author: Fenner, J.-

text:
    No. 10,813.
    The State ex rel. A. Brittin et al. vs. The City of New Orleans.
    1. Tlie power of courts in Louisiana to appoint receivers is exceptional and limited.
    2. Courts have no power to appoint a receiver e.c ¿wrtfcwithout notice to or hearing of the parties in interest.
    8. The receivership in this case is an incident of a suit to which‘the City of 2>Tew Orleans is a party; and she is entitled to notice of all proceedings taken in such suit affecting lier interest.
    4. The receivership was only established by the consent and on the joint application of the city, and was limited to a special matter defined in the oi'der; itcan not be enlarged and extended to embrace other enormously increased powers without notice to the city.
    5 The city has an obvious interest in the question whether or not a receiver should he vested with the additional powers demanded, and should have been, notified and heard, before order granting them was made.
    6. This is not a proceeding to remove a receiver validly appointed; it is a motion* to vacate orders improvidontly and illegally granted without compliance with requirements of law; and the power of courts to vacate such orders is well established.
    A PPEAL from the Oivil District Oourt for the Parish of Orleans. Voorhies, J.

      Chas. Louque for Jos. P. Hornor, Receiver, Appellant.

      Carleton Hunt and Henry C. Miller for Defendant and Appellee.
   'The opinion of the court was delivered by

Fenner, J.-

The principal suit, in which all the matters here concerned arise,-is indicated by the above title. It was a mandamus proceeding taken by certain creditors of the late Metropolitan Police Board, to compel the city of New Orleans to. pay the sum due them -out of a fund of $2600 alleged to have been collected and to be held ■by the city and legally applicable to payment of debts of the Board.

The plaintiff subsequently filed a supplemental petition, alleging, in substance, that the funds in the hands of the city were the pledge •of all the creditors of the said Board, and could not be paid out except by distribution among them. Accordingly, it was prayed that a receiver be appointed “to take and receive the taxes collected for the years 1874,1875 and 1876,-and the taxes hereafter to be collected for the same years which were assessed and levied for the benefit of said Board of Metropolitan Police.”

Thereupon, with the consent of the city of New Orleans, the following order was made:

“ Considering the allegations and prayer of the foregoing petition, and the informal application made to the court on October 29, 1877, by the city of New Orleans, and J. O. Denis, administrator of finance of said city, for the appointment of a receiver, it is ordered that R. F. Harrison be and is appointed receiver herein, and that he is authorized to demand and receive from J. O. Denis, administrator of finance of the city of New Orleans, or from said city, or any other person, any and all sums which may have been or may be hereafter collected or received for or on account of the Metropolitan Police tax for the years 1874, 1875 and 1876.”

This order establishes conclusively two things, viz.:

1. That the appointment was only made with the consent of the city of New Orleans.

2. That the sole purpose and scope of the powers conferred were to demand and receive the sums actually collected by the city on account of the Metropolitan Police tax for the year’s 1874, 1875 and 1876.

Under this mandate, Harrison, receiver, brought his action against the city and obtained a full accounting for all taxes collected for the years mentioned, resulting in a final judgment rendered by this court for the large sum of $30,944.94. Harrison, Receiver vs. New Orleans, 40 An. 509.

This judgment the city has satisfied, and, as appears, other sums •collected by the city on the same account, after trial of above suit, were duly paid over to the receiver. It does not appear that anything more is due by the city on account of such collections. The mandate of the receiver seems to have been completely executed. The receiver, in 1888, filed his account and made a distribution, which was approved by the court. One would suppose that this was a winding up of the receivership. But in 1890 the receiver made an ex parte application to the court for an enormous enlargement of his powers, claiming that the City of New Orleans was indebted to the Metropolitan Police Board, not only for the amount of-the police tax actually collected, but for the whole amount of said taxes levied, and not only for the years 1874, 1875 and 1876, but for all antecedent years back to and including 1869, and asking authority to bring suit for the same. No notice of this application was given to the city or to any one else.

The order was improvidently granted, and Harrison, under cover ■of his personal citizenship in the State of Mississippi, actually brought a suit in the United States Circuit Court against the city for nearly $1,000,000.

Harrison having died shortly afterwards, another ex parte order was applied for and granted, appointing Jos. P. Hornor, also a citizen of Mississippi, as receiver in place of Harrison.

In this state of case, the City of New Orleans appeared in this suit, and moved that the foregoing ex parte orders be vacated and set aside on the grounds:

1. That they were made ex parte without notice or hearing given to the city entitled to be heard upon any application to appoint a receiver in this case.

“2. That the order was improvidently granted, and no showing whatever was made for the appointment of a receiver.

3. That said Hornor is a non-resident citizen of Mississippi, and the court could not, consistently with the spirit and policy of our law, confer such an appointment on a non-resident.”

The judge, being the same who had granted the orders, after hearing, rendered judgment, making the rule absolute and vacating the orders. Prom this judgment the appeal is taken. The judge a quo does not, nor shall we, determine the question whether or not the parties are entitled, in proper proceedings, to have a receivership with the enlarged powers claimed. He says very weightily: “The order enlarging the powers of the receiver in this case was practically a new and distinct appointment; since the subject matter originally in suit had been exhausted, and a different asset was being brought into action. The city may have seen fit not to object to the course pursued when limited to a particular fund within a well defined period of time. But the enlargement, besides reaching her financial operations during other years, involves the general liquidation of the affairs of the Board of Metropolitan Police. The city now claims a hearing in such important matters of public import. The rejoinder is that she is sued as a debtor,' hence, that she is not qualified to be, heard on this occasion. In the first place, the city is a party defendant in possession of the fund in her official capacity. And then she is no ordinary debtor. She is a trustee charged with public functions with reference to the very matter under consideration. During the'prevalence of the statutes creating and regulating the Metropolitan Police Board, she [was, to some extent, shorn of 'her police functions. Since their repeal she has, with the aid of additional legislation, resumed her full police powers. Under O. C., Articles 430, 431, 421, 422, the Metropolitan Police Board, exercising “ a part of the powers of government, and none others, was strictly a political corporation, subject at all times to be repealed (O. O. 447). Grave questions may now arise as to the transmission of such powers, suggesting the propriety of a full hearing of all parties concerned.”

We might rest our affirmance of the order on these cogent reasons. No principle of law is better settled than that courts have no power • to appoint a receiver ex parte without notice or hearing of the party in interest, and unless a basis for the appointment is alleged and proved. High on Receivers, Sees. 17, 111, 115; Frazier vs. Wilson, 4 Rob. 517; Martin vs. Blauchin, 16 An. 237; Mullady vs. Mullads, 26 An. 438.

The power of courts in Louisiana to appoint receivers is exceptional and limited. Baker vs. Portable Company, 34 An. 754.

This receivership is an incident of the suit in which it was originally constituted and to which the city of New Orleans is a party. She. is entitled to notice of all proceedings taken in that suit affecting her interest. The receivership was originally established, as appears on the face of the order, only on her consent and joinder in the application therefor. It can not be extended and enlarged ■without notice to her.

The exception that the city was bound to proceed by petition has no merit. This is not a proceeding to remove the receiver. It is a motion to vacate orders improvidently and illegally made, without compliance with the requirements of law’-. The power of courts to vacate such orders, on motion of the party aggrieved, or even of their own motion, is well established.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J. Bermudez, O. J.

license: Public Domain

text:
    No. 10,809.
    James J. Lane vs. Illinois Central Railroad Company.
    The object of tbe judicial stamp act is to secure the contributions to the judicial expense fund, not to set traps for litigants.
    It appearing that under the practice of the court and the custom of the clerk’s office it is permitted, when not objected to at the time, to use documents and testimony on the trial and to stamp them subsequently; and further, that in making up transcripts of appeal, it is the clerk’s custom to notify the counsel interested when he discovers any document that has been used in evidence to be unstamped, in order that he may supply the omission, the failure of the clerk, in haste, to notice an unstamped document and to give the customary notice, should not he visited on the appellant, who has relied on the clerk’s custom and on his complete certificate, as a fault depriving him of his appeal, when the omission of the stamp has been inadvertent, and is supplied as soon as discovered and before the appellee has suffered any possible harm.
    A railroad company whose freight train derails and runs into an adjoining building, causing damage to person and property therein, in the absence of justification and without contributory negligence on the part of the injured party, is guilty of gross negligence and liable for indemnity.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      F, M. GiU for Plaintiff and Appellee:

      1. Railroad companies running and operating its road through the streets of a city are hound to observe extraordinary precaution, particularly at street crossings.
    2. Must keep the engines in front and not run their trains backward. They must give signals of approaching trains. 40 An. 810-817.
    3. They must confine their rate of speed to that provided bylaw, four miles an hour, and give signal of approaching trains. Their employes must be men of skill, constantly on the alert, and exercise judgment and caution, and not guilty of negligence and want of care culpable. 38 An. 777; 23 An. 182.

      4, Damages of the lower court increased by six times the amount. 89 An. 800-808. i>y double the amount. 41 An. 024.
    o. Damages in such eases should be assessed on the most liberal scale. 10 An. 89.

      Oirault 'S Farrar for Defendant and Appellant.
   On Motion to Dismiss.

The opininion of the court was delivered by

Fenner, J.

The motion has two grounds, viz.:

1. That a plan offered in evidence by plaintiff and duly filed has been omitted from the transcript by appellant’s fault. The clerk’s certificate is complete and protects appellant in the right to supply the omission, on discovery, by certiorari, which he has done.

2. That a document marked xy, which was offered in evidence by defendant, is omitted from the record because the defendant had failed to have the same properly stamped and filed, which justified the clerk in omitting it, and places the fault entirely on the defendant appellant.

