author: Watkins, J. Watkins, J.

text:
    NO. 11,178.
    The State of Louisiana vs. John Donelon et als.
    1. It is not sufficient ground to quash an indictment thattlie indicted persons appeared before the grand jury and were interrogated-as witnesses, they having been at the time incarcerated in jail, under capiases from the Recorder’s Court, the proof disclosing that, at the time each was examined, he was informed that he had the right to decline to make answers to such questions as might tend to incriminate himself, or render him liable to a criminal prosecution.

      2 Once a juror lias been interrogated and cross-interrogated on his voir dire as to his qualifications as a juror, and the trial judge has decided that he is com* petent, this is the end of the matter, in so far as the trial court is concerned; and it is not admissible, except under extraordinary circumstances, for the defendant’s counsel to reopen the question and investigate the question anew.
    3. It is a settled rule of law, that when two or more persons are jointly indicted for the commission of one and the same offence, the confession of one, made in the absence of the others, implicating himself and others, may be properly admitted in evidence, but it is to be received as evidence against the party making it, and the jury should be so instructed.
    4. Unless the whole of a confession is received in evidence and considered, the true meaning and import of the part which is good evidence against him can not bo ascertained.
    It is admissible for the prosecution to contradict any part of the prisoner’s statement that is given in evidence, and then the whole testimony is left to the jury for their consideration, precisely as in other eases where one part of the testimony is contradictory to another.
    If the confession implicates other persons by name, yet it must be proved as it was made, not omitting names; but the judge’s duty is to instruct the jury that is not evidence against any butthe person who made, it.
    5. lies gestee consist of circumstances or declarations made admissible as original evidence by reason of their connection with the particular fact under investigation; and the test is whether the fact or circumstance put in evidence is so connected with the main facts under consideration as to elicit its character, to further its object, or to form, in conjunction with it, one continuous transaction.
    6. The general rule in reference to the introduction of .evidence for the purpose of rebutting other evidence in respect to character seems to be that it must be confined to general reputation, and not permitted to descend to proof of particulars and specific facts.
    7. It is not competent Uo contradict a witness as to collateral facts; and the test as to whether or not it be a matter as to which he could be contradicted, is whether or not the same evidence could be heard in support of their defence.
    APPEAL from the Criminal District Court for the Parish of Orleans. Ferguson, J.

      M. J. Cunningham, Attorney General, and Lionel Adams, Assistant District Attorney, for the State, Appellee.

      A. D. Renriques for Defendants and Appellants,

      Louis A. Paquet, on same side.
   The opinion of the court was delivered by

Watkins, J.

The accused, John Donelon, was jointly indicted and tried with several others on a charge of murder, and the result of the trial was that he and two others were convicted and found guilty without capital punishment, the prosecution as to the other three defendants having been abandoned after the case had been closed and submitted to the jury.

This appeal is prosecuted from the judgment and sentence of the court by John Donelon alone, assigning as the principal ground on which he is entitled to relief various errors committed by the trial judge in admitting illegal evidence over his objections and exceptions, and excluding legal and competent testimony that he was entitled to have introduced and considered by the jury of trial, though other grounds are assigned and discussed in attorneys’ printed briefs.

I.

Preliminarily, the defendants collectively moved the court to quash the indictment on the ground that the grand jury required and compelled them to appear and be examined as witnesses touching the charge preferred in the indictment that was afterward preferred against them, they being at the time incarcerated in jail und elan accusation pending against them for the same offence in one of the recorder’s courts, without ¡.benefit of bail. On the trial of this motion to quash testimony was adduced, the motion overruled and the defendants reserved a bill of exceptions.

An examination of the testimony shows that the defendants were produced before the grand jury as witnesses in the matter of the investigation of the homicide of Thomas Pitzgerald, for the commission of which they were at the time held as prisoners in the parish jail; but it further shows that at the time each of said parties was brought before that body as a witness, he was informed that the grand jury were engaged in the investigation of the aforesaid homicide, and, consequently, had the right to decline to make answers as witnesses to any question that might tend to criminate himself — that is to say, to render them liable to prosecution for said homicide; but they were each further advised that if he or they undertook to make a statement as to any part of the transaction, he or they must tell all that occurred during the progress of said transaction that came within his or their personal knowledge. It further shows that, subsequent to such notification, certain of said parties did testify as witnesses before the grand jury; but that upon being again interro - gated, on a subsequent date, they declined to make answers, and .since that time have not appeared as witnesses in the case.

But it also appears that in the meanwhile one of the defendants, upon appearing as a witness before the grand jury, and being interrogated, denied possessing any knowledge of the persons by whom the killing was done, and also denied any criminality in connection with the homicide, stating that at'the time of the shooting he was a square away, in company of some ladies; that upon being interrogated as to whom those ladies were, he declined to give their names, and upon being interrogated by the court as to his reasons for refusing to give their names, made answer that he was so advised by his counsel, and that if he had given their names they would have been intimidated by the police, and thereupon said party was brought before the bar of the court and committed for contempt of court. '

There is no well-grounded objection to the ruling of the trial judge in declining to quash the indictment on the ground stated.

Had the proof disclosed that the party accused who urges complaint of the judge’s ruling had been required by the grand jury, or the trial judge, to testify before that body against his protest and in opposition to his expressed desire to avail himself of his lawful and constitutional privilege, a clear case would have been made, and an indictment predicated upon such evidence would have been undoubtedly vicious. Const., Art. 6; Act 29 of 1886.

