author: y?atkins, .1. Breaux, J.

text:
    No. 10,670.
    Mrs. Widow Charles Sagory vs. Mrs. Widow Emile Bouny.
    1. In a suit brought against the widow and heirs of a deceased person, for the recovery of real property standing in his name at the time of his death, on the theory that deceased was agent of plaintiff and improperly took title in his name: Held, parol evidence is inadmissible to prove fraud in taking title in his name; that deceased was plaintiff’s agent to buy real estate; or for the purpose of establishing title in the plaintiff.
    2. In case the widow of the deceased signs a delaration contained in an official inventory of his succession, declaring that certain real estate is property of her husband’s principal, she w*ill be concluded thereby unless she allege and prove that the declaration was signed in error.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Henry L. Lazarus for Plaintiff and Appellee:
    A resulting trust arising by operation o£ law exists when an estate is purchased in the name of one person, and the consideration comes from another. 2 Atkyn Itep. 150.
    Where a person standing in a fiduciary relation uses fiduciary funds to purchase property, takes the title in his own name, there arises instanter, a resulting trust, Perry on Trusts (ith Ed.), par. 127; 69 111. 137.
    Our laws recognize the existence of implied or resulting trusts. 6 An. 357; 31 An. 369; 2 Mob, 369; i La. 21.3; 2 How. 650.
    The statute of fraud extends to and embraces only trusts declared, or created by the parties, and does not affect trusts arising by operation of law. Hoxey vs. Carr, 1 Sumner 187.
    A party setting up a resulting trust may prove by parol the agreement under which the estate was purchased, and the actual payment of the purchase money by himself, although the deed states it to have been paid by the grantee in the conveyance. Perry on Trusts, par. 137.

      Omer Villeré for Defendant and Appellant
    cited: 34 An. 767; 12 .Rob. 215; O. O. 2275, 2440, 2992.
   The opinion of the court was delivered by

y?atkins, .1.

Plaintiff, as universal heir of Charles Sagory, deceased, claims ownership of four improved lots in the city of New Orleans, standing in the name of Emile Bouny, deceased husband of the defendant. The defendant is sued in her own right, as widow in ■community, and as the tutrix of the minor children, issue of her marriage with the deceased. The plaintiff charges that during his .lifetime, Emile Bouny was his duly authorized agent, and, as such, had a large amount of money of his in hand for investment on mortgages, and that, amongst others, he negotiated two loans of $3000 and $2000, to Peter and John Jones, on the property in suit. That the said mortgagors, failing to pay their notes at maturity, Bouny foreclosed and, at the sale, took title in his own name, and never ■accounted for the notes or the proceeds. That the title stood in Ms name, at his death, and that his widow and heirs are in possession without title.

The position assumed by Mrs. Bouny in the litigation is that she ■does not know whether the property belonged to her husband or to Charles Sagory; but that it stands in the name of her husband, and, unless Mrs. Sagory can establish, by positive written evidence, that it belonged to her husband, it should remain undisturbed in her pos.session.

Prom a judgment in favor of plaintiff the defendant has appealed.

There is not much dispute about facts.

Bouny was agent, as stated, and, at a judicial sale of the prop•erty, in foreclosure of the Jones’ mortgage, he took title in his name. He never accounted to his principal for the notes, or the proceeds of the sale of the mortgaged property. Prior to Ms death he made sale to one Jules V. Oharpantier of his effects, not including the property in suit, and the latter took charge of his business and continued the agency for Sagory. The accounts rendered by Bouny to Sagory do not disclose a purchase in the former’s name; but they disclose, as do the subsequent accounts of Oharpantier, many evidences of that fact.

Objection is made, however, by defendant’s counsel, to the admissibility of any evidence which is eked out by Charpantier’s accounts, for the purpose of affecting the title to real property; and it is our-opinion that the objection was well taken and should have been sustained, and the evidence rejected, at least so far as the interest of the heirs of Emile Bouny is concerned.

So far as relates to this question, the facts are these:

Bouny was Sagory’s agent, from 1880 to the time of his death,. December 28, 1885, about which time Charpantier took charge. After Bouny’s death, the plaintiff, for a valuable consideration, confirmed Oharpantier’s continuation of the business ‘of her deceased husband. When he took charge he commenced his account current where Bouny ceased, carrying to his debit the exact balance he was indebted to Sagory; and, subsequently, continued to render stated accounts of his business very much as Bouny had done. All of the accounts of Bouny appear to be in the handwriting of Charpantier (who had been for many years his clerk), as well as his own. His first account was rendered to Sagory only six days subsequent to Bouny’s death. These are but circumstances, and incidents, pointing to Sagory as the owner of the property. But the rights of Bouny’s heirs were fixed and determined, at the instant of his death, and no. parol declarations of his assignee, after his death, could divest them of title.

This question was raised and decided in Hackenburg vs. Gartskamp, 80 An. 898._ In that case, the claim was that Gartskamp was plaintiff’s agent, and purchased the property for him, taking title in his own name. He brought suit against the widow and heirs of the deceased agent, after his death, alleging this state of facts, claiming ownership of the property. The allegations of his petition are that Gartskamp took title in his own name, without the knowledge or consent of petitioner, and concealed said fact (from him) for a long time, in fraud,” etc. These averments plaintiff sought to prove by parol, but the testimony was, on objection, disallowed.

The court say:

‘‘Plaintiff seeks to prove by parol the acknowledgments and extrajudicial confessions of Gartskamp, in support of a demand ‘ of which testimonial proof would be inadmissible,’ which is not permitted.” See O. O. 2290.

“ If plaintiff’s pretensions were admissible, the last barrier of safety ‘for titles of real estate would be gone; for, it would be then, by false •swearing, possible to defeat every title.”

In Perrault vs. Perrault, 32 An. 635, the case of Hackenburg was recognized and applied; and the court approved the ruling of the District Judge, in disallowing parol evidence, for the purpose of proving the fraud of an agent in taking title in his own name; to establish the agency to buy in the principal’s name; and for the purpose of establishing title in the plaintiff.

Those cases are strictly’ applicable to the instant case. It is not •claimed that Bouney had written authority from Sagory to buy real estate for him. The contention is that he was general agent for him, with authority to negotiate loans of money, to accept securities and mortgages therefor; to collect rents, disburse expenses, and collect interests; and of ail of his dealings and transactions to render an •account to his principal. That, in the course of his business, as such, he had occasion to resort to judicial proceedings for the foreclosing the Jones mortgage, and took title in his own name, attributing the price to the extinction of the mortgage notes. It is clear that Bouny either owes Sagory the net amount of the proceeds of ■sale, or holds title to Sagory’s property in his name.

Under the authority of the cases cited it is manifest that, in a suit lor the recovery of the property from the widow and heirs of Bouny, parol proof is inadmissible. Hence, the declarations of Charpantier can not affect the title, made as they were after Bouny’s death. Of course, any admissions of Bouny, couched in a writing of any kind, or in the accounts he rendered to his principal, during his lifetime, must be given full effect as to his widow in community and his heirs. They are bound to take title cum onere, subject to all its burdens and defects, the property being presumably an asset of the legal community.