Our attention is called to the provisions of Act 136 of 1880, which require evidence to be stamped before filing, and also declare that testimony not stamped and filed shall not be copied into the transcript or considered by the appellate court.

It appears, however, that in this case most, if not all, the evidence which was offered and met on the trial, was not stamped and filed till some time after the judgment was rendered. It further appears that it is the custom of the clerk’s office, in making up transcripts of appeal, when it is discovered that evidence, which has been offered and used on the trial, has not been stamped and filed, to notify the counsel interested in order that he may remedy the defect; that in this case the clerk, in the haste of making up the transcript, overlooked the document xy and failed to notify counsel or to include it in the transcript. As soon as the motion to dismiss informed counsel, who had relied on the clerk’s practice and his complete certificate, that this document had not been stamped and was omitted from the transcript, he supplied the oversight by having the same properly stamped, and now brings up this document also under his certiorari.

It thus appears that in practice the rigid requirements of the ■statute- are .relaxed by common. consent; that, unless insisted on, trials are not delayed to affix stamps during the course thereof, but that the stamping and- filing, may be done after trial, and even, as in this case, after .judgment, and after appeal while the transcript is being made.

Under this practice., if, as appears, it be the. custom of, the clerk’s ■office to notify counsel and afford opportunity to affix .stamps inadvertently omitted, we do not think the failure of the clerk to notice an unstamped document and to give the customary notice, should be visited as a fault on the appellant, destroying his right of appeal, when the omission has been inadvertent and is supplied as soon as discovered and before the appellee has suffered the slightest harm.

The law is intended to secure the contributions to the judicial ■expense fund- — not to set traps for litigants.

The case is very different from that of Schmitt vs. Drouet, 42 An. 716.

Motion denied.

'On the Merits.

Bermudez, O. J.

This is a suit in damages, brought by the plaintiff in his own right, and in that of his wife, for injury done him, in his property and business, and her, in her person.

The damages are alleged to have been caused by a freight train of ■defendant backing off a side track and running, at an unauthorized full speed, into a house occupied by the plaintiff, as a coffee-house and residence, at 6 o’clock, on the morning of December 9, 1889, at a corner of streets in this city.

It is averred that the barroom and appurtenances were damaged so that the owner had to give the same up, his business and trade being thus broken up and destroyed.

It is, besides, stated that, by the occurrence, the wife of plaintiff,' who was in the house at the time, was struck by a heavy falling post, thrown into the street, speechless and senseless, her clothes being torn, her arm laccerated; that she suffered great pain in her breast and back.

The damages to the property and business are set down to be near $1000; those to the wife at $7500, and those to the husband at $2500; lumping about $11,000.

The charge is made that the whole accident is attributable to the gross negligence of the company, which makes it liable for the injury sustained.

The answer was a general denial. The case was tried by a jury, who returned a verdict for $2200, on which judgment was accordingly rendered. After a fruitless motion for a new trial, the defendant appealed. The plaintiff joins in the appeal, praying that the damages allowed be increased to $8481.50.

It is useless to state how the accident occurred. The defendant explains the circumstances under which it happened, but does not attempt to deny it, or evento charge contributory negligence on the part of the party really injured.

The issue presented is merely one of fact, involving the quantum of damages sustained.

The defendant has stated a bill of particulars, footing $350, which it considers is a more than reasonable indemnity to both the husband and the wife, dividing same as follows: $100 to the former, and $250 to the latter.

Although the testimony is far from establishing the gravity of the injury occasioned, and which has been considerably magnified, Ait is apparent that the defense has greatly minimized it. ■ It may be that Mrs. Lane’s sufferings have been, in appearance, temporary; but they were intense, occasioned as they were, by the frightful emotions of the moment. The stubborn fact remains, that she was struck by the falling of the post, and it is more than probable,"as testified to by the physician who saw her last, rather frequently, that her constitution has been so seriously impaired that she will remain an invalid, never to be herself again. She was guilty of no contributory carelessness and was hurt in her house, where she had a right to be.

Under the circumstances, we think her entitled to a reasonable indemnity, which we fix at $1500, including the damage claimed by her husband, as done to his property or business.

It is, therefore, ordered and decreed that the verdict and judgment thereon be reduced to $1500, and that thus amended, the same be affirmed, appellee to pay costs of appeal and defendant those of the lower court.


author: Watkins, J.

text:
    No. 10,718.
    The State of Louisiana vs. Caroline and Lydia Dunbar.
    2. -It is unnecessary for an affidavit, filed before the judge of a recorder’s court, in the city of New Orleans, charging the violation of a city ordinance, to set out the charge in the manner and form, and with the circumstantiality of aver ment, that is requisite in the confection of a criminal indictment.

      '2. Vor the punishment of persons offending city ordinances, tlie power is lodged in municipal officers, and much must be, necessarily, left to their sound judgment and discretion in the manner of its exercise.
    A PPEAL from the Third Recorder’s Oourt of the Oity of New Orleans. Landry, J.

      Henry Renshaw and Oarleton Hunt for Plaintiff and Appellee.

      J. M. Pratt for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

In the court of Recorder Landry an affidavit was made and filed therein of the following tenor and purport, viz.:

“ That one Caroline Dunbar and one Lydia Dunbar did (on) Friday, July 25, 1890, between 1 and 2 o’clock p. m., on Peters avenue, between Green and George streets (and) within the jurisdiction of this honorable court, then and there insult and abuse affiant, in viola - lation of section 9 of city ordinance No. 3121, as amended by ordinance No. 3680.”

Having been arrested and brought before the recorder, the defendants excepted and moved to quash the complaint on several grounds, the only one relied upon here being that “ the affidavit does not describe any offense, either under any known statute of the State, or ordinance of the Oity of New Orleans; and it does not comply with Article 7 of the Constitution.”

This demurrer having been overruled, a trial had, and the defendants found guilty, they have appealed.

The question argued in the brief of defendants’ counsel is that the mere statement in the affidavit, that the defendants did, at a certain time and place, insult and abuse the prosecutor and complainant, is insufficient, because it sets out merely a legal conclusion, and does not set out and particularly specify the acts and abuse, which are the gravamen of the offense charged.

While it may be true that the complaint lodged with the recorder is informal and does not contain the essential averments necessary to the perfection of an indictment in constitutional courts of general and unlimited criminal jurisdiction, it is a non sequiter that it is insuf - ñcient or inadequate for the purpose of such proceedings in a. recorder’s courtL-notwithstandiDg it be a court pro hac vice of last resort. In such courts the formalities of criminal procedure in courts-of record are dispensed with ex nieessitate rei.

The charge preferred against the defendants was simply the violation of a municipal ordinance which prohibited a disturbance of the good order and decorum of the community. For the punishment of persons offending such municipal regulations, the power is lodged in municipal officers; and much must be necessarily left to their sound judgment and discretion in the manner of its exercise. We regard the affidavit to be sufficient and the appellants’ complaint unfounded-

judgment affirmed'.


text:
    No. 10,257.
    The State ex rel. Caroline Laloir vs. Consolidated Association of the Planters of Louisiana and the Recorder of Mortgages.
    The mortgage securing shares of stock of the Consolidated Association of the Planters of Louisiana, being extinguished by reason of the prescription of the demands of the association against the shareholders, the recorder of mortgages may be coerced by mandamus to cancel the inscription thereof from tiic mortgage records.
    APPEAL from the Civil District Court for the Parish of Orleans. . Monroe, J.

      Chas. Louque for Plaintiff and Appelle.:

      Jos. P. Hornor & Son. for Defendant and Appellant:
   The opinion of the court was delivered by

Watkins, J.

Relator, claiming to be owner of an improved piece-of real estate, -situated-., in the city of .New Orleans; on-which there is-, reported as. an incumbrance the inscription of a mortgage in favof of the Consolidated Association of the Planters'of. Louisiana, for sixteen shares of.stock; .and representing that his widow-lias- paid- “ all'the. indebtedness to said association, including the calls made under the act of the legislature to pay the full indebtedness of said bank;” and averring that if any further demand or claim is preferred, or made on that account, same is prescribed, and thereby said interfering mortgage has become extinguished; also prays a writ of mandamus compelling the respondents to cancel and erase the same from the mortgage records.

To this petition, the receivers appointed by the United States Circuit Court of the property of the Consolidated Association, excepted to the jurisdiction of t’he court ratione personas; and they averred that as such receivers they were in possession of all the assets of said association, and that their possession is the possession of the said circuit court in the suit therein depending, and bearing the title William Cressey vs. The Consolidated Association of the Planters of Louisiana, wherein their appointment was made. And they further aver that amongst other assets of said association, they are in possession of said mortgage, and that said court has the sole and exclusive jurisdiction and dominion over the subject matter thereof, and that the court a qua had no jurisdiction ratione materias, and that its judgment and decree would be powmrloss and ineffectual to order the cancellation thereof.

These exceptions were overruled, jurisdiction maintained, and the mandamus made peremptory, and the recorder ordered to cancel and erase the mortgage; and it is from that judgment and decree that the receivers have appealed.

This transcript of appeal was lodged in this court on the 6th of December, 1888, and the decision of said cause has been since suspended to await final action in the case of Cressey vs. Association. It has been recently and finally decided by the Supreme Court, and the demands of plaintiff rejected on “ account of the staleness of the claim,” the court basing its decision “on the final conclusion of” this court in Association vs. Low, 85 An. 438 — a parallel case.

The mandate of the Supreme Court in that ease is on file herein, and the only duty which devolves on us is to conform our opinion and decree thereto, and affirm the judgment appealed from.

