author: McEnery, J. Fenner, J.

text:
    No. 10,645.
    The State of Louisiana and City of New Orleans vs. New England Mutual Insurance Company et als.
    Section 7 of Act 101, imposing licenses upon insurance companies, is graduated and is therefore constitutional.
    Where a foreign insurance company complies with the laws of the State for doing business within the State, and specially authorizes an insurance agency to receive risks, issue and reissue policies, and, if in pursuance of said power delegated to such agency, it issues policies for said company, it is liable for the license tax provided for in Act 101 of ISS^.
    The power of the court to remit penalties imposed by law on delinquent tax pay- - ers is, to say the least, doubtful. But the State and city, under their own construction of the statute, having claimed these licenses from other persons than these defendants, and having only claimed from the latter after informed of their error by a decision of this court, defendants were not delinquent until informed by this suit of the claim.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Charles Carroll for Tax Collector, and W. B. Sommerville, Assistant City Attorney, and Carleton Hunt, City Attorney, for Plaintiffs and Appellees:
    1. Section 7 of Act 101 of 1886, imposing licenses upon insurance companies, is graduated, and is therefore constitutional. State of Louisiana vs. Liverpool and London and Globe Ins. Co., 40 An. 468; 4 So. R. 504; State of Louisiana and City of New Orleans vs. Traders’ Bank, 41 An. 329.
    2. An agent authorized only to receive and transmit applications for insurance is not a “general agent.” City of New Orleans vs. Rhenish Westphalian Lloyds, 31 An. 781; City vs. Va. 3*\ and M. Ins. Co., 33 An. 10; I-Iine & Nicholls’ New Digest of Ins. (q.) p. 29.
    3. “The general agent of a company is one authorized to accept risks, settle the terms of insurance, and issue and renew ’policies.” Ibid Sec. 10,'p. 33; p. 27 (d)
    4. “The possession of blank policies and renewal receipts, signed by the president and secretary, is evidence of such agency.” Ibid., Sec. 10, p. 33; Sec. 12, p. 34.
    5. Business transacted by and through a general agent is the business of the principal; and such principal is bound to pay a license to the State and city, based upon the amount of business done, where the law imposes a license for the privilege of doing siich business.

      Harry H. Hall¿ Gus A. Breaux and F. C. Zacharie for Defendants and Appellees:
    1. A non-resident insurance company which permits risks to be solicited by an insurance agent in New Orleans, and issues its policy from its domicil, is not thereby conducting an insurance business in this city. 31 An. 781; 33 An. 12; 40 An. 175.
    2. The business of insurance agency, as recognized in said decisions, is distinct from the business of insurance.
    3. The court having by said decisions recognized the status of such insurance companies and insurance agencies; and such companies having, upon the faith of those decisions, permitted risks to be placed with them by such agencies, those decisions have become, as it were, a rule of property, and should not be disturbed. The question is stw'e decisis.

    4. The reenactment by the Legislature of 1886 of a license law which embodies in substance the provisions of the law theretofore interpreted by the Supreme Court, indicates a concurrence of the legislative will in the construction thus ' given, and that construction mustbe read into the law. 13 An. 329, 583; 12 An. 175; 10 An. 273; 32 An. 690.
    5. The license law interpreted by the Supreme Court and that of 1886 are the same in substance; and the facts of those cases are identical with the facts of this case. 31 An. 781; 33 An. 12; 40 An. 175; Acts 1886, p. 172.
    6. Act 21 of 1877, requiring the appointment of a person on whom legal process may be served, imposes no further obligation, and the person thus appointed is not the company’s agent for the purpose of transacting its business. Acts 1877, p. 24; 40 An. 175; 33 An. 12.
   The opinion of the court was delivered by

McEnery, J.

The State of Louisiana instituted suit by rule against defendants for the collection of State licenses for the years 1887 and 1888 under the provisions of Act 101 of 1886.

The section of law imposing the licenses is as follows:

Section 7. Be it further enacted, etc., That each and every insurance company (society), association, corporation or other organization or firm, or individual doing and conducting an insurance business of any kind, life, fire, marine, river, accident or other in this State, whether such company (society), association, corporation or other organization or firm, or individual is located or domiciled here or operating here through a branch department, resident board, local office, firm, company, corporation or agency of any kind whatsoever, shall pay a separate and distinct license on said business for each company represented, and said licenses shall be based on the gross annual amount of premiums on all risks located within the State or foreign • countries upon which no license has been paid therein as follows, to-wit: (Here follow fourteen graduated classes.)
^ * * * * * ;fc }fs
“ Provided, That no corporation not incorporated under the laws of the State, nor any foreign society, firm or partnership, shall do business in this State, except through an agent duly authorized and accredited for the purposes of said business, and for all purposes connected with licenses and taxation and service of process, said agent to be appointed by authentic act, and a certified copy of the act to be deposited in the office of the Secretary of State. Any person or firm who shall fill up or sign a policy or certificate of insurance on open marine or fire insurance policy, or otherwise issue by a corporation or association, or persons, not located or represented in this State by a legally authorized agent, shall be considered an agent of such corporation or person or association, and shall be liable for all licenses, taxes and penalties enforced by the provisions of this act upon such persons, corporation and association, as if represented by a legally appointed agent.”

The Oity of New Orleans instituted a similar suit for city licenses for the years 1887, 1888 and 1889 under the provisions of Ordinances 2035, 2661 and 3375, Council Series.

It is admitted that these .ordinances are, in all respects, similar to Act 101 of 1886, except that they impose city instead of State licenses, and it was agreed that they need not be copied in the transcript of appeal.

By consent, the cases were transferred, consolidated and tried together.

There was judgment in favor of the State and of the city as prayed for, except as to the following named companies, against-which a judgment of non-suit was entered:

American Mutual Accidental Association, Anglo-Nevada Assurance Corporation of California, California Insurance Company of San Francisco, Mannheim Marine Insurance Company of Germany, Marine Insurance Company (limited) of London, Mutual Benefit Life Association of New York, Marine Insurance Company of Liverpool, St. Paul Fire and Marine Insurance Company of St. Paul, and Union Insurance Company of Philadelphia.

From the judgment herein the following named defendants have appealed:

The following named defendants, against whom judgment was rendered, have acquiesced therein, have not appealed therefrom, and have paid or compromised their licenses to the State and city for the years 1887, 1888, 1889 and 1890:

-¿Etna Eire Insurance Company, Hartford; American Central Eire Insurance Company, St. Louis; Imperial Eire Insurance Company, London; American Steam Boiler Insurance Company, Employers Liability Insurance Company, Louisville Underwriters Insurance Company, Union Marine Insurance Company, London Assurance Corporation, London; Thames and Mersey Marine Insurance Company, Liverpool; Universal Marine Insurance Company, London; Commercial Insurance Company, California; Commercial Union Assurance Company, London; Earragut Eire Insurance Company, New York; General Marine Insurance Company, Dresden; Ham-burgh-Bremen Insurance Company of Hamburg, Insurance Company of North America, Philadelphia; International Marine Insurance Company, Liverpool; Manchester Fire Insurance Company, Manchester; Manhattan Life Insurance Company, New York; Mutual Life Insurance Company, New York; New England Mutual Life Insurance Company, Boston; New York Underwriters’ Agency Com- f pany, New York; Norwich Union Eire Insurance Society of Norwich, England; Orient Insurance Company, Hartford; Phenix Insurance Company, Brooklyn; Phoenix Insurance Company, Hartford; Phcenix Assurance Company, London; Providence and Washington Insurance Company, Providence; Reliance Marine Insurance Company, Liverpool; Security Insurance Company, New Haven; Sea Insurance Company,, Liverpool; Westchester Fire Insurance Company, New York; Williamsburg City Fire Insurance Company, New Haven.

The defendants plead a general denial, and specially:

I.

That they are not doing or conducting insurance business of any kind in this State.

II.

That they are foreign companies domiciled in different States, and that they issue policies from their own domicils; are not carrying on business here, have no agents here, and only agree to accept risks placed for them by some person, usually an insurance agent or broker who is residing here.

III.

That the parties who have been designated by them, under Act 21 of 1877, as their agent were so designated solely for the purpose of service of legal process, and are in no other sense agents of the defendants, but that said persons carry on a business of insurance agency, negotiating insurance upon commission, and procuring authority from defendants and other foreign companies to place risks for them; and that they solicit the patronage of persons desiring to insure; that they are under no obligations to solicit for any particular company, each company agreeing to accept such risks as they may place for them; that this business of insurance agency is conducted in the interest of the aforesaid agencies and in their own behalf, they renting their own offices and defraying all expenses out of their own means; that the policies issued by these companies are so issued by them at the several places where they are domicile(jj and that the defendants have and keep no office in this State.

IV.

That Act 101 of 1886 is unconstitutional, and that the license tax imposed under said section is not graduated.

The answer of defendants seems to be framed in accordance with the decisions of this court in the cases of N. O. vs. Rhenish, etc., 31 An. 781; N. O. vs. Virginia, 33 An. 12; Stockton vs. Firemen’s Ins. Co., 33 An. 578, and State vs. Woods, 40 An. 175, upon which they rely.

The substance of the opinion in these several cases is summed up in the syllabus of the brief of defendants, as follows

“Anon-resident insurance company which permits risks to be solicited by an insurance agent in New Orleans, and issues its policies from its domicil, is not thereby conducting an insurance business in said city. 31 An. 781; 33 An. 12; 40 An. 175. The business of insurance agency, as recognized in said decisions, is distinct from the business of insurance. That Act 21 of 1877, requiring the appointment of a person on whom legal process may be served imposes no further obligation, and the person thus appointed is not the company’s agent.”