But it clearly appears that the complaining defendant was advised of his prerogative to decline altogether to make answers in reference to the homicide on the ground that he might incriminate himself by testifying, but that after being so advised he voluntarily chose to disavow all knowledge of the homicide, and to give in his evidence, generally, on the whole case. And being subsequently pressed to state the names of his female companions, and refusing to give them, he was properly dealt with and treated in contempt of court for declining to give proper answers to the questions propounded. Roscoe’s Crim. Ev., pp. 339, 231, 232, 234, 244.

There is nothing in the record to indicate any impropriety or irregularity of the proceedings touching the interrogation of the defendants before the grand jury, notwithstanding the fact that they were subsequently indicted.

II.

Objection is urged to the competency of a juror on the ground that, upon being interrogated as to whether he could give the accused a fair trial on hearing the evidence he answered that he did not beIieve he could. But the judge, on pursuing the interrogation of the juror, found and decided that he was a perfectly competent juror; and subsequently to this ruling having been made, counsel for the accused proposed to reopen the investigation and prosecute the inquiry further, and thereupon demanded the rigbi; to have the testimony reduced to writing, and appended to the record in case of an appeal, and said demand was by the trial judge refused. In thus refusing the request to reopen the investigation the judge acted on the line of official duty and discretion. No sufficient reason is assigned for the reopening of the investigation, and it is impossible to discover what good would have been accomplished by it. The defendant had had his day in court. There had been abundant opportunity afforded him of ascertaining the juror’s qualifications, and upon hearing and considering the testimony taken, the judge held that he was competent. That was the end of the matter in so far as that court was concerned. Such is the view entertained by this court in State vs. Mangham, 35 An. 619.

Haying examined and approved the proceedings of the judge below, in this regard, dispenses us, of necessity, from deciding in reference to his refusal to permit the testimony counsel proposed to offer, to be reduced to writing. The judge had no occasion to rule on the question at all, as he declined to reopen the case.

III.

In the coarse of the trial the prosecuting officer proposed to introduce in evidence the alleged confessions of one of the accused, and to the introduction of which various objections were urged, and same having been overruled, defendant’s counsel reserved a bill of exceptions.

As counsel lay great stress upon this bill of exceptions and have devoted the greater part of their brief to its discussion — as well as the greater part of their oral argument — we have thought proper to reproduce the alleged confession, objections and ruling of the court, for greater accuracy of statement and decision, and which are as follows, to-wit:

New Orleans, August 8, 1892.
“ My name is Dennis Donahue and I reside at No. 13 Poeyfarre street. I was standing at the St. Mary’s Market, at the Tehoupitoulous street end, Sunday at about 9 o’clock p. m. I saw Corporal Fitzgerald and Officer Moore having a man named Dan Conners alias Pikey Dan under arrest. I saw Officer Moore strike Conners on the head with his club,) when Joe Johns and John Donley began firing their pistols at the officers.
“ Joe Johns and John Donley and others had previously been firing their guns at the Sunday School on Tehoupitoulas between S. Market and Delord street. The following parties were also there: Bed Biley alias Sullivan, Matt Gallagher, Bull Bartel, Hugh Lagan. After the shooting the crowd dispersed; I then went home, and when the officers came to my house I ran out by the back way. While passing through the market I was arrested by Officer Schultze, and Keiffer was also there.
“ When the officers were fired upon they were standing at the patrol box. Some one struck Corporal Fitzgerald and he staggered and fell and then the firing began; I was at a distance of about fifteen feet away from the officers when the shooting took place.
“ The above is a statement made by Dan Donahue.
“ Witness:
(Signed) “Cart. Barrett..
“Sergt. Walsh.
“Andrew DeBergue.
“ And then and at the same time that the assistant district attorney stated to the court that he now proposed to read to the jury the before recited statement of said Dennis Donahue, the accused, John Donelon, by his counsel, objected to the alleged statement of Donahue being offered in evidence and being read to the jury for the following reasons, to-wit:
“ First. Because the alleged confession was not free and voluntary and without inducement or threat.
“ Second. Because the pretended confession of Donahue is not a confession in the legal sense of the law; that the pretended confession is not an admission or declaration of his agency and participation in a crime, and is no acknowledgment of his guilt. Nor is it a waiver by the said Donahue of his right to have certain facts against' him technically proved.
“Third. Because the alleged confession can only be used and is only admissible in evidence against himself. Because anything in the alleged confession which speaks about other persons must be eliminated from the said confession before it is offered to the jury. Because the confession made by one of several persons jointly indicted for the same offence, as in this case, and being tried together by the same jury, is not admissible in evidence against any one but himself. No matter if the confession be made to the police officer or during the trial even by a plea of guilty.”

On the first ground, the court ruled that the testimony adduced clearly satisfied him that a proper foundation had been laid for the introduction of this confession, no threats, intimidation, or violence having been shown, whereby same was extorted or unduly influenced. As there seems to be no serious controversy in regard to this statement having been voluntarily made, we will accept the judge’s statement as correct and proceed with the discussion on that hypothesis.

On the other objections the court stated its opinion to be that it was a settled rule of law that when two or more persons are jointly indicted for the commission of one and the same offence, the confession of one, made in the absence of the others, implicating himself and the others, may be properly admitted in evidence, but is to be received as evidence against the party making it, and the jury should be so instructed.

But the contention of the defendant’s counsel is that “ the pretended confession of Donahue is not a confession at all in the sense of the law, because it is not an admission or declaration of his agency and participation in a crime, and is no acknowledgment of his guilt.” And it is further to the effect that anything in the alleged confession which speaks about other persons must be eliminated from the said confession before it is offered to the jury.”