Judgment affirmed.


text:
    No. 10,258.
    State ex rel. Mrs. Julia de Hart vs. The Consolidated Association of the Planters of Louisiana, and the Recorder of Mortgages.
    Tile mortgage securing shares of stocir of the Consolidated Association of the Planters of Louisiana, being extinguished by reason of the prescription of the demands of the association against the shareholders, the recorder of mortgages may he coerced by mandamus to cancel the inscription thereof from the mortgage records.
    APPEAL from the Civil District Court for the Parish of Orleans. Bighter, J.

      Chas. Louque for Plaintiff and Appellee.

      Jos. P. Hornor & Son for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The facts of this case, as well as the questions of law herein raised for decision, are exactly parallel to those raised and just decided in State ex rel. Caroline Laloire vs. Association, No. 10,257 on the .docket of this court; and for the reasons therein assigned,

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,862.
    The State of Louisiana vs. James Wilson.
    Previous threats of the deceased against the defendant arc not admissible in evidence when the homicide is the result of the invitation of the defendant to the accused to fight with him.
    Previous threats of deceased against defendant are not admissible in evidence, unless some threat or hostile demonstration has been made by him against defendant on the immediate occasion of the homicide.
    APPEAL from the Twenty-fourth District Court for the Parish of Plaquemine. Livaudais, J.

      W. H. Rogers, Attorney General for the State, Appellee:

      Francis Lory, Jr. and Ghas. J. Gauthreaux for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The accused was indicted for manslaughter, tried, convicted and sentenced to imprisonment at hard labor for five years. He has appealed from the verdict and sentence.

This case comes up on one bill of exception taken to the ruling of the trial judge in excluding testimony as to previous threats of the deceased against the defendant.

In the motion for a new trial the bill of exception was reserved, ■and the exclusion of the evidence was urged as a reason for a new trial.

In his reasons for overruling the motion, the trial judge says, ■“ that no overt act of violence was shown to have been made at any time immediately preceding the homicide, — the evidence showing that the deceased was not advancing upon the accused, but following him upon his invitation to fight on the public road.”

It is stated in the brief of counsel for the defendant, that when the deceased and the accused were going to the public road to fight, the deceased made a hostile demonstration against the accused, of such character as to impress him with the belief that his life was in danger. It is evident that no previous threats of the deceased against the accused could have any connection with this last hostile demonstration, if it occurred, as alleged.

It sprang from the more recent cause, incited by the defendant, the invitation to the deceased to fight with him.

There was, however, no foundation laid for the introduction of the evidence. No threat or hostile demonstration has been made'by the deceased on tlie immediate occasion of the killing.

The evidence was clearly inadmissible. State vs. Jackson, 33 An. 1087; 32 An. 1084, 1098, 1117, 473; 31 An. 302, 379; 30 An. 341, 679; 29 An. 593; 21 An. 473; 10 An. 453; 9 An. 46; 5 An. 589.

Judgment affirmed.


author: Breaux, J.

text:
    No. 10,803.
    Jean Apolinaire vs. L. Roca.
    1. Placing claims for collection in the hands of a “ Bad Debt Collecting Agency ”• will not give an action for damages, when it is not proven that the threats made by the agency to place the debtor’s name in the list of those who can pay and are unwilling, nor that the threats made to advertise the account for sale, were carried out.
    2. Sending pressing and annoying letters, by the creditor to his debtor^ urging him to pay, is not actionable, it not beingproven that any publication has been made of their contents, or any steps taken which could oppress and injure the debtor.
    A PPEAL from the Civil District Court, Parish of Orleans. Bightor, J.

      Branch K. Miller and A. L. Tissot for Plaintiff and Appellant.

      Biee & Armstrong for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

This is an action sounding in damages to recover the sum of $5000.

Plaintiff alleges, that as a carpenter he has earned a living for himself and family.

That he was in partnership with his son, and was able to obtain, credit from dealers in lumber for building materials, needed in carrying on his trade.

That he and his son undertook to construct a certain building in accordance with a contract previously entered into by them.

That they were unable to carry out their contract, owing to miscalculation on their part.

To fulfill his engagement, under the contract, he had incurred, debts he was unable to meet.

That he in consequence lost his savings accumulated by thrift an$ industry. ' ...

That among his debts was one of $87 due to the defendant.

That he always acknowledged this indebtedness and promised to. pay as soon as able.

That the defendant after considerable dunning resorted to threats to wantonly and maliciously injure him.

That as he was without means he could not pay.

That thereupon the defendant employed the Sprague Bad Debt Oollecting Agenc3' ” of Chicago, Illinois, to assist in defaming and slandering him.

That they sent letters and circulars for the purpose of injuring him, and that they destroyed his credit.'

The defendant excepted to plaintiffs’ action on the ground that it is not alleged whether the publications of the duns and threats were, oral, written or printed, nor by whom these publications were made.

The exception was maintained and a supplemental petition filed.

Issue was joined by the plea of general denial.

The case was tried by jury who found a verdict for defendant.

Prom the judgment rejecting his demand plaintiff appeals.

At the commencement of the trial counsel for defendant objected to the reading to the jury of the dunning letters annexed to the petition because they purport to be and are alleged to have been written to the plaintiff himself, and there is no allegation in the petition that they were ever published in any manner, and, therefore, did not constitute a cause of action and should not be submitted to the jury.

The court allowed the attorney for plaintiff to merely read to the jury the documents annexed to the petition, and of which they formed a part, and reserved the question of admissibility.

' Afterwards the reservation was recalled and the documents were admitted unconditionally.

The .plaintiff having testified that he called on the defendant to make a partial payment, also upon his attorneys, at the time; neither would receive the amount; that he was referred to before named collecting agency, — the court held that the proper foundation had been .laid, admitted the documents annexed to■ his petition as before stated..

Our conclusions, in this case make it unnecessary to. pass upon all the questions presented in the bill of exceptions. .

A bill of exception was taken to the courts ruling in excluding evidence offered to prove that the defendant was a member of the “ Lumbermen’s Protective Association,” which has for its object the collecting of information for its members in regard to the business standing of persons buying materials who are in bad repute in regard to credit.

It was objected that the evidence did not connect the “ Lumbermen’s Protective Association” with the “Sprague Collecting Agency ” as one of its branches for effecting collections. Under the allegations it was not admissible. It was not proven that the defendant sought to collect his bill through the “ Lumbermen’s Protective Association.”

There was no error in the court’s ruling.

On the Merits.

The account had remained past due some time. It was placed in the hands of attorney for collection; afterward it was sent to the “ Bad Debt Collecting Agency,” of Chicago.

It was proven that this agency addressed letters to plaintiff in terms annoying and offensive.

They threatened, if he did not pay, to put his name in the list of debtors able and unv'illing to pay, also to advertise the account for sale.

As a matter of good taste and proper consideration these letters ■can not meet with approval.

They relied upon stinging expressions to effect the collection. The sending of such letters by a creditor has been held not to be a publication, and not actionable.

It is not proven that the threats were executed in any manner.

In addition to the threats contained in these letters, the plaintiff testifies that the defendant expressed a desire to crush him. The ■charge is not proven. The attorney who had the claim, and who is said to have communicated the threat, was not called as a witness.

Difference in statement arose between the plaintiff and the defendant, as witnesses, about this threat.5 The latter denies, the former affirms; the affirmative testimony trenches upon the hearsay; the plaintiff testified that he was told of threats to crush him.

The testimony fails to establish the facts alleged and that the plaintiff has suffered injury.

The verdict of the jury is correct.

Judgment affirmed.


author: Bermudez, O. J.

text:
    No. 1241.
    Succession of J. C. Blakemore.
    The placing, or putting aside, by a testator, of bis will among' worthless papers, in a secured place, the same being iound undefaeed and intact, is not a fact from which the intention of revocation can be inferred.
    The sale of property bequeathed does not carry the revocation of the legacy made of it, when it is clearly proved that sneli was not the intention of the testator, as in the ease of a simulated transfer acknowledged by the vendee, the property returning to the testator, and being' in esse at bis death.
    The law is indulgent to testators, who are deemed inopes eonsilii.

      The intention of the testator must* be sought, and when ascertained, must be enforced when not violative of law.
    The disposition by which a testator bequeathed real estate, which he owns in one State, to certain parties, and the real estate andperishable property belonging to him in another State, which constitutes the residue of his estate, contain a special legacy and a universal legacy: ■
    The beneficiaries under the latter are entitled to inherit, take and have, as well the property ini esse at the date of the will, as that acquired subsequently, and in beingattheopening of the succession.
    APPEAL from the Sixth District Court Parish of Morehouse. Baird, J.

      G. H. Ellis for Plaintiffs and Appellants:
    1. Under the laws cf Louisiana legatees are divided into three general classes, viz.: Universal legatees, legatees under a universal title, andlegatees under a particular title. C. C. 1606,1612,1622.
    2. A universal legatee is one to whom the testator bequeaths his entire estate, after deducting the portion reserved by law to forced heirs, also the special or particular legacies, and legacies under an universal title. 85 An. pp. 708, 1054, and authorities there cited.
    3. A legatee under a universal title is one to whom the testator bequeaths a fixed portion of all his immovables, or all his movables, or both. C. 0.1612.
    4. A special or particular legatee is one to whom the testator bequeaths a specific thing, a fixed amount, or quantity. O. C. 1625.
    5. In the interpretation of wills, the intention of the testator should bo ascertained and enforced. All other rules are subordinate. Judge Story says: “The lawful intention of the testator is the pole star to guide courts in the exposition of wills.” Coin Delisle says: “The intention of the testator is the trail the judge should follow in all its turns and meandcrings.” O. C. 1712; 8 L. 480; B An. 705; S An. 252; B5 An.-.
    6. In case of obscurity or ambiguity, as to the legatee or the amount, or the thing given, recourse must be had to extraneous evidence, and the intention of the testator ascertained from all the surrounding facts and circumstances. O. C. 1714, 1715, 1716, and 1717.
    7. Where a testator owns a large estate of personal and real property in Louisiana, where he resides, valued at $12,000 or $15,000,'and owns certain property in • Tennessee valued at $500, and owns no property in any oilier State or country, and bequeaths the property in Tennessee to certain legatees, and all liisproperty in Louisianato certain legatees, itwas-clearly his intention to bequeath to the legatees in Tennessee a certain thing, and to institute the legatees in Lou- . isiana his heirs and universal legatees. The mention of the States was for the purpose of describing where his property was situated.
    8. The different States orloeations where a testator's property is situated is immaterial in arriving at his intention. If he fails to state in his will where his property is situated, it is then a matter of proof. Should lie state it, it is merely for the convenience of the legatees, and the more specifically to show Iiis intention as to the dispositions contained in his will.