In the cases referred to by the defendants, the fact found by the court was that the foreign companies did not do business within the limits of the State of Louisiana, and were therefore not liable to a license tax. They issued policies directly from their domicils when they were submitted to them by insurance agents in this State. The agents were only insurance brokers, having no authority to transact business for the company so as to instantly bind tbem. The facts in the instant cases are materially different. Here, as in the cases quoted by the defendants, the question is, as was propounded in the case of N. O. vs. Virginia, 33 An. 12: “Do these companies do an insurance business in the city of New Orleans? ”

In the above cited cáse this court said: “ The case would be different if a foreign company had established its own agent here, such agent not carrying on a public insurance agency, but conducting under special authority the business of his foreign principal, and confining himself thereto, instead of- falling under the distinctive class or calling of insurance agency, doing the general and indiscriminate business distinguishing that occupation, acting as the special agent and representative of a particular company. Under that condition, the company which would be doing a business here through its own agent, whose solicitation of business would be that of his principal, would be liable to the payment of a license tax, while such individual agent could not be regarded as falling within the •distinctive class of insurance agency.”

The language quoted, from the facts in the case and the issues involved, applies to a foreign insurance company which accepts risks through a general insurance agency, which has no special authority from it, and which places policies of insurance and reinsurance as suits themselves. “ They are not confined in their business exclusively to any one company, and the business which they transact with the various insurance companies is their business.

But there is no law which prevents a foreign-company from con.stituting one of these general insurance agencies its agent to transact its business. In this it would, within the meaning of the above •quoted case, confine itself to the business of its principal, and would, notwithstanding it solicits policies for other companies, become the special agent and representative of the company appointing it.

It is admitted that the defendant companies have their home offices in the places designated in the plaintiffs’ rules and the reports-of the Secretary of State; that they are represented in the city of New Orleans by the persons designated as agents in the rules filed herein, for. the purposes specified in the commission and under the Act of 1877; that they have collected and forwarded to their principals the respective amounts of the premiums or risks placed in New Orleans, as are set forth in plaintiffs’ rules.

There is a great deal of testimony as to the manner in which these general insurance agents transact the business of their principals, the payment of expenses by them, their independence of their principals in placing policies, and many other matters which interest the principal and agent, and which may be matters of agreement between them. Such facts as detailed by these general agents no doubt lead them to believe that they determine the question at issue as they didin the cases ref erred to by them, when there was no special authority delegated to them to transact the business of their principals.

But in addition to these facts, there are others which distinguish this case from the cases relied upon by the defendants. Had they then existed there can be no question that the fact of the defendants doing business in the city of New Orleans would have been affirmed, and- as indicated in the State vs. Virginia Fire and Marine Ins. Co.

The controlling facts here are that the defendants, under existing laws of several States, by a resolution of their board of directors, declared that the president and secretary shall, under the supervision of and direction of the executive committee, manage and conduct the general business of the company, appoint general agents, local agents and clerks, define their powers and duties, and remove the same as the interest of the company in their judgment demands. They are also authorized and empowered to appoint attorneys in the several States to accept process of law in conformity to the laws of said States, and in other respects to comply with the laws of such States in order to transact business therein. They shall have power to execute contracts of insurance on behalf of the company on recent losses and claims against the company. They shall have cognizance of • and determine in behalf of the company such other matters as may arise in the conduct of the legitimate business of the company under the charter.”

In pursuance of the above resolution the defendants appointed their agents under Act 21 of 1877 to accept service of legal pro and in addition issued a commission to them as follows:

Agency Commission.
Bo it known that--, of New Orleans and the county of Orleans and State of Louisiana, is appointed, and by these presents duly constituted agent of the--Insurance Company during the pleasure of the company, with full power to receive proposals for insurance against loss and damage by fire in New Orleans ana Vicinity ; to fix rates of premiums; to receive money for the same, and to countersign, issue, renew, and consent to the transfer of policies of insurance signed by the president and secretary of said-Insurance Company, subject to the rules and regulations of said company, and to such instructions as may from time to time be given by its officers.
In witness whereof said--Insurance Company have caused their corporate seals to be affixed to these presents and to be signed by their president and attested by the secretary in the City of New York this 23d day of August, A. D. 1888.
--, Secretary.
---, President.

Act 76 of 1886 prohibits any foreign insurance company from doing business in this State without first depositing $25,000 with the Treasurer of the State, to secure its policy holders in this State. The defendants have made this deposit.

As a condition precedent also to doing business in this State foreign insurance companies are required by Act 21 of 1871 to appoint an agent upon whom legal service can be made.

Both of these conditions, prescribed by said acts, have been complied with, accompanied by the express declarations of the defendants that it was their intention to do business within the State.

Having complied with all legal requirements for doing business in the State of Louisiana, have the defendants, through their agents, done any act to carry out that intention?-

The power of attorney to the agents in this State is full, ample and complete, to that extent that the agent here is vested with the same authority to receive proposals for insurance against loss and damage by fire in New Orleans and vicinity; to fix rates of premiums, to receive money for the same, and to countersign, issue, renew and consent to the transfer of policies of insurance signed by the president and secretary of the company, subject to the rules and regulations of said company,” as the foreign company would have if its domicil was permanently established in this city.

The agent here for his principal has received proposals for insurance, has fixed the rate of premiums and received money for the same, issued and reissued or renewed policies, and consented to their transfer. The contract of insurance in this State is made as-complete and binding by the consent of the agent as though the company had made it at its domicil through its officers there.

It is urged by the defendants that the home company reserves the right to vacate or cancel policies when submitted to them by their agents abroad. The usual course is to notify the agents here to cancel. But this is a right which the foreign company claims to exercise over policies issued at its domicil, and a similar privilege is claimed by companies located and domiciled in New Orleans. If the foreign company were domiciled in New Orleans, it would claim the same privilege, as it forms a part of their by-laws. This fact therefore is not important in determining the fact whether the company has done through their agents insurance business in the city of New Orleans.

If these defendants did not intend to do business in the State of Louisiana, there was no occasion for them to comply with the several acts of the Legislature as a condition upon which they could transact an insurance business. There is nothing in the statutes which prevents a resident of this State from insuring directly with the company, or which prevents the company from issuing from its domicil policies to applicants here.

The defendants have complied with the laws for doing business in Louisiana, and have accompanied their compliance with the express declaration that it was their intention to do business in New Orleans and vicinity. To carry out this intention they have appointed agents with as much authority to transact business as the defendants themslves could do if personally present. That they have done business here to the full extent of the powers conferred, the evidence is conclusive. If these defendants were not transacting business in New Orleans, there was no reason why their agents should observe the requirements of Act No. 341 of 1855, Section 5 of which requires that any person acting as an agent of an insurance company not incorporated by the laws of this Slate, and doing fire, marine or river insurance business within the city of New Orleans, shall, in the manner provided for home companies in Section 4 of the act, publish a statement of the business of the company. This act has been complied with by the defendants through their agents.

In addition to the above facts the defendants, alleging that they were doing business in the city of New Orleans, signed an agreement fixing rates of premiums, etc., and prohibiting their agents from dividing premiums with the assured.

The agents who represent the defendants make this distinction between their principals and outside companies, whose policies they receive when offered to them. In the first they place the risks immediately and bind their principals; and in the latter they submit' the applications to the foreign company they do not represent for final action and acceptance. This, in itself, makes the specified difference between the instant cases and the cases relied upon by the defendants.

The constitutionality of Act 101 of 1886 has been determined. State of La. vs. L. L. Globe Ins. Co. 40 An. 463; State of La. and City of N. O. vs. The Traders’ Bank, 41 An. 329.

Judgment affirmed.

On Application for Rehearing.

Fenner, J.

We are impressed with the strong equity of defendants’ application for a remission of the heavy penalties included in the judgment. If we were convinced of our power to do so, we might at least reduce them to the rate of legal interest; but under the unambiguous provisions of the law, we do not feel authorized to grant such relief during the period of the defendants’ actual delinquency in the payment of their licenses. But we think defendants can not be held to have been delinquent except from the date of the filing of this suit — June 5, 1888. •

Prior to that time the State and city, under their own construction of Section 7 of Act 101 of 1886, claimed that the licenses were due, not by these defendants, but by the individual agents, against whom they prosecuted legal proceedings for their collection.

That suit was inconsistent with a claim for the licenses from these defendants, and during its pendency they were not in default for non-payment of claims which the State and city themselves urged were due, not by them, but by third persons.

Our judgment rejecting the demand against the agents only became final on February 27, 1888; and it was only thereafter, to-wit: on June 5, 1888, that for the first time defendants were notified of the State and city’s change of position and of their claim that defendants owed licenses. During that period the defendants were excused from payment by the act of the State and city themselves, and we have no doubt of our authority to remit the penalties during that period. Cooley on Taxation, pp. 456, 459; Litchfield vs. County, 101 U. S. 778.

As both parties have filed briefs on this application, it does not seem neccessary to postpone our decision.

It is therefore ordered and decreed that our former decree herein be amended by disallowing so much of interest or penalties allowed in the judgment appealed from as run prior to June 5, 1888; and, as thus amended, that our former decree be maintained.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 10,653.
    Succession of Martin S. Coste.
    1. Tlic wife must show affirmatively that the property claimed is hers, and not that of the community.
    In the absence of proof of a manual gift, a donation will not be valid unless an act be passed before a notary and two witnesses.
    There was no manual delivery made, nor any authentic deed passed; the heirs can not recover the property claimed as a donation.
    2. The mother has preference in a contest for administration with the wife.
    3. The legatee under particular title owes the mortgage bearing on the property donated, and a proportion of the debts and charges when the' deceased disposed of all his property by separate, particular legacies.
    When the bequests exceed the disposable portion, they must be reduced pro rata.

