author: Taliaferro, J. Ludeling, C. J., Howell, J., Wyly, J.,

text:
    No. 2255.
    Succession of Caballero (Mrs. Conte) v. The Executor et al.
    A marriage contracted in Spain between parties who had formerly lived together in a state of concubinage in Louisiana, but who removed to Spain to reside there permanently, had the effect of legitimizing the children horn in Louisiana before the removal, and a will made by a man in this situation before tbe marriage, who after the marriage in Spain again moves to Louisiana with his wife and children thus legitimated to live, and he and „ his wife both die here, the logaoies must he reduced to the disposable portion of the testator, because the marriage legitimizes tbe children, who become forced heirs, which revokes the will and limits its dispositions to the disposable portion, the same as if the children had been horn in lawful wedlock posterior to its date.
    The fact that the woman in this case was a person of color, who at the time of the marriage in Spain was by the laws of Louisiana prohibited from contracting a marriage with a white man, would not affect the marriage in Spain between the same parties, nor would it affect the legal consequences of the marriage, such as the legitimizing the offspring before tbe marriage, notwithstanding the prohibition in the Louisiana law. The marriage , being good and valid by the laws of Spam, it was also valid here. If, therefore, the law of Louisiana has been subsequently changed, and the prohibitions to the marriage between a white person with a person of color lias been removed, then such children so legitimized by the marriage in Spain can inherit the estates of their parents in Louisiana the same as other legitimate or legitimized children.
    from the Second District Court of New Orleans. Bwoigneand, J.

      George L. Bright, for Mrs. Conté, appellee. J. Ad. Bonier & Son and Lea, Finney & Miller, for executor et als.
   Taliaferro, J.

The plaintiff Mrs. Conté, claiming to be the sole heir of J. M. Caballero, sues to set aside bis will, to annul certain legacies contained in it and to be put in possession of the estate. Her claims are opposed by the universal legatee and by the particular legatees. They aver that the plaintiff is illegitimate, her parents never-having been married legally. JThat being born of a colored woman she could not have been acknowledged or legitimated by marriage-under the laws of Louisiana prior to her father’s decease, and that she is consequently incapacitated to receive anything from the estate of Caballero by inheritance as an heir. This is met by the averment that the father and mother of the plaintiff were married in Havana, where the laws of Spain are in force, and that the Spanish laws determine the condition and rights of the parties resulting from their-marriage.

The judgment of the court below was in favor of the plaintiff. The executor has appealed-.

Caballero, a native of Spain, came to New Orleans in the year 1832,. became a citizen of the United States and lived in New Orleans until the \ear 1856, when he returned to his native country, taking Havana in his way, where he remained a short time. During his residence in Louisiana he lived in intimacy with a colored woman, by whom, it seems, he had several children, the plaintiff in this case being the only one of them now living. She was born in February, 1840. Caballero made an olographic will, dated March 21, 1852, and ratified it in January, 1856. After making various legacies for charitable purposes he constituted Basualdo his universal legatee, and named him as executor.I In March, 1856, Caballero left New Orleans for Cadiz, in Spain, and at Havana, in April following, he was married to Carolina Yisinier, the plaintiff’s mother. He proceeded to Spain, where he resided about three years, and then returned to New Orleans, where he died in the spring of the year 1866. Under this state of facts it is important to ascertain whether the removal of Caballero to Spain was made wpo mcmenck, with the purpose of being permanently there; for if he was merely sojourning in Havana and Cadiz, and went there temporarily for the purpose Qf legitimating his daughter by the ■ marriage with her mother, and with the purpose of evading the laws of Louisiana, which at that period presented an impediment to the accomplishment of his purpose, a grave doubt might arise as to the legal effect in Louisiana of a marriage so contracted. We think, however, the evidence warrants the conclusion that in going to Spain his purpose was to spend the remainder of his life in his native country. It is shown that on his return he made declarations to that effect in Cadiz,' and these declarations are strongly corroborated by several facts ■ which seem to go far to establish the truth of these declarations. He was a man of ample fortune. He sold his family tomb in New Orleans for a large price and carried with him the remains • of his children and placed them in a tomb which he had built in Cadiz at an expense of $25,000. He purchased' there a costly dwelling house, made expensive repairs upon it, and resided in it with his family. It is fully proved that such a marriage as the one between Caballero and Carolina Visinier, that took place at Havana, is legal by the laws of Spain. A judicial order was rendered by a competent judge legitimating the daughter, and upon that occasion the record of her birth and baptism in New Orleans was transcribed in the record of baptisms in Havana.

We understand the rule to be well settled that marriages valid by the laws of the country where they are entered into, are held valid in any other country to which the parties may remove, unless there-exists, from leasons of public policy, in the country to which they remove, some impediment by the laws of that country, or that such marriages are in derogation of good morals. In such exceptional cases comity could not' be invoked to recognize their validity. How stands the matter in regard to the rights of Mrs. Contó, the plaintiff in this case ? Here we may notice that this person, alter her parents removed from Louisiana to Spain, never returned to Louisiana to live, and that she is a subject of the government of Spain. At the time of her legitimation by the marriage of her parents, marriage between white persons and free persons of color was prohibited by our law. The Louisiana law would not have recognized as valid in Louisiana the marriage of Caballero in Havana. What was the consequence, then, upon his return to Louisiana? It resulted that there was in this State no community of acquets and gains between the parties to that marriage. Had there been children born to them in Louisiana after that marriage, they would have been by our law illegitimate. Thus far would our law have extended and had effect when Caballero returned to. Louisiana, but no further. Its edict, so far as it bore upon his marriage, was of local and limited effect.' It existed for a purpose local and special in this country. That purpose could not have been more effectually carried out by withholding from persons abroad, legitimate by the laws of the country where they lived, the right of inheriting property in this State. It could not and did not aim to affect elsewhere the validity of a marriage like that of the parents of the plaintiff. It was strictly personal to parties living in Louisiana who had anywhere contracted the kind of marriage not permitted by its policy, and did not, as in the plaintiff’s case, affect the children of such parents legitimated in other countries and not incapacitated here on other grounds.. The policy of this State had no broader extent, because there was no reason why it should have. Gessante rations eessat et vpsa lex Accordingly we find that there was not, at the period we have referrence to, nor is there now, any law of Louisiana rendering Mrs. Contó incapable of inheriting in this State,/

But conceding it to be true, as alleged, that by our law there existed an incapacity in the plaintiff to inherit, and that that incapacity was fixed at the opening of her father’s succession, we should not regard it as fixed irrevocably. If the incapacity contended for existed, that condition was fixed relatively to the laws, the public policy and. the general state of things then existing] It was not necessarily an irrevocable doom. It'did not cut her off from benefits that might occur amid the ceaseless mutations of human affairs, from advantages that might arise in the future from a changed condition of law and public policy. Her rights resulting from her legitimacy by the laws of Spain were subsisting and continuing rights. They ran pari passu with the law and the public policy which incapacitated her until that law and policy disappeared, her rights surviving.

Mrs. Conté, as we have seen, was born in February, 1840, and her father’s testament is dated in March, 1852, nearly twelve years after her birth. Did the testament fall by her legitimation in April, 1856? This presents another and a more difficult question. Anide 1556 of our Civil Code, in the chapiter that treats of donations inter vimos, adopting article 960 of the Code Napoleon, declares that all donations inter vivos made by persons having neither children nqr descendants actually living at the time of the donation, of whatever value those donations may be, .and on whatever account they may have been made, should they even be mutual, not excepting such as were made in favor of marriage, by any but the ascendants of the married persons, or by the one of them to the other, shall be considered as revoked, up to the disposable portion by the birth of children to the donor, even of a posthumous child, or by the legitimation of a natural child, if the child be born since the donation.” Article 1698 of the Louisiana Code, in the chapter that treats of donations mortis causa, declares that the testament falls by the birth of legitimate children of the testator posterior to its date.” There is no article of the Napoleon Code corresponding to this article.