The judge below placed his ruling distinctly upon the precept announced by Greenleaf, as controlling the question under consideration, and which is as follows, viz.:

“ For, as has already been observed respecting admissions (Sec. 201), unless the whole is received and considered, the true meaning and import of the part which is good evidence against him can not be ascertained. But if, after the whole statement of the prisoner is given in evidence, the prosecutor can contradict any part of it, he is at liberty to do so; and then the whole testimony is left to the jury for their consideration, precisely as in other cases where one part of the evidence is contradictory to another.
“For it is not to be supposed that all the parts of a confession are entitled to equal credit. The jury may believe that part which charges the prisoner, and reject that which is in his favor, if they see sufficient grounds for so doing. If what he has said in his own favor is not contradicted by evidence offered by the prosecutor, nor improbable in itself, it will naturally be believed by the jury, but they are not bound to give weight to it on that account, but are at liberty to judge of it Wee other evidence, by all the circumstances of the case.
And if the confession implicates other persons by name, yet it must be proved as it was made, not omitting the names; but the judge will instruct the jury that it is not evidence against any but the prisoner who made it.” (Italics are ours). 1 Gif., Sec. 218.

The judge, in the instant ease, admitted the alleged confession to go to the jury under the instructions that author has enjoined and pointed out. That was all he was required to do or could have done under the circumstances.

The confession was reduced to writing and signed by the party, and his signature was attested by three witnesses. It purports to describe the locus where the homicide took place, and to enumerate the persons who were present and participating therein, stating that he was only fifteen feet from the deceased when the shooting took place, and saw him when some one struck him, and he staggered and fell.

That was certainly an exceedingly important document, bearing directly upon the homicide, and related parts of the res gestee.

If, in the future progress of the trial, evidence should have de - veloped active participation in the homicide on his part, this document would have furnished damaging proof against Donahue, at least. Hence it was certainly admissible in evidence ¡against him, notwithstanding it did not contain a full recital of the part he had taken in the homicide, if any.

It is a well recognized and ancient rule of evidence that a party can not be controlled as to the order of introducing testimony, and it is not perceivable that the introduction in evidence of a confession furnishes a reason for its relaxation.

It was not proper or competent for the trial judge to have emasculated the confession by causing the names of the persons implicated to be stricken therefrom. All he could have done was to instruct the jury that such a confession was not evidence against any party other than the one who made it. This was what the trial judge did, and it was sufficient.

While it appears that Donahue was tried and convicted, he has not appealed; and under instructions of the court the defendant, Donelon, was not affected prejudicially by the allowance of this confession in evidence.

The learned counsel for the defendant, Donelon, has presented this branch of his case with signal ability, and has collected a vast array of authority on the question under consideration, which has been quite instructive as well as entertaining, but we feel constrained to adhere to the simple precept announced by M!r. Greeriileaf as the safest guide.

IV.

A witness on the part of the State was asked the following question, to-wit:

“Q. Were any of the prisoners at the bar — were either of the parties that he refers to, at the shooting he speaks of, and which he fixes to be half an hour before the shooting which resulted in the death of Police Corporal Fitzgerald?"

Thereupon defendants, through their counsel, objected to the question propounded for the reasons following, to-wit: Because anything that took place half an hour anterior to the shooting which resulted in the death of Corporal Fitzgerald can have no bearing on the ease, and is not part of the res gestee.

Counsel for the State, in answer to the objection of defendants, said to the court: “We offer it as part of the res gestas, and we propose to show that this was the commencement of the whole transaction, and that this was the shooting that led to the shooting of the officer — that this was the shooting that led to the attempt at rescue, and this shooting resulted in the shooting of Corporal Fitzgerald.”

The court thereupon overruled defendants’ objection, as above stated, and the witness then answered “Yes.”

Counsel for the defendants objected to said ruling and reserved this their bill of exceptions, and respectfully tendered the same to the court for its signature.

In the course of the argument the district attorney propounds this question, to-wit:

“ The question is, whether or not, under the circumstances of this case, it was competent to show the conduct of these defendants which brought the officers to the scene of the shooting, and what occurred from the coming of the officers until the shooting of the fatal shot and the flight of the murderers.”

He then appends the statement of the district judge as aD answer to that question, and from which we extract the following, viz.:

“ The proof in the case established that the crowd, among whom were some of the accused, had been engaged in discharging their pistols in the market, and its immediate vicinity, and that of these shots, two were fired by one of these defendants, Donelon. That this shooting commenced about half an hour before the killing of Corporal Fitzgerald, and was what caused the officers to come upon the scene and attempt the arrest of one of the defendants, and that it was during the attempt to convey him to the patrol box, and to hold him there to await the coming of the patrol wagon, that the attack was made upon the officers which resulted in the killing of Officer Fitzgerald. The proof is that from the arrival of the officers on the scene until the firing of the shot which resulted in the death of Fitzgerald, the officers were engaged in the attempt to arrest and in repelling the assaults upon them. That the whole was one continuous, uninterrupted transaction, all of the res gestee. This was established not only by Andreas Andresson, but by all the witnesses who were examined upon either side upon this branch of the case.”

Under this state of facts there can be no reasonable doubt of the evidence sought relating to the res gestse, notwithstanding a half hour intervened between the shooting to which the witness’ attention was directed, and at which one or more of the defendantsjwere supposed to have been present, and the time at which the homicide happened.

The shooting which first occurred was the commencement of the transactions which resulted in the fatal rencontre in which Fitzgerald was killed. They were continuous and uninterrupted.

Res gestee are declarations or circa instances made admissible as original evidence by reason of their connection with the particular fact under investigation. 1 Greenleaf, Sec. 108, p. 161.