      Newton <Ss Gasón and J. P. Madison for Opponents and Appel lees:
    ■**A disposition couched in terms present and past does not extend* to that which comes afterward. For example, a legacy of all the books a testator possesses does not include those he has purchased after the date of the testament.” O. C. 1720. The only exception the court has ever made to this rule is in favor of universal legatees. Succession of Burnside, 35 An. 708.
    A testimony disposition wliioh does not include the totality of the property of a succession, or all itsmovables or immovables, or an alequol part of one or the other, is a special legacy. O. C. 1606, 1612,1625; i Marcado Xo. 119;i2 An. 606; BO An. 271.
    Xo one is a universal logatee to whom lapsed legacies would not enure — -this is a crucial test. 35 An. 708 and authorities cited.
    Had the testator disposed of hisproporty in Louisiana, and invested in real estate in Tennessee, the heirs of J. Haywood and II. O. Blakemore could, with as much plausibility, claim to accede to all the property as uni rersal legatees as can the applicant in this case. Had he disposed of his property in both Louisiana and Tennessee, and invested in property in another State, his legal heirs would have inherited his entire succession. If, however, the applicants were universal legatees, they would accede to the property, however much it might have been changed or augmented by investments elsewhere. Succession of Marks, 35 An. 1051.
    M’hen it is doubtful whether a greater or less quantity has been bequeathed, it must be decided in favor of the less. O. C. 1717.
    M’hen an immovable has been bequeathed, subsequent augmentations, though contiguous, can not bo considered as makjng a part of tb.e legacy. O. 0.1637.
    A donation inter niuos or sale subsequent to the date of a testament operates its revocation for all that has been thus disposed of. O. 0.1695.
    A tacit revocation of a testament results from any “act which supposes a change of will.” C. C. 1691; Succession of Louis Muh, 35 An. 391.
   The opinion of the court was delivered by

Bermudez, O. J.

This controversy arises among the collaterals of the deceased and involves the interpretation to be placed npon his will, which is in the olographic form.

The application of two of his nephews for the probate and execution of the will was resisted by the collaterals on several grounds:

1. That the testator has ignored it by throwing it aside, with the. intention of revocation.

2. That the testator has, since the execution of it, disposed of the property bequeathed.

3. That the bequest is a special one, applying only to the property owned by the testator at the time of the will.

I.

The first opposition rests on the fact that the will, which was executed in 1880, was found, at the death of the testator, which occurred in 1890, among worthless papers, in a valise in a locked room.

A will is a solemn act, which, when clothed with the exacted forms, and not violative of law in its dispositions, must be respected and executed, unless it has been revoked and annulled in some manifest manner, indicating a repudiation of its contents by its author.

It may be revoked expressly by a subsequent testamentary disposition, by the erasure of the signature to it, by its actual physical destruction, or tacitly in an unmistable manner, by the testator himself. The mere putting it aside, intentionally or not, among worthless papers, assuredly does not even raise the shadow of the beginning of an intention to revoke it in any way.

The fact of its existence, under the circumstances of this case, suffices to justify the conclusion that the testator did not intend to recall it, and that he has not done so.

II.

The second objection is, that the testator has disposed of the property bequeathed, and that he has thereby revoked the legacy.

It is true, that the law so provides, R. C. C. 1695, but it is likewise so that it is inapplicable to the facts established in the record.

There is evidence showing a sale of the property by the testator to a certain party, on certain terms of payment, part cash and part on credit; but the purchaser admitted that the transaction was a simulation, and the proof is, that the property was put back in the vendor’s name, by the vendee.

It appears that the ceremony was resorted to by the vendor, not at all with a view of divesting himself absolutely of all title to it, but, on the contrary, for the purpose of placing it beyond a threatening danger, and thus of preserving it; possession continuing on him uninterruptedly.

“ La vente n’entrainera pas la invocation du legs, s’il est évidemment prouvé par les cireonstances que telle n’a point été l’intention du testateur.” Pandectes francaises. C.'N. annoté par Labaye, art 1038, p. 468, note.

III.

The third objection is, that the bequest is special, applying only to the property owned by the testator at the time of the will.

In point of verbiage, orthography and punctuation, the will is far from being artistic; but, however drawn up, it is sufficiently clear and expressive, to make known the intentions of the testator unequivocally.

The proof shows that, at the date of the will, 1880, Blakemore owned property in Tennessee and Louisiana, and nowhere else.

He was a bachelor and had raised three nephews, sons of a deceased widow sister, for whom he felt a great attachment.

He was not on good terms with his brothers, and so indisposed, that he was unwilling to leave them any share in his succession.

He, however, resented no ill feeling against the children of J. H. Blakemore and H. C. Blakemore, but was rather kindly inclined to them.

When he drew up his will on the 25th of November, 1880, he was under a presentiment of an early death, which was not, however, verified.

His intention was to dispose., mortis causa, of all his property, which consisted of that jn Tennessee and that in Louisiana.

That in the first State he disposed of in the following words: * * * u my reai estate in Tenn I want it divided between J. Haywood & H. C. Blakemore’s airs.”

That in the second named State (Louisiana), which eonstituted’the residue of his estate, he disposed of in the following terms:

I this day giv D. A. Reas one-half of real estate and one-half of the pearishable propity and Robert Reeas the other half in La. They air to take car — J. W. Reeas the best they now how until he is of age, and he is considered to not have a good mind. I dont think it proper for me to give (him) any of my propity.”

The inspiring or determining motive of the objection is, that, subsequent to the date of the will, J. O. Blakemore acquired considerable property, touching which he died intestate, and which, therefore, descends to his collaterals, .as his legal heirs.

The proposition rests upon the theory that the bequest to the Reeas (Reese) is not a universal, but a special or particular legacy not susceptible of augmentation without a new disposition, and that under it, the legatee takes only the property in existence at the date •of the will.

It has been well observed that the law is indulgent to testators, Who are inopes consilii. It exempts language from technical restraint and obeys the clear intention, however informally conveyed. If obscured by conflicting expressions, it seeks the intention in a purpose, consistent and rational, rather than the reverse; and, •of two interpretations, it selects that which saves from total intestacy. The testator’s intention is his will. ' This is the first rule of interpretation, to which all others are reduced. The intention must be enforced, as far as it can be done legally.

In the present instance, it is apparent that the testator designed to •dispose of all his property in view of his death, which he thought was not distant, and he wanted to dispose of the whole of it, in part in favor of the children of two living brothers, and for the balance, in favor absolutely of two sons and to some extent of another son of a deceased sister, for whom he entertained special affection and tenderness.

It is manifest that the testator here did not desire that those two brothers, or any other collateral not named in the will, should inherit from him, not only because they were left out, but also because of expressions in the will, which it is not necessary to reproduce, but which are indicative of feelings other than those which cordial friendship, or even indifference, suggests.

From all the circumstances of this case, the tenor and physiognomy of the will, we are satisfied that the testator intended to institute the sons of his sister his universal legatees; that he has done so, and that it is the duty of the coux-t to carry out fully his behest.

The argument that the bequest, being a particular legacy, embraces only the property in esse at the time of the making of the will and does not include future property, has no force, as the testamentary disposition is an institution of a universal legacy. Article 1722, R. C. C., has, therefore, no application.

The rulings in 12 An. 286 and 603 were obliterated in the Burnside decision, in 35 An. 708, and affirmed in 35 An. 1054, and the earlier jurisprudence was recognized and applied. 8 L. 489; 12 Rob. 56; 3 An. 705; 8 An. 252.

So that, it is law, that a universal legacy embraces as well property in being at the date of the will as that existing at the time of death, constituting the succession of the testator, although the will expresses no time, either past or future.

From that standpoint the irresistible conclusion is, that all the property in existence at the death of J. O. Blakemore, except that in Tennessee, specially bequeathed, and which has not lapsed, has ■descended by the will to D. A. and Robert Reese, with the attached burden.

This consideration might have dispensed with a determination of the second objection, relative to the revocation of the bequest by the sale of the thing bequeathed. We do not think it necessary ■or useful to answer the question put, to know whether by the predecease of the legatees of the Tennessee land, that property would, by the lapse, have been also inherited by the Reese brothers.

Courts have enough to deal with existing troubles, without eon•cerning themselves uselessly with imaginary difficulties, which, should they arise, can then be solved.

It is therefore ordered and decreed that the judgment appealed from, as far as it admits the will of the deceased to probate and ■execute it, be affirmed, and that in other respects it be reversed; and,

It is now ordered and adjudged that said will receive its full and entire execution, and, accordingly, that D. A., Reese and Robert Reese, named therein, be and they are hereby recognized as the universal legatees of the deceased J. O. Blakemore, and that, as ■such, they do have and take the residue of his succession with the burden attached to the legacy of earing for their brother J. W. Reese, and that the opponents and appellees, who have moved an amendment of the judgment in appeal, pay the costs in both courts.