The French authorities referred to by counsel do not seem to afford much aid in determining the proper interpretation of article 1698 of our Code. On the question now before us the weight of authority found in the writings of the French jurists would seem to be in favor of the affirmative side of the question; but the solution must mainly be sought for in the interpretation together of the articles of our Code, and in ascertaining the spirit and purpose of our legislators in constructing our law bearing on the question. The policy of our law is to reprobate concubinage and the rearing of spurious offspring, an evil so well calculated to demoralize society. On the other hand, marriage sanctioned by Divine authority is highly favored and encouraged. The lawmaker, by liberal provisions, enables and invites the parent of illegitimate offspring to repair civilly the wrongs which he has inflicted upon his children, wholly innocent of the offense for which they are proscribed. Actuated by the strong desire in justice to relieve the innocent, and in the interests of society, the legislator holds out the strong inducement of conferring upon the unfortunate children of unmarried parents all the benefits of legitimacy. This benevolent purpose seems to be announced by article 219 of the Code, which declares that “children legitimated by a .subsequent marriage have the same rights as if they were born during marriage.’’

In view of the reasons upon which the law expressed by this article is manifestly founded, we can not clearly perceive why the lawgiver ‘should make any exception in conferring upon illegitimates the benefits of legydmac.v. If they, are to have the same rights that appertain to legitimates, the impression is strong that no right belonging to legitimates is withheld, otherwise the benefit proposed would, in its most essential feature, be to a great extent destroyed, for the right of inheritance would, in cases like the one at bar, be denied. When a parent legitimates by marriage his illegitimate children, it would seem to be a fair presumption that he desires they should have all the rights they would have possessed had they been born during marriage. A right consequent upon legitimacy at birth is that of annulling donations made by the parent previously/ If children, illegitimate by birth and subsequently legitimated by marriage, are to possess all the legal rights of the other class — and this we may presume to have been the object of the parent in legitimating them — the article 1698 of the Code should be construed liberally to secure the right sought to be obtained by the commendable act of the parent. A liberal interpretation of article 1698 we think would not regard its provisions as forming an exception to article 219, and exclude one class of heirs from the benefits conferred upon another.

In the case of Lewis v. Hare, 8 An., p. 378, it was contended that a testament does not fall on the birth of a posthumous child, or at least it would be sustained to the extent of the disposable portion in conformity with the provisions of article 1556 in regard to donations inter vivos. But our predecessors held “ there was no sufficient reason to narrow the terms of article 1698, which are unqualified and comprehend equally both classes of children.” In support of the view taken of the comprehensive terms of article 1698, the court said: .“ There is no reason to suppose that a testator would have been insensible to the welfare of a posthumous child if the contingency of its birth had suggested itself to his mind, any more than to suppose such insensibility in the case of a child born before his death. In both cases it is reasonable to presume the testator would have felt the promptings of parental love and the obligations of parental duty if the event had been foreseen.

By parity of reasoning, and also from the facts in this record that show the iervor with which the testator in this case cherished the dust of his dead children, is it unfair to infer that after legitimating his daughter he intended to revoke his testament ¶ — an act, however, which he did not perforin, but which it may be said he overlooked or thought unnecessary after .accomplishing her legitimation. 1

We think it is in conformity with the spirit of the decision in the case of Lewis v. Hare, just referred to, to conclude that tlie effect upon the testament of Caballero by the legitimation of his daughter is the same it would have been had her birth occurred posterior to1 the time at which it was made.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs. 1$

Ludeling, C. J.,

concurring. This suit is brought by Maria Dolores Conté, the daughter of J. M. Caballero, to annul the will of her father, and to be put in possession of his succession on the ground that she was legitimated by the marriage of her parents after the date of the testament.

The evidence establishes that J. M. Caballero lived in this city in concubinage with Carolina Yisinier, a colored person; that the plaintiff, issue of this illicit connection, was born in February, 1840; that in 1852 Caballero made the will which is attacked in this suit; and that in 1856 he removed to Spain, the place of his nativity, with the purpose to live there permanently.

On his way to Cadiz, in 1856, Caballero stopped at Havana and there he married Caro.ina Visinior, the mother of plaintiff. Three years after his removal to Spain he returned to New Orleans, where- he died in 1866. The plaintiff has never returned to Louisiana;, she still resides in Spain.

The evidence in the record satisfies me that the plaintiff was legitimated by1 marriage, according to the laws of Spain, in 1856. Being legitimate m Spain, I maintain that the same character will belong to her in Louisiana and everywhere. Story’s Conflicts, sec. 1'05.

Mr. Story says: “It seems, then, generally admitted by foreign jurists,-that as the validity of the marriage must depend upon the law of tiie country where it is celebrated, the status, or state, or condition of their offspring, as to legitimacy or illegitimacy, ought to depend on the same law; so that, if by the law of the plaee of the marriage (at all events, if the parents were then domiciled there), the offspring, although born before marriage, would be legitimated, they ought to be deemed legitimate in every other country,nor all purposes whatsoever, including heirship to immovable property.” Story’s Conflicts, sec. b. 93. And he adds: “ This is certainly the doctrine maintained by many, perhaps a large majority oi foreign jurists.” Sec. c. 93. And again he says: “ The same doctrine is avowedly adopted by the courts of England. Lord Stowell on one occasion in effect maintained that by the law ot England the status or condition oí a claimant must be tried by reference to the law of the country where that status originated. The same doctrine was adopted by the judges of England in giving their opiniou to the House of Lords. They admitted in the most.solemn form, that the legitimacy or illegitimacy of a person must be decided by the law of the place where the marriage was celebrated; and that if by the law of that place (for example Scotland) a son born before tiie marriage between them be legitimated, that status of legitimacy must be deemed equally true and valid everywhere else where ^ the question might arise.” Sec. 93, e.; sec. 93, m. And the same author says (sec. 103): “ Hence we might deduce, as a corollary, that, in regard to questions ot minority or majority, competency or ineoinpetency to marry, incapacities incident to coverture, guardianship, emancipation and other personal qualities or disabilities, the law of the domicile of birth, or the law of any acquired and fixed domicile, is not generally to govern, but the lex loci contractus ant actus, the law of the place where the contract is made, or the act done.”

In this State this principle is substantially announced in the textual provisions of the Codes. Article 10 of the* Civil Code declares that “ the form and effect of public and private written instruments are governed by the laws and usages of the country where they are passed or executed.” C. P., art. 13. That is, the validity as well as the effect of contracts must be governed by lex loci eontraat%is. The contract of marriage between the plaintiff’s parents and its effects must therefore be governed by the laws of Spaini/

This principle has often been affirmed by this court. 3 Martin 66, Le Breton v. Nanchet ; 8 M. 134 ; 2 N. S. 93 ; 4 N. S. 1 ; 5 N. S. 570, Saul v. His Creditors ; 19 La. 216 ; 11 La. 464, Andrews v. His Creditors ; 8 R. 407. In Scott vs. Key, reported in 11 An., this court said : “If it be true that a general law of the place of domicile changing the status of its citizens according to circumstances is a personal statute accompanying the party to every other country — provided the circumstances which operate such change have occurred before the change of domicile, which we consider to be the settled doctrine in Louisiana — a fortiori, is a special law removing a disability from a particular citizen by name such a statute.” * * “ The maxim cited by Story (Conflict of Laws, sec. 51) from Boullenois, ‘habilis vel inbabilis in loco domicilii est habilis vel inhabilis in omni loco,’ must, therefore, be deemed law in Louisiana.” And it was held in the same case that the Arkansas statute (which was a personal statute) did not conflict with the statute of distributions ot Louisiana, which is a real statute.

The ease of Dupre v. Boulard, 10 An., p. 411, relied on by the defendants, is not in point. It appears from 'the opinion that the marriage in that case had been made in fraud of our laws. I consider the question presented by the facts of this case the same as if Caballero and his wife had always resided in Spain. In that event, could the plaintiff claim the aunullment of her father’s testament, made anterior to her legitimation ? I am of opinion that she could. Article (1698) 1705 C. C. declares that the testament falls by the birth of legitimate children of the testator posterior to its date.”

The French text is, le testament est caduc quand il est survenu des enfens depuis qu’il a ótó fait.”