The test is whether the circumstance put in evidence “is so connected with the main facts under consideration as to elicit its character, to further its object, or to form, in conjunction with it, one continuous transaction.” Id.

And Mr. Wharton states it to be the correct rule that there are no fixed limits of time within which res gestse can be arbitrarily confined, but that they vary, in fact, with the facts of each particular case. Whar. Crim. Ev., Sec. 262.

The facts and circumstances relied upon as furnishing proof of res gestae should be shown to be “necessary incidents of the litigated act;” or, in other words, “they must stand in immediate causal relation to the act, and become part of the action immediately producing it or of the action it immediately produces.” Id., Sec. 263.

To this purport are all the recent authorities. State vs. Morris, 38 An. 382; State vs. Estoup, 30 An. 221; 2 [Bishop’s Crim. Proc., 3d Ed., Sec. 626.

V.

During the progress of the examination of the witnesses on the part of the defendants many of them were interrogated in regard to the general good reputation of Donahue, one of the defendants, for peace and quietude, and upon the same subject the witnesses were cross-interrogated by counsel for the State.

This resulted in quite a number of bills of exception, and without going into details or discussing the various bills of exception seriatim, we deem it sufficient to cite the subjoined extract from the opinion expressed by the trial judge, as fairly illustrative of the character of the evidence that was adduced, and the reasons that influenced him to admit it to the jury, to-wit:

“ This was objected to upon the ground that ‘ the witness having been examined as to the general reputation for peace and quiet of Donahue and nothing else, the question propounded by the assistant district attorney was not properly pertinent to the issue; it had a tendency to bias and prejudice the jury against the accused, and that the accused could not be' held responsible for the reputation of other people, as it was the reputation of defendant at issue, and not that of others.’
“ There was no attempt made during the cross-examination of any of the witnesses to attack the reputation of the defendant, Donahue, by proof of particular facts and charges. The examination was limited strictly to the knowledge of the general character for peace and quiet, honesty, integrity and good behavior on the one hand, and the viciousness, lawlessness, profligacy and generally infamous character of the defendant and his associates upon the other hand.
“ I consider that as the defendant had shown the class with whom he associated, it was competent for the State in rebuttal of any attempt to prove generally his good reputation, to show the general turpitude of his associates, and the estimate in which they were held by those who were conversant with their conduct.
“ While it is true the purpose of.the question propounded was to damage the case of the defendant by proving that his associations were generally bad, it is not pretended that the answer to the question had that effect.”

There is no well-grounded objection to the statement of the judge, or as to its correctness as a sound legal proposition, with some modification in its terms. In such matters the rule appears to be that evidence adduced for ihe purpose of rebutting other evidence in respect to character must be confined to general reputation, and not descend to proof of particular and specific facts.

But the judge further states that the greater part of this evidence was admitted without objection from the defendant’s counsel, and that far the greater part of the objections urged and bills of exception taken relate to reiterations of same testimony, subsequently. Of course, it is unnecessary to discuss such a proposition as this. The testimony having been delivered in the presence and hearing of the jury, it has gone beyond reach or the power of the court to recall it, and it is the undeniable province of the jury to consider it in making up their verdict. State vs. Parker, 7 An. 86.

VI.

Officer Moore was introduced and interrogated on the part of the State, and on cross-interrogation he was asked by defendant’s counsel the following questions, with the purpose and object of laying the bases for his contradiction, to-wit:

“ Q. Did you not on the night of the shooting of Corporal Thomas Fitzgerald, and after the shooting, at the corner of Calliope and Magazine streets, at about 11 o’clock that night, say to and in the presence of Edward E. Easton, Patrick Canavan and one Jones, that the night of the shooting was the first time that you had spoken to Corporal Fitzgerald in over a year?”

And the second question propounded to said witness, Richard Moore, on his cross-examination being:

“ Q,. Did you not on the night that Corporal Fitzgerald was shot, and after the shooting, say in Feeney’s grocery that you had to load up your pistol, as you had fired every shot out of it and you might need it again, and did you not say so in the presence of Mr. Feeney, the owner of the grocery, and at about half past 10 o’clock that night?”

Thereupon the district attorney submitted to the court the following view in reference to the admissibility of the evidence, viz.:

The State submits that it is not competent to contradict the witness as to either one of the two statements as to which foundation is laid; these matters are collateral, and by the answers of the witness they are bound. And that the test as to whether or not it be a matter as to which he could be contradicted, is whether or not that same evidence could be heard in support of their defence.”

And upon this discussion the trial judge made th'is statement, viz.:

“ The evidence in the case established beyond all doubt that an unjustified and murderous assault, the result of an unlawful conspiracy entered into by the defendants and others, was made upon the deceased, a corporal of the police, and two other members of the police force, who in the discharge of their duties were attempting to arrest and convey to the police lock-up one of the defendants, Connors. All of the proof was to the effect that after a warning cry to their confederates who were engaged in a scuffle with the police to ‘ stand wide,’ a number of persons, among whom were three of the defendants, without provocation, opened fire upon the police, and that something like twenty or twenty-five shots were fired. One of these shots caused the death of Fitzgerald. After the shooting had commenced, and while one of the defendants, Klienhole, who had knocked down, and had been engaged in a struggle upon the ground with, one of the officers named Moore, had gotten to his feet, he was fired upon by Officer Moore. Corporal Fitzgerald, after he had been shot, fired once in the air. During the course of the cross-examination of Moore — under this proof — the defendants propounded to him the two questions aforesaid.”

