9” If so, for what third person is it to be so preserved, or to what person is it to be returned 9 To whom did this testament pass the title at the testatrix’s death? The words employed .are: “I give and bequeath to Western Star Lodge No. 24, F. and A. Masons, of Monroe, Louisiana, my plantation on bayou de Suard in the parish of Ouachita, desiring and requesting that ' * * the net revenues of said property be used by said lodge for the support and education of necessitous widows and orphans of deceased Masons, etc.”

Is there any difficulty in giving effect to this disposition?

It most unequivocally and undeniably gives and bequeaths the plantation to the Lodge. It does not direct or require it to preserve this plantation for any one named or designated. It does not direct or require it to return said plantation to any one named or designated. The testatrix expresses a desire, and accompanies same with the request of the donee that the net revenues of the plantation shall be used and employed in dispensing certain charities enumerated. This request is made of the Western Star Lodge as a charitable institution.

This request was in the direction of the objects and purposes of the ■order. The gift is made to the same person of whom the request is made. There is no third person involved in the matter.

In our opinion the will creates neither a substitution nor a fideieom■missum.

It does not create a prohibited trust, or remove the property from the theatre of commerce. .

“ This legacy clearly belongs to a class known to the civil law from the foundation of Christianity by the name of legacies to pious uses. They are an element in the polity of municipal administrations in all countries, which have preserved the features and jurisprudence of Roman civilization.” 8 Ann. 246, McDonogh’s will.

“Legacies to pious uses are those which are destined to some work -of piety, or object of charity, and have their motive independent of the consideration which the merit of the legatees might procure to them. In this motive consists the distinction between this and ordinary legacies.” Domat, lib. ix, vol. iv, sec. 6, par. 2.

Legacies to pious uses are highly favor,ed by the law, on account of their motives for sacred usages and their advantage to the public weal; and the great consideration which the lawr 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. 8 Ann. 246.

It is far . better that the good lady, who honestly desired to make a munificent donation to the defendant for “pious uses,” • should have that intention carried into effect, and that the wants of widows and orphans be supplied, than that they should be forced to rely upon the meagre charities of the world, and be a tax upon the people of the parish of Ouachita.

We find it unnecessary to digest and collate the various authorities cited in the briefs of counsel, and which have received due consideration.

Our conclusion is that item three of Mrs. McGuire’s will was a legacy to Western Star Lodge No. 24, F. and A. Masons, of Monroe, in full ownership, with a destination thereof to charitable.and pious uses; and that the same does not create a trust, contain a substitution, or fidev commissum, or remove the property bequeathed from the arena of commerce. We are of the opinion that the several small lots alleged to be separate, and detached from the plantation bequeathed, were considered by the ancient owner, as well as the testatrix, as a part of same, and that same were intended to form a reserve for timber uses-as an accessory of the plantation; and that such a fact may be proved-by parol and by general reputation.

Judgment affirmed.