It is evident that the meaning of this article is that the will should fall if the testator should have children capable of inheriting from him after the date of the will/ At the period when the will was made Caballero had no child who could inherit his estate; after the legitimation of the plaintiff he had then such a child. Legitimation is a fiction of the law,, whereby one born out of lawful Wedlock is considered the offspring of the marriage between the parents./ Article 199 of the Civil Code declares “ children legitiihated by a subsequent marriage have the same rights as if born during marriage.” The Erench text is an exact copy from the Code Napoleon, and is as follows: “Lesenfans lógitjmés par le mariage subséquent ont les mémes droits que s’ils étaient nés de ce mariage.” It is evident that there is au inaccuracy in the.English translation; it should have been translated as it born of that marriage.” This accords with the evident intention of the lawmaker, and with the views of the commentators ou the Code Napoleon. Commenting on article 953 of the Code Napoleon, Mareadé says: “La légitimation est une fiction; mais cette fiction au lieu de taire remonter le mariage au jour de la conception ou seúlement au jour de la naissance, fait redescendre et la conception et la naissance au jour du mariage.” 2 Mar-cad é, p. 45. Zacharie says: “La légitimation est une fiction légal, mais elle n’a jamais d’effet rétroactií; elle ne remonte ni au jour de la conception ni au jour de la naissance; elle ne date qu’á partir du mariage.” P. 675. “ C’est le jour du mariage qui est le jour de la conception et de la naissance legitimes: Dies nuptiarum, dies est conceptionis et nativitatis legitim®.” 2 Mareadé, p. 46. Pothier, vol. 7, Traité des Donations Entre-vifs, p. 489, sec. 111.

This court said in Lewis v. Hare: “ The testament falls by the birth of legitimate children of the testator posterior to its date. The reason of this provision is not given by the lawgiver, but is obvious. It is founded upon the reasonable presumption that the testator would not have given his property to others had he foreseen that he would afterwards have offspring. It would not be,easy to suggest a case more strongly illustrative of the wisdom of the law, which supplies by its own foresight the want of foresight of the testator, than the one before us. If this will should be carried into full effect thp entire estate of the testator would be absorbed in legacies, and his child be, left destitute.” 11 An. 378.

All that was said in that case applies with equal force in this case. I can not believe that the word birth,” in the English (“ s’il est sur- ■ venu des enfans ” in the French; text, was intended to refer only to the natural birth of children, but to the advent of legitimate children by birth or by operation of law.

The laws of Louisiana never prohibited persons from inheriting on account of their color. All free persons may transmit their estate ab intestato and inherit irom others. Slayes alone are incapable of either.” C. C., article 945.

“Legitimate children or their descendants inherit from their father and mother,” etc. C. C,, article 898.

It is not against the policy of the laws of Louisiana, therefore, to permit the plaintiff, a legitimated child, to tafee by inheritance the property of her father.

Neither has it ever been the policy-of Louisiana to attempt to regulate marriages beyond her territorial jurisdiction.

I therefore concur in the opinion of Mr. Justice Taliaferro.

Howell, J.,

concurring. For the reasons assigned by the Chief Justice, I concur in the decree in this case.

Wyly, J.,

dissenting. A contract, if valid in the country where it is made, is valid everywhere, because the law of the place is the law of the-contract. But this general rule has its exceptions. A contract against good morals, religion or the policy and institutions of the State where it is sought to be enforced, will not be recognized and pronounced valid, although it may be held valid in the country where it was made.

A contract for fulure prostitution; a contract to promote or reward the commission of crimes, and a contract for obscene publications are examples of the class founded in moral turpitude.

“Contracts made in a foreign country to procure loans in our own country, in order to assist the subjects of a foreign State in the prosecution of war against a nation with which we are at peace; contracts by our citizens or others to carry on trade with the enemy, or to cover enemy property, or to transport goods contraband of war; contracts to carry into effect the African slave trade,” are examples of contracts opposed to national policy and institutions. Such contracts are excepted from the general rule, because they are prejudicial to the interest of the nation and are repugnant to its policy. Story on Conflict of Laws, sections 32, 36, 38,* 245, 258, 259, 324; 13 Pet. 519.

The general rule that the contract of marriage, if good in the country where it is celebrated, is good everywhere, has likewise exceptions. An adulterous or incestuous marriage will not be ¡recognized in this country, though valid where it was contracted, because it is against the policy of the State and the solid interest of society.

If an inhabitant of Turkey should emigrate with several wives to this State, his women would not have the slatus of wives here, although legally married at home, because our law condemns polygamy. When Caballero, a citizen of this State, married his colored concubine, Carolina Yisinier, at Havana, in April, 1856, such marriage was prohibited, because the policy of this State was against the marriage of white and colored persons. C. C. 95. This marriage, though celebrated in the dominion of Spain and valid by its laws, can not be recognized as valid here.

In Dupre v. Executor of Boulard, 10 An. 411, it was held that: “The courts of Louisiana will not give effect to a marriage or to a marriage contract entered into in France between a white person and a person of color.” Suppose, instead of seeking the dominion of Spain to make the contract of marriage with his colored concubine, which he was prohibited from making at home, Caballero had gone with a dozen of white concubines to Turkey and there married them, and after an absence of three years had returned with his women to this State, would they be entitled here to the status of married women, although at the time of the marriage it was contemplated that Turkey should be their future home and the marriage was valid by tbe laws of that empire ? Is polygamy to be forced upon this State by such devices 1 Surely not. Foreign contracts can not be sanctioned and enforced where they are prejudicial to our own country or its citizens. The policy of the State and the safety of its institutions are considerations paramount to the courtesy due to laws of other countries or contracts made in conformity therewith.

The policy of our law, announced in article 95 C. C., prohibiting and declaring void marriages “ contracted by free white persons with free persons of color,” is in my opinion superior to any obligation founded on the comity of nations, to give effect to the laws of Spain or to the marriage contracted in conformity therewith by Caballero with his colored concubine, Carolina Yisinier, in the year 1856.

But it is urged that the policy of this State has been changed, and there is nothing now repugnant to the marriage of such persons. If this be granted it would not affect the validity of a marriage contracted and subsequently terminated by the death of the parties before, this change of policy.

Caballero left this State in 1856 for the undoubted purpose of marrying, in the dominion of Spain, Carolina Visinier, a native of this State,, with whom he had lived in concubinage for many years. After an .absence of three years they returned to this city and lived the remainder of their lives, Carolina dying in lfc'60 and Caballero in 1866.

What was the status of Carolina Visinier at the time of her death in 1860 9 Was she the concubine of Caballero or was she his lawful wife 9 Her status must be determined by the law in force at the time of her death. If she was his wife she was entitled to half the community property, and by succession transmitted it to her heir, the plaintiff, Mrs. Conté. If she was his concubine she was possessed of no legal rights, and was incapable of receiving even a donation from Caballero.

In my opinion the status of Carolina Visinier was that of a concubine by the laws of this State, of which she was a native, notwithstanding the marriage and three years residence in Spain, because no residence or contract made in a foreign land could give her, a native, a better status at home than she was capable of receiving by its laws, and because ti.e contract of marriage, though lawful in Spain, was utterly without effect in this State, being at the time in contravention of its policy.

The change in our laws, under the constitution of 1868, can not be considered in determining the validity of the contract of marriage made in 1856 and terminated by death in 1860, which was by law at the time prohibited and declared void. C. C. 95.

As laws have no retroactive effect, the omissio.i to incorporate article 95 of the Code of 1825 in the Revised Code of 1870 is of no consequence. It was the law prevailing at the time of the marriage and at the time of the death of both the spouses.

The law of this State must also determine the status of the plaintiff .Mrs. Conté, who was born in this city in 1840, the illegitimate daughter of Caballero and Carolina Visinier. Her legitimation was pro-hibited by the law of this State, and no contract of marriage between her parents, nor any agreement on their part to change the place of their domicile, could alter her status and give her a better position at home than she was capable of acquiring. ^The law of this State at the time of her birth, at the time of the pretended marriage of her parents, .and at the time of their death, gave her the status of a bastard, incapable of being legitimated, because the.offspring of an illicit cohabitation between a white person and a person of color. An incestuous or ■adulterous bastard, born in this State, will always have the same status, notwithstanding the subsequent marriageof his parents, either at home or abroad.. The law of the domicile of birth fixes the status of the person suing at that domicile, regardless of the status acquired by him in another country.

The plaintiff holding by the laws of Louisiana, the domicile of her origin, the status of a bastard, incapable of legitimation and incapable of inheriting, seeks to be declared by the courts of this State the legitimate daughter of Caballero, solely because she has acquired that status in Spain, a foreign country. She seeks to annul the will of a citizen of Louisiana and to be put in possession as heir of his succession, notwithstanding her incapacity to inherit according to the law of this State, where she was born and where her parents lived and died.