Disregarding all of Oharpantier’s accounts, and all parol proof of transactions subsequent to Bouny’s death, and there is no proof in the record sufficient to sustain the plaintiff’s claim of title, in so far .as the heirs of Bouny are concerned.

But the ease is different in respect to the one-half interest claimed 'of Mrs. Bouny.

She knew that for several years before her husband’s death he was Sagory’s agent, and was acquainted with the business relations that existed between them. After his death she knew that Oharpantier had taken his place, and she assented, in writing, to his continuation of her husband’s business, for a consideration. When an inventory was taken of her husband’s property Mrs. Bouny appeared before the notary and joined in the act, and made this declaration, viz :

“Here the said J. L. Emile Bouny declared that, although the-properties thirdly and fourthly described have been purchased in the-name and by the late Emile Bouny, the truth is that said properties, were really purchased, the one thirdly described, for account of and' belongs to Charles Sagory; and the one fourthly described, for account of and belongs to Athalie Raspiler, and are here mentioned only as a memorandum.u

In her answer Mrs. Bouny avers that this declaration was made at the suggestion of Oharpantier, in whom she had entire confidence, and without ascertaining what the inventory contained.. That, hád she known that her husband left no counter letter relating to said property, or had she been advised that, under the law, title to real property can not be proved by parol evidence, she would not have made it.

The notary who prepared and executed the inventory says Mrs. Bouny came to his office to sign the inventory. That he read to her-the part quoted above, and that he supposes she understood it. That, she made no objection to it.

It is in testimony that, some time afterward, Mrs. Bouny went to see-Mr. Sagory, during his illness, and, in substance, told him that she-knew that the property belonged to him, and that he need not worry about it. This parol proof was admissible with respect to the question of error, but is insufficient to prove it.

On the whole, our conclusion is that plaintiff has made her claim) good to the undivided one-half interest in the property claimed by Mrs. Bouny only, and to that extent judgment should be reduced.

It is therefore ordered and decreed that the judgment appealed from be so amended as to recognize and maintain plaintiff’s title to-the one-half interest in the property claimed by Mrs. Bouny, and no-more ; and that as thus amended same be affirmed and the plaintiff' and appellee be taxed with costs of appeal.

On Application for a Rehearing.

Breaux, J.

Verbal declarations of the tutrix, and her unauthorized admissions, with reference to title to immovable property, cam not affect the interests of her minor children as owners of one-half which was inherited by them under the condition of things existing at the time of the death of their father.

The court sees no error in the reasons assigned for the decree rendered.

Plaintiff prays in the application for rehearing that certain rights be reserved.

Our decree is supplemented by reserving the rights she may have, if any, to recover against the heirs of E. Bouny half the values of the notes described in her petition in this ease.

This right being reserved, rehearing is refused.


source: Caselaw Access Project

author: Brbaxjx, J.

license: Public Domain

text:
    No, 10,610.
    Spiridione Pollich et al. vs. T. J. Sellers & Co.
    1. When the plaintiff proves that the defendant’s negligence has caused the injury, the defendant may prove that the plaintiff, by his want of care, contrib - uted to the cause of the injury, and that he, by the exercise of ordinary prudence, might have avoided the accident and the injury.
    2. The employer, although not blameless, can not be made to answer for all accidents without regard to the care the employe should have exercised. To recover, there must not be any wilful contributory cause on tliepart of the injured.
    3. An employe should not voluntarily expose himself to imminent and apparent danger. If he does and suffers injury the negligence of the defendant will not excuse his imprudence and the consequence of his rashness.
    4. The employe, by remaining in the employer’s service after the discovery of imminent and threatening danger incident to his work, is deemed to have assumed the risk.
    APPEAL from the Civil District Oourt, Parish of Orleans. King, J.

      Harry H. Hall for Plaintiffs and Appellants:
    1. In eases of contributory negligence the burden of proof is upon defendant. Am. and Eng. R. R. Cases, Vol. 31, p. 176; Vol. 23, p. 317; Vol. 28, p. 341; Vol. 29, p. 495; Vol. 24, p. 395; Vol. 29, p. 297; Vol. 19, p. 220; Vol. 28, p. 360; Vol. 15, p. 414; Vol. 14,p. 670.
    2. It is not contributory negligence per se to engage in a dangerous occupation. Knowledge does not necessarily constitute contributory negligence. One may exercise due care with full knowledge of the danger to which he lawfully exposes himself. If the danger is so glaring that, with the utmost skill and prudence, the danger is still imminent, it is contributory negligence for one to expose himself to it; but it is not so, if the danger is such that one maybe reasonably expected to avoid it by the exercise of skill and prudence. Beach Contrib. Nog-., See. 139, p. 370 ; 4 So. ltep., pp. 146,148; Roach Contributory Keg., See. 12, p. 40; 62 Mo. 35, 39,232; 65 Mo. 514; 20 Minn. 9,19; 78 Mo. 195; 82 N. Y. 370 ; 3 Col. 499; 110 Mass. Pord; 59 Mo. 495 ; 42 Wis. 584 ; 8 Allen 450; 146; 4 So. 62 Mo. 35; G5 Mo. 514.
    3. Ii llio employer carries on his operations in a dangerous and recklessly negligent manner, and the employe is injured thereby, the latter is not precluded from recovery, even though he had lull knowledge oí the manner in which the operations were conducted. 4 South Hast. Rep. 211.
    4. Slight negligence on the part of the employe will not bar recovery where the 'negligence of the employer has been comparatively much greater. 36 Wis. 92; Beach 21; 73 111. 236.
    5. Wlioro the employe acts upon a reasonable supposition oí safety induced by the employer, when there is in reality danger, the employer is estopped to set up that his employe’s conduct is negligence. Reach Contrib. Keg., See. 23, p. 71.
    0.The rule of proximate cause has no application to cases where the contributory negligence complained o£ is not an act contributory to the injury, but is simply knowledge. Reach Contrib. Nog'., pp. 7, 26, 35.

      Rice & Armstrong for Defendants and Appellees:
    1. This case is governed by the decision in Casey, Tutrix, vs. Sellers & Co., 41 An. 500 — the death oí Pollieh having boon caused by the same accident that caused the death o£ Casey; Pollieh and Casey being fellow-workmen in the same gang.
    2. The defence of Contributory Negligence finds in this ease the additional support that the placing o£ the wire guys under the row of trusses, which were liable to fall, was known to X’ollicU, and was tlio act of himself and his fellow-servants.
   The opinion of the court was delivered by

Brbaxjx, J.

The causes of the fatal accidents, whereby three nren lost their lives, while at work, in demolishing the exposition buildings in this city, are fully recounted in two cases decided by this court.

The first case, that of Mrs. John Faren vs. T. J. Sellers, 39 An. 1011, is similar in many respects to the case at bar.