    4. The executor of a solvent succession will not be held responsible for not having instituted an action in revendication of real property.
    5. A concubine suing to recover payment upon a note of a party deceased must prove that she gave legal consideration.
    6. The endorsee taires only such title as the endorser had.
    7. An application for a new trial will be refused when the applicant could, with due diligence, have obtained the newly discovered evidence for the trial.
    A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J. _

      Chas. F. Claiborne for the Executrix, Appellee:
    All property acquired during marriage in the name of either husband or wife is presumed community.

      The general rule is that all donations inter vivos must be evidenced by an authentic act.
    The disposable portion is calculated upon the value Qf all property left by the deceased, and of all property donated by him inter vivos.

    The heir is preferred to the wife in a contest for administration.
    When the bequests exceed the disposable portion, they must be reduced pro rata.

    The particular legatee takes the legacy subject to all incumbrances placed upon it by the donor.
    The executor of *a solvent succession has no right to institute an action of reven* dication of real property.
    A concubine suing upon a note of the deceased must prove that she gave a legal consideration.
    One who takes a note after maturity, takes it subject to all equities.
    An application for atrial upon the ground of newly discovered evidence will be refused when the applicant could, with due diligence, have obtained it before.
    An opposition to an account filed by an administrator is an answer. Succession of Planchet, 29 An. 520 (521); 29 An. 712; 28 An. 607; 80 An. 270.
    No replication to nor rejoinder of issue is required or allowed under our practice with an opponent who demands to be placed upon an account filed by an administrator who refuses to recognize opponent’s claim. Succession of Pasquier, 12 An. 758; Succession of Overby, 28 An. 820 (821); Succession of Gayle, 27 An. 547 (548-552).

      Ambrose Smith for the Heirs, Appellants :
    The endorsee of a promissory note after maturity takes the instrument at his own risk, subject to all defences, demands and equities that could be urged if suit were brought by the endorser. 9 R. 265; 23 An. B13; 31 An. 229; 4 McLean 428; 4 Oush. 456; Hawthorne on Neg. Inst.,pp. 61-2.
    In an action on promissory note, where plea of want of consideration is sustained by evidence throwing serious doubt upon it, thoburden of proof is on the party suing. This is particularly so of a concubine declaring on the note of deceased. 9 An. 234; 14 An. 122; 41 An. 297.
    The note herein sued on by the concubine of deceased can not be treated as a donation inter vivos. A donation of a promissory note must be made by authentic act. O. 0.1481,1491,1536 ; 22 An. 97.
    The donation of corporeal, movable things, such as household furniture and effects, accompanied by real delivery, is not subject to any formality — notarial act thereof is not requisite. O. 0.1539.
    The estimated value of property donated inter vivos is to be fictitiously added to the other assets of the succession for the sole purpose of determining the disposable quantum, and the reduction, if any, to which donations, either i/nier vivos or mortis causa, are liable. O. C. 1505.
    Donations inter vivos can never be reduced until the value of all the property comprised in donations mortis causa be exhausted. O. 0.1507.
    In a testamentary succession the legal heirs of deceased can have no right or interest until and unless the particular legatees have been fully paid and satisfied. O. C. 1634; 2R. 382; 17 L. 312; 1 Woods 144; O. O. 1704,1709,1465.

      Where the assets of such a succession are sold to pay debts and the legitime of the forced heir, the particular legatees must suffer a proportionate reduction to meet said charges; and the residue must be divided proportionately between the particular legatees. C. O. 1430, 1431. The legal heirs, as such, get nothing.
    Particular legatees are never liable to contribute to the payment of debts or to satisfy the legitimate portion of the forced heir when there are other assets out of which said charges can be satisfied. There can be no residuum for residuary legatees or legal heirs until the particular legaeies*are fully acquitted. 1642, 1634.

      W. S. Benedict on the same side.

      Merrick & Merrick for Opponents and Appellants:
    1. The evidence does not show any indebtedness on the part of Read to Coste.
    2. The evidence shows that Coste owed Read at the time of the pledge. Rec. 111.
    3. The pledge was valid and complete as to the whole world at its date. C. C. 3158.
    4. Partnership accounts can not be pleaded as an offset to a note. 7 3ST. S. 516; Coste vs. Borden, 2 Rob. 216; Janau vs. Eerrand,7 L. 564; Eagot vs. Boché, 9 R. • 436; Powell vs. Graves.

      Chrétien <Sc Suthon for Opponent and Appellant:
    1. The relation of concubinage is not inconsistent with the honest relation of debtor and creditor.
    2. The execution of a note raises a presumption that a just consideration has been given for it. 8 31.161; 4 R. 192; 6 An. 757; 14 An. 860.
    3. The burden is upon the administrator to show the correctness of his account. 30 An. 270.
    4. Pleas of payment and compensation admit the consideration of the note. 85 An. 1036. -
    5. A claim for real estate can not be compensated against sums due on notes. 2 R. 546.
    6. Defendant must prove his pleas of want of consideration. 20 An. 209.
    7. When evidence of want of consideration is conflicting, the presumption is in , favor of a valid consideration. 28 An. 94. .

      W* B. Sommerville, Assistant City Attorney, and Carlton Hunt, City Attorney, for the City of New Orleans, Opponent and Appellee.
   The opinion of the court was delivered by

Breaux, J.

Martin J. Coste died May 18, 1888.

He disposed of.all his property by last will and testament under particular title.

His mother survived him and one brother and two sisters, but no legitimate children.

His widow died October 15, 1888, leaving as her legal heirs three brothers.

The estate owed largely, which made it necessary to sell all the property bequeathed.

The mother qualified as executrix.

In the account of the executrix it appears that the assets of the succession amounted to the sum of §80,416.64; the debts to the sum of §21,927.66, in which is included the mother’s legitime, amounting to §4244.48; leaving a balance of $8488.98.

He bequeathed to his wife property the sale of which amounted to $15,826.55, and to her brother property also sold at succession sale, which amounted to $2600.

Opposition to the distribution of the funds, as proposed by the executrix, is made by the brothers of the late Mrs. M. J. Coste, claiming as heirs' of their sister.

Other oppositions have been filed.

The court a qua dismissed all the oppositions except one — that relating to taxes.

The opponents have appealed.

I.

The heirs of Mrs. Ooste oppose the item of “household furniture ” valued at $898 carried in the inventory and in the account, as part of the assets, and allege that the furniture formed no part of the assets of the succession and was the separate property of their deceased sister, having been donated to her by her late husband.

One of the opponents testifies as a witness that this furniture was. always considered as separate property.

The husband and wife lived in the dwelling where the furniture was.

Bibs were produced for the furniture, made out in the name of the wife.

The notary testifies that, at the time he took the inventory, the brother of the deceased notified him that all the contents of the house belonged to the wife, they having been donated to her by her husband.

The title of the wife is not satisfactorily, proven.

The bills show that this furniture was purchased after the marriage.

Property purchased during marriage belongs to the community, unless it is distinctly shown that it was purchased with the separate money of the spouse, who claims ownership and for his or her own use. R. C. C. 2402; 33 An. 767; 33 An. 609; 34 An. 975; 38 An. 147; 41 An. 244.

The wife must show affirmatively that the property is hers.

The bills were made in her name, but the record does not disclose that the payments were made from her separate funds.

There was no formal donation made, either by authentic act or manual delivery.

The husband insured the property in his own name.

That would not conclude the wife if it had been her property, but, considered in connection with the unsatisfactory testimony admitted to prove her title, it adds to the uncertainty of the claim.

It was presumably community property.

A donation is never presumed.

The evidence does not rebut these presumptions.

The title claimed after all has no significance.

To determine the reductions to be made, the donations inter vivos must be added to an aggregate formed of all the property belonging to the testator at the time of his decease, according to its value.

The sums due by the estate are deducted from this aggregate amount, and the disposable amount is calelulated in the balance. O. O. 1505.

The value of this furniture was added to the assets.

The executrix made the addition of this donation inter vivos as required by the quoted article.

II.

Next in the order of opposition made is that by the heirs of the late Mrs. M. S. Coste. They oppose the commission of the executrix on the ground that she verbally agreed and contracted, for and in consideration of her being permitted, through her counsel, to manage and control the estate of M. S. Coste, that she would not charge the legal fee allowed by law to an executrix, and waived all her rights to commission for services.

Only one witness, one of the opponents, téstiñes to this agreement.

The executrix positively denies that she ever made' any such agreement. Two other witnesses testify to facts corroborating the testimony of the executrix and assert contradictorily to that testified to by the opponent as a witness.

The preponderance of the testimony precludes the possibility of reaching the conclusion that such an agreement as alleged was made.

The executrix is therefore entitled to the commission charged.

In addition, the opponent, testifying in his own behalf, assumed that the widow of the decedent had the preference to the appointment of testamentary executrix.

She had never applied for the appointment.

Acting upon the supposed right of the widow to be appointed, he testifies that he called upon the mother of the decedent and made the agreement, that is “withdrew the application made on behalf of the widow and allowed the one in favor of the mother to prevail.”

There was error on the part of the witness: the mother had preference. If an agreement had been proven, it would be without consideration or motive and would fall under the grasp of Articles 1893 and 1896 of the Oivil Code.

III.

The next ground of opposition is not argued by the opponent.

The proposition is possibly included in grounds subsequently alleged; we therefore pass it without further notice.

IV.

The costs charged to the special legacies are opposed as being improperly charged to them. With reference to these costs the facts are that the succession being largely involved, it was necessary to sell the property to satisfy the debts.

The heirs and legatees consented.

The property was mortgaged, and from the proceeds of the respective properties an amount was deducted to pay the mortgage bearing upon the property.