She points to the contract of marriage made by her parents when she was sixteen years old, in the dominion of Spain, and to the ex parte decree of her legitimation by a tribunal-of that country, and insists that by the comity of nations this court should'give effect thereto and maintain her demand as the legitimate heir of Caballero, notwithstanding such marriage and legitimation were prohibited-and declared void by the law of this State, and notwithstanding the record shows that at that time her parents were citizens of this State, being then only absent from it about thirty days./ The law of this State, the domicile of the deceased, must control in determining the capacity of his heirs, and foreign laws must yield to our own infixing the personal status of the plaintiff, because this is the domicile of her birth/ Mr. Justice Story in his work on the Conflict of Laws, page 91, section 93, says: “ It is plain from what has been already stated and, indeed, is directly established by their positive declarations, that those of the foreign jurists already mentioned who affirm the general doctrine of the universality of the rule that capacity and incapacity depend upon the law of the domicile of birth, and that it equally applies to movable and immovable property situate in foreign countries, would hold the same rule applicable to the question of legitimacy or illegitimacy in regard to the inheritance of real property in all foreign countries.”'

* * * * * * * * * * *

In the celebrated Scotch case referred to by Judge Story, where the question was whether a son born of Scottish parents in Scotland before-marriage, but who afterwards married there, could inherit lands in England as heir — a case tried in the House of Lords and in which was. employed the first talents o^England — -it was conceded on all sides, that legitimacy was a status to be determined by the law of the-party’s birth-place.

Another question (says Judge Story) also has arisen in England,, whether a child born before marriage in one country, of parents, domiciled in that country, by whose laws a subsequent marriage would not legitimate him, would by a marriage of his parents in another country, by whose laws such, subsequent marriage would legitimate him, become legitimate so as to inherit lands in the latter country. It has been held by the House of Lords that the mere fact of marriage in such country, where there was no change of domicile, would not give him such a capacity to inherit land, and that the stain of illegitimacy by his birth was nt>t wiped away by- such marriage. And it was intimated that under the like circumstances in other respects the change of the domicile of the parents to the country where the marriage was celebrated would not have given any better title to inherit, as the stain of illegitimacy would be indelible. The converse case has been decided in France, where it has been held that if a child is born in a country (France) where he \tould become legitimate by a subsequent marriage, he will become legitimate by such subsequent marriage, although the marriage should take place in a country (England) where a different law prevails, and where a subsequent marriage would not have the effect of rendering him legitimate. The result of these two cases seems to be that the law of the place of birth of the child, and not the law of the place of the marriage of the parents is to decide, whether a subsequent marriage will legitimate the child or not.” Story on Conflict of Laws, p. 91, section 93.

Judge Story says, also, that the same doctrine is maintained by Hertins, by Bonhier, by Boullenois, and by Merlin, viz: “That the law of the place of the birth of the child gives the rule as to legitimacy by a subsequent marriage.”

Now, if the marriage of Caballero and Carolina Visinier, although valid in Spain, is held to have had no effeet in Louisiana, then the plaintiff’s claim,- as the legitimate heir of Caballero, falls to the-ground. But to defeat her pretensions it is not necessary to decide that that marriage was without effect in Louisiana, because legitimation is merely an incident — it is not of the essence of the contract of mariiage. A marriage contracted in England subsequently to the birth of a son would not legitimate him, although such marriage would unquestionably be valid.

Tlie marriage of English subjects domiciled in France, and there-valid, would be recognized in England ; but such marriage would not, in England, have the effect to legitimate an illegitimate child born of such persons in that country before going to France. Why ? Because the law of the domicile of birth Axes the statirs of the child. This is unquestionably so when the adjudication of the question is sought iu the courts of that domicile. I venture the assertion that there is no-respectable authority to be found which maintains that the courts at the domicile of birth are required to look beyond the laws of th¿ place in order to flx the status of the child.

It is the right of every country to determine by its own laws and for-itself what status it will give to the children of its subjects or citizens , born within its own limits.

No change of domicile and no act or contract between the parents of ■an illegitimate child can give it at the domicile of birth a better status •than it is capable of acquiring by the laws thereof.

It would be vain to fix the order of successions, and to establish the rule of the capacity or incapacity of heirs born in this State, if foreign laws or foreign contracts are to be admitted to defeat their operation.

It results, therefore, both from principle and upon authority that, as ■the marriage of Caballero with Carolina Visinier, if made in this State, would not have legitimated the plaintiff, their illegitimate daughter, the marriage which they contracted in the dominion of Spain in 1856 did not legitimate her.

Their marriage here would not have legitimated her, because of the ■operation of article 95 C. C., which prevailed till after the death of both her parents. It would not have legitimated her even if Caballero had befen a colored man, because she was neither acknowledged by ■him in a notarial act nor at the registry of birth or baptism. Thomas-■son v. Raphel’s Executor, 11 La 128../

Much has been said of the benevolent purpose announced in article 219 C. C., which declares that: ‘‘ Children legitimated by asubsequent marriage have the same rights as if they were born during the marriage.” That it should be liberally construed because its purpose was to encourage marriage by holding out the strong inducement of legitimation to the parents of illegitimate children, as the means by which to repair the wrong inflicted on them. That this was its purpose I have no doubt, because concubinage is reprobated by law, and marriage is a highly favored institution. But this article was only intended to encourage the marriage of such perspns as are capable of contracting it under tile laws of th¿s State. It ’was not intended to invite the marriage of a free white person with a free person of color,” ■because such marriage was prohibited by article 95 C. C. Nor was it intended to invite persons prohibited from marrying at home to ■seek a ioreign country and there contract a marriage prohibited by ■our law.

It would be a reproach to the authors of our Code to say in adopting article 219 they intended to invite the marriage of white persons with persons of color, either at home or abroad, because a marriage of that .character is expressly condemned and declared void by article 95 C. C. It results, thereiore, from a fair interpretation of article 219 that a marriage of the character of that contracted by Caballero with Carolina Visinier in 1856 was not such a marriage as was intended to be embraced in its meaning. To hold that the marriage of a white person with a person Of color, either at home or abroad, falls within the provision of article 219, would violate its spirit and obvious purpose, and would, as Judge Story says, be keeping the letter of the law to the ear •and breaking it to the sense.

There being, therefore, no law in this State to legitimate by subsequent marriage the child of a white person with a person of color, because such marriage is not embraced in the meaning of article 219, the marriage of Caballero with Carolina Visinier, in the dominion of Spain, in April, 1856, did not legitimate the plaintiff, their illegitimate daughter, who was bom in this city, in 1840.

Legitimation being merely an incident of marriage and not of the ■essence of the contract, the marriage of her parents might be held to be valid and yet the legitimation of the plaintiff would not be a necessary consequence./

The laws of this State not giving legitimation to a subsequent marriage like that of her parents, their marriage in Spain did not have the •effect to legitimate her, because the rule is “ the law of the place of birth of the child, and not the law of the place of the marriage of the parents, is to decide whether a subsequent marriage will legitimate the ■child or not.” Story "on the Conflict of Laws, page 91, section 93.

But it is urged that this rule is contradicted by Justice Story, in section 103 of the same work. Let this section be read with section 105, and in connection with the preceding ones, especially sections 73 and 93, and not the least contradiction will be found. The learned author has stated the rule clearly in section 93, and he is not weak •enough to contradict himself flatly in the tenth section following.

It is also contended, on the authority of Scott v. Key, 11 An. 238, that this court ought to recognize the plaintiff as legitimate, because she acquired that status by the marriage of her parents in Spain.

The authority cited does not maintain the position, nor does it in the least contradict the rule that “the law of the place of the birth of the child, and not the law of the place of the marriage of the parents, is to decide whether a subsequent marriage will legitimate the child or not.”

As the concurring opinion of Mr. Justice Spofford in the Scott case will show what was decided, I will copy it in full, it being very brief. It is as follows :

“ It was competent for the Legislature of Arkansas, the domicile of Ms origin, to fix the status of William Estill. In substance and effect that Legislature gave him the status of a legitimate son of Samuel Estill. The Arkansas statute legitimating William Estill was a personal statute. Therefofe the status of a legitimate son of Samuel Estill would accompany William Estill into whatever country he might go. He came hither with the status. He inherited by our law from his father Samuel Estill, because he was to all intents and purposes a legitimate son, having become so by the law of the domicile of his origin, and not in fraud of our law nor in violation of its policy.”

How an authority, recognizing the legitimation of a party at the domicile of his origin in a case not in fraud of our law, nor in violation of its policy, can support the case of the plaintiff, who was not legitimated at the domicile of origin and whose legitimation by the marriage of her parents was prohibited by our law and in violation of its policy,” I can not imagine.