John Faren, whose death gave cause for this suit, met his death two days before-Oasey and-Pollieh fell.

In the case of Faren, the injury was occasioned by the fall of a purline, which slipped from its support and precipitated him some seventy-five feet to the ground-

The defect ivas not patent. It was therefore held that he had not assumed the risk incident to the service.

In the case of Óasey, reported in 41 An. 500, the injury was occasioned by the falling of a row of trusses under which he was working.

The building had been stripped to the danger point; the purlines or rafters had been taken down; the skeleton of the structure remained.

In this case the accident was occasioned by the falling of the timbers that killed Casey, at the same time .that it occasioned the death of -Pollich.

The status and the extent of defendants’ fault are established.

Only the question of contributory negligence is to be settled at this time.

Complete statement of the facts having been made in the decisions reported, it only remains necessary to state those not proven in those eases.

The deceased was working on the loft of the building, taking down the trusses, on the 13th of August, 1886.

Lynch his employer, who had contracted with the defendants to take down what remained standing, of the main building and the government building, in the prosecution of his work had advanced a derrick to the trusses and had commenced taking down from Magazine street toward St. Charles street.

The derrick was made secure by wire guys. Those on the side of the building were placed under the trusses. They extended from near the top of the derrick to the ground, and were made secure below at a point under the trusses known to be insecurely attached to the building.

A row of trusses fell; one of them fell upon the guys which held the derrick in place. They had been so weakened by the stripping of the building that they fell of their weight, without the least touch.

The span nearest to the derrick was attached and swung to it, and was about to be lowered to the ground.

While the span or truss was so attached and swung to the derrick, one of the inside trusses suddenly fell, carrying down other trusses, one of which fell on the guys which held the derrick in position and carrying down with the derrick the span attached and which was about to be lowered to the ground.

At the time the derrick fell, Pollich was standing on the truss which was swung to it. The fall carried him down and was the occasion of his death.

The dangerous condition of the building and the danger incident to the work of demolishing it,at that particular time,are settled questions.

It only remains fio be ascertained whether the fall of the trusses on the wire guys and the consequent fall of the derrick were accidents which the deceased by ordinary care could have foreseen and Which he might have avoided.

In Casey’s case this court has decided, that he (Casey) might, by the exercise of ordinary care, have avoided the consequence of defendant’s negligence, and that he, by his own act, contributed to the injury.

In the case at bar the danger was more imminent and apparent.

Casey was below at work when the trusses fell upon him.

Pollich at the time was aloft in a position which at once suggests imminent peril.

There was fatality in the imprudence of trusting his weight on a derrick secured by wire guys placed under insecure trusses, of an unsafe building at an elevation of seventy-five feet from the ground.

After the first fatal accident, which had resulted in the death of Paren, two of the men left the work. They refused to expose themselves longer to the threatening danger.

It had been discussed; the men wefe warned. Pollich had been at work about three weeks. The large structure had been made quite unsafe by stripping.

It was the part of an ordinarily prudent man to take needful precaution at every step of the work.

In continuing he assumed a risk of which he was informed or of which he would have been informed had he given himself the concern required by ordinary prudence.

He must have known of the defect and danger.

It is held that the servant, by remaining in the master’s employment after discovery of the defect or after knowledge, is deemed to have assumed the risks incident to the service and to have waived any claims for damages in case of injury. Whitaker’s Smith on Negligence (note) p. 397.

The causal connection between the employer’s negligence and the injury is broken, at the time the danger becomes so plain, that a person of ordinary care would not assume the risk of continuing to work at the place of danger.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,479.
    Charles Sagory vs. Metropolitan Bank.
    Where an agent unlawfully disposes of the property of his principal, the accounts or statements made hy the agent to his principal, in which the property figures as the property of the principal, are receivable in evidence as a part of the testimony to prove title to the property on part of the owner.
    Indorsements on a note past due postponingtiie day of payment do not revive the note and invest it with the negotiability it possessed before its original maturity.
    An indorsement befóte its day of payment postponing its maturity must be considered as incorporated into it and made a part of it, so as to make the note payable at the date fixed by the indorsement as though this date had been originally written in the note.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Henry L. Lazarus for Plaintiff and Appellee
    cited: 13 La. 215; 32 An. 109; 34 An. 1121; 14 Peters 321; 26 An. 556; 28 An. 70; Daniel on Negotiable Instruments, p. 589, sec. 782; 7 Wall. 736; 10 Wall. 68; 31 An. 217; 21 Wall. 146.

      Buck, Dinkelspiel & Hart for Defendant and Appellant:
    1. An obligation remainsnnmatnrecl when same lias been extended until the expiration of the third day of grace after the last extension. 52 Mississippi 506; Sagory vs. Traders’Bank, Court of Appeals.
    ’2. The owner of property who has conferred upon another an apparent title to or power of disposition over it is estopped from asserting his title against innocent third parties. 46 New York 325; 55 New York 41.
    3. Where one of two innocent parties must suffer a loss through the misconduct of another, the loss should fall upon him who put it in the power of that other to inflict the injury. 27 An. 45.
   The opinion of the court was delivered by

McEnery, J.

Jules V. Oharpantier, formerly a resident of New Orleans, and doing a notarial business in said city, held notes belonging to the plaintiff for collection, and had authority to renew the notes and to re-invest the principal and interest collected for his account. Some of these notes were transferred for his individual account and use by Oharpantier to the Metropolitan Bank. Oharpantier proved faithless in the trust confided to him and fled the State. The plaintiff learning that the defendant bank held some of the notes he had placed in the.hands of Oharpantier brought, suit for the same, claiming their ownership and sequestrating them.

The defendant company alleges that it acquired said notes for a valuable consideration, before maturity, in good faith. It denies that the plaintiff Sagory is the owner of the notes.

The plaintiff offered evidence as to the ownership of the notes.. The defendant offered no evidence to rebut plaintiff’s testimony or to show that Charpenter was the owner of said notes, or that he had any authority to transfer them.

Certain accounts or statements rendered to Sagory by Charpantier,. and his predecessor in the notarial business with whom Charpantierintrusted his affairs, were offered and received in evidence over the objection of the defendant.

The heading to the statements, running through several years, is i ‘ ‘ Effects in the portfolio held for account of Charles Sagory by Jules. Charpantier, New Orleans.” In these accounts the notes in controversy figure as the property of Sagory. They were offered to show continued possession of the notes in Sagory; that they were in the. hands of Bouny and his successor Charpantier, and that they had accounted to the plaintiff for them as his property. Por the purpose-of proving ownership of the notes, the evidence was directly in the-line of that proof, and was properly admitted.

The naked declaration of Sagory to Harris, a third party of owner-' ship, were properly excluded.

Sagory unequivocally stated the facts, which lead to the irresistible-conclusion that he was the owner of the notes and had never parted with title to the same; and that they were placed in the notary’s cusody only for the purpose as heretofore stated. His testimony is corroborated in all its essential features.