Animadverting upon the questions and the interpretation placed upon them by the district attorney, the trial judge further observed, to-wit:

“ While, as a matter of fact, the evidence established conclusively that the killing of Fitzgerald was done by one of the defendants, or by one of those who assisted them, and was not and could not have been done by Moore, it was just as much murder, under the cireumstances of the case, if the killing had been done by Moore, while resisting the felonious assault of these mqn, as if by the accused themselves, provided the killing by Moore had been accidental, and had been caused at a time when he was endeavoring to repel an armed assault upon himself. Therefore,- in my opinion, the entire question of the admissibility and non-admissibility of this proof was dependent upon whether or not the defence proposed to assert that Fitzgerald was killed by Moore, and that the killing was intentional. They declined. to assume this position, and the only remaining inquiry was whether or not as to this collateral matter, they were or were not bound by the answers of the witness Moore.”
“When a witness is cross-examined on matters collateral to the issue his answer can not be subsequently contradicted by the party putting the question. The test whether the fact inquired of in cross-examination is collateral'is this: Would the cross-examining party be entitled to prove it as a part of his case tending to establish his plea? This limitation, however, only applies to answers on cross-examination. It does not affect answers to an examination-in-chief.” Whart. Grim. Ev., Sec. 484.
“ It is a well settled rule that a witness can not be cross-examined as to any fact whjgh is collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence, if he should.deny it, thereby to discredit his testimony. And, if a question is put to a witness which is collateral or irrelevant to the issue, his answers can not be contradicted by the party who asked the question; but are conclusive against him.” "l Greenl. on Ev., 15th Ed., Sec. 449; 1 Roscoe Cr. Ev., p. 100; Starkie on Ev., 9th Ed., p. 210; Best’s Prin. Ev., Sec. 644.

The principle of law involved is that the subject matter of the testimony to be contradicted must also be material and relevant! to the issue, and the contradiction must not be merely for the purpose of discrediting the witness’ testimony generally by showing that in immaterial matters his statements are untrue. State vs Clark and Boyd, 38 An. 105; Whart. Crim. Ev., Sec. 482. et seq.; 1 Glf. Ev., Secs. 449, 462.

VII.

After a careful examination of the voluminous record and very elaborate briefs on either side, we have reached the conclusion that there is no merit in the defendant’s complaint of the proceedings in the court below, and the judgment should be affirmed, and it is so ordered.

On Application nor Rehearing.

Watkins, J.

Application is made on the part of the two defendants, Joseph Johns and Dennis Donahue, for relief, upon the representation “that they have been condemned in the above entitled prosecution under an assumption erroneously made by this honorable court (that) they never appealed to this tribunal from the verdict and sentence therein rendered.”

This is a remarkable statement for counsel to make in the face of the record, for our opinion opens thus, viz.: “ This appeal is prosecuted from the judgment and sentence of the court by John Donelon alone,” and concludes thus, viz.: “ There is no merit in the defendant’s complaint of the proceedings in the court below, and the judgment should be affirmed, and it is so ordered.” Certainly, this decree condemned no one other than the defendant plainly referred to, John Donelon, alone. The parties at present complaining were not mentioned or included. Practically, the ease, as to them, was left in identically the same position as though they had not appealed at all. It was our impression at the time the opinion was prepared that no other defendant than John Donelon had prosecuted an appeal.

No other defendant than he was represented by counsel at the trial by oral argument or in printed briefs. Nothing in the transcript attracted our attention, at the time, to indicate any participation in the appeal on the part of the defendants now complaining — John Donelon having separately petitioned for an order of appeal.

Since the present application was filed, our attention has been called to the separate and distinct order of appeal that was granted in their behalf; and also to the minutes of this court indicating that they had appeared by counsel and submitted the cause, on their part, on the argument and briefs of the defendant John Donelon.

However, an examination of the record does not disclose any defence other than such as those John Donelon urged, and which were decided against him; and there is in counsel’s motion no reason or suggestion offered as justifying any change in our decree except as to its form.

It is evident that the decree should be amended so as to include the two defendants, Joseph Johns and John Donelon; but for this purpose a rehearing is unnecessary.

It is therefore ordered and decreed that the judgment and decree heretofore pronounced be so altered and amended as to embrace the two defendants, Joseph Johns and Dennis Donahue, and that, as thus amended, same remain unchanged.

Rehearing refused.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 11,165.
    Louisiana Land and Fisheries Company, Limited, vs. Marcellus Gasquet et als.
    In an action for trespass under the general denial, defendant can show that the plaintiff was not the owner and not the possessor of the property.
    Possession alone will support the action, but where property is owned by the State whieh it has declared it holds for the common benefit of all its citizens, one citizen can not obtain possession so as to exclude another, except under regulations prescribed by the State.
    Act 110 of 1892 prohibits the sale by the register of the land office of natural oyster beds in the bays, lakes, bayous, inlets, coves, bordering on the Gulf of Mexico, and all that part of the Gulf of Mexico within the jurisdiction of the State. No one can acquire title therefore from the State of natural oyster beds located in any of the above described waters.
    APPEAL from the Twenty-second District Court, parish of Plaque-mines. Livaudais, J.