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    No. 1248.
    John T. Hardie & Co. vs. John A. Colvin. S. S. Tatum et al., Intervenor.
    1. An attorney at law, employed in any given case where attachment process is requisite, is authorized to make the necessary oath, withoufotlier procuration.

      2. A party intervening in a suit and joining the defendant in resisting the plaintiff’s demands, must for himself appeal from a general judgment against defendant and intervenor, otherwise he can not obtain relief therefrom. An appeal by the defendant will not suffice for that. A defendant who alleges in his answer the untruthfulness of the plaintiffs affidavit for attachment must make 9,ut the charge by a fair preponderance of proof.
    PPEAL from the Third District Court, Parish of Lincoln. Barksdale, J.

      Price & Pollard for Plaintiffs and Appellees.

      Boatncr & Lamkin for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

Several creditors of the defendant obtained attachments against him, and under their respective writs concurrent seizures were made; and the property being insufficient to satisfy all, strife arose between them as to their rights to priority of payment — this right of priority not depending upon the nature of the debts, or date of seizure; but each party, in turn, relying upon alleged acts .of fraud, or misconduct on the part of the other, to defeat the seizures, respectively.

In this case, plaintiff’s suit is predicated on a large debt of defendant, to which no defense is urged — the only defense being-that assigned to the regularity of the attachment proceedings, the falsity of the affidavit, and a claim made in reeonvention for $21,000 damages for wrongful issuance of the writ.

On the trial there was judgment in favor of the plaintiffs for the sums of $7,458.21 and $1,671.86, with interest, sustaining, and enforcing their attachment, and recognizing their privilege on the property attached — other rights being reserved. It further decreed that the demands of the intervenors be rejected, except in one or two unimportant particulars which need no mention.

From this judgment the defendant alone has prosecuted a devolutive appeal; and the intervenors, having acquiesced in the judgment, have passed out of the case. So the appeal must be considered in the light of the issues made up between plaintiff and defendant, and which may be enumerated as follows, viz.: (1) that the person who made the affidavit for the attachment was wholly without authority; (2) that said affidavit is untrue.

II.

The affidavit for attachment was made by J. A. Pallard, of the law firm of Price & Pallard, who are the attorneys for the plaintiffs, and prepared and filed this suit.

It is conceded that the only power, or authorization the affiant had in the premises, was such only as arose from the relation of his law-partnership with the plaintiffs in this case.

The point taken by defendant’s counsel is, that under the express provisions of the 244th Article of the Oode of Practice, the affidavit must be made by the creditor, Ms agent or attorney in fact, and that an affidavit made by any one else is without efficacy and void.

That Article reads as follows, viz.:

“ In cases where the debt or obligation is not yet due, such attachment may be granted on the oath of the creditor, or Ms agent or attorney in fact, if such creditor be absent; and it shall be lawful for any judge of competent jurisdiction to order a writ of attachment to issue whenever the said judge shall be satisfied by the oath of the creditor, or his agent or attorney, of the existence of said debt; and upon the said creditor, his agent or attorney in fact, taking oath to the requisites contained in any one of the numbers one, two, three, four or five, of Article 240, or swears that said debtor is about to remove his property out of the State before said debt becomes due; and it shall be sufficient for the oath required to be taken by the agent or attorney in /act to be the best of his knowledge and belief.”

If this Article stood by itself, uncoupled with any other provision of the Oode in pari materia, there might be serious question of the authority of an attorney at law to make an oath; but whilst in this Article the phase “Ms agent or attorney in fact" is thrice employed, this phrase occurs once, to-wit: ‘ ‘And it shall be lawful for any judge of competent jurisdiction to order a writ of attachment to issue whenever the said judge shall be saiified by the oath of the creditor, or Ms agent, or attorney, of the existence of said debt,” etc.

In addition to this we have another provision which is found under the title “of the arrest of the debtor,” which is as follows, viz.:

‘ ‘ And in all eases, when by any provision of this Oode an oath of a party is required, it may be (in ease' of the absence of said party) made by his agent or attorney,” etc. O. P. 216.

So if it be conceded that in the revision of the Code in 1870 the word “attorney” was ex industra omitted from Article 244, it appears to have been jnst as industriously interpolated in Article 216-of the revised code, and the alleged omission supplied. It is quite impossible for us to conceive in what way Article 244 is to be treated and considered as a later expression of the legislative will than Article 216, both being brought forward in the same revision, and covered by the same act of the Legislature.

Defendant’s counsel rests his pretension exclusively on the first quoted article of the Code of Practice, and has cited us to no decision of this court expressing concurrence in that view, and we know of none.

It is not denied that, antecedent to the revision, an attorney at law, employed in any given case where attachment process was requisite, was authorized to make the necessary (oath without otherprocuration. Fulton vs. Brown, 10 An. 350; Dwight vs. Weir, 6-An. 706.

Since the revision we are not aware of an attorney’s possession of such authority being questioned.

This objection is not well grounded.

II.

On the merits a vast number of witnesses were introduced pro and eon, and an immense quantity of testimony taken on the prolix and exceedingly complicated and involved issues which have been raised —very much of it being applicable to the demands and complaints-of the intervenors — and, as defendant’s counsel states in his brief, we likewise conclude, that “ to attempt to refer to it, even in brief,, would be an useless and unnecessary task,” and we shall, therefore, content ourselves with the statement of our conclusions.

The grounds alleged in petition for attachment are that "the defendant has mortgaged, assigned, or disposed his property, rights and credits, or was about to mortgage, assign, or dispose of same, with intent to defraud his creditors, and that he was about to convert his property into money, or evidences of debt, with intent, to place-the same beyond the reach of his creditors.

The relations existing between plaintiffs and defendant were those of factor and customer, and in the course of their dealings the latter had fallen in arrears to the former well nigh $12,000. The proof is. furnished over the defendant’s own signature, that he had frequently-told the plaintiffs that his indebtedness to them was, practically, all owed any one, and that his business was prospering and prosperous; whilst, on the contrary, the fact was, that he owed very-largely, and was virtually insolvent.

On the faith of these representations, plaintiff accepted from defendant an act of mortgage as security for his account, and consented that same should not be placed on record. In the interim,, the defendant’s consignments of cotton became suspiciously “ smaller-by degrees,” and plaintiffs’ anxiety became aroused, and their account was placed in the hands of counsel. Soon afterward another-mortgage'in favor of another creditor of defendant’s was recorded,, and also sundry other claims; and several creditors of his*instituted. the attachment suits above mentioned.

There are other circumstances pointing to the defendant’s bad faith» with the plaintiffs, and contemplated and partly completed fraudulent transactions, which influenced their course of procedure — such as his disposition of cotton, goods, and book accounts, out of the-regular course of his mercantile business. And it was on the faith of these transactions and proceedings that plaintiffs caused their mortgage to be recorded, and the defendant’s property to be attached.

In all this, we can not perceive any ground for criticism or complaint against them.

The proof abundantly shows the truthfulness of the affidavit of plaintiffs’ attorney; and we think the judge a quo properly sustained their attachment. In this view of the casp the defendant sustained no damages.

Judgment affirmed.


text:
    No. 1249.
    S. S. Tatum vs. John A. Colvin; John T. Hardie & Co., Intervenors.
    The district judgeds peculiarly competent and well qualified to judge of the value and credibility of witnesses residing in his vicinity, and with whom he is personally acquainted, especially in reference to questions of fraud and collusion,, and his finding in such a case ought not to be lightly considered, or readily disturbed.

      APPEAL from the Third District Court for the Parish of Lincoln. Barksdale, J.

      Graham & Holstead for Plaintiff and Appellee.

      Price & Pollard, for Intervenors and Appellants.
   The opinion of the court was delivered by

Watkins, J.

This case is the counterpart of the one just decided, and entitled John J. Hardie & Co. vs. J. A. Colvin, S. S. Tatum et al., intervenors, No. 1248 — the terms being reversed.

The plaintiff’s attachment was ñled and service made by defendant’s acceptance, and seizure of his property was effected simultaneously and concurrently with that of John J. Hardie & Co.

To this suit the defendant plead the general issue, alleged the falsity of the plaintiff’s affidavit, and, in reconvention, claimed 820,000 as damages for an unlawful seizure of his goods and the consequent destruction of his mercantile business.

The principal contest was that urged between the intervenors and the plaintiff.

On the trial there was judgment in the plaintiff’s favor, for his debt against the defendant, sustaining his attachment, and rejecting the intervenors’ demand; and the latter alone have appealed, and the defendant is eliminated from the controversy.

The evidence adduced on the trial of this case was very much tlie same as that on the Hardie case. The same counsel are engaged in each case.

Altogether, we are of opinion that the intervenors’ charges of fraud and collusion between the plaintiff and defendant are not made out. We think it clear that plaintiff has an honest debt against defendant, and that his attachment is serious, real and earnest.

That he is in some way related to the defendant, and that the latter accepted service on plaintiff’s petition, can make no great difference ; at least that can not amount to positive fraud.