All the notes except two were endorsed after their maturities, extending the day of payment. One note had no indorsement of this, kind, but was transferred after it matured.

The indorsement, after the note became due, extending the time of payment, did not have the effect of reviving them and investing them with the negotiability they possessed before their original maturities had arrived. A party therefore acquiring a note after it is past due with such an indorsement takes it subject to all equities existing between the preceding parties to it. Marcel ys. Melliet, 18 An. 223.

Charpantier had no title to these notes. The defendant bank therefore acquired none, as it acquired them after their maturities.

The E. G. Carter note was indorsed before the day of payment, as ■.follows: “By mutual consent the payment of this note is postponed until the 15th February, 1885. Interest on same paid in advance up to that date.”

There are several other indorsement postponing payment before the note falls due. The indorsement on the note, made before its maturity, must be considered as incorporated into it, and made a part of it, so as to make the note payable at the date fixed by the indorsement, as though this date had been originally written in the note. 1 Daniel on Negotiable Investments 151; Morris vs. Caine, 39 An. 713.

The defendant bank acquired the note before its maturity, in good faith, and is therefore protected in its title to said note.

Judgment affirmed.


text:
    No. 10,602.
    Mary Hottinger vs. City of New Orleans.
    The courts of this State have no power by injunction to prevent a municipal corporation from enforcing police ordinances in the interest of public order and health, penal in their nature.
    PPEAL from the Civil District Court for the Parish of Orleans. BlliSj J.

      M. Voorhies for Defendant and Appellant:
    Whenever rights of property and of enjoyment of industry are illegally and unconstitutionally invaded by municipal ordinances, civil courts have primarily jurisdiction.

      Carleton Hunt, City Attorney, for Defendant and Appellee:
    1. Under the Constitution and laws of this State, the general exercise of the police power is lodged in the City of New Orleans and the Common Council, under Sec. 7, Act No. 20 of the Acts of 1882, and the Common Council is empowered to regulate the location of and inspection and closing of dairies.

      2. Ordinance No. 3414, C. S., of the City of New Orleans, amending Ordinance No. 3175, O. S., is in pursuance of said Act No. 20 of the Acts of 1882.
    3. Enforcement of the penalty prescribed by the ordinance is vested in the recorders of New Orleans. An appeal from1 their decisions and laws lies directly to the Supreme Court, and the Civil District Court, being a court of civil adjudication, is without power to enjoin the said recorders.
    4. Courts have no authority to issue an injunction to prevent a municipality from talcing the necessary legal steps to enforce obedience to its ordinances.
   The opinion of the court was delivered by

McEnery, J.

The City Council of New Orleans, on the 11th of December, 1889, adopted Ordinance No. 8414, amending Ordinance No. 8175, changing the limits prescribed in said ordinance for the location of dairies, and all dairy proprietors located within the former limits were required to move within one year from the same.

The plaintiff is the proprietress of a dairy establishment located within the prohibited limits, and has been established there in her-business for many years.

She owns seventeen cows, two horses, a milk cart, two feed carts,, all worth $700; a stable worth $600, and real estate on which the. dairy is located, worth $4000.

She has been notified to move.

She brought suit against the Oity of New Orleans, to have said ordinance annulled, and prayed for an injunction restraining the authorities of the City of New Orleans from interfering with her occupation of dairyman.

A preliminary injunction issued.

She alleges that the ordinance is unconstitutional, null and void,, and, relying upon the value of the property stated in her petition,, which she employs in her business, she sought the jurisdiction of the-Civil District Court.

An exception to the jurisdiction of the Civil District Court was filed by the city, which was maintained, and from which judgment the plaintiff has appealed.

The ordinance was enacted in pursuance of the police power-vested in the city, whether rightfully or wrongfully is not to be determined in this suit. It was a police regulation, in the interest of public health, with a penalty for its violation. The pecuniary loss, in the enforcement of the ordinance can not, therefore, be considered in determining the question of jurisdiction. The enforcement of the ordinance, vested by the Constitution and law of the State upon the Recorder’s Court of the city of New Orleans. If the ordinance is, unconstitutional, as alleged, the plaintiff can suffer no injury, as she has her remedy, and can urge her defence in the Recorder’s Court.. Failing there, she has her remedy by appeal to this court. Art. 81 of the Constitution.

The courts of this State have no power to issue an injunction to prevent a municipal corporation from enforcing, by authorized judicial process, its police ordinances, penal in their nature, enacted for the preservation of the public health, on a doubtful and vague charge of unconstitutionality.

Judgment affirmed.


text:
    No. 10,542.
    Maurice J. Hart vs. Emile E. Dreyfous.
    Where several experts are employed to estimate the cost ;of a building and they differ materially in their estimates of the value of materials furnished, and labor performed, the truth will in most cases be found in the lowest estimate made by one of them.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Henry P. Dart for Plaintiff and Appellant:
    1. Where plaintiff alleges upon a contract claiming to have overpaid a builder for-work done under this contract, and defendant reconvenes, alleging the nullity of the contract by reason of alterations and additions to thebuilding, and claiming, therefore, as upon a quantum meruit, the burden of proof is upon the intervenor to show (a) the abrogation of the contract, (b) the extent of the alterations, and (c) the value of the same.
    2. Where the contract provides that alterations or additions shall not be considered as annulling the contract, but shall be estimated and contracted for, and where there is no oral evidence to show abrogation of the contract, it must stand, and payment be made for the work as contemplated by the contract.
    3. Failing to show the value of the' additions and alterations alleged, the reconvenor who holds the burden of proof has failed to establish his case, and expert evidence based upon the value of the entire building, without reference to the contract price or portions of it, is of no weight in determining the indebtedness of the parties.
    4. Expert testimony can not be admitted to show the value of work on a quantum meruit, where the parties have stipulated and fixed a price for certain portions, of it, and if the expert testimony fails to show the value of the alleged alterations and additions, such testimony is of no weight in determining the issue.
    5. It is the settled jurisprudence of this State, that where a party relies upon expert testimony, the lowest estimate of the experts is to be taken as governing.. See Succession of Dudos, 11 An. 406; also Collins vs. Graves, 13 An. 96.

      Molse & Titche for Defendant and Appellee:

      1. The question to be-decided is the cost of a certain building, to be ascertained chiefly by expert testimony.
    Some of the experts examined the building in 1882, when it was constructed, and made their estimates from [that inspection and the prices then paid for material and labor; the others examined the building in 1889, seven years after its com pletion? computing from memory and from conversation with a dealer in lumber what allowance must be made for fall in prices.
    We contend that the former estimates are so much more direct, that the latter must give way in case of conflict.
    2. Where the experts examined for the plaintiff and those examined for the defendant conflict in their estimate of prices paid and positive proof is produced establishing the price of a number of items estimated, and proof shows that in all cases where the x)ricesare established the defendant’s exports are in error, the court will be justified in suspecting their estimate on all the other items. Where sirch direetproof shows' that the plaintiff’s experts are correct in alltheir estimates of such items, the court, on the contrary, will infer the correctness of their estimates on all. the other items.