      Leovy & Blair and James Wilkinson for Plaintiffs and Appellees:
    1. Oysters, “when taken from their natural beds by the industry of man and reduced to possession, unquestionably belong to the captor, and are protected alike by criminal as well as civil law.” State vs. Oasselar (not reported), No. 9468; 14 Wendell, p. 42; 4Barb. 592 ; 27 N. J. Eq. 389.
    2. Even when planted on public lands they are protected by law. The remedy is “ to enforce the removal, not to appropriate the property.” State vs. Oasselar, No. 9468; Fleet vs. Hegeman, 14 Wend., p. 43.
    3. A “natural oyster bed” is one not planted by man, and is any shoal “ where oysters are to be found — not sparsely or at intervals, but in a mass or stratum in sufficient quantities to be valuable to the public. 104 N. O. Rep., p. 764.
    4. The question whether or not lands are “ swamp or overflowed lands” is a question of fact properly determinable by the Land Department, whose decisions on matter of fact are, in the absence of fraud or imposition, conclusive and binding on the courts of the country.” Syllabus in Heath vs. Wallace, 138 U. S. 573. See also 93 U. S., p. 169; 121U. S„ p. 488; 139 U. S., p. 163.
    5. The issuance of patents creates a presumption that the formalities have been complied with. 13 Peters 436; 9 Oraneh, 87; 18 Howard 87; 11U. S. 445.
    6. Only those are navigable waters “ where the public pass and repass upon them with vessels and boats in the prosecution of useful occupations.” “ Whether they are navigable or not depends upon their capacity for substantial use as indicated.” 20 Conn. 217; 13 An. 131; 40 An. 246; 16 Am.and Eng. Encyc. of Law, pp. 236, 612.
    7.Owners of land under the Act of 1886, p. 195, have exclusive right to plant oysters in any bay or lake or inlet which “ makes into or runs through the land of any person, and is comprised within the limits of his lawful survey. (In the present case the plaintiff is the owner of the bay, etc.)

      E. Howard McOaleb and Edwin McCaleb for Defendants and Appellants :
    1. A'mere threat to commit a trespass is not sufficient to justify an injunction. 2 An. 337.
    2. Peremptory exception, founded on law, or arising from the facts of the case, may be filed at any time during the trial; and where the judge a quo wrongfully refuses to permit them to he filed and they are annexed to a bill of exceptions, they must be considered and acted upon by the appellate court.
    3. The court will judicially notice the nature and character of shell fish, such as oysters, and that their spawn or spat will attach themselves to shells, rock or other hard substances. Encyc. Britanniea, verbo Oyster.
    A natural oyster reef, once shown to exist, will be presumed to continue in the same condition. Wharton on Evidence, Vol. 2, Secs. 1294,1295. •
    4 The oyster act of 1886 restricts the exclusive right to fish and bed oysters to owners who acquired title prior to its passage. In 40 An. 246, the plaintiff acquired title before, 'and in this case subsequent to the passage of that act.
    5. The report of the oyster inspector, appointed under Sec. 14 of Act 110 of 1892, and the ordinance of the police jury based thereon, declaring the reef in question to be a natural and not an artificial oyster reef, is conclusive upon the courts. R. C. O. 429; 34 An. 852; Eng. and Am. Encyc. of Law, Vol. 4, p. 376; Eng. and Am. Encyc.'of Law, Vol. 15, pp. 1046, 1168; Abbott’s Digest of Corp„ Supplement, p. 182; Sec. 41, p. 183, No. 50; 115 Mass. 52; 1 Hill. 562; 12 Wheat. 206; 11 Wall. 650; 7 Wall 347; 107 U. S. 402; 113 U. S. 571; .120 U. S. 174; Eng. and Am.Encyc. of Law, Vol. 17, p. 318, Note 1.
    6. The regulation of the right of fishery is subject exclusively to legislative control. Eng. and Am. Encyc. of Law, Vol. 8,p. 34, title Fish and Fisheries, and authorities cited in Notes 1, 2, 3, 4, 5 and 6.
    7. An injunction should not issue to restrain defendants from going upon navigable waters of Bay Conquete, covering the natural reef in controversy. 38 An. 755; 10 Wall. 557; Eng. and Am. Encyc. of Law, Vol. 16, pp. 239 etseq.; 28 Wall. 430; 23 Ohio, 527; 108 Mass. 436.
    8. The beds and bottoms of navigable waters are not susceptible of private owner- • ship. The State holds them in trust for the use and enjoyment of its inhabitants, who have the liberty of fishing therein, freed from the obstruction or interference of private parties. 111. Cent. E. E. Co. vs. Chicago, Sup. Ot. Rep., Vol. 13, No. 5, and cases there cited; 12 La. 324; R. C. O. 450; Act 106 of 1886; Act 110 of 1892.
    9. The United States never owned the bottoms and beds of Bay Conquete. Congress has not and could not grant these bottoms to the State, and the register was prohibited from issuing patents therefor. Sec. 1, Act 106 of 1886.
    10. Plaintiff’s title, founded on a patent to the beds of Bay Conquete and the natural oyster reeis therein, is absolutely void. 20 An. 433; 25 An. 189; 13 La. 41; 19 La. 336, 510; 12 La. 324; 1 Peters, 340; 13 Peters, 498.
    11. Patents for lands prohibited by statute from being sold may be impeached collaterally. 21 Wall. 660; 9 Cranch, 87; 5 Wheat. 293; 11 Wheat. 380; 2 How. 87; 1 Black, 258 ; 2 Wall. 525; 6 Wall. 160; 142 ü. S. 176; 139 U. S. 507.
    12. Defendants, residing in a different parish from plaintiff, can claim damages in reeonvention arising from the wrongful issuance of the writ of injunction. 6 Peters, 375; 41 An. 1; 4 Rob. 1; 10 An. 98; 16 An. 250; 27 An. 642; 32 An. 464.
    13. This court will fix the value of attorney’s fees from its own examination of the record. 5 N. S. 299; 3 An. 518; 4 An. 578; 27 An. 467; 21 An. 687; 2 Brad, XU. Appeals, 533.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff company alleges that it is the owner of certain sea marsh land, acquired from the State in pursuance of Act No. 86 of 1880, by Robert S. Leovy, and by said company from Leovy on 17th March, 1872. Petitioner further alleges that for the purpose of creating oyster beds and cultivating and selling oysters, the plaintiff company has planted on said lands large quantities of oysters, and that said oyster beds have grown and increased in value since the oysters were planted thereon; that the defendants illegally combined and conspired for the purpose of wilfully slandering petitioner’s title to said lands, and have denied that the plaintiff is the owner of the same; that they have taken and removed oysters from said lands, and that pretending to some legal right on said lands, have combined for the purpose of taking plaintiff’s oysters planted on the company’s property, and have publicly stated that, on 1st September, following the filing of the suit, they would take oysters from the company’s beds and sell the same.