On the whole the judge a quo has done substantial justice between the parties. He resides in their vicinage and knows all of them. He heard the various witnesses give in their testimony, and saw their manner when testifying. He is peculiarly competent, and well qualified to judge of such proof as abounds in this record, and especially with reference to charges of fraud and collusion; and in such a case his finding ought not to be lightly considered, or readily disturbed-. We are of the opinion that his judgment should be affirmed, and it is so ordered.


author: McBnery, J.

text:
    No. 1244.
    The State ex rel. Enoch Price and J. H. Abraugh vs. Lem. Scott, Sheriff of the Parish of Richland.
    The power vested by Article S9 of the Constitution in the Supreme Court, and each of the judges thereof, to isuse writs of habeas corpus, is one of original, and not of appellate, jurisdiction.
    The Supreme Court will, in the exercise of its original jurisdiction in matters of habeas corpus, decline to review the testimony taken before the District Judge on a preliminary examination. Ilis jurisdiction in matters of habeas corpus is concurrent.
    ^PPLIOATION for writ of Habeas Corpus.

      Boatner & Lamkin for the Relator.

      F. G. Hudson, District Attorney, for theRespondent.
   The opinion of the court was delivered by

McBnery, J.

The relators were by affidavit charged with arson, and after a preliminary examination, in which they were represented by counsel, they were committed to the parish prison — Price without the the benefit of bail, and Abraugh in default of giving bond in the sum §2500.

In their present application they rely on the testimony taken before the district judge. In the application for Abraugh it is urged that there was not sufficient evidence to connect him with the crime, and also that the bail fixed by the district judge is excessive. In the application for Price, it is urged that the affidavit on which he was arrested does n'ot charge him with the commission of a capital offense, and the evidence taken on the trial fails to show that there was <{ air the time some human being usually staying, lodging or residing at. night ” in the building referred to in the affidavit, and that the testimoney taken on the preliminary examination fails to show that the proof is evident or the presumption great. Both parties pray to bediseharged from custody, or to have bail fixed within their ability to furnish.

There is no complaint of the irregularity of the commitment. The-preliminary examination was had before a judge having jurisdiction-of the case.

The application for relief under the writ is an effort to have reviewed the testimony taken before the district judge, sitting as a committing magistrate, and to set aside or amend his decree.

The issues presented have in several cases been decided by this, court.

The applications of relators are identical with that presented in-the cases of State vs. Levy and Shegall, and State vs. Morales, 38 An. 918, 919; in re Strichland and Alford, and State vs. Strichland, 41 An. 324, 572; in each of which there was an application presented to this court to review the testimony taken on the preliminary trial and the rulings of the district judge, who had committed the relators.

In each of these cases it was held that the power vested by Article 89 of the Constitution in the Supreme Court, and each of the judges thereof, to issue writs of habeas corpus, is one of original and not of appellate jurisdiction, and that it will decline to review the action of a district judge who has concurrent jurisdiction after a fair preliminary examination.

In re Strichland and Alford, 41 An. 324, this question was most carefully considered, and the authorities in this and other jurisdictions reviewed, and the conclusion reached, “ that in inquiring into the evidence with a view to test the correctness or error of the district judge’s conclusion in the premises, we would exercise an appel late jurisdiction with which we are not vested.” Const. Art. 89.

The instant case is not in any way distinguished from the cases re ferred to. The identical testimony taken on the prelimary examination is certified to and brought up for our review.

The counsel for the relators has presented their case with so much zeal and ability that we have been induced to go- over the same. ground again, and to review our previous rulings from the additional light afforded by his brief and argument. Our reexamination of the authorities has only confirmed our belief in the correctness of our conclusions.

We were much impressed with the argument of relator’s counsel on the proper construction to be placed upon Act 841 of the Revised Statutes.-

The affidavit substantially charges that there was in the building at the time it was destroyed by fire a human being who usually resided or lodged there. It is not essential that an affidavit charging a crime should be as concise as the language employed in an indictment. The affidavit charges, “ that there were living souls within the building when the said fire originated who were lawfully therein. ’ *

The committing magistrate, the district judge, was exclusively vested with the discretion to' determine the sufficiency of the evidence to- establish this part of the affidavit. We can not review his conclusions.

To prevent any possibility of a denial of the right of the accused'. ’ in his application for relief under the writ of habeas corpus, the great, and primary object of which is to afford judicial relief to parties who-are illegally deprived of their'liberty, we said in the case of State vs. Morales, 41 An. 919, “unless glaring injustice has been done to-an accused by a district judge in a preliminary examination, the judges of the Supreme Oourt will not feel authorized to review the order therein rendered by means of the writ of habeas corpus.”

We do not think the accused have been illegally deprived of their liberty, and no glaring injustice has been done to them by the district judge in the order rendered by him.

It is, therefore, ordered that the application for relief as prayed for by relators be denied, and that the proceedings in both applications of habeas corpus be dismissed. i


text:
    No. 1240.
    Wheeler & Winter vs. E. McBain et. al.
    The vendor of lands who warrants the title cannot redeem them in such a manner as to invalidate the title he is bound to warrant.

      2. When the vendor obtains from the Stale, or from a donee of llie State, a recognition of his rights, and a return of the land, he can not, by having the title placed in the name of another, escape the responsibility of a warrantor.
    3. The one in whose name the title is made out can not hold the lands adversely to those who bought from the tax debtor.

      4. The Hoard of Levee Commissioners acknowledged the title of the tax debtor, and because of his right gave up all claims. Ly placing the title in the name of another, who had notice of the sale, previously made by the tax debtor, it will not enable'the purchaser to hold these lands against the purchasers from the tax debtor.
    APPEAL from the Twenty-seventh District Court for the Parish of West Carroll. .Williams, J.

      Wells & Gray for Plaintiffs and Appellees.

      Stone & Murphy and Potts & Hudson for Defendants arid Appellants.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs on “the 25th day of January, 1889, bought from E. McBain 6000 acres of land, situated in the parish of West Carroll, for the sum of $6000, in cash.

The vendor, McBain, became the purchaser of 12,000 acres in the years 1881 and 1882, at tax sale under Act 107, of the Acts of 1880.

The lands sold to plaintiffs are the undivided half of the landsthus purchased at tax sale.

The purchaser at tax sale, McBain, failed to pay the taxes. The lands were sold the second time for taxes and were adjudicated to the State of Louisiana in 1883 and in 1884.

Under Act 77, of 1888, the State donated to the Board of Commissioners of the Tensas Basin Levee District all of her lands situated within its limits.

On the 10th, or 11th, of January, 1889, McBain, to redeem the lands, paid to. the sheriff of the parish of West Carroll the sum of $1124.60.

This amount was afterward paid by the sheriff to the State Treasurer.

About three months after the six months allowed to redeem under Act 77, of 1888, had elapsed, McBain called on the Auditor for a. certificate of redemption.

He testifies as a witness, that it was then he became aware that the levee tax had not been paid. He, at the time, offered to pay that tax, amounting to $220.

The Auditor refused to receive it, as the timb within which to redeem had elapsed.

McBain then appealed to the Board of Levee Commissioners, to be permitted to redeem the land on payment of the balance due for taxes.

This body adopted a resolution authorizing its president to make a title to him or to his order. At McBain’s instance the title was made in the name of W. M. Murphy, who paid the balance of taxes due. The latter sold these lands to T. L. Fleming.

Plaintiff tendered to Murphy half the amount paid by him, which he declined to accept.

The judgment was for plaintiffs, decreeing that they are the owners of the land claimed, but condemned them to pay to said Murphy the sum of $110, taxes paid by him on plaintiffs’ land.

The sale made by Murphy to Fleming, in so far as it affected plaintiff’s title, was annulled. From this judgment the defendants prosecute this appeal.

In writing the foregoing statement of facts, we have noted, that it was on the application of McBain, that the Levee Board passed a resolution authorizing its president to place him, or any one else on his order, in possession as an owner, on the paymen of the taxes.

The amount of the price fixed, and the proceedings of said Board, make it evident that their action was influenced by a claim to the land they considered equitable.

He had paid a large amount of taxes in his attempt to redeem.

A comparatively small amount remained due, which the Auditor could not receive, for the time to redeem had elapsed.

The Board vested with right to sell availed itself of that authority to execute a quit claim deed in satisfaction of the balance of the taxes due.

This was in December, 1889, at which time plaintiffs were the owners by purchase from McBain.

The deed, in which he intervened to give it his sanction, was made to another as purchaser, who now claims to be the owner of the whole, regardless of the rights acquired by plaintiffs as vendees.

The vendor’s warranty to plaintiffs precluded McBain in law from becoming party to a deed to divest plaintiffs from their ownership.

He was bound by his warranty.

The question, in so far as relates to the purchaser Murphy, presents greater difficulty in reaching a satisfactory solution.

If this purchaser Murphy had acted exclusively in his own right, and the right of McBain as tax-debtor had received no consideration from the Board, the plaintiffs could have no recourse against him. ■

The evidence does not justify the conclusion that McBain’s interest was ignored and that the quit claim deed was given without regard to his title.

The recorded deed gave defendant, Murphy, notice.

The vendor to him testifies as to notice.

Half of the land was sold to plaintiffs for $6000, and the other half was sold by said defendants for $6500. The whole was purchased by him for $220, an amount comparatively insignificant. This alone shows the motive which prevailed in making a quit-claim deed.

' It was a recognition of a right probably not entirely and conclusively defined, but none the • less the right of McBain, as owner, which in its exercise inured to the benefit of the title he was bound to warrant. It can not be for an instant presumed that, had the defendant, who now claims to be the owner, presented himself to the Board, in his own right, to purchase the lands, they would have authorized the sale for such a price.

The sale can be explained only in considering it in the nature of a redemption.

While the deed itself makes no mention of a redemption, the proceedings of the Board, and other circumstances preceding and following it, leave no doubt as to the purpose.

The land claimed was purchased by plaintiffs, who holds a complete legal title.

The sale for taxes in the name of McBain, warrantor, has not divested plaintiffs of their ownership, particularly since the quit claim deed of the Levee Board.