    And in such case the'court will be justified in adopting the finding of the latter nndrejecting altogether that of the former.
    8. “ The practice has been to receive for what it is worth the testimony of an ex-pei’fc when his observations are made ex parte. Notice should be given. Knot given, such observations may be exposed to discredit, though not to exclusion for this particular reason.” Wharton’s treatise on the Law of Evidence in Civil Issues, Sec 455.
    4. The old-time notion that in case of conflict of expert testimony, the “lowest estimate,” or the “average” of all the estimates, or iihe “conclusions of the majority” must prevail, has long been discarded, and has no recognition in modern jurisprudence.
    Judges will use their own reasoning powers and judge by the weight of the evidence. Wharton’s Law of Evidence in Civillssues. Note to See. 455.
   The opinion of the court was delivered by

McEnery, J.

In 1881 the plaintiff employed the defendant to tear down an old building and erect a new one, on the premises Nos. 472 and 474 Gamp street, in the city of New Orleans. There were several written contracts entered into between the parties. The house was constructed by the defendant. There was a disagreement between [the parties as to the value of the work, its character and price. The plaintiff, alleging he had overpaid the defendant, brought suit against him for the amount which he alleges he paid the defendant in excess of the value of the work, including cost of materials, etc. The plaintiff abandoned the written contracts between him and the defendant.

The nature of the suit may be determined by the prayer of’his petition, which is as follows:

* * * “ That after due proceedings had, the determination of the fair and just price and compensation• due to said defendant Dreyfous for the materials, labor, services and commissions as set forth in this petition; that petitioner have judgment for the sum paid by him to said Dreyfous in excess of the fair and just price of said materials, services ■and commissions.

The defendant answered, denying plaintiff’s demand, and also prayed for a valuation of work and materials furnished, with 10 per •cent, for builders’ commission. He reconvened and prayed for a judgment of $3800 against the plaintiff for balance due him.

There was judgment for the defendant for the sum of $3353.24. The plaintiff appealed.

There were many experts employed to examine the building in order to estimate the cost of tearing down the old building and erecting the new one. Among the number were three who were engaged several weeks in making a detailed and careful estimate of the value pf the workmanship done by the defendant, the cost of material furnished by him, and the cost of removing the old building. ,

These architects ,and builders were selected by both parties to this litigation when it was proposed to arbitrate their differences.

John K. Collins was selected by the plaintiff. His estimate of the entire cost of the tearing down of the old building and the work, material and labor employed in the new building, with the commission added, was $13,672.17.

We deem it just to accept this estimate, being the lowest.

In the opinion in Yillalabos vs. Mooney, 2 L. 333, the Supreme Court used language very appropriate to the present controversy, as follows:

“The witnesses who were examined in this case, most of them architects and undertakers by profession, differ materially in their estimates of the value of material furnished and labor performed by the defendant. It is the interest of such men to value services which they are in the habit of performing at the highest possible rate; and there is sometimes an esprit de corps prevailing among them formidable to the interests of proprietors when any collision occurs between the latter and one of their body. Taking these circumstances into view, the truth will in most cases be most probably found in the lowest estimate made by any one of them, when called on to value services’rendered by men of their art; considered, all of character equally unexceptionable and uninfluenced by circumstances having a peculiar tendency to operate more on one than another of them.”

The principle here announced was affirmed in Suc. Duclos, 11 An. 406, and Collins vs. Graves, 13 An. 96.

The amount stipulated in a contract that expired may be correctly used as a means to ascertain the just value of the work performed; but ought not to be considered in exclusion of all other testimony. 2 L. 333.

But in the instant c.ase the departure from the original plans and estimates, which is recognized by plaintiff and defendant, was to such an extent that little information can be obtained from the written contracts as to the value of the materials furnished and the work performed by the defendant.

We will therefore follow the course pointed out by both parties and estimate upon a quantum meruit and adopt the estimate of Collins, which was for the sum of $13,672.17. To this must be added the sum of $275 for mason work, which was admitted by plaintiff and not estimated, and $820 difference in favor of defendant on the pavement contract.

We are of the opinion that the judgment of the lower court does substantial justice between the parties.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,605.
    Succession of Mrs. Christian Meyer.
    It is the duty oí the under tutor to act for the minor, whenever the interest of the minor is in opposition to the interest of the tutor.
    If, in a proceeding to compel a purchaser to comply with the adjudication to him oí succession property, at the instance of the administrator, who is the father, hut unqualified tutor of a minor, that minor is a necessary party, the minor is legally represented therein hy the under tutor.

    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Henry P. Dart for the Administrator, Appellant,
    cited: 38 An. 759; 33 An. 469; 35 An. 297.

      James D. Coleman, contra:

    Although a purchaser may be protected by the order of court directing a sale in a matter over which it has. jurisdiction, yet he has the right to inquire into the validity of the proceedings had conducive to the order of sale to ascertain whether, under the showing made, the court had the power to make the order 40 An. 574.
    A refusal to comply with the adjudication may be justified whenever the order of sale and the proceedings instituted to procure it are on the face of the papers unwarranted by law. Ibid.
    It is the policy of the law in its jealousy for the protection of minors, that they should own real estate rather than that they should have money and securities, which, by their nature, are liable to be imperiled. 40 An. 575.
    Though the rights of heirs in the estate of the ancestor are but residuary, and postponed to the payment of the debts, yet in its watchful solicitude for the property interests and rights of minors, the courts will promptly checkmate a disguise, by which a father seeks, under the forms of law, to wrest from an only child of tender years every dollar of the child’s interest in his mother’s estate.
    When a party seeks to escape the provisions of the law relative to the alienation of minor’s property or the interest in property as defined in O. C. 339, et seq., and subiect the minor to the evident injury of a sale in payment of debts, there must appear affirmatively and conclusively that there are debts, which can be adjusted only by a sale of the entire property of the minor.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an appeal from a judgment dismissing a rule taken to compel compliance with an adjudication of succession property judicially ordered to be sold, at the instance of the administrator, to pay debts.

The adjudicatee filed a return to this rule as follows: “ Now comes Mrs. Julia Donahue, made defendant in rule herein taken to compel compliance with adjudication of property herein, and for exception says: That the records and proceedings herein show that one Julia Aicklen Meyer, a minor, is interested as owner of an undivided half of the property in question, and charged by the father as his debtor, and is therefore a necessary party to these proceedings which vitally affect her interest; that said minor has no legal representative whom this respondent can make party hereto; that in the interest both of said minor and this respondent, it becomes necessary that these proceedings, which involve the alienation of the entire property of said minors, should be conducted contradictorily with said minor legally and properly represented; that there is therefore a want of proper and necessary parties for a proper determination of the issues herein.