The legatee under particular title owed the mortgage bearing upon the property donated. C. O. 1638, 1636, 1441, 1577, 1442.

The assets of the succession undisposed of by legacy were not sufficient to pay the costs and the legitimé; it is therefore necessary to charge to the accepted legacies the debts and charges remaining unsatisfied, after deducting therefrom the amount of the renounced legacy which reverted to the succession.

With reference to the distribution of the residuum and the opposition of the heirs of M. S. Ooste, we hold: The deceased disposed of his property by particular legacies.

It was not made conjointly, nor is there any residuary legatee named in the will.

Accretion therefore could not take place.

In her account of distribution the executrix credits the special legatee, Mrs. M. S. Coste (now her heirs), and John. Ooste with the proceeds of the sale of property; also similar credit is given to J. A. DeBlanc, the other particular legatee. She charges them with their proportion of the mortgage debts and their proportion of the general charges and debts.

The difference is carried as a net credit in satisfaction of their legacies.

J. A. DeBlanc having renounced, the legacy lapsed so far as he is concerned.

The executrix places the amount he would have received, had he not renounced, to the credit of the legitimate heirs of M. S. Ooste.

These particular legatees, heirs of Widow Coste, who have accepted, interpose the objection that there is error in proposing to distribute $2513 in equal proportion in favor of the brother and two sisters, as legal heirs of the deceased M. S. Coste.

That the succession is testamentary, and the legal heirs of the deceased can have no right or interest until the particular legatees have been fully paid and satisfied.

That by Article 1634 “particular legacies must be discharged in preference to all others, even though they exhaust the whole succession, or all that remains after the payment of the debts and the contributions for the legitimate portion, in case there are forced heirs.”

That the renounced legacy can not benefit the legal heirs of the deceased, for the residuum fund, after the debts and the legitimate portion of the forced heirs were paid, did not suffice to discharge the particular legacies which have been accepted.

That, if it be determined under Article 1709 O. O. that by the renunciation the interest in the legacy reverted to the succession, as if the legacy had never been made, and thereby devolved upon the legal heirs, it must still be decided that the right of the heirs is only eventual, and that the debts must be paid before they can receive any part of the succession.

After an examination of the different grounds, we conclude that Article 1709 of the O. O. relates to successions remaining undisposed of.

The letter of the article shows that the renounced legacy reverts to the succession, as if it never had been made.

It provides that succession undisposed of, because the heir has not been willing to accept it, shall devolve upon the legitimate heirs.

We might rest our decision upon the authority of this article. Having found a number of uniform decisions upon that subject, we quote from them. With reference to lapsed legacies in the ease of Prevost vs. Martel, 10 R. 519, it is decided:

If there is not a universal legacy, it is evident that the caducity reverts to the profit of the heirs ab intestato.

In case of their failure or reduction the universal legatee has a right to consider them as a part of the inheritance; not a legacy.

“Every portion of the succession remaining undisposed of, either because the testator has not bequeathed it, either to a legatee or to an instituted heir, or because the heir or legatee has not been able or has not been willing to accept it, shall devolve upon the legitimate heirs.” Lebeau vs. Trudeau, 10 An. 165.

Property not bequeathed and property bequeathed, but not accepted, are mentioned as subject to the same rule and is similarly disposed of, by decreeing that it is inherited by the legitimate heir.

In a more recent case .it was held that the lapsed legacy reverted to the succession and became subject to the widow’s legal usufruct.

If the legacy, after it has been renounced, remained intact and devolved to the legal heirs, as a legacy, it could not have been decided that it reverted to the succession and became subject as part of the succession assets to the legal usufruct of the wife.

“We conclude that the third part of the estate bequeathed to the mother did not pass by the will, (the legacy having lapsed,) and that therefore by virtue of Article 1709, Civil Code, it devolved at the death upon his legitimate heirs. (The words in parenthesis are ours.) Hence, also the widow’s legal usufruct attached at same date, and is therefore chargeable with the revenues.” Succession of Dougart, 30 An. 274.

The French commentators maintain the same principle.

“Le legs nul, révoqué ou caduque, est reputé non éerit, pro non soripto habetur.'" Baudry-Lacantiníére, Vol. 2, p. 448.

“ Quand il y a lieu au droit d’accroissement la nullité, larévocation ou la caduciíé du legs fait a l’un des légataires profite aux autres, au lieu de profiter au débiteur du legs.” Ib.

In the pending case there is no accretion possible, as the legacies are neither joint nor universal or residuary.

“ Le legs particulier non conjoint (renoncé) quoique valide est sans effet.” Laurent, Vol. 14, p. 301.

We therefore conclude that the amount of $2513.22 carried to the credit of “balance for brother and the sisters of M. S. Coste in equal proportions ” should be disallowed as improperly credited to them. That inasmuch as there were “general charges and debts amounting to $7436.29,” it should be applied toward the payment of this indebtedness.

In accordance with the general contribution heretofore made, the renounced legacy contributed $2933.27. To this must now be added the sum of §2513.22 (total $5446.49), leaving $1989.78 of debts unpaid, to be paid by the legatees, widow M. S. Coste and John Coste, in proportion to the value of the properties specially bequeathed to them as established by their sale under order obtained by the excutrix.

The amounts heretofore charged to the said legatees as their proportion toward paying the debts are deducted, and instead they shall pay their said proportion of the last mentioned amount.

VI.

Another opponent, W. N. Malone, holds a note drawn by M. S. Coste, dated January 7, 1887, to the order of I. W. Read, transferred to him as a collateral security.

A bill of exception is reserved by opponent to the testimony of a witness, who testified as follows, viz:

‘1 A settlement was made. I obtained fromMr. Read quite a number of notes signed by M. S. Coste of several accounts, all similar in nature to the one sued on here, and more of them endorsed.
Q. Then according to that settlement, even allowing this note sued on, I. W. Read would be indebted to Coste?
“A. He was..
“Q. Have you a copy of the agreement?
A. I have it right here.”

Counsel for opponent objected to the testimony relating to a settlement and acts and declarations of the transferrer, on the ground that the testimony is res inter alios aeta, irrelevant and hearsay.

With reference to this bill, we decide:

1. ■ That it relates to a settlement, and is, at most, explanatory.

2. That Read having been the possessor of the. note, his declarations and acts prior to the transfer are admissible as rebutting testimony.

The transferee alleges that he is an innocent holder, and has right to its amount.

To recover and secure a better right than had the transferrer to him, the holder must acquire the note before maturity, else it is dishonored paper; its dishonor is apparent.

Chief Justice Shaw impressively states:

“ Where a negotiable note is found in circulation after it is due, it carries suspicion on its face.”

The question instantly arises, why is it in circulation?

Why is it not paid?

Here is something wrong.

Therefore, although it does not give the endorsee notice of any specific matter of defence, such as set off, payment or fraudulent acquisition, yet it puts him on inquiry; he takes only such titles as the endorser himself had, and subject to any defence which might be made if the suit were brought by the endorser.

If the transferrer still had possession ,he would be without right; the endorsee from him has no better title.

The transferrer of the note, as a collateral, testified November 23, 1889:

That the note had been transferred after maturity and after the dishonor of the paper.

That he waived protest, after failure to protest, and although he knew that he was not legally bound to the holder.

That he transferred this note as additional collateral security some time after the transaction, in which he had obligated himself to pay an amount, and to secure which he had already given collateral securities, had been consummated.

The following question was propounded to him as a witness:

“This note in question in suit here against the estate of M. S. Ooste was a piece of collateral, as you say, you gave to Mr. Malone as additional collateral, after the two pieces of collateral had been given? ”
A. “ I think it was. ” [Italics ours.]
Q. “ Don’t you know it was ? ”
A. “ Well; I am not willing to swear that it was given to him at any time. I don’t want to say the date. I don’t want to give the date, as there was no date on the note at the time the collateral was given. There was no date put there at all.”

At another time he testifies that the note represents $1465 worth of exchange sent to M. S. Ooste.

When questioned particularly in regard to his indebtedness at the time, he answers that a settlement is necessary to determine.

He had received some $10,000 from Ooste for investment, which he says he returned in New York exchange. Ooste, it seems, would send him notes which Read, the witness and the transferrer of the note in question, transferred for his own account or for that of the maker.

He explains that the debt was his own (not at all Ooste’s), which he undertook to secure by transferring this past due paper, without a date.

Paper past maturity was transferred without a date and protest and notice of protest was waived without a date.

The record discloses that the witness made an attempt to return this note to the succession of Ooste, but was unable on account of the refusal of the holder to surrender the paper.

After his testimony had been given, on the 27th day of November, 1889, in a settlement in writing, a copy of which is in the record, Read admitted that large profits had been made from the business ventures of Ooste and Read, and others were expected.

At the time he surrendered a certain note of $1250, as well as all notes, drafts, papers, writing or obligations held by him or others for his account, of M. S. Ooste, as duly canceled.

He transferred fifty shares of stocks. He promised to account and pay over to the agent of the succession one-half of the net profits from investments in lands and stocks.

■ He admitted his liability and gave his note in addition in favor of the succession for the sum of $500.

He promised a statement of the outstanding investment. All this he gave over and delivered to the estate after he had sworn that he did not owe it anything.

It is evident that the note had no consideration at the time it was transferred as a collateral security.

The subsequent transactions, as above stated, do not establish that Read, the transferrer, acquired legal title, for it is not satisfactorily shown that he became a creditor of Coste.

. VII.

By notarial act the late M. S. Coste sold certain property to Aline Villermin. The purchase price declared is $2500 cash.

Upon the face of the papers the sale appears legal.

The opponents allege that this property forms part of the estate.

That no consideration was given by the purchase!; that she was the concubine of the deceased.

In the inventory made after legal notice to the heirs this property is not included.