The plaintiff company allege damage to the amount of §1000, and pray, also, for an injunction restraining defendants from trespassing upon the lands claimed by the company, and pray to be decreed the legal and true owner of said lands, and be quieted in the title thereto. The injunction issued as prayed for.

The defendant filed peremptory exceptions and answered. Some of the exceptions need no notice, and others may be with propriety referred to the merits. Their defence is that the locus in quo where the trespass was said to have been committed was Bay Conquéte and Bayou Jacques, arms of the sea, where the tide ebbs and flows, and that they are navigable waters and are not susceptible of private ownership; that said Bays Jacques and Conquéte being natural oyster beds were reserved from sale, to be held by the State for the common benefit of all its citizens for the purpose of fishing and catching oysters. There was with these special defences a general denial.

The defendants also filed a plea in reconvention for damages.

There was judgment decreeing the plaintiff to be the owner of the sea marsh described in his petition, except the Bay Conquéte, which was declared to be the property of the State.

The injunction was dissolved, plaintiff’s demand for damages rejected, and defendants’ reconventional demand dismissed.

The defendants appealed, in which the plaintiff joins.

Plaintiff objected to all evidence showing that Bay Conquéte was not a part of the purchase from Leovy, who acquired from the State, on the ground that the State Register of the Land Office had exclusive power to determine the extent of plaintiff’s purchase, and also that defendants could not set up special defences under the general denial.

The defendants do not pretend to question plaintiff’s title to the sea marsh, but contend that Bay Conquéte, where the trespass was alleged to have been committed, formed no part of plaintiff’s lands, as it was public property incapable of private ownership.

They were assuredly entitled to show this as a defence.

In trespass, guare clausum fregit, it is always competent for the defence to show that the plaintiff was not the possessor of the locus in quo.

The locus in quo was alleged by defendants to be the property of the State — declared to be the common property by Act No. 110 of 1892 of all the citizens of the State, to which they had the right to resort for the purpose of taking oysters. If their contention is well founded the plaintiff could not acquire ownership of the property, nor could it acquire adverse possession to the same. No one citizen can acquire, except under the regulations made by the State, an adverse possession, so as to exclude another. This reasoning will apply to both objections.

The whole controversy is in relation to the Bay ¡Conquéte, where plaintiff planted oysters, and where defendants are said to have committed the trespass. It will therefore be unnecessary to pass upon plaintiff’s title to the sea marsh claimed by the company, asno question is raised concerning it. Besides, the record shows that the con-Urination to this part of plaintiff’s property has not been made by the-Federal Government to the State of Louisiana.

The testimony shows that Bay Oonquéte has an average depth of one to two and a half feet, which is the measure of the ebb and flow' of the tide. It receives its water through Bay Jacques, and is navi.-' gable for luggers of seven tons burden during the highest tide.

But it is land-locked in the interior of the State, and is in fact art inlet bordering on the Gulf of Mexico, and a part of the Gulf of Mexico within the jurisdiction of the State.

R. S. Leovy, from whom plaintiff purchased the land, acquired the same from the State September 28, 1892, after the passage of Act 110 of 1892.

Section 1 of the act provides ‘‘that all the beds of the rivers, bayous, creeks and lakes, coves and inlets, bordering on the Gulf of Mexico, and all that part of the Gulf of Mexico within the jurisdiction of this State, shall continue and remain the property of the State of Louisiana, and may be used as a common by all citizens of the State for the purpose of Ashing and taking and catching oysters and other shell fish, subject to the reservations and restrictions hereinafter imposed, and no grant or sale or conveyance shall hereafter be made by the Register of the State-Land Office to any estate, or interest of ■ the State, in any natural oyster bed or shoal, whether the said bed or shoal .shall ebb bare or not; and the citizens of this State shall have the exclusive privilege to fish or take oysters in any natural oyster bed or shoal subject to the restrictions hereinafter imposed.”

Section 2 provides “ that the rights of the owner or occupant of land on any of the shores or bays, bayous or inlets and lakes, shall extend to ordinary low water mark; but it is not intended thereby to deprive them of the privilege of bedding or planting oysters extended to all citizens^of this State under the several sections of this-act, and subject to the restrictions hereinafter imposed.”

The above act repeals all acts on the same subject matter.

But if it be contended that the patents issued in September, 1893, in pursuance of a previous location of the sea marsh, Act No. 106-of 1866 will apply with greater force, as the second section of said act is in the nature of a proviso, relating only to those who were the owners of land prior to the passage of said act.

The question then presented is one of fact — whether or not Bay Oonquéte is a natural oyster reef or bed. There are several reefs in the oay, and the testimony is almost unanimous by witnesses for plaintiff and defendant that these reefs are hard, shell bottoms, ideal locations for the planting and growth of oysters.

For many years it was the resort of the residents of the Buras settlement in Plaquemines parish for a supply of oysters for domestic use.

Many were also taken for the purposes of sale. Defendant’s witnesses are unanimous in stating that oysters existed on the reefs in considerable quantities when plaintiffs took possession of the reef on which the company planted its oysters.