“ Wherefore exceptor prays that plaintiff be required to cause a representative to said minor to be named and qualified, or that this Honorable Oourt will make such appointment after due proceedings, and that the plaintiff be required to make said minor party to this rule, or that respondent and exceptor be afforded an opportunity to make said minor a party hereto.”

The court having ordered the under tutor to be made party, this was done, and the case came on for trial.

After hearing argument on the exception, the court maintained the .exception and dismissed the rule, reserving to the father the right to qualify as tutor of his minor child under orders of the court.

Before the entering of the said judgment, counsel for plaintiff in rule offered to introduce oral testimony to maintain the truth of the allegations of the petition, on which the rule on the adjudicatee is based, considering that all defences against the said rule should be urged and heard prior to the mdgment dismissing the rule.

The defendant in rule objected to any testimony showing liability of the community to the father and husband and master of the community, upon the ground that the said liability was in reality the debt of the child and minor, and that such liability should not be shown, except contradictorily with the minor through a proper representative, and that no such representative now exists, as is shown by the record in this proceeding.

. The court having sustained the objection, a bill was reserved to the ruling.

As the record does not contain the proof required to support the rule, it is evident that this court can not pass upon the merits of the rule to determine whether the defendant in it should or not be made .to comply with his adjudication.

The only question with which it is now concerned is that raised by the exception, which is to the effect that, as the minor is interested in the issue before the court, and is not represented at the trial of the same, the court can not adjudicate upon the same.

. It appears that the administrator is the surviving husband of the deceased, and the father of the minor in question, and that he had not qualified as tutor.

Prom his omission thus to qualify, the defendant in rule infers that the minor is not a party to the proceeding.

This is an error, for, had the father qualified as tutor of his minor child, he would have had no right to represent him in the proceeding, owing to the alleged conflict of interest between them. In such a case the law makes it the duty of the under tutor to act for the minor. R. C. C. 275.

As the question does not arise, we are relieved from the necessity of deciding whether the father, not having qualified, an under tutor, could be legally appointed.

It is, therefore, apparent that, if it be true that the minor is a necessary party to the proceeding, she was therein sufficiently represented by the under tutor.

The trial of the rule ought to have been proceeded with.

It is, therefore, ordered that the judgment appealed from be reversed, and that the rule herein taken on the adjudieatee be reinstated and remanded to the lower court for further proceedings according to law.


author: Breaux, J.

text:
    No. 10,643.
    The State ex rel. Augustus Black vs. Thaddeus Mayo, Clerk of Court.
    ON THE EXCEPTION.
    The clerk of court can not be hoard to urge the non-approval of the minutes by the trial judge, when it appears from the record that the accused was convicted, sentenced, judgment signed and an order of appeal granted and entered, on the minutes. Acts 1878; p. 56, R. S. La., Sec. 1002.
    An order of appeal does not derive its juridical life from the mere fact of the approval of the minutes by the trial judge at the adjournment of court, but the right of appeal accorded to the accused by the order is operative, and can be enforced from the moment of the rendition of the order and of its recordation on the minutes of the court. 38 An. 542.
    When, owing to illness of the trial judge, the minutes of the term of court have not been approved, a convicted accused to whom an order of appeal has been granted in open court, and entered on the minutes, after judgment signed, can not be prejudiced thereby, and the order of appeal is sufficient notice to the clerk to make out and forward the transcript according to law.
    ON THE MERITS.
    The clerk can not exact prepayment of cost for making transcript or security therefor. 23 An. 762; 22 An. 563, 578, 585, R. S., 1001; Acts 1878, p. 56.
    APPEAL from the Fourteenth District Court for the Parish of Calcasieu. Bead, J.

      Fournet & Pujo and Wm. F. Sahmng for the Relator and Appellee.
    The respondent in propria persona.

   The opinion of the court was delivered by

Breaux, J.

The relator alleges that he has been sentenced to ten years’ hard labor in the penitentiary.

That he has taken an-appeal from the sentenee._

That the order of appeal has been properly entered in the minutes.

That his counsel- directed the clerk of the court to make a transcript of appeal.

Respondent refused to make this transcript.

He filed an exception and an answer.

He alleges by way of exception that he can not be made to complete the transcript, as there is no order of appeal, the presiding judge not having approved the minutes.

In his answer he alleges that he has a right to fees for his transcript and ,to security to insure their payment.

The admitted facts_are that the defendant and relator was sentenced.

That an order of appeal was granted; that the illness of the judge prevented him from signing the minutes on the last day of the term.

That they were sighed at chambers the day that the application for a mandamus was heard.

The exception was dismissed.

On the merits relator’s prayer was granted.

If there .is any illegality arising from the facts that the minutes were not signed on the last day of the term this can not avail the respondent, an officer of the court.

If the appeal is informal, the informality can be decreed contradictorily with the defendant only: that is, the defenant in the case of the State of louisiana against Aug. Black. The order of appeal has been granted; whether it is legal or illegal is of no importance whatever in so far as the respondent is concerned.

As to him it must be considered a legal order of appeal.

The exception was properly dismissed.

The defence on the merits is equally as unfounded.

After the appeal has been granted the clerk should make the transcript of the record 'and forward it to the clerk of this court on or before the return day. R. S. 1002.

He can not require prepayment or security.

The appeal is suspensive; the appellant has no bond to furnish. Act 30 of 1878.

In the case of the State vs. Cheney (vide Manning’s unreported cases, p. 394), it was decided that the clerk of our court is without authority to require a deposit of money in criminal cases.

It was contended by him that the law prohibiting him from requiring a bond, to secure costs, did not exclude the right to require a deposit of money.

The court held in that case:

“ In enacting that the clerk of the court shall not require any security for costs, it includes ex vi termini, the prohibition of demanding any deposit of money.”

In the case at bar, the respondent alleges that he “did not exact payment in advance for the transcript of appeal, but demanded security.

The State having chosen to grant the right of appeal without bond the clerks can not impair or in the least abridge it by requiring security.

Respondent contends that, under Sec. 2 of Act 19 of 1886, he can require security for the payment of such costs as may accrue “after the party accused has been tried, convicted and condemned to pay costs.”

The conviction meant in this act is the conviction decreed to be legal by the court of last resort; until it be decreed legal by that court, the question of the payment of costs can not arise.

The respondent can not require security to ensure the payment of the transcript, in the event that the judgment against the accused be affirmed, nor can he require a deposit of money for cost.

Judgment affirmed.


text:
    No. 10,643.
    State of Louisiana ex rel. Joseph McFarlane vs. Thaddeus Mayo, Clerk of Court.
    1. The cleric, a ministerial officer o£ the court, has not the legal right to question the correctness of the court’s minutes and plead the nullity of the order of appeal, in that the presiding judge did not sign them on the last day of the term, as a ground not to malee the transcript of appeal in a criminal ease,
    2. Nor can he require in a criminal case a deposit of money or security for the payment of the transcript of appeal.
    APPEAL from the Fourteenth Judicial District Court for the Parish of Calcasieu.
   The opinion of the court was delivered by

Breaux, J.