Any judgment rendered with reference to this property, in those proceedings, to which the ostensible purchaser is not a party, would not affect any interest she may have.

If the sale is simulated and was made contra bonos mores, those in interest are not prejudiced by .the account and its. homologation,, and whatever right of action they may have remains unaffected. Whatever issues there may be could not be tried in this suit.

VIII.

The late M. S. -Coste made a note, dated October 25, 188V, to his own order and by him indorsed, of which Alina Villermin is the holder.

She opposes the account, and 'claims that the amount due her, $2026.24, as shown by this note, should be carried thereon to her-credit.

It is urged in defence that it was given without consideration.

The evidence establishes the illicit intimacy alleged.

This circumstance is not sufficient in itself to deny opponent’s right to recover on the note, although it casts a suspicion upon the reality of the consideration, which now being at issue, the note must be sustained by proof. Martin vs. Harrison, 9 An. 234.

The witness testifies that her note included an amount of $960 loaned to Coste in 1884. She did not hold any evidence of this loan prior to October 25, 1887.

Afterward she loaned him, she says, two or three different sums, with interest, aggregating to the amount of her note.

In 188,7, October 4, she bought property from him, for which she paid $2500. These amounts were not settled at the time, but were allowed to remain. Nothing was said about the alleged loans.

She says she owned two stores at different times from 1880 to 1883.

She fails to establish from whom they were bought; to whom sold, and her testimony in this, as in other respects, is vague and unsatisfactory, and does not show the reality of' the consideration of the note she holds.

Dates are not given; transactions are unsatisfactorily accounted for; unsatisfactory account is given of amounts which witness says have been loaned to Coste.

The testimony altogether is not such as to enable us to reach the conclusion that the holder should recover the amount claimed.

IX.

The only question remaining relates to taxes due the city of New Orleans.

The executrix did not place this claim on her account.

An opposition was filed, and on trial the claim was decreed to be due.

Before this court the legality of this claim has not been questioned.

It was due, and properly carried on the account.

Lastly, the motions for a new trial have no merit.

Several were made: only one, that of Malone, is urged at this time.

Due diligence on his part to obtain a new trial was not shown.

The evidence was not discovered subsequent to the trial.

The letter which the opponent had at the time, should have been introduced in evidence, or satisfactory reasons sworn to, why it was not produced.

A new trial will not be granted to enable an opponent to introduce a letter in evidence (or its contents) which he received from his debtor, when it is not alleged why it was not produced or why proof of its contents was not made during the trial.

The judgment appealed from is amended to conform to this decision.

The amounts of §1668, §2200 and §635, charged respectively to the legatees, Mrs. M. S. Ooste and to John Ooste, in the judgment appealed from, are not deducted from their respective portions, but to them is now substituted the amount of §1989 78.-

Debts and charges - - - - - - §7,436 27

Amount to pay debts and charges, District Court judgment - -. - .- - §2,933 27

Added to pay under this decree - - 2,513 22

Balance due -..... 1,989 78 — §7,436 27

From Mrs. Coste’s legacy is deducted (to pay balance due of $1,989 78) §1,709 17

From John Coste’s legacy (to pay balance due of §1,989 78 280 61 — §1,989 78

Balance in her favor - §7*873 59

J. Coste . - - ' - - - - - 615 39

Total ------ §8,488 89

J. Ooste’s debts - 21,927 65

Total assets ------- §30,416 54

After amendment, judgment is affirmed at appellees’ costs.


author: McÉnery, J.

text:
    No. 10,752.
    The State of Louisiana vs. Hunter and Frank.
    Tlie accused was arraigned and entered a plea of not guilty, which plea, on motion of his counsel, was withdrawn in order that the accused might file a motion to quash the indictment. Held, that the withdrawal of the plea left the accused in the position as though he had not been arraigned. The absolute requirement of the law is that the accused must plead personally to the indictment on arraignment.

      The District Attorney can not, on his own motion, have the plea of not guilty.en tered for the defendant in the absence of the refusal of the accused to plead to the indictment.
    The fact that the accused was brought into court and tried without objection on his part, does not cure the absence of the arraignment.
    The discharge of a grand juror whose name has been drawn from the box, and before the empaneling of the grand jury, is no cause for quashing an indictment found by the grand jury, afterward empaneled and organized.
    The offences denounced in Sections 790 and 791, R S., although generic in character, are distinct offences. The accessory to an offence under Section 790, where the principal has been convicted, js liable to the same punishment as the principal. The judge therefore was correct in his ruling when he declined to charge the jury that they could bring in a verdict under Section 791.
    APPEAL from the Twenty-sixth. District Court for the Parish of St. John the Baptist. Rostí «L

      Walter H. Rogers, Attorney General, for the State, Appellee.
    S. N. Gautiet' and Chas. Baquié for' John Frank, Defendant and Appellant: ■
    Failure to arraign an accused in a capital case is a fatal defect. Where the record shows that in a capital case the accused has not personally plead to the indictment before the trial on merits, the verdict and judgment will be set aside and the case remanded to be proceeded with according to law.
    When the charge of the court is insufficient, and could mislead the jury, the verdict and judgment shall be arrested.
    The offences defined under Sections 790 and 791 of theRevised Statutes belong to the same generic class, and a verdict under the latter is responsive to an indictment containing an accusation under the former. A refusal to so charge the jury is fatal to the verdict and judgment.1
    An accessory is a common law offence and a felony.
    As to the accessory, the offence must be set forth with that certainty and distinctness required at common law, and should be charged in the words and qualifications prescribed by common law for indictments for the particular offence charged.
    In an indictment against accessory for shooting with intent to murder, the intent must be laid as in case of felonious homicide, and the intent to murder must be with malice aforethought; the failure to so allege in the indictment is fatal.
    Written statements inculpatory in character must be proven as emanating from and written by the accused; before being admissible against him.
    Such statements made by the defendant, after the commission of the offence, is admissible against a co-defendant, particularly when made out of thepresenee of that co-defendant.
    Grand jurors, as organized under Act 44 of 1877, the court has no authority to reject a grand juror properly drawn, except for cause, and where it is shown that a grand juror properly drawn has boon rejected without cause, amotion to quash an indictment found by such a grand jury must be sustained.

      In capital case.2, v’liere a continuance is asked by the defendant for the first time, and there exists doubts as to the injury he would suffer by refusal, the casewill be remanded for a new trial.
    Where a defendant’s witness has been personally served the defendant is entitled to an attachment, and in default thereof to a continuance. The refusal of both is a good ground for a nevr trial, s

   The opinion of the court was delivered by

McÉnery, J.

The defendant, John Frank, was indicted as acees-' sory with Thomas Hunter as principal, under Section 790, B. S., with shooting with intent to murder while lying in wait.

Both defendants, in separate trial, were found guilty without capital punishment, and sentenced for life to hard labor. The deféndant Frank appealed from the verdict and sentence against him.

The accused was arraigned and pleaded not guilty. Afterward, on the motion of his counsel, the court ordered the plea of not guilty to be withdrawn.

The’record does not show that the accused, after the plea was withdrawn, pleaded personally to the indictment. He was not afterward arraigned.

The withdrawal of the plea had the effect of leaving the accused in the position as though no arraignment had been made and no plea entered; There was no issue pending between the State and the accused.

The arraignment can not be dispensed with. If he refuses to plead to the indictment, the plea of not guilty is entered for him.

The record shows that on motion of the District Attorney the plea of not guilty was entered for the defendant. But the record does not show that the defendant had been called to the bar for arraignment and had refused to plead to th,e indictment.

The absolute requirement of the law, that the accused must plead personally to the indictment on arraignment, can not be cured by the fact that he was brought into court, -and tried without objection, because there was no issue between the accused and the State, without which it was irregular to proceed to trial. State vs. Epps, 27 An. 227; State vs. Christian, 30 An. 368; State vs. Ford, 30 An. 311; State vs. Revels, 31 An. 388; 1 Bishop Crim. Pro., Sec. 733; 3 Wharton Crim. Prac., Sec. 3355; 1 Archbold’s Crim. Prac., p. 351.

There are other bills of exceptions which require only a brief notice.

Joseph Oartor was among the first fifteen grand jurors drawn. He was discharged, and another drawn in his place. For this reason a motion was filed by the defendant to quash the indictment. It is not pretended that the grand jury which found the indictment was not qualified to do so. The only error alleged is in the organization of the grand jury. The defendant had no interest in the discharge of the alleged disqualified juror. This was within the discretion of the District Judge, and he seems to have exercised it with due and proper caution. The grand jury which found the indictment was qualified in every respect. The defendant therefore has no cause to complain.

The defendant asked for a continuance on account of an absent witness and the materiality of his testimony. The facts disclosed in the affidavit show that his testimony could not aid the defendant. The continuance was within the sound discretion of the District Judge. He has not exercised it arbitrarily.

The charge of the District Judge was given in writing and is in the record. It covers the special charges asked for by the accused, and there was no necessity to repeat what he had said in substance. The accused was indicted as accessory with the principal for shooting with intent to murder while lying in wait. The defendant alleges that the District Judge erred in not instructing the jury at his request that they could bring in a verdict for a less offence denounced in See. 791, R. S., which is of the same generic class as that denounced in Sec. 790, and is included in it.

The principal was convicted and sentenced under Sec. 790, R. S., Although generic in character, the offences denounced in the two sections are distinct. If the accused had committed and procured the commission of the offence under Sec. 791, he would nevertheless be amenable for the manner in which the principal committed the offence. Wharton Cr. Law, Sec. 134.

The conviction of the principal is prima facie evidence of the guilt of the accused.

The complete proof of guilt and the-conviction of the accessory makes him liable to the same punishment inflicted upon the principal. R. S. 972.