In Barera v. Alpuente, 6 N. S. 69, a case analogous to the one before us, Judge Porter, the organ of the court, said : The general rule is that the laws of the domicile of origin govern the state and condition of the minor into whatever country he removes.”

In Brosnaham et al. v. Turner, 16 La. 469, this court, in speaking of a foreign statute, said : “ Nor can we examine the validity of the legislative act, where it operates on property within their jurisdiction^ or authorizes acts of its own officers. But its extra territorial effect is a different affair, which we protest against admitting when it comes to operate on the right of real property withip the State, or even supposing it to be what plaintiff contends it to be, a mere'removal of a personal incapacity. If this incapacity relates to the inheritance of real estate in Louisiana, we are bound to say they can have no effect.”

In conclusion, therefore, I maintain that the marriage-at Havana, in April, 1856, being repugnant to our law, was utterly without, effect in this State ; and the marriage being without effect the legitimation of the plaintiff as an incident thereof was also' without effect. But whether the marriage was without effect or not, the legitimation of the plaintiff was not a necessary consequence, and it did not result from the marriage, because the plaintiff was incapable of legitimation by the law of her,domicile of birth; that in suing for the succession of her father she can not set up a foreign status of legitimation as a ground for inheriting, because that status was not acquired at the domicile of her origin,, and, on the contrary, is repugnant to its policy.

The status of the plaintiff is fixed by our law, because her parents, were citizens of this State, and this is the domicile of her origin. She-can not expect this court to recognize a foreign status prohibited by the law of her birth-place.

I therefore think that the plaintiff’s demand should be rejected, and the will of Caballero ought to be maintained; and for the reasons given I dissent in this case.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 3018.
    Bramstein & Bender et al. v. The Crescent Mutual Insurance Company.
    A party wlio obtains a commission to take the testimony of witnesses named, is not hound to take the depositions of all the witnesses named in the commission, under penalty of the exclusion of the testimony of those which have been taken.
    The testimony of the cleric of the court and the attorney for plaintiff is admissible to show that the commissioner who took the testimony failed to annex the commission to the testimony before returning it into the clerk’s office.
    It being shown to he a custom to consider all cotton shipped to a merchant as covered hy an open policy of insurance, unless the contrary is expressed in the hill of lading:
    Held — That where no such reservation is expressed in the bill of lading, the insurance company is bound, in case of loss, for all the cotton shipped.
    from the Fourth District Court, parish of Orleans. Théard, J.

      Wallace é Sandlin, for plaintiffs and appellees. M. M. Cohen, for defendant and appellant.
   This case was tried by a jury iu the court below.

Ludeling, C. J.

The plaintiffs claim of the defendant four thousand and ninety-otie dollars and four cents, with legal interest from, the first of March, 1866, as the amount of insurance due on twenty hales of cotton shipped on the twenty-sixth of February, 1866, at Shreveport, on the steamer Mary Hein to Fred Del Bondio, and by him insured for them on his open policy with the defendant; and which cotton was destroyed hy fire on said steamer.

The plea of lis pendens was properly overruled. The Supreme Court having rendered a judgment of non-suit in the first case, that suit was ended when the judgment of non-suit became final. The defense was a general denial. .The case was tried by a jury, who rendered a verdict for the amount claimed, and the defendant has appealed. The defendant took three bills of exceptions during the trial of this cause,' .which we will proceed to notice.

On the trial of a rule to show cause why testimony taken hy commission should not be read, the defendant objected to the evidence filed on the twenty-seventh of November, 1869, because two witnesses named in the commission, Pendery and Korty, were not examined, and no reason was assigned by the commissioner why the testimony was not taken. None was necessary. We know of no law which compels a party to take the testimony of every witness named in a commission, under the penalty of having the testimony which was taken rejected. Neither has the defendant furnished us with any reason or law to sustain his objection.

To the testimony filed on the seventeenth of February, 1870, he objected, because no commission was annexed thereto, and he objected to the reception of evidence to explain away his said objection. The evidence received by the judge a quo showed that the commissioner who ha'd taken the testimony had failed to return the commission with the testimony, but that it had afterwards been forwarded with art explanation of the neglect. The cleric and attorney for plaintiff proved that the commission was sent with the interrogatories, and the one returned afterwards was the same which had been sent. We think the judge a quo ruled correctly in receiving the evidence, under the circumstances.

We deem it unnecessary to pass upon the other bills of exceptions-in the record, because the evidence in the record is sufficient to establish-the plaintiffs’ case, if we exclude the evidence objected to by defendant in the other bills of exception. ,

On the merits but one question seems to be disputed — that is, that the twenty bales shipped on the Hein and destroyed, were covered by the open policy of Del Bondio.

On this point the proof is abundant. George Naylor and A. Pendery, for whose account the cotton was shipped, swear that they had instructed Fred Del Bondio, their consignee, to insure all consignments by them under his open policy. This is corroborated by the testimony of Charles Del Bondio, the brother and clerk of Fred Del Bondio.. Naylor and Pendery further swear that before shipping the cotton, a Mr. W. II. Benton, an insurance agent at Shreveport, called on them to-induce them to insure in the company he represented, but they declined on the ground that the cotton was insured under the open policy of Del Bondio. It is also proved to be a custom to consider all cotton shipped to a merchant who has an open policy as covered by it, unless-it is expressed to the contrary on the bill of lading. The bill of lading, in this case contains no such expression. And it lurther appears that on two other shipments of cotton by said parties to Del Bondio during the same month premiums were received from Del Bondio for the same by defendant. The telegrams sent by Naylor and Pendery do not militate against this view of the case. They instruct to insure for $225 per bale, whereas their former insurance was only $200 per bale— less than enough to cover loss, as appears from the evidence in this case.

We think, however, the verdict of the jury erroneous in allowing. $4091 04. In the policy tin- cotton is valued at $200 per bale; twenty bales at that price would equal $4000, from which the premium, $138 34, must be deducted. And there was further error in allowing interest from first of March, 1866.

It is therefore ordered and adjudged that the verdict of the jury and the judgment of the court a qua be amended so as to reduce the-amount of the judgment to three thousand eight hundred and sixty-one dollars and sixty-six cents, to bear interest at the rate of five per cent, per annum from the sixth of May, 1866, till paid.

It is further ordered that the defendant pay the costs of the lower-court, and that the plaintiffs and appellees pay the costs of this, appeal..


author: Taliaferro, J. Howell, J.,

text:
    No. 2639.
    Joseph B. Hubbard v. Susan D. Moore.
    A dealer in furniture or other articles of commerce has the right to trade with and make-sales of furniture to a person engaged in keeping a house of prostitution, and the courts will enforce such right by compelling the person who purchases the furniture to pay for it, although it be shown that the vendor linew at the time of the sale the use to which the furniture was to be applied.
    from the Fifth District Court, parish of Orleans. Gooley, J.

      L. Madison Day, for plaintiff and appellant. J. Ad. Dozier and M. Du Bidsson, for defendant and appellee.
   Taliaferro, J.

The plaintiff sues for $2167 15, with interest, being an alleged balance due him of the price of a lot of furniture sold by him to the defendant.

The answer is a general denial. The purchase of the furniture is admitted, but the defendant avers that she purchased it to be used in a house of prostitution kept by her, and that the same was to be paid for from time to time as she might be able to do by success in business, but failing in -which she is unable to discharge the debt.

She alleges that the contract entered into by her and the plaintiff in regard to the furniture is one reprobated by law and contrary to good morals.

There was judgment in the court below dismissing the plaintiff’s action as of non-suit, and he has appealed.