The issues in this case are the same as those presented in the case of the State of Louisiana ex rel. Augustus Black vs. Thaddeus Mayo, Clerk of Court, decided for relator.

Judgment affirmed.


author: McEneiíy, J.

text:
    No. 10,604.
    The State of Louisiana vs. P. H. Doyle.
    1. Where the object of a proceeding is to have execution issue on a judgment of forfeiture of a bond in a criminal case, it is a criminal and not a civil proceeding, and the jurisdiction of the Supreme Court is to be tested by the character of the crime charged in the indictment.
    2. Where the minutes of the court contain no record of the forfeiture of an appearance bond in a criminal case, the record can not be supplied by parol testimony.
    3. To amend the record long after it has been made up by parol testimony, particularly when the amendment is for the purpose of establishing a judgment, would be a dangerous proceeding.
    In a suit, in the nature of a scire facias, to revive a judgment of the forfeiture of an appearance, and to cause execution to issue thereon, it isnot necessary to advertise the loss of the bond before giving evidence of its description, as the suit is not founded on the bond, but the judgment of forfeiture.
    APPEAL from the Second District Court, Parish of Webster. Drew, J.

      Walter H. Rogers, Attorney General, and J. A. W. Lowry, District-Attorney, for the State, Appellant:

      1. “ The forfeiture of an appearance bond is a criminal proceeding, and the appeal from the judgment of forfeiture is not to be tested by the rule applicable to civil actions.” 37 An. 200; 38 An. 263,542; 41 An., State vs. Oornig.
    2. “The sureties on a bond, which was given for and’procured the release of a prisoner charged with a criminal offence, can not gainsay its regularity, or the regularity of the proceedings in which it was obtained.” 30 An. 628.
    3. “'When the defendant was in custody at the time a bond for his release was given, neither he nor his security can be heard to gainsay the regularity of the proceedings.” 16 An. 141.

      Watkins & Watkins for Defendant and Appellee;
    1. The forfeiture of an appearance bond is a criminal procedure only when proceedings are conducted under Sec. of 11. S. 1032, contradictorily with the accused.
    2. And if the State abandons this mode and elects to sue the surety in a direct action without making the accused a party, the suit is a civil one for a sum of money and the Supreme Court is without appellate jurisdiction unless the amount sued for is over $2000.
    3. An appearance bond taken by the sheriff without an order of court fixing the amount of the bond is null. 6 An. 700, 744; 10 An. 532; 13 An. 288; 37 An. 200, 202; 38 An. 542, 545, and cases cited. 12 An. 349.
    4. Judicial records can not be impeached, contradicted or explained by parol evidence. 32 An. 974, citing 3 An. 631, 33 An. 351, 39 An. 142.
   The opinion of the court was delivered by

McEneiíy, J.

Two indictments for larceny were presented against ■one John Richardson. The court granted an order fixing the amount of the bond in each case at $250. Richardson being unable to give this bond, on motion in open court, which does not appear upon the minutes, the bonds were reduced to $150 each, which Richardson, who was in custody, furnished, with Doyle as his surety.

The bonds were lost or- stolen from the clerk’s office. On the theory that the recognizance of the accused had been forfeited, in pursuance of Sec. 1032 R. S., the District Attorney in the nature of a scire facias, proceeded against the surety on the bonds.

There was a judgment of non-suit against the State, from which this appeal is taken.

A motion is made to dismiss the appeal on the ground that the forfeiture of an appearance bond is a criminal procedure only where proceedings are conducted under Sec. 1032, R. S.

The object and purpose of the proceedings is to have an execution issue on a judgment of forfeiture. At most the proceeding is only in the nature of an original action. It springs directly from a criminal proceeding and is not to be tested by the rules applicable to civil actions. 37 An. 200; 38 An. 263, 542; State vs. Cornig, 41 An. (not yet reported).

The motion to dismiss the appeal is denied.

On the Merits.

The order authorizing the sheriff to take bond was in writing. Being unable to furnish the bond in the amount as originally fixed in the written order, it was reduced in each case to $150, on motion in, open court. No record was made of this motion and the order-granted thereon at the request of and for the benefit of the accused.

The signature to the bond is not denied, and it is not urged that the-amount of the bond is not correct. The accused was in custody, and the bond effected his release. As the bond does not exceed the amount authorized in the written order authorizing it, it is difficult-to perceive the force of the objection of the surety. He can not question the regularity of-the proceedings which procured the release of the accused when in custody. The irregularity complained of was the reduction of the bond at the instance and in the interest of the accused on a verbal order of the judge. It is no defence to the breach of the condition of the bonds. 23 An. 596; 21 An. 599; 30 An. 268; 16 An. 141; State vs. Hendricks, 40 An. 719.

The District Attorney offered in evidence the order of court authorizing the taking of the bonds for the amount of $250 each. He then offered to prove a description of the bonds actually taken for $150. To this the counsel for accused objected on the ground that the loss of the bonds had not been established. The objection was properly urged.

The District Attorney afterward offered to prove the loss of the bonds and a description of the same, to which counsel for defendant urged the same objection, and the additional one that the loss of the bonds had not been ascertained in accordance with Art. 2280, Revised Civil Code. It was not necessary to advertise the bonds, as they were not the foundation of the suit. The suit is based upon the alleged forfeiture of the bonds, and a judgment upon the forfeiture on the non-appearance of the accused when called.

On the trial no judgment of forfeiture was offered in evidence. The State offered to amend the minutes by showing by parol testimony that the bond had been forfeited in accordance with Sec. 1032, R. S.

This correction was not offered at the same term of court at which the forfeiture is alleged to have occurred, but at a different term long after the minutes of the previous term had been approved and signed.

To amend the record, long after it has been made up, by parol testimony would be a dangerous proceeding, particularly when the amendment is for the purpose of establishing the existence of a judgment. The minutes of the court are authentic. The forfeiture of the bond in a criminal prosecution is a judicial act and must appear of recor!, and can not be supplied by parol testimony.

Judgment affirmed.


text:
    No. 10,427.
    The State of Louisiana vs. Charles Ferguson et als.
    APPEAL from the First Recorder’s Court for the Parish of Orleans. Murphy, J.

      T. McC. Hyman, Assistant City Attorney, and Carleton Hunt, City Attorney, for Appellee
    cited: 5 N. S. 91; 37 An. 294; 33 An. 652; 38 An. 836; 4 La. 471.

      MeMahon & Pratt for the Appellant:
    Where a certiorari has issued to complete a record, and a reasonable time for the service of the writ and the return of the record has elapsed, and the appellants have neglected to taire out and serve the writ, the appeal will be dismissed.
   The opinion of the court was delivered by

McEnery, J.

The defendants are appellants from a sentence of the Recorder’s Court of the City of New Orleans, condemning them to pay a fine for a violation of a city ordinance.