The accused was therefore either guilty or not guilty of the specific charge preferred against him. The District Judge properly declined to charge as requested by the defendant.

The written documents B, O and D offered in evidence and received over the objection of the defendant were taken from the principa), and were offered and received as the declarations of the accused. It was a question of fact for the jury to find whether the accused had written them. They were properly admitted.

The motion in arrest of judgment contains several reasons assigned by the accused for a reversal of the sentence and verdict. They are directed to the confection of the indictment. The indictment contains all the essential requisites which the defendant claims are omitted therefrom. In all respects we find that the indictment is properly framed.

It is therefore ordered that the sentence and verdict appealed from be annulled, avoided and. reversed, and it is further ordered that this case be remanded, to be proceeded with according to law and the views herein expressed.


text:
    No. 10,772.
    Adolphe Glaude vs. Felicia Peat.
    1. If the wife commits an offence which entitles the husband to a divorce and he brings-suit in his own jurisdiction, while she is in another, the court’s jurisdiction will be maintained.
    2. 5To person can be affected by any decree or other proceeding without being legally notified. Service of citation on the wife was legally made by the deputy sheriff of the parish in which she dwelt temporarily.
    8. The offence giving cause to an action for divorce being subsequent in date to the judgment pleaded as res judicata, that plea can not be held a bar to the suit. The adultery is proven to have been committed in June and July, 1889. The judgment pleaded as res judicata is dated April of that year.
    1. A judgment dismissing a suit after a complete trial on the merits, unless it contains qualifying terms, as in case of non-suit, is final. Granger vs. Singleton 82 An. 899.
    5. In the first case the plaintiff’s alleged incapacity to stand in judgment because of his conviction to serve at liard-labor was pleaded, and on the merits decided against defendant.
    The question can not be-brought up again.
    “It is a rule of law that a man shall not be tried twice for one and the same cause.”

      APPEAL from the Nwenty-fifth District Court for the Parish of Lafayette. Bourges, Judge ad. hoe.

      Julian Mouton for Plaintiff and Appellee.

      Edward Simon, B. R. Forman and G. Forman for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff and defendant were married about fifteen years ago.

Four children are issue of the marriage.

He prays for a divorce on the ground of adultery, and charges that his wife, since the 20th of March, 1889, lives in concubinage with one Jean Fontenette.

The evidence discloses that the paramour abandoned his own wife, and now occupies a house with the defendant.

Witnesses considered credible, not mistaken, have testified to facts which make it evident that the adultery charged is true.

It is proven that the offenders have shared the same bed.

The defendant, before answering, excepted to plaintiff’s suit on different grounds.

That she was not legally cited; resides in the parish of St. Martin, in which parish she was cited; suit was brought in the parish of Lafayette.

That the plaintiff is an ex-convict, having been condemned to serve in the penitentiary during his natural life.

The plaintiff brought suit in the parish in which he was married, and in which he resides.

Personal service was made on the wife at the home of her paramour by a deputy sheriff of St. Martin parish.

The general rule of law is familiar that the domicil of the husband is the wife’s.

If the wife commits an offence for which a divorce should be granted, the husband can bring suit in his own jurisdiction while she is in another.

As she is bound to follow him, his domicil is hers for the purpose of the litigation.

It is a principle of natural justice that no person should be disturbed by any decree or other proceeding without being first notified and given the opportunity to be heard.

The defendant was legally cited and notified.

On the 26th day of October, 1882, the plaintiff was found guilty of murder, and was sentenced to serve at hard labor for life.

On the 4th day of April, 1888, he was pardoned.

A similar suit preceding the present ease was brought by plaintiff against his wife on the ground of adultery.

In the defendant’s answer to this first suit (No. 3660 of the District Court docket) she filed a plea in reconvention, in which she alleged that the plaintiff had been condemned to an infamous punishment, and that as he was an ex-convict, she and not he had a right to a judgment of divorce.

This case was tried, and the District Court, on the 16th of March, 1889, decided that “ by reason of the law, and the evidence being in favor of defendant Peat in the main action, and by reason of the law and evidence being in favor of the defendant in reeonvention, Adolphe Glaude, it is ordered, adjudged and decreed that the main and reconventional demand be dismissed.”

A short time after this judgment of dismissal had been rendered, another suit, the one now under consideration, was brought for a divorce, in which plaintiff alleged acts of adultery committed by the defendant since the first suit had been instituted.

In the exception before mentioned, which was overruled also in her answer in the pending case, she reiterates the charge that her husband is an ex-convict; and she alleges that she has the right to a decree of divorce.

The crime and the conviction are fully set forth.

In this case, the last filed, the plaintiff presented a motion to strike out and have omitted from the answer the plea just mentioned, and in support of his motion urges that in the decided case No. 3660, District Court, from which no appeal was taken, the reconventional demand was finally decided; the plea of infamous punishment was disposed of, and that the plea of res adjudieata should now be maintained.

The defendant also invokes the same judgment as a bar, and pleads that it operates as res adjudieata, and that it is a finality, viz:

“Defendant in the above entitled cause respectfully pleads against the demand of plaintiff Adolph Glaude.
“The peremptory exception and plea of res adjudieata, that is, that your honorable court has already passed and rendered judgment against said plaintiff and defendants between the same parties hereto, for the same cause of action in the case entitled Adolph Glaude vs. Felicia Peet, No. 3660.”

The pleas were overruled.

The court rendered judgment for plaintiff, from which the defendant prosecutes this appeal.J

The adultery .charged against the defendant is res nova, and she can not plead successfully the judgment in suit 3660 as res adjudieata.

The adulterous acts are proven to have been committed in June and July, 1889, some time after the judgment pleaded as res adjudieata.

The cause of action is no longer that which had been considered and decided in the first suit.

In so far as relates to her offences against the marriage ties, the plea was properly overruled.

The plaintiff has the right to recover judgment unless precluded by his offences against the marriage.

In joining issue on the reconventional demand predicated on punishment for an infamous offence, to which he has been subjected, it is urged by defendant that he is barred from recovering judgment by the plea of res adjudieata before mentioned.

The judgment pleaded is not one of non-suit.

It does not in absolute terms reject defendant’s demand in reconvention, but it does in effect.

The pleas were presented, evidence was introduced in its support, and after trial judgment was rendered on the merits.

A record imports verity. A person against whom it is admissible can not aver against it.

Even at this time the defendant earnestly pleads this judgment as a conclusive bar in so far as relates to her offences, and it does have that effect in so far as relates to offences preceding it.

If the plaintiff is concluded as contended, it necessarily follows that similar effect must be given to the judgment in so far as he is concerned.

There is no reason why the defendant should be entirely relieved ' from the maxim:

Qui sentit commodum sentiré debet et onus.-

A judgment dismissing a suit after a trial on the merits, unless it contains qualifying terms, such as “ without prejudice,” or in case •of non-suit, is final. Granger vs. Singleton, 32 An. 899.

The judgment being final, plaintiff can sue to have his marriage dissolved for offences committed since. The offences having been proven as alleged.

Judgment affirmed.


author: Watkins, J.

text:
    NO. 10,696.
    Thomas R. Brady vs. His Creditors.
    1.Attorney’s fees claimed against an insolvent’s estate will not, in the absence of proof, be diminished as excessive in the face of the fact that same were ex-services rendered. amined and approved by the trial judge, who was personally cognizant of the
    2. The syndic is, under the law, entitled to 5 per cent, on the amount of “ moneys received,” as his commissions, in case the creditors, when choosing a syndic, fail to fix and determine the amount thereof differently.
    3. While a mortgage creditor is entitled to pay taxes due on mortgaged property and have himself legally subrogated to the rights of the State, yet such lien and privilege can not be enforced against the proceeds when marshaled for distribution without clear and satisfactory proof of taxes having been paid with the amounts and years stated.
    4. Incase a judgment has been duly recorded, and neither legally revived nor reinscribed within ten years, its effect ceases as to other and junior mortgages, which become first in rank and maintain priority by timely record and reinscription.
    PPEAL from the Civil District Court for the Parish of Orleans. VoorhieSj J.

      •James D. Coleman for Opponent and Appellant:
    When property is sold under execution to pay mortgage debts, the mortgages upon the property to which the price was to be applied are extinguished as far as the property is concerned, and the rights of the parties are transferred to the funds. It is not therefore necessary to reinscribe the mortgages to prevent their inscription being barred by ten years’ prescription. Pillastre vs. St. Arm and, 32 An. 354.
    Where property is sold subject to mortgages, and tbe proceeds of sale are paid to the sheriff, the mortgages are eo instanti referred to the proceeds, and those mortgages entitled by law to be discharged out of the proceeds are so discharged by the application of such proceeds to the extinguishment of the mortgages. A reinscribed mortgage creditor who, by orders of court, detains the proceeds in the hands of the sheriff until mortgages prescribe, which at the date of the sale and payment of proceeds had not perempted, can not claim the proceeds-to the prejudice of the mortgagee, who at the date of the sale outranked his reinscribed mortgage. The test of priority is to be determined at the time when the proceeds are realized, and prescription thereafter does not affect the right of priority existing at time of sale. Wright, Williams & Co. vs. Bank of U. S., 7 An. 123; Succession of Dejan, 8 An. 505; Succession of Ynogoso, 13 An, 559; Succession of Rhea, 33 An. 370.
    Where the proceeds of sale of property under execution suffices to fully discharge mortgages to which said proceeds Legally apply, the debt is discharged and interest ceases.
    A party who claims less than may be actually due him, or who acquiesces in a judicial declaration of an amount as due which is less than he might have claimed, and consents to a judgment fixing the amount of his claim, is concluded by his action arid remits the surplus. C. P., Art. 91.
    J". E. Wallace contra:

    1. The registry of a judgment obtained on an act of mortgage does not satisfy the law of reinscription; the latter can be made only in the manner that the inscription is first made. Eocherau vs. Dupasseur, 22 An. 402; C. O. 3369.
    2. After the lapse of ten years without reinscription before that time subsequent mortgages are not affected by the first inscription, and neither notice nor the pendency of the suit on the mortgage dispenses with reinscription. 31 An, 343, Chapman vs. Nelson; 30 An. 11, Watson vs. Boidurant; 29 An.328, Adam3 vs. Dannis.
    3. A creditor may pursue his remedy till a stay of proceedings arrests him, and he who has obtained a judgment before insolvency and had it registered will have a privilege on immovables from the issuing of execution. Hanna vs. His Creditors, 12 M. 32.
    4. Prescription against the creditors of an insolvent is suspended by a cessio bonorum. 1 E. 556; 8 E. 145; 11 E. 346; 1 An. 365; 3 An. 529.
    5. Whore a judgment is taken by default and afterward confirmed, the right of mortgage grows out of the final judgment, and does not revert to the date of the judgment by default. Ingham et als. vs. Thomas, 6 L. 83*

      Wm. R. Mills on the same side.