The evidence, we think, sufficiently establishes that the plaintiff, when he sold the furniture to the defendant, was aware of her character and business, but it fails to show that in supplying her with furniture there was any intent on his part to aid or sanction her course of vice and abandonment. He lived in Cincinnati. The furniture, it seems, was sold at different times, much the larger lot of it by the plaintiff’s agent iu New Orleans. A portion of it was sold by the plaintiff himself when on a visit to this city. The defendant was allowed a credit to make payments, and she did pay amounts at different times, making an aggregate of $380. The plaintiff had furniture to sell, and his object was to find buyers; the money of the cyprian was as useful to him as that of any other person. That he entered into a contract with the defendant to benefit himself at the expense of morals we are by no means satisfied. The allegations of the defendant’s answer, aiming to create the impression that he promoted the interests of the defendant by supplying her with furniture on terms of credit to facilitate her success in a career of vice and infamy on her part, in order thereby that he might be benefited himself, are not made good by proof. We can not attribute such a motive to him. Clearly a distinction ought to be drawn between acts done manifestly in derogation of public morals and purposely to promote vice and immorality, and acts not having such manifest purpose or tendency, but which might remotely and indirectly be auxiliary to that object. In acts of the latter class there would be no absolute violation of public morals. A turpis causa would not arise in such a case to vitiate a contract in which the offense against morals would be merely conjectural. To the vicious and depraved, as well as to the good and the virtuous, belong the right to acquire the needs and comforts of a common humanity. A different doctrine would adopt the visionary notion that “ there is to be no more cakes and ale.” The fair dealer who by lawful contract furnishes the dissolute with the necessities and conveniences of life should not be debarred the right of enforcing payment for his goods by the effrontry of his vendee asserting in a court of justice that the things furnished were obtained for the express purpose of putting them to disreputable uses. The seller who furnishes an article adapted to a legitimate and proper purpose is not. responsible in a court of morals, and much less in a court of law, for a subsequent perversion of its use by the buyer. In the case at bar it is shown that the furniture was sold at cash prices, with time given for; payment. The seller, there is no doubt, knew that it was to be used in a house of ill fame, but how bis knowledge of that fact involves him in the guilt of the inmates of that house, as an aider and abetter of lewdness and depravity, we think is not apparent. Although'it is not shown that when he delivered the furniture he told the defendant to go her way and sin no more, it is not thence to be inferred that he encouraged lier in continuing in her immoral course of life. That he contributed to enable her to continue it by selling her the furniture is too vague, hypothetical and remote to form an impediment to his recovery on the contract.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that tiie plaintiff recover from the defendant two thousand one hundred and sixty-seven dollars and fifteen cents, with legal interest from judicial demand. It is further ordered that the.plaintiff’s priority of lien and privilege upon the property attached be recognized, and. that the same be sold according to law and its proceeds applied to the payment of this judgment — the defendant and appellee paying costs in both courts.

Howell, J.,

dissenting. I am constrained to think that the principle on which the majority of the court base their conclusion must apply to all contracts with an immoral or illegal purpose, and that all contracts of whatever species may be enforced if one of the parties can say that he did not derive profit or benefit directly from the illicit gains or vocation. I understand that the whole doctrine of avoiding contracts for illegality and immorality is founded on public policy, and not on tbo interests of the contracting parties.

This subject was elaborately reviewed by the United States Supreme Court in the case of Hanauer v. Doane — Wallace, and many English and American authorities cited, and in which it was said: “It is certainly contrary to public policy to give the aid of the courts to a vendor who knew that his goods were purchased, or to a lender who knew that his money was borrowed for the purpose of being employed■ in the commission of a criminal act ihjurious to society or to any of its members; and that the vendor can not be permitted to stand on the nice metaphysical distinction that although he knows that the purchaser buys the goods for a highly immoral purpose, he does not sell them for that purpose.” And they quote as applicable to the subjeot the words of Chief Justice Eyre, in Lightfoot v. Tenant (1 Bos. & Pul. 551, 556), who said:

. “The man who sells arsenic to one who he knows intends to poison his wife with it will not be allowed to maintain an action on his contract. The consideration of the contract, in itself good, is thus tainted with turpitude which destroys the whole merit of it. * * * No man ought to furnish another with the means of transgressing the law, knowing that he intended to make that use of them.” On which Judge Story remarks: “ The wholesome morality and enlarged policy of this passage make it almost irresistible to the judgment; and, indeed, the reasoning seems positively unanswerable.” Story’s Conflict of Laws, section 253.

It is not denied, but seems conceded, that the plaintiff in this case knew that the furniture, for the price of which he is suing, was sold for the purpose of furnishing a house of prostitution; and no one will deny that such a purpose is highly immoral and injurious to society. He has the distinction of having enabled the defendant to establish and conduct her vocation of demoralizing society and undermining the very basis of its fabric, which she could not have done, at that at least, without his aid. Can he wrap himself up in his own selfishness and heartless indifference and say, what business is that of mine? Am I tkp keeper of the defendant’s conscience 9 The answer, I think, is plain: He voluntarily aids in the perpetration of a heinous wrong upon virtue, and must be taken to intend the consequences of such act.

In the case of Pearce et al. v. Brooks, in the Court, of Exchequer (five judges), decided at the Easter Term, 1863, and reported in the Law Reports, vol. 1, p. 213, “the defendant, a prostitute, was sued by the plaintiff's, coach builders, for the hire of a brougham. There was no evidence that the plaintiffs looked expressly to the proceeds of the defendant’s prostitution for payment; but the jury found that they-knew her to be a prostitute, and supplied the brougham with the knowledge that it would be, as in fact it was, used by her as a part of her display to attract men. Held- — That the plaintiffs could not recover.”

Here similar equal knowledge was had by plaintiff, and he should not recover.

The vocation of defendant was not essential to the sustenance of life. Selling her over twenty-five hundred dollars worth of furniture,, on a credit, to fit up a house for the purpose known to plainti ff was-something more than supplying a fellow-creature with a bed for n ecessary sleep.

I must dissent from the reasoning and conclusion of my associates.

Rehearing refused..


author: Howell, J.

text:
    No. 3969.
    State ex rel. Geo. E. Bovee v. F. J. Herron.
    To maintain the plea of res judicata-the cause of action must he the same. In this case the-relator brought suit for the office of Secretary of State, on the alleged ground that the act of suspension by the Governor was unconstitutional and void. Judgment was* rendered in favor of the defendant on that plea.
    Relator afterward brought this suit for the same office, on the allegation that the non action of the Legislature on the suspension restored him to the office. To this suit defendant urged that the first judgment was res judicata.

    Hold — That the cause of action not being the same in the two suits the plea of res judicata could not be sustained.
    A public officer, such as the Secretary of State, who has been suspended from his functions by the Governor is entitled to resume his office immediately after the adjournment of the next General Assembly, provided no action has been taken on the suspension during the session, and his exclusion thereafter is an active, arbitrary violation of his legal and constitutional rights as such.
    from the Eighth District Court, parish of Orleans. Dibbl'e, J.

      8. Bolden, Attorney General. A. B. Field and J. Q. A. Fellows,. for relator. Bays & Bern, for defendant.
   Howell, J.

On the twenty-nintli of August, 1871, the Governor suspended George E. Bovee from the office of Secretary of State for alleged malfeasance in office, and appointed P. J. Herron to discharge the duties thereof (in the language of the order of suspension) “ until the Legislature shall act upon the subject in accordance with the constitution.” On the sixteenth of February, 1872, he presented specific charges against said Bovee to the Legislature, convened on the first of January preceding, and requested that, if the charges, be sustained, Bovee be impeached; and the matter was referred to a special committee who, after hearing the witnesses on both sides, made a report, on-the last day of the session, of an indefinite character, upon which no action appears to have been taken by the General Assembly. Soon after the adjournment Bovee instituted this proceeding under the-intrusion act, stating as his cause of action that the suspension only-operated until the Legislature should act on the subject, and not having done so, he was entitled to the office. From a judgment against him he has appealed.

We find.annexed to the record a motion to dismiss the appeal, “on the ground that it is not made returnable according to law.” There is no intimation in what respect it is not made according law, and we can discover no irregularity upon which the motion can be maintained, and it is therefore denied.

We find also in the record the plea of res judicata opposed by defendant to the demand in the usual form, that the same matter has been determined in a former suit between the same parties in favor of defendant and the appeal therein dismissed, the judgment- thereby becoming final. The record of that suit is before us, and it shows the cause of action to have been the want oí authority in the Governor to suspend tire relator, which, however erroneously, may be considered as definitely settled adversely to the relator, as between the said parties. But the cause of action in this suit'is a different one, and has acquired its force since the institution of the other, to wit, that by its terms the order of suspension “ was operative only until the meeting and adjournment of the General Assembly of the State, then next following the suspension,” and the said General Assembly having adjourned and expired without having impeached the relator, or in any manner acted upon the matter, he was thereafter not subject to nor affected by the suspension. The plea was properly overruled.

On the merits the case is so clearly with the relator as to need no argument.