Those in whom was the ostensible right- (the Levee Board), abandoned all claims in favor of the tax debtor who had paid most of the ■taxes. This relinquishment enables him to maintain the title he is ■bound to warrant.

Judgment affirmed at appellant’s costs.


text:
    No. 1243.
    Lizzie E. Walker et al. vs. S. L. Barrow et al.
    On Motion to dismiss.
    The Supremo Court has jurisdiction over a partition suit in which the alleged value of the property sought to be partitioned and the amount of rents claimed by the plaintiff, together, exceed $2000.
    On tiib Mb kits.
    The rule that a deed conveying land to several persons by name and not stating the interest devised to each, necessarily conveys to them a joint title, does not obtain where the proof shows the proportion contributed by each, in the formation of the sum paid as the purchase price; such contribution fixes the proportion of the ownership.
    'In cases of partition in real estate, not susceptible of a convenient division in kind, where improvements have been placed on the land by one of the joint owners, the proper way of ascertaining the relative value oí both, is to have them separately appraised, before the sale, to operate a rentilation of the proceeds, which aie then distributed ratably.
    APPEAL from the Fourth District Court, for the Parish of Jackson. Wear, J.

      Graham <& Holstead for Plaintiff and Appellant:
    A deed conveying land to'several persons by name and not stating the interest devised to each, necessarily conveys to them a joint title. Bouvier’s Law Dictionary, p. 678, Tit. Joint.
    The validity and effect of contracts aro to be determined by the law of the place where made. O. J?., Art. 10; C. 1\, Art. 13; 12 An. 489, 199,24; An. 363; 10 An. 415.
    The usufructuary is not entitled to recover taxes paid on property, subject to the usufruct, or for improvements made thereon. O. 0 578 and 594.
    One co-proprietor can not erect improvements on the common property, without the consent of the other joint owners, and compel the latter to pay therefor. 10 An. 265; 26 An. 255; 23 An. 502.
    The husband of Mrs. Barrow, who made the improvements, being without title, ■could not recover for the improvements, and his wife can not recover a community debt. C. O. 503, 3452, 3453; C. P., Art. 107; 9 An. 12.

      Fred. W. Price for Defendant and Appellee:
    On Motion to Dismiss.
    1. The appellate jurisdiction of the Supreme Court of Louisiana, in civil eases* extends only to cases in which the matter in dispute or the funds to be distributed, whatever the amount claimed, shall exceed two thousand dollars exclusive of interest, and to suits for divorce, etc. Const. 1879, Art. 81.
    2. The fund to be distributed in partition suits is the value of the property in contest; and if that value is alleged by plaintiff (as in this case) they can not be heard to dispute their judicial allegations or withdraw them, 35 An. 19; 34 An. 1063 and 1066; 29 An. 326; 28 An. 935; 21 An. 487, On Estoppel sec 31 An. 82; 7 An. 458; GM. 280; 11 An. *710; 4 An. 416; 5 An. IS; 21 An. 82; 38 An. 528; Gray vs. Gray.
    On the Mehitk.
    1. Contracts made in one State to be performed in another are to be governed by the law of the place of performance as to validity, nature, obligation and interpretation. O. 0., Art. 10; American and English Encyclopedia of Law, vol. 3, pp. 561-570.
    2. The Lex Loci lid Sitm governs as to all transfers of real estate. United States, vs. Crosby, 7 Or. (U. S.) 115; American and Eng. En. of Law, p. 563; 31,a. An. 418.
    3. iso prescription applies between parties setting up counter claims against each other, and the rule “qua: temporatio sunt ad agendum,” etc,, applies for defendant's benefit in this case. 17 An. 246.
    4. Appellant and appellee only affected by appeal. 20 An. 121.
   On Motion to Dismiss.

The opinion of the court was delivered by

Bermudez, O. J.

This is a partition suit on which a claim for rent has been engrafted.

The plaintiff, Mrs. Oxford, claims to be the owner, to the extent of one-fifth thereof, of 840 acres of improved land, in common with her two brothers, and her sister and her mother, who each owns a like proportion.

She claims rents of the property from her mother, from the time of her marriage, in the fall of 1883, with James M. Barrow.

The defense is, that plaintiff is owner of one-eighth only, and not entitled to any rent. Various counter claims are set up against her.

A judgment was rendered below, on the issues presented by the parties, which has satisfied neither of them.

The plaintiff has appealed from that judgment, and the defendant^ Mrs. Barrow, after moving to dismiss the appeal, has prayed for an amendment of it, in several respects.

The motion to dismiss is based on thé ground of want of jurisdiction ratione materiae.

It is without foundation.

The property, the partition of which is sought, is. valued at $1900, although appraised in an inventory found in the .record at $2100; and the claim for rent, during about seven years at $150,,aggregates some $1050, if not more.

This court is surely competent to pass upon the merits of a controversy involving such matters. .

The motion to dismiss is denied.

On the Merits.

I.

The plaintiff claims to be the owner of one undivided fifth of certain 840 acres improved land in the parish of Jackson, in this State, by virtue of a purchase made thereof, on the 19th day of January, 1881, by her mother, then the widow of D„F,i Walker (plaintiff’s father), from W. J. Lawson, of Georgia,, for,the. price,,paid cash, and received by vendor, of twenty-three hundred dollars ($2300), the purchaser buying “in her own right.and ,for her four children ’ ’ (named in the deed, ambng whom the plaintiff).

The act is silent as to the proportion in which the property purchased is to accrue to and vest in Mrs. Walker and her children,

It is upon this circumstance that the plaintiff grounds herself, to claim that the property has passed by fifths, contending that the law is, that a deed conveying land to several persons, by name, and not stating the interest devised to each, necessarily conveys to them a joint title. On the other hand, Mrs. Walker, now Mrs.. Barrow, contends that, though true it be that the deed is thus silent, the fact and the truth are, that her interest is one-half, and that of her four children jointly is alike. She says that, at the time of the purchase, she had in hand the amount paid, $2300, comprised as follows: $1200, balance of $1500 which she had received in Georgia in 1873, the day previous to her husband’s death, and $1100 which she owned before her marriage with him, and had preserved.

There can be no doubt that she had the $2300 at the time of the purchase, for the vendor acknowledged receipt, and the act or deed on which plaintiff relies and can not contradict, conclusively establishes that important fact. :

Besides, there is corroborating proof of the truth 'of the assertion.

Strictly, Mrs. Walker had no right, her chiidréh being minors at the time, to invest the money coming: tojthem, from their father, the i-way she did, in the.-property in question’. .,She was liable to them for iitj-an'd,--at the .proper time and. under,.proper circumstances, they ; could'have mailed on'her to account andto pay them, their respective share therein. • • ■■

•-.Be .this-, as it .may, she invested it in .the-property,, and they all have ratified the investment, conspicuously tb.e plaintiff, wl?o,asserts a title to an undivided share of the same.. . ,...,« ; ...

One thing is certain, and it is, that they together can not claim more than the $1200 invested have acquiredfor the balance of the price was not paid out of any money coming from Mr. Walker, or his estate; :but with money the individual-property of-Mrs. Walker.

The $1500 received did not accrue to the children exclusively, but -to then! and to their mother — whether she-claimed dower or a child’s Share, under the laws of Georgia. The least -she could have claimed would have been one-fifth — an heir’s portion.

'Conceding that the $300 wanting; which were spent to minister Unto common necessities, were chargeable to the children and their mother ratably, then Mrs. Walker’s share in the rest would have been, on- the basis of one-fifth, $240, which, added to her $1100, -would raise the amount individually owned by her to ;$1340. This would entitle her to a proportion larger, than .the half which she claims, and with which she appears content. .

-The other three children seem, to be satisfied with, the correctness of their mother’s claim; for they have compromised with her on the basis 'of one-eighth to each of them, by consenting to.accept 105 acres, each of the 840 acres in question.

This-applies even- to D. F. Walker (son), in whose name this suit was originally brought, but who, subsequent to its institution, has authorizeda settlement with his mother- on that basis. This is admittedlyfche fact, as is acknowledged by counsel for plaintiff, Mrs. Oxford, in their brief in her behalf.

H.

The claim of the plaintiff for her share in the rents and revenues of the property at $150 per annum, is inadmissible, for the reason that she has enjoyed the property herself in the proportion of one-fourth of the half, or one-eighth of the whole, during five years, and that the demand for the surplus is barred by. prescription, which is set up by Mrs. Barrow.

m..

'' :|'G'n the c'thér hand; the' eóimter claims of the'latter'against the pláiritíif as- her share iri the various arnounts stated, and which it wo'uld: be onerous árid-useless to specify in detail,'for board and main!tenariee; for store accounts, clothing, travelling, weddirigoutfit, etc., '' -cari not'be allowed, even if riot barred by the'prescription pleaded— 1 for the double re'ásori,' that,' urider the law, she' owed1'support and ’maintenance' to'her children, and that the -proof shows that she : ' íéeéiVed'moré than' the equivalent of the same, in the1 shape of services of her children, who have, to a considerable-éxtent, supported themselves, as soon as they were able to do so.

The claim for taxes and keeping in repair is not allowable.

The defendant had the possession and enjoyment óf the property, as though usufructuary, and not being liable for rent, was chargeable for the taxes and keeping in order.

IV.

The claim for the improvements said to’ have been put upon the land by the defendant can not be countenanced, even pretermitting the question of her right of suing therefor, when the claim, if any, could only be asserted by the community. '

She had no right to improve the land without the consent of her eo-proprietors, and she can not claim the value of the buildings, etc., in this way, even if her eo-proprietors, instead of requiring their removal, insisted on retaining the same.