      James Timony and H. C. Gage for Opponent and Appellee:
    1. The judgment of Mrs. Mary Hughes was recorded December 11, 1874. It was re inscribed November 26,1884. It was timely revived, and the judgment of revival was recorded on April 28, 1885. It is the senior ranking mortgage on the prop- , erty of Brady discussed herein.
    2. The judgment of the Hibernia Insurance Company was rendered, and signed on June 12, 1875. Brady made a cession of his property on November 28,1885* The judgment of the Hibernia Insurance Company thus prescribed on June 12 1885, and had no existence when Brady made his cession on November 28, 1885

      3. The writ of fieri facias issued by the Hibernia Insurance Company had no effect to interrupt the prescription of its judgment. 3t An. 395.
    4. When the debt has become extinguished, the mortgage given to secure it becomes extinguished also. There can be no mortgage to secure the payment of an extinguished debt. 20 An. 199.
    5. A judgment will be prescribed by the lapse of ten years from its date unless revived. The judicial mortgage arising in virtue of a judgment, and the hypothecary action authorized by the mortgage, both perish by the prescription of the judgment.
    Service of citation in the hypothecary action will not interrupt prescription of the judgment.
    When the judgment prescribes, the accessary judicial mortgage ceases to exist. An ordinary action will not be affected by the lapse of time while it is pending, but if during the pendency of the suit the right asserted and sought to be enforced should be extinguished, the action could no longer be maintained. Chapman, Ex., vs. Citizens Bank, 31 An. 395.
    6. In the case of Wells vs. Gauthreaux, Sheriff, et. ais., a fi. fa. was issued and property seized thereunder, and advertised for sale. The sale was enjpined. Pending the trial of the injunction the judgment prescribed. A plea of prescription was filed by defendant in execution, plaintiff in injunction.

      Held by the Court of Appeals for the parish of Orleans:
    That the judicial mortgage, the seizure, the privilege resulting therefrom, and everything else, fell with the judgment, and that the pendency of the writ of fi. fa. and the injunction suit did not interrupt the prescription of the judgment. Decided by the Court of Appeals at the last session.
    7. It is incumbent on the Hibernia Insurance Company, in order to be put on the account at all, to prove not only its judgment, but its inscription, reinscription and revival, and this without the necessity of the filing of any plea of prescription against it.
    This formed part of the evidence necessary to make out its case. Succession of Réné Gagneux, 40 An. 701.
    8. The rule is without exception, that the mortgage falls with the principal obligation to which it is accessory. 8 An. 474.
    9. When property has been sold under execution to pay mortgage debts, the mortgages upon the property to which the price was to be applied are extinguished so far as the property is concerned, and the rights of the parties are transferred to the funds. 7 An. 123.
    10. No reinscription of a mortgage is necessary where the mortgagor has made a surrender of his property and obtained a stay of proceedings. The rights of the creditors of an insolvent must be acted on with reference to their situation when his hilan was filed, and all proceedings against him stayed. 7 Rob. 61, C O. 3362.
    At the time Brady filed his hilan (November 28,1885) the judgment and inserip-. tion thereof of the Hibernia Insurance Company were prescribed.
    11. All privileges and mortgages existing on property sold under execution, where the debtor has no other property to pay his debts, are transferred from the property to its proceeds, the distribution of which must be made as in case of a concwt'so. 7 Rob. 73.
    12. Where proceeds of property sold under special mortgage are more than sufficient to satisfy said mortgage, and there are subsequent mortgages existing against it, the surplus of the price should be applied by the sheriff to the satisíaetion pro tanto of the subsequent general mortgages according to tlieir dates. Nor would the levying of an execution upon such surplus by any other creditor of the mortgagor secure any privilege to the seizing creditor. 8 Hob. 175.
    18. The judgment of J. H. Massie was recorded April 21,1882, and is inferior in rank to that of Mrs. Mary Hughes, which was recorded December 11, 1874, and since kept in full force and effeet by timely reinscription and revival.
    11. Massie obtained no privilege or priority by his levying of execution on the proceeds of sale of the property in the hands of the sheriff. 8 Hob. 175.
   The opinion of the court was delivered by

Watkins, J.

This appeal presents the sequel of a prolonged judicial controversy among certain mortgage creditors of Brady, the insolvent, whereby a simple question has been involved in a maze of difficulties. It will suffice to state that one William P. Smith, in ex-ecutory proceedings forclosed a certain alleged special mortgage of Brady on two improved lots in the city of New Orleans, and which were adjudicated to one MeAdam for about $4'700. These proceedings and sale gave rise to various third oppositions, injunctions and seizures on the part of the Hibernia Insurance Company, J. H. Massie and Mrs. May Hughes — all claiming to be judicial mortgage creditors of Brady, and entitled to preference in receiving payment.

The agitation of these controversies brought them before this court several different times, without any practical solution thereof having been reached.

Eventually Brady made a cession of his property to his creditors, under the insolvent law of the State, and a definitive syndic was elected and qualified.

At this crisis of his affairs he and the public administrator put in an appearance.

The sole asset which was surrendered by the insolvent, and which figures at his credit in his concursus and mortuoria, is the sum of $4323.42, alleged to be the net balance of the proceeds of sheriff’s sale in Smith vs. Brady, after the deduction of certain taxes, costs and charges.

The syndic filed an account and placed this sum thereon, as the sole amount ior distribution among privileged, mortgaged and ordinary creditors; and the then judicial mortgage creditors renewed their contest, by making opposition to the. various items appearing on said account in favor of notary, attorneys of the syndic, commissions of the syndic, and a sum alleged to be in reimbursement of an amount which was expended by W. P. Smith in payment of Brady’s taxes while the property was under mortgage. They also contest the amount and relative rank of each other’s mortgages.

From a judgment overruling the opposition, and opposing the distribution of the fund injquestion as proposed, the Hibernia Insurance ■Company and Massie have appealed.

I.

The item of notary’s fees of $50 in favor of Omer Villere is opposed, but no proof was administered in reference to it. The record ■shows that the meeting of creditors was held in his presence and that he conducted' the proceedings. Such fees are properly chargeable against the mass of creditors of the insolvent, and we are disposed to think the allowance a reasonable one.

II.

The item of attorney’s fees o'f $400 is also opposed, though it is ■conceded that $200 would be a reasonable and proper charge for the services rendered. On this question no proof was adduced by either party, and we have no other means of judging of the value of the services rendered than what is shown on the record. The judge who tried the cause in the lower court was personally cognizant of them, and is a better judge of their value than we are, and we are not disposed to arbitrarily disturb his judgment.

III.

The item of $216.17, charged in favor of the definitive syndic as commissions, is an allowance of 5 per cent, upon the total amount of the assets administered.

The law provides that “in no case shall the syndic be entitled to receive greater commissions than at the rate of 5 per centum, upon the net amount of money received.” R. S. 1818. The creditors, in their deliberations at the time of electing a syndic, had the right “to determine the rate and amount of the commissions to be received by him” (Ibid.) ; but they failed to do it.

The amount allowed is legal.

IV.

The item of $400.36 allowed W. P. Smith in reimbursement of taxes paid by him, with legal subrogation, is not established by proof sufficient t,o justify its allowance. We have carefully examined all three of the records of this court, constituting the consolidated transcript of appeal, without finding anything more than casual statements and inferences of some taxes having been paid by Smith for Brady during the time he held the latter’s mortgage note, and prior to its foreclosure. But the tax bills and receipts which are annexed to the petition for the order of seizure and sale rather indicate that Brady had paid the taxes himself; and Smith, as a witness, does not specify the taxes he paid, the amounts annually, or the years in which same became exigible against the property.

We think his claim should have been rejected.

Y.

The only two mortgages which figure on the syndic’s account are (1) one in favor of Mrs. Mary Hughes for $2012.73, with interest, and (2) one in favor of J. H. MaSsie for $2100, with interest.

No mention is made on the account of a judicial mortgage in favor of the Hibernia Insurance Company; but Mrs. Hughes levels at its opposition to the syndic’s account a plea of ten years’ prescription against its judgment, and the presumption of its judicial mortgage, because of its failure to reinscribe the same, and counsel’s brief s discloses that it was on that theory that same was omitted from the account.

An examination of the certificate of mortgages shows that Mrs. Mary Hughes recovered a judgment against Brady for $2500 upon the 27th of November, 1874, and had a copy of same recorded in the proper book of mortgages on the 11th of December, 1874. This, judgment was seasonably revived by proper judgment, and rein-scribed on the 24th of November, 1884.