Admitting that by sheer accident or neglect in taking the appeal in the former proceeding, the law of this case, as between these parties, sustains the suspension by the Governor of an officer, for whose suspension in such way neither the constitution nor any statute has made provision or given any sanction, it was to have effect only until the Legislature should have an opportunity to impeach him. This not having been done, he was unquestionably entitled to resume the functions of his office, in this instance, immediately upon the adjournment of the Legislature, and his exclusion was an active, arbitrary violation of his legal and constitutional rights as Secretary of State for the remainder of the term for which he was elected.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment declaring George E. Bovee to be Secretary of State under the constitution and laws of Louisiana, and that he be forthwith restored to the full possession of said office, with all the books, papers, archives, seal, furniture, etc., belonging or appertaining thereto, and to the undisturbed exercise of all the duties thereof, with costs in both courts.


text:
    No. 4073.
    State ex rel. G. de Feriet and J. G. Monrose, Executors, v. The Judge of the Second District Court, Parish of Orleans.
    A mandamus will bo granted from the Supreme Court directing the judge of the district court to grant an appeal from a judgment on a rule authorizing an execution to issue against executors for a certain amount, if it bo shown that the rule was made absolute, and an execution issuod thereon for a larger amount than the judgment creditor was Authorized to demand of them.
    fora Writ of Mandamus.

      &. Duplantier, for relators. Dwvigneaud, J., respondent.
   Howell, J.

The relators ask for a mandamus to compel the Judge of the Second District Court for the parish of Orleans to grant them a suspensive appeal from a judgment on a rule authorizing an execution against them for three thousand and fifty-one dollars and ten cents in favor of one J. B. Massieu.

The judge justifies his refusal on the following grounds :

First — Because, in January, 1872, on motion of íelators, tiiey were ordered to retain in their hands the sum of twelve thousand dollars, and distribute the balance held by them as executors of Charles Massieu, deceased, as shown by their final account, among the several legatees pro rata.

Second — Because, when the rule of said J. B. Massieu for an execution came on for trial, the relators made no defense thereto, though duly cited.

Third — Because, in the argument for a new trial of said rule, counsel for relators claimed two credits, amounting to fourteen hundred dollars, to which counsel for J. B. Massieu assented, and offered to have the credit entered of record on the judgment, which entry was opposed by said executors, and hence not made in that form.

Fourth — Because said judgment for an execution .personally against said executors became final, and execution issued thereon against them on the elevénth of June, 1872, for only the balance acknowledged by them to be due after allowing the said two credits, being all the credits ever claimed by them, and under the fieri facias demand was made by the sheriff before this application fora mandamus.

Fifth — Because the original judgment in favor of said Massieu for the sum of eight thousand dollars was a legal confession, having been placed by said executors on their account, annexed to their petition, and on their own motion having been homologated — the sum of three thousand and fifty dollars and ten cents is the result of a calculation from that — after setting aside twelve thousand dollars to await the judgment on a claim in suit; and this sum is still further reduced by the two credits above mentioned. And as there is no difference between the amount claimed by the said J. B. Massieu and that admitted by the executors to be due Mm, no appeal lies, and this application is made solely for delay.

It seems from the record that the application for a suspensive appeal from the judgment on the rule in question was made within the legal delay, and that the executors did claim that a less sum was due to the said J. B. Massieu than: was allowed and ordered to be collected on execution. The plaintiff in the' said rule having admitted that his rule was made absolute for a larger amount than was really due him, and having directed execution to issue for the amount thus admitted, it is possible that other errors exist, as contended by the relators, and that they have been condemned to pay more than said Massieu is entitled to demand of them as executors. They therefore have the right to have the action of the lower court in said proceedings reviewed on appeal. We can not consider the account, in connection with the subsequent proceedings, as a confession of judgment for the sum claimed in the rule taken by Massieu.

It is therefore ordered that the mandamus herein be made peremptory.


author: Taliaferro, J.

text:
    No. 2856.
    R. F. Theurer v. Mrs. John G. Knorr—Moore & Hill, Intervenors.
    Mortgage creditors who appear as third opponents to claim the proceeds of the sale of the property under another mortgage can not ho allowed to question the authority of the agent who gave the mortgage under which it was sold, for the reason that a party can not attack the validity of a sale and at the same time claim to he paid out of thoprocoeds.
    from the Fourth District Court of the parish of Orleans.

      Théard, J. I¿. J. & A. A. Ker, for plaintiff and appellee. Lacey & Butler, for interveners and appellants.
   Taliaferro, J.

The plaintiff instituted an executory proceeding against certain real estate in New Orleans on which the defendant had, through an attorney in fact, given a mortgage to secure a loan of $9802 obtained by her from the plaintiff. Mrs. Knorr being an absentee, a curator ad hoc was appointed to represent her. After due proceedings had the mortgaged property was sold. Moore & Hill appeared by way of third opposition, claiming the proceeds of the sale as being creditors by special mortgage on the same property lor the sum of $10,647, and prayed to be so recognized, and that the funds be applied to the payment of their debt. On the trial of the case in the court below the opposition was dismissed. From this judgment the opponents appealed. These parties allege that the mortgage upon which the plaintiff proceeded to sell the property is a simulation gotton up in fraud to shield the property from their pursuit. They aver further that if the note and mortgage were given in good faith they are nevertheless without force and effect against the opponents, because the agent and attorney in fact of Mrs. Knorr was not authorized by the letter of attorney to borrow money from the plaintiff and mortgage property to secure its re-payment; his authority to borrow money was restricted by the mandate to a loan or loans to be obtained from a bank or banks, or any moneyed institution.

The evidence introduced by the opponents signally fails to establish that the mortgage executed by the agent of Mrs. Knorr in favor of the plaintiff was a simulated and fraudulent act. The objection that the agent was without authority to contract with the plaintiff for a loan of money is devoid of force. This, if a defense, is one personal to the defendant, and can not by our jurisprudence be set up by an intervenor or third opponent. 6 N. S. 676 ; 21 An. 118; ib. 52; ib. 500.

It is well settled that a party can not attack the validity of a sale and at the same time claim to be paid out of the proceeds. 21 An. 262 ; 22 An. 135.

We think the judgment of the lower court correct.

Judgment affirmed.


text:
    No. 4103.
    State ex rel. J. Graham, Auditor, v. Judge of the Eighth District Court, Parish of Orleans.
    If an appeal lias been granted and filed in the Supreme Court it can not afterward be withdrawn without the consent of the Supreme Court. The consent of the parties or tho counsel does not divest the appellate court of jurisdiction over the case. The district court which granted the appeal is therefore divested of jurisdiction over the case until the appellate court has acted on the appeal. In case the court a qua assumes to act in the case after the appeal has been taken — before the Supreme Court has acted on the appeal — a writ of prohibition will issue 'on application of the appellant, restraining the judge a quo from further proceedings in the cause.
    for Writ of Prohibition.

      Hornor & Benedict, for relator. W. H. Oooley, Judge of the Sixth District Court, presiding in the Eighth District Court, respondent.
   Howell, J.

The relator shows that he appealed suspensively from a judgment against him in the case of The State ex rel. The Board of State Assessors v. James Graham, Auditor, in the Eighth District Court for the parish of Orleans, and that after he had filed the transcript of appeal in this court proceedings were instituted against him in the lower court to dismiss the appeal and execute the judgment appealed from by him, and that in pursuance thereof he was imprisoned on the order of the judge a quo for contempt of court in not executing the said judgment. He therefore asked for a writ of prohibition. '

The answer of tbe District Judge is, in substance, that the above named suit was tried contradictorily with the Attorney General, who alone has control of said case; that by act 21 of 1872, the Auditor is forbidden to appear or employ counsel to defend suits against him; that the lower court was without authority to grant him the appeal in question, and this court to entertain it, the Attorney General not having appealed, and having consented to dismiss the appeal granted to the Auditor.

Without expressing an opinion on the whole scope and the constitutionality of the act referred to, it is sufficient, in this case, to say that it does, in certain contingencies, authorize other counsel than the Attorney General to act for the Auditor and the State, and that from the documents before us, without objection, the counsel who acted in obtaining and bringing up the appeal in this instance appear to have been duly authorized to do so; and further, that when an appeal has once been taken the consent of the parties thereto is ineffectual to •dismiss it without the action thereon of this court.

Under these circumstances the said appeal is still pending in this ■court, and the lower court is unquestionably exceeding its jurisdiction ,in attempting to execute the judgment.

It is therefore ordered that the prohibition herein be made perpetual.