In cases of this description, where the land and improvements are not owned in common exclusively by the same persons, but buildings, etc., have been placed on the land by one of the owners, and a partition is necessary (the property not being susceptible of a convenient division in kind), the proper course to pursue is to have the land and buildings' appraised separately, to operate:a “ventilation” of the proceeds of sale; the same to be distributed in relative proportion to the valuations.

The judgment appealed from recognized title in plaintiff to the extent-of one-eighth of- the whole, and of Mrs. Walker-Barrow, of one-half, and directed a partition by sale of the property-; but it adjudged further, in different other ways, against the' plaintiff, which it would be cumbersome and - unprofitable to mention, and which do not fully accord with the views just announced.

It is therefore ordered and decreed that the judgment appealed from, as far as it establishes the proportion of co-ownership between the plaintiff, Mrs. Oxford, and the defendant, Mrs. Barrow, to be one-eighth in the former and one-half, or four-eighths, in the latter, and directs a partition by public sale of the property held in common be affirmed, and that in other respects it be reversed; and it is now adjudged that the demand of plaintiff for rent, and the various counter claims of the defendant, be rejected; the costs of the lower court and those on appeal to be borne equally by the appellant and appellee.


text:
    No. 1245.
    Mary Williams, Wife, vs. J. W. Goss, Husband.
    1. A demand for a separation of property may be cumulated with a demand for a separation from bed and board.
    2. A separation from bed and board may be obtained on account of habitual intemperance, or cruel treatment. Though both be alleged, proof of either is sufficient.
    3. Habitual intemperance is the constant indulgence in sueh stimulants as wine, whisky, or brandy, whereby intoxication is produced.
    APPEAL from the Fifth District Court for the Parish of Ouachita. Richardson, J.

      D. M. Sholars for Plaintiff and Appellee.

      Boatner & Lamkin for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

Alleging habitual intemperance and cruel treatment on the part of her husband, to such, an extent as to render their 'longer living together insupportable, plaintiff institutes suit against him for a separation from bed and board, and for a separation'of property.

Furthér alleging that she apprehended the defendant would dispose'of the common property, during the pendency of the suit, she obtained an injunction restraining him therefrom; and, also, averring it to be her intention to leave the common domicile, she prayed for alimony to be awarded her.

To this demand defendant excepted that a demand for a partition of community can not be cumulated with an action for a separation from bed and board.

This exception having been' overruled, defendant filed an answer specially denying the charge of habitual intemperance, and alleging that he possessed, at the date of his marriage, $1000 of separate property, which went into the matrimonial community of acquets and gains, and that same constituted a charge in his favor against the said community; and, further, that, at the date that suit was instituted, plaintiff had in her possession $600 of community funds. He demands that said sums, aggregating $1600, be debited against her on final partition and settlement.

On these issues'a trial was had and a judgment rendered, decreeing a separation from bed and board between the plaintiff and defendant; decreeing all the property inventoried to bé community property, and ordering same to be partitioned in kind, and referring the parties to a notary for that purpose. From this judgment the defendant has appealed.

I.

The first question raised, and which lies at the threshold of discussion is, whether the demand for a separation of property is properly cumulated with plaintiff’s demand for separation from bed and -board, or is it premature ?

The contention of defendant’s counsel is that such a demand is not permissible in such a suit, as it is only an incident of a suit for a final divorce a vinculo matrimonii.

The controlling provisions of the Code on the subject are the following, viz.: “ Separation from bed and board carries with it separation of goods and effects.” R. C. C. 155.

Separation from bed and board does not dissolve the bond of matrimony, since the separated husband and wife are not at liberty to marry again; but it puts an end to their conjugal cohabitation, and to the common concerns which existed between them.'n R. C. C. 136. [Our italics.]

From these precepts it appears to. be clear, that not only does the suit for separation from bed and board carry with it a separation of property, but it puts an end “ to the common concerns ” .then existing between the spouses.

In addition thereto, the code further provides that the wife may, during the pendency of a suit for a separation from bed and board, and of community property, require an inventory and appraisement to be made, and may restrain the defendant by injunction from disposing of the same. R. O. O. 149.

And it further declares that “from the day on which the action of separation shall be brought, it shall not be lawful for the hush,and to contract any debt on account of the community, nor to dispose of the immovables belonging to the same, and any alienation by him made after that time shall be null,” etc. R. C. C. 150.

These clear and unambiguous provisions are conclusively against the contention of the defendant’s counsel, and they are perfectly consonent with those of Articles 2406 and 2807. of Revised Civil Code, in relation to the dissolution of the community which takes place of right “ at the dissolution of the marriage.”

During the progress of the trial the defendant was introduced as a witness in his own behalf, but his testimony was objected to as incompetent under the prohibitive terms of R. O. O. 2281, and the objection was sustained — defendant’s counsel reserving a bill of exceptions. In argument he frankly admits the correctness of the judge’s ruling, but cites the fact as illustrating the great hardship that will be imposed upon him if his exception should not be sustained and the partition proceeded with at this time — he being the only witness by whom proof can b.e made of the $1600 he claims.

This is simply the misfortune of his situation, and the direct results of his own failure to take the necessary measures to preserve the evidence of his demands. It is no reason why the policy of the law should be changed, or its precepts disregarded.

II.

On the main question, the better course is, to extract from the testimony such ■ statements as may fairly, characterize the conduct of the defendant, in regard to habitual intemperance and ill-treatment of his wife, so that it may the more readily appear whether or .not the latter’s charges are well founded.

And we accordingly make the following synopsis, from the transeript, viz.: . ■ . . .

The defendant has been twice married, his second wife being the present plaintiff,' by whom be has no children. He. is the proprietor' of a small store, of which1 the plaintiff has been the ostensible- head and manager for several years. The mother of his first wife-states as a witness,1 that she lived in the house with the defendant during. his first wife’s lifetime, and continued to reside with him after his second marriage — with the exception of about eight months — until the plaintiff left the common domicile; and that she has'.since resided in the premises adjoining.

She states that defendant “was addicted to excessive drink;’.’ slightly ever since she has been acquainted with him, but she. has “ often seen him drunk., Within the last year or two he 'has been frequently drunk — very often two or three times a week. Has seen him so that he could not undress and go to bed. Has very frequently-seen his wife “ help him to bed and undress him.”

She says “ the habit of drinking has been growing , on him ever since he remarried. It is a great deal worse [no.w-] than it was.-” “ From what I have seen,” says she, “ I should think he has formed a habit of drinking — that he is habitually addicted to intemperance.”

“ Sometimes he would spend nights at home [but he] was frer quently away all night. He would frequently stay till midnight, or after, when he did not stay all night. * . * *

Most assuredly I think Mrs. Goss was ill treated'by Mr. Goss — in neglect, and quarreling and fussing while drunk, and [in] neglect even while in sickness. ,1 witnessed.that frequently, especially during the last two years.”

* * * sf< Hf . *

“ I have seen him come home very often drunk. I have frequently seen him brought home very drunk by two different persons. * * ? He comes home oftener drunk than sober.”

Another witness, the keeper of a saloon near defendant’s store., makes the following statement, viz.:

“ I have known Mr. Goss to drink. Sometimes he would take seven or eight drinks in our store, and some days none. Sometimes he bought it by the bottle and sometimes by the drink. He .usually brought his bottle in1 the morning and got 15 cents’ worth'.. I have been at Keller’s frequently and seen him drinking. I; have seen.him drunk quite1 often. He would come in at Schultz’s” — the .place at. which the witness was employed — “ very nearly every morning and get his bottle filled. He has been drinking that way ever since I have known him. I have known him to drink at night. I have known him to be .at Schultz’s store often at night. He would generally remain there till 9 or 10 o’clock. I have seen him carried home drunk. * * * He has been drinking .about the same ever since I knew him.”

Other witnesses testify to having frequently seen the defendant under the influence of liquor. Some testify to having seen him drunk occasionally. Several testify that he has been known for a long time to have been what is termed “ a drinking man.” But no witness states that his intemperance, had wholly incapacitated him for business.

On one occasion he was found locked up in his bedroom, in a condition very closely approximating mania potu, being possessed of a loaded gun, and in a state of apparent siege by imaginary assassins.

One witness testifies that he has, on several occasions, refused to sell the defendant whiskey, on account of his being drunk; and that he has “ known him to have been on a spree for three or four days, and again ' for a week.”

Quite a number of witnesses were sworn and interrogated on the part of defendant, but, in our opinion, their testimony has totally failed to break the conclusive force of that we have quoted above.

There seems to be a strong and well defined parallel between the evidence adduced in this ease and that in the case of Mack vs. Handy, 39 An. 491 — i. e., on the score of “ habitual intemperance.”

In that case we said :

“ The phrase ‘ habitual intemperance’ scarcely requires an interpretation ; it is easily understood. It means the custom or habit of getting drunk. The constant indulgence in such stimulants as wine, brandy and whiskey, whereby intoxication is produced. Not the ordinary use, but the habitual abuse of them.
“ The habit should be actual and confirmed. It may be intermittent. It need not be continuous, or even of daily occurrence.”

In considering the evidence in this case, we think our conclusions in that case are strictly applicable, viz.:

“We feel no hesitancy in deciding that the habitual intemperance and excesses of defendant * * * were such as to render their living longer together as man and wife insupportable to her. And this is said with due regard for the time honored rule that courts should not lend their aid to effect thé separation of spouses * * * except in extreme cases.”

In this ease there are no children of the marriage, and this relieves us of any; embarrassment or hesitancy we might otherwise-feel in granting a separation.

In reference to the adjustment of the community rights and obli - gations of the spouses, we are disposed to think the district judge has fairly considered the evidence and properly decided the case.

Judgment affirmed.