Subsequently, Mrs. Hughes caused a fi. fa. to be issued thereunder, and some small properties of Brady to be seized and sold, and the net amount of $487.27 was realized and applied to her credit on the writ. In this manner her judgment was reduced from $2500 to $2012.73, the amount of the balance for which she is placed on the syndic’s account.

It appears that J. H. Massie obtained a judgment against Brady for $3400 on the 19th of December, 1877, and recorded same as a. mortgage on the 11th of January, 1879; but it was finally reduced, in amount to $2100 by a decree of this court in 1882.

The Hibernia Insurance Company obtained a judgment against Brady on the 12th of June, 1875, and caused the same to be recorded as a mortgage on the 14th of July, 1875. That judgment was never recorded.

It is manifest from this statement that the judgment in favor of the Hibernia Insurance Company run to prescription during Brady’s lifetime and prior to his insolvency, and it is unnecessary to inquire whether it was duly and properly reinscribed or not, as a reinscrip - tion alone would not preserve it.

The judgment in favor of Massie not becoming final until 1882, is not prescribed; and as it is the only competing mortgage in the record, a reinscription was unnecessary. But at all events there was no occasion for its reinscription after Brady’s cession and subsequent death, whereby the rights of all parties were fixed.

While it is contended by the Hibernia Insurance Company alone (and it being without interest) that the 5 per cent, interest allowed in the judgment in favor of Mrs. Mary Hughes is good but for one year, it may be well to premise that such a pretension lacks all foundation. The language employed is “without interest at 5 per cent, from May 19, 1877..” That phrase is an exact equivalent for per annum during that period of time. The law fixes the rate of legal interest at 5 per cent, per annum. R. O. C. 1938; 33 An. 582.

The judgment must be amended.

It is therefore ordered and decreed that the judgment and account be so amended as to disallow the item of taxes paid by W. P. Smith, $400.36, and that as thus amended the same be affirmed at the cost of W. P. Smith and opponents.


text:
    No. 10,667
    New Orleans, Fort Jackson & Grand Isle Railroad Co. vs. Mrs. Elizabeth Barton.
    relative to Jurisdiction
    1. The defendant’s allegations in her answer, and the amount she claims, secure to her the right of appeal.
    2. The plaintiff and appellant, therefore, has ratione material a similar right of appeal.
    3. The court has jurisdiction of the appeal.

      On xiijí Meííits.
    1. Tlie testimony o£ tlie witnesses is conflicting and not satisfactory.
    Tlie price paid for tlie property, tlie improvements placed thereon since its purchase, the assessment for taxes, are necessarily given great weight in fixing tlie value of the property sought to he expropriated.

      2. Defendant’s demand for damages occasioned by the smoke, noxious vapors and loud jarring sounds caused by tlie engine and rolling stock, is not supported by the testimony; in addition, the amount prayed therefor is not decreeable under the cases of 85 An. 646, 88 An. 687.
    The damages arising from the depreciation in the value of tlie property, and from the difference in rental, are not proven.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      'James Wilkinson for Plaintiff and Appellant.

      Brolla & Augustin for Defendant and Appellee
   Jurisdiction.

The opinion of the court was delivered by

Breaux, J.

It is suggested in appellee’s brief that the amount of the judgment appealed from, viz: $650, is-insufficient to give this court jurisdiction; for the defendant has not prayed that the judgment be amended and increased to an amount to give jurisdiction.

The defendant and appellee, with reference to value, alleges that the land is worth one thousand dollars, and that, if the land be expro- ' priated, it will occasion loss and depreciate the value of the other lots she owns to an amount of at least one thousand five hundred dollars.

Under these allegations the defendant had the right of appeal. The total prayed for by her exceeds the minimum limit of the Constitution.

The plaintiff has therefore a similar right of appeal. State vs. City, 41 An. 159.

This court has jurisdiction of the appeal.

On the Merits

This is a suit by plaintiff to expropriate the property of the defendant, for the purpose ,of building its track to ids depot on the river bank.

The land forms a triangle and is situated on the east side of the levee, and forms the corner of Powder and Delaronde streets in Algiers, on the plan annexed to the petition.

There is a levee in front on defendant’s land, which diagonally intersects lots 1 and 2, and divides the former about equally in two, and also leaves on the river side a small fractional part of lot 2.

This is the land plaintiff prays to expropriate.

The residence of the defendant is located on lot No. 20, .adjacent to lots 1 and 2, and a house that she leases is located on lot No. 19.

The house on lots 1 and 2 is used as a soda water and lemonade-stand. The plaintiff tendered to defendant, prior to this suit, and deposited with the clerk of court one hundred and twenty-five dollars.

The plaintiff contends that this amount is the full value of the-lands in controversy.

And in the second place that the defendant has suffered no damages.

The defendant answers that there is no necessity for the expro - priation.

That if an expropriation be made it will depreciate the value of her remaining property.

That the immediate proximity of the track, switches, depots and other structures to her lots will render it impossible for her to let her property, and driye therefrom the revenues she now receives. That the land sought to be expropriated is worth at least $1000.

The case was submitted to the jury and a verdict was found expropriating the land and allowing $650 to the defendant.

From that judgment plaintiff appeals.

The necessity of the expropriation is conclusively proven.

With reference to the value of the property there is an almost bewildering difference of opinion.

The witnesses for the plaintiff testify that it has but little value.

Only nominal, is the testimony of one of them.

Another places its value at $60.

All testify that it is subject to inundation during the high waters-of the Mississippi; that it has no river front (the plaintiff having acquired from the city the exclusive right to occupy the river bank in front of defendant’s pláce) ; that a house could not be built on this land without building it on trestle.

The witnesses for the defendant testify that it- has- considerable value.

One of the witnesses values it at three thousand dollars; another .at fifteen hundred dollars, and several at one thousand dollars.

Evidently in evaluating the properly, the prevailing impression was with nearly all these witnesses for defendant that the depreciation in the value of the remaining property should be taken into account, and possibly also damages arising from individual inconvenience.

There could be no objection to proving the amount due for depreciation in the value of the remaining property of defendant.

But it would have assisted the court if a separate and distinct appraisement had been made. As it is, the conclusion is inevitable that where a witness places his estimate at $3000, he, in addition to the value of the triangle sought to be expropriated, included the depreciation in the value of defendant’s other property, and possibly damages (“merely consequential injuries, for which defendant also is merely doing a lawful act in a lawful manner, can not be held responsible”). 38 An. 607. The needful separation of the alleged values was not kept in view. The result is that an estimate was made of the whole in answer to questions relating to one, i. e., to the property sought to be expropriated.

For instance, one of the witnesses testified:

“ The value that I would put on the property, placed in the position of Mrs. Berton, would be very high.
“ It would be over $3000, and I throw the balance of the property in the bargain.”

We are not clearly informed whether the amount testified to is 'owing to the fact that the triangle gives the value mentioned, or whether the depreciation which will result prompts the conclusion that the whole may as well be abandoned, or that the damages (immediate or consequential) will make it undesirable property.

The amount for each is not stated.

While considering the testimony, it occurs to us that if the whole property has the value placed upon it by some of the witnesses, the expropriation of a limited triangular area can not make it valueless, particularly as the area prayed for is divided from the body of the lots by a large levee some eight feet high.

II.

Other witnesses for the defendant were evidently under the impression, at first, that defendant’s right as an owner extended to the river bank.

In chief, in support of their estimate of defendant’s claim, they testified that property in Algiers, with a river front, have considerable value, as they are useful in mooring vessels; that dry docks are constructed on these fronts, and ships built on the banks near them.

. On cross-examination, when the proven fact was brought to bear, that the property did not extend to the river, as the plaintiff has obtained from the city the exclusive right there, their high evaluation is not maintained.

Hence we conclude that the value includes the triangle, the depreciation in the value of the remaining property, the damages, and possibly the benefit of the river’s front.

III.

With reference to damages, indemnity must be made when they are actual and immediate.

In two well considered decisions the principle is settled, that “a defendant 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 An. 646; Hill vs. R. R. Co., 38 An. 607.

Defendant’s demand on account of the smoke, noxious vapors and loud jarring sounds emanating from and caused by the engines and rolling stock “ is not supported by the testimony and in addition fall within the group of the decisions just cited.

That some inconvenience is occasioned to plaintiff by the noise of the trains and by the smoke and soot of engines (which, however, are shown- to be as nearly smokeless as any suited to the purpose) and by the jarring of the houses, can not 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.”

IV.

With reference to the alleged depreciation in the value of the remaining property, the testimony is not by any means conclusive.

The defendant testifies that her whole property is worth $4000.

How much less it will be worth after the expropriation has nothing more substantial for its support than conjecture.

With reference to rental, the defendant says that one family moved away from the property; it was vacant four months.

It was again occupied, it seems, when the trial took place — at what rental we are not informed.

As to the difference in the market value of the property, nothing was said except that it would become valueless.

This is too indefinite to be convincing, and has an exaggerated appearance on the face of the record.

■ In establishing the value of the land, without reference to any other consideration, we note the fact that the defendant paid $225 for the lots 1 and 2.

That she improved these lots.

That the improvements are on the west side of the levee, and that the railroad takes the outside — the triangle adjacent to the river front, over which it has the control.

These lots were assessed at $350 each.

The defendant was offered $375 for the triangle in question.

The dimensions and shape of the lots are changed.

We regret to have to reduce the jury’s finding.

We have failed to find the elements of value upon which they grounded their verdict.

We do not find that the defendant is entitled to a larger amount.

It is therefore ordered, adjudged and decreed that the verdict of the jury and the judgment of the court a qua be reduced from $650 to $400.-

After amendment, judgment affirmed for the remainder at appellee’s costs.