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    No. 4091.
    State of Louisiana ex rel. Pierre Bagur v. The Judge of the Eighth District Court for the Parish of Orleans.
    An appeal will lie from a judgment on the opposition of a third person to regulate the effect of the seizure in what relates to him, and a writ of mandamus will, in case of the relusal oi tho judge a quo to grant the appeal, issue compelling him to grant it.
    for a Writ of Mandamus.

      O. B. Schmidt, for relator. Dibble, J., respondent.
   Ludeling, C. J.

A sale of real estate having been made under an order of seizure and sale, Elizabeth G. Melone took a rule against 'Pierre Bagur, the purchaser, and the sheriff, to show cause why the proceeds of the sale should not be paid to her. An answer to this rule was made and a judgment was rendered in favor of the said Elizabeth G. Melone. Pierre Bagur applied for an appeal, which was refused, and he then obtained a writ of mandamus against the Judge of the Eighth District Court for the parish of Orleans. The answer of the judge is, in substance, that the order rendered, and from which an appeal is prayed for, is neither an interlocutory order, working an irreparable injury, nor a final judgment but a step in the execution of .a former judgment. We do not so regard the matter. It is substantially a judgment on an opposition of a third person to regulate the •effect of the seizure in what relates to him. C. P., article 395.

It is therefore ordered that the mandamus be made peremptory.


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    No. 4070.
    State of Louisiana ex rel. Antoine Dubuclet, State Treasurer, v. The Judge of the Eighth District Court for the Parish of Orleans.
    After*an appeallias been granted, the court a qua is without jurisdiction to pass upon the-question whether the appeal is a nullity or not, and any order made by the lower court in the case until the Supreme Court ha3 passed upon the appeal is -void, and a writ of prohibition will issue in such a case from the Supreme Court restraining the judge a quo from proceeding in the case until the appeal is passed upon.
    for a Writ of Prohibition.

      Semmes c&Mott and llays- & Neva, for relator. Emerson, Judge of the Third District Court, presiding in the Eighth District Court, respondent.
   Ludeling, C. J.

In the case of the State of Louisiana ex rel. Jacob Strauss v. Antoine Dubuclet, State Treasurer, an appeal was taken on the seventeenth of May, 1872, by the State of Louisiana, through the Attorney General, which was made returnable to the Supreme Court on the third Monday of May, 1872. On the eighteenth of May an appeal was taken by the State, through the agency of special counsel appointed by the Governor for that purpose, which was returnable on the first Monday of November, 1872. The Attorney General failed to-file the transciipt of appeal on the third Monday of May, but on the thirtieth of May, 1872, the special counsel appointed by the Governor as aforesaid filed the transcript of appeal, and on the thirty-first of May,'1872, hearing that the counsel for relator Strauss had obtained from the Clerk of the Supreme Court a certificate of non-filing of the transcript of appeal by the Attorney General within the time fixed for the return of his appeal, the special counsel for the State aforesaid applied to the Supreme Court for, and the said court granted, an order directing the Clerk of the Supreme Court to issue a certificate to the Clerk of the Eighth District Court for the parish of Orleans, certifying that the suspensive appeal taken on the eighteenth of May, 1872, returnable on the first Monday of November, 1872, was still pending and undetermined in the Supreme Court, and said certificate was issued and filed in said Eighth District Court, and thereupon H., C. Dibble, judge of said court, rescinded an order which had been made rendering the decree in favor of Strauss executory. Subsequently H. C. Dibble rescinded the order aforesaid, made by him, on the ground that he was recused in the case. Thereupon counsel for relator caused to be issued a copy of the original decree, and demanded execution thereof, but said Dubuclet refused to recognize said decree as executory,, on the ground of the pendency of the suspensive appeal aforesaid, taken by the special counsel of the State, and returnable on the first Monday of November, 1872, and thereupon the counsel for the relator has moved to punish said Dubuclet for contempt, as appears by the rule taken against him. On application of Dubuclet, State Treasurer, a writ of prohibition was issued, returnable on the first Monday of November, 1872.

The answer of the Judge of the Eighth District Court aforesaid is that he was recused, and the Judge of the Third District Court rendered the order complained of.

The answer of the Judge of the Third District Court, sitting in the place of the Judge of the Eighth District Court, is that, in his opinion, the order for the appeal granted on the seventeenth of May -faas an absolute nullity, as that court was divested of jurisdiction by granting the first appeal, and that he had no notice of the order of this court’ directing the clerk thereof to issue the certificate above mentioned.

We do not consider the reasons given for assuming jurisdiction satisfactory. An appeal had been taken and was pending in this' court, and no other court could pass upon the validity of that appeal.

It is therefore ordered and adjudged that the prohibition be made perpetual.


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    No. 4099.
    State ex rel. A. M. Holbrook v. Judge of the Eighth District Court for the Parish of Orleans.
    A judgment' for alimony for two hundred and fifty dollars per month, pending the suit for divorce, is appealable and can not bo defeated by a remittitur on tho part of the judgment creditor so that it shall not exceed five hundred dollars, and on application to the Supreme Court the judge a quo -will bo compelled by mandamus to grant an appeal from such a judgment, notwithstanding the remitUtm\

    for Writ of Mandamus.

      Semines & Mott and P. 27. Morgan, for relator. H. O. Dibble, J., respondent.
   Howell, J.

This is a proceeding by mandamus to obtain a suspensive appeal from a judgment on a rule for alimony at five hundred dollars per month from twentieth of June, 1872, in tho suit of J. B. Holbrook v. A. M. Holbook, No. 7769, in the Eighth District Court for the parish of Orleans.

The judge answers that the judgment is not appealable, because a remittitur was entered by the plaintiff for all her claim, which exceeded five hundred dollars.

The claim in the rule, dated ninth of September, 1872, was for “ five hundred dollars per month alimony during the pendency of this suit, dating and to commence from the date of the institution of this suit, to wit, the twentieth day of Juno, 1872.” On the trial of the rule on the eighteenth of September, 1872, judgment was rendered as follows :

“It is ordered and decreed that the rule taken herein by plaintiff for alimony be made absolute so far only as to allow the plaintiff alimony at the rate of two hundred and fifty dollars per month from the twentieth day of June, 1872, to be paid by defendant to plaintiff monthly. And considering the remittitur filed by plaintiff, it is further ordered that execution do issue against the defendant Alva M. Holbrook for the amount now due, to wit, the sum of five hundred •dollars.’’

The remittitur, dated sixteenth of September, 1872, two days prior •to the judgment, appears to be in the following form: “ On motion of John B. Howard and Edward Phillips, attorneys for plaintiff, it is ordered that a remittitur be entered on the claim for alimony filed herein by plaintiff for all cl limed by her in this suit exceeding five hundred dollars, which may be due on the rendition of the judgment in this rule for alimony from the twentieth day of June, 1872.”

Prom the terms of the rule and judgment it is clear that the demand was for more than five hundred dollars, and that the defendant was condemned on the eighteenth of September to pay more than that •amount — two hundred and fifty dollars per month from the twentieth day of June, 1872, to be paid monthly by the defendant during the ■pendency of the suit; and unless the remittitur has reduced the ■demand for alimony during the pendency of the suit to five hundred dollars only, the defendant is entitled to an appeal. But no such construction seems to have been put on it or can properly be put on it. •It only remits the excess over five hundred dollars due at the date of the judgment, and does not affect the decree for the monthly alimony •at two hundred and fifty dollars per month thereafter and during the pendency of this suit, or the obligation of the defendant to pay such alimony during such period. -

It is therefore ordered that the mandamus herein be made per■emptory.


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    No. 2751.
    J. Lanabere v. City of New Orleans.
    _A judgment which has been given for damages for a lesa amount than waa claimed in the petition will not he amended on appeal at the request of the plaintiff and appellee, where the evidence in the record ia not sufficiently full to authorize the increase.
    from the Fifth District Court, parish of Orleans. Beaumont, J.

      F. Filleul, for plaintiff and appellee. J. B. Beelcmth, City Attorney, for appellant.
   Howell, J.

The plaintiff herein sued for $4000, amount of damages caused by a mob on the night of the twenty-sixth of October, 1868,^ and from a judgment for $2500 the city appealed. The plaintiff has asked that the judgment be increased to the amount claimed. The evidence, however, is not sufficiently full and specific to require any disturbance of the judgment rendered by the District Judge, who had the parties and witnesses before him.

Judgment affirmed.