A motion to dismiss the appeal has been filed by the City of New Orleans.

The transcript was filed the 23d September, 1889. The case was fixed for hearing 5th December following. On that day appellants, alleging a defective record, moved for a certiorari in order to complete the record. The case was again fixed for trial on the 24th day of April, 1890. No time was asked for in the defendants’ motion, and no day fixed for the return of the writ in the order of the court. But more than reasonable time has elapsed since the order was granted. The appellants have neglected to take out and serve the writ in order to complete the record.

The fault is imputable to them.

It is therefore ordered that the appeal be dismissed.


author: Watkins, J.

text:
    No. 10,647.
    The State of Louisiana vs. William Green.
    j When a crime charged has been created or defined by a statute, the of-fence, in the indictment, should be charged in the words of the statute, or in words absolutely identical in meaning with those of the statute. State vs. Thomas, 29 An. 601; State vs. Green, 36 An. 99; State vs. Green, 37 An. 27; State vs. Williams, 37 An. 778; State vs. Stiles, 5 An 324; State vs. I-Ieas, 10 An. 195.
    2. In an indictment, intended to be for murder under Sec 1048, Revised Sfcatutos, the substitution of “aforesaid” for “aforethought” is a fatal defect. Malice thus charged lacks the premeditated character essential to constitute murder, or is actually no charge of malice at all. Arclibold’s Crim. Prac. and PI., (8th cd.) pp. 267, 275, 285, 784 (foot note 1), 803; State vs. Heas, 10 An. 195.
    3. Such a defect can not be held a mere clerical error, as it is “a variance in the substance of the indictment” and is “material to the merits of the ease.” Nor, as such, is it curable by verdict, and a motion in arrest of judgment is properly based thereon. R. S., Sec, 1047; State vs. Morgan, 35 An 1139; State vs. Hanks, 39 An. 234; Wharton’s Orirn. PI. (8th ed.) Sec. 229 and Sec. 760; State vs. Foster, 7 An. 255.
    ■4. The verdict of the jury, when not self-explanatory, must be construed with reference to the pleadings, and when it is not defective in form or substance, but is clearly not responsive to the charge in the indictment, and is set aside for that reason, the prisoner will be discharged. State vs. Pratt, 10 An. 191; State vs. Day, 37 An. 785; State vs. Oliver, 38 An. 632.
    APPEAL from the Twenty-sixth District Court for the Parish of Jefferson. Rost, J.

      Walter R. Rogers, Attorney General, for the State, Appellant.

      James D. Seguin for Defendant and Appellant:
   The opinion of the conrt was delivered by

Watkins, J.

The State is appellant from a judgment of the District Court, sustaining a motion in arrest of judgment, and quashing an indictment for want of sufficient averment.

The indictment is couched in the following language, to-wit:

“ That one William Green, * * with force and arms * * one-Joseph Prosper, feloniously, wilfully and of his malice aforesaid,. did kill and murder,” etc.

The authority cited by counsel and relied on by the judge below is a provision contained in Section 1048 of the Revised Statutes- to-the effect that “it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully and of his malice aforethought kill and murder the deceased,” etc.

The provisions of this statute have undergone examination and been interpreted by this court and its predecessors in many cases. Some of those decisions it may be well for us to review.

One of the first that has come under our observation is that of State vs. Phelps, 24 An. 493, in which it was held that an indictment is sufficiently explicit to advise the accused of the charge against him if it charges “ then and there did feloniously kill, slay and murder,” without containing the words “with malice aforethought.” That opinion was, in the main, predicated upon a dictum of the court in State vs. Forney, 24 An. 191, to the effect that the word “murder” implies, of necessity, the idea of malice aforethought.

Those two opinions were, confessedly, opposed to State vs. Heas, 10 An. 195, in which the court said, after a careful examination of authority, that:

“The doctrine that the malice aforethought must be specially charged in the conclusion of an indictment for murder, we consider to have been well settled in the Common Law of England, and to have been adopted ■ into our criminal jurisprudence by the act of the Territorial Legislature of 1805.”

In State vs. Thomas, 29 An. 601, the authority of the Forney and Phelps' cases is doubted, though not expressly overruled. But in State vs. Green, 36 An. 100, this court returned to the doctrine of the Heas case, and said “ the words .‘of his malice aforethought’ are quite as essential as the word ‘feloniously.’” -In the same sense we held, in State vs. Williams, 37 An. 776, that the omission of the word “ wilfully” was fatal to an indictment. In a still more recent case we said:

“ We„therefore conclude that the indictment is defective in not charging that the shooting was done both wilfully and' with malice aforethought.” State vs. Scott, 35 An. 387.

But not one of the cases examined or cited goes to the extent of holding that the mere omission from an indictment of the single word “ aforethought ” would render it invalid.

In opinions of courts and other law writings language is frequently met with from which it might be inferred that the word “malice” alone signifies the same thing as “malice aforethought.” Bishop Cr. L. 1, 429, Bl. Com. 198; Greenleaf Ev. See. 144, and eases in note in Bishop.

It might perhaps be so considered in this State where, by formal statutory provision, it is declared that “whoever shall commit the crime of wilful murder, on conviction thereof shall suffer death,” and that “ there shall be no crime known under the name of murder in the second degree,” R. S. V84-5; but when it appears that the law also provides that the indictment should contain the words: “ Did feloniously, wilfully and of his malice aforethought kill and murder the deceased,” must it hot be admitted that the words “malice aforethought” are required as descriptive of the crime of murder and as having the sense that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved and malignant spirit, a heart regardless of social duty and deliberately bent on mischief ? Russell on Or., Bk. 3d, See. 432.

While considering whether or not the word “ malice ” alone will suffice, Bishop says that the better use makes a distinction and assigns to it a meaning somewhat less intense in respect of wickedness than to the two words: “malice aforethought.” Bishop Or. L., Yol. 1, n. 429.

In the present instance, the pleader no doubt intended to comply with the requirement of the statute, but committed an error in the haste of the moment by writing the word “ aforesaid” instead of “ aforethought.” It is probable that the lapsus did no injury to the accused; but we think it is better to pursue strictly the letter of the statute, as the court, in favorem vitee, readily accepts plausible though nice distinctions on the subject. It does so particularly, as it has held that the statute having declared that “ it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased,” a charge for less would not be accepted. Green’s Case, 36 An. 99. See also State vs. Williams, 37 An. 776, and State vs. Scott 38 An. 387.

Our conclusion is, therefore, that the motion in arrest was not improperly sustained.

While commending the counsel appointed by the court, to the accused, for the zeal, learning and ability displayed by him in the vindication of the rights" of his client, we can not avoid deprecating the censurable looseness which some public officials, entrusted with the protection of social order, are guilty of at times in the performance of their important functions, and stimulating them to a more faithful compliance with their solemn duties.

It is therefore ordered and decreed that the judgment appealed from be affirmed and that this case be remanded to the lower court; the defendant to remain in custody until the further action of the court in the premises.