Plaintiff’s witnesses state that there were few oysters on the z-eefs, and that they were scattered.

The preponderance of testimony is with the defendants, and even according-to plaintiff’s witnesses these reefs were not exhausted. There were oysters there in sufficient quantities, if undisturbed, to replenish the reefs.

To protect such natural oyster beds and to prevent their exhaustion, and to provide for the increase and growth of oysters upon them, was the object contemplated by Act No. 110 of 1892, by prohibiting their sale, and regulating their use in the hands of the State.

We agree with the district judge that the testimony shows that the defendants have not slandered plaintiff’s title except as to the ownership of Bay Conquete, and that there is also an absence of testimony to show the quantities of oysters taken by defendants or that those taken could be identified as the oysters planted by plaintiff.

Although plaintiff’s oysterswere planted in a public place, this did not authorize defendants to appropriate them. The proof is wanting as to the quantity and identity of oysters taken, but the inference is that the defendants appropriated some of plaintiff’s planting. They are not entitled to damages for the dissolution of the ir junction.

It is therefore ordered, adjudged and decreed that the judgments appealed from be amended so as to dissolve the injunction entirely, restricting the decree to the locus in quo, Bay Conquéte, which was never sold by the State to R. S. Leovy and by him to plaintiff. In all other respects the judgment is affirmed,' plaintiff to pay cost of appeal.

The defendants, without applying for a rehearing in this case, suggest an amendment to the decree so as to apportion the costs in the lower court. It will be necessary to reverse the decree heretofore rendered.

It is therefore ordered, adjudged and decreed that the decree heretofore rendered be set aside, and in lieu thereof the following be entered:

It is therefore ordered, adjudged and decreed that the'judgment appealed from be annulled, avoided and reversed, and plaintiff’s demands be rejected and the injunction dissolved. It is further ordered that the reconventional demand of defendants be rejected, plaintiff to pay costs of appeal and in the lower court on principal demand; and defendants to pay costs in lower court on reconventional demand.


text:
    No. 11,157.
    John Calder & Co. and David R. Calder, Individually, vs. Their Creditors.
    "When, the complaint is that the surviving member of a commercial'partnership has, unauthorizedly, surrendered, along with his own interest in its assets, the interest of a deceased member of the firm, which had previously passed under a separate administration, held: It is the correct course to pursue for the alleged legal representative of the said decedent to institute a direct action against the syndic of the insolvent for the restitution of the property, and not for the revocation of the latter’s letter of appointment, and the judge’s order of acceptance of his surrender.
    APPEAL from the Civil District Courb for the Parish of Orleans. King, J.

      Frank L. Richardson and Stcthon & Swthon for the Executors, Appellants :
    An insolvent can not surrender to his creditors property which belonged to a succession of which he was co-executor. 9 B. 372.
    A surviving partner can not surrender in insolvency the individual property of his deceased partner, and on the application of the executors of the deceased partner this property should be struck from the schedule. Bird vs. Jones, 5 An. 645.
    A surviving partner can not surrender the property belonging to the firm dissolved by the death of his copartner.
    If he could, he can not do so for debts created since the dissolution. 15 An. 19; C. 0 2174, 2180, 2183; 39 An. 362.

      A partner, after the death of his copartner, can not lawfully continue business in the name of the dissolved firm, and if he does so he will only be individually liable for the debts, whether created by him individually or in the firm name, and in case of his insolvency he can not surrender his deceased partner’s property, and the deceased’s interest in the assets.of the late firm. Harris vs. Walker, 9 11 151; McGavan vs. Gwin, 15 An. 637; McKee vs. Griffin, 23 An. 419; 4 M. N. S. 207.
    A petition setting forth these facts and praying that this property so illegally attempted to be surrendered discloses a cause of action. Weymouth vs. Roselius, 36 An. 527.
    On the trial of an exception of no cause of action, it is only the allegations of the petition that should be considered, not records of other proceedings which could not have been and were not offered in evidence. Jeffries vs. Iron Works, 15 An. 91.
    Real estate can not form an asset of a commercial business. 44 An. 53; 35 An. 846.

      Horace E. Upton and Henry L. Lazarus for the Syndics, Appellees:
    1. A surviving partner, bound by the articles to liquidate the concern within six months after the dissolution of the partnership by death, and who- has no rights after the expiration of that term to prolong the liquidation, is liable for the value of all the assets at the termination of the delay, when they can not be returned in integrum.
    The succession of a deceased partner is entitled to recover, after deducting the liabilities from the assets, the share to which the deceased is, by the articles of partnership, authorized to claim in the residue, with legal interest from the expiration of the delay Allowed for the liquidation of the concern. Klotz vs.
    Macready et als., 39 An. 538.
    '2. The surviving partner of a commercial firm is not liable, as liquidator, to account to the succession of his deceased partner for any single item of indebtedness to the succession, but to pay over the entire sum found to be due the succession on the settiement of the partnership.
    A suit against the surviving and liquidating partner, by the succession of the deceased partner, for a settlement or apartition, must be brought in a court of ordinary jurisdiction. Walmsley & Patterson vs. Mendelsohn & Newman, 31 An. 152, and authorities cited.
    3. The assumption that the representative of the deceased partner can, at his pleasure, take the ownership and possession of the partnership property from the survivor, or, as in the instant case, from the possession of the syndics, is unsustained by reason or authority. Matherson, Executor, vs. Field, 3 Rob. 47.

      4. One partner can sell all the movable property of the firm to pay debts, or to get money to use for the common business of the concern. This being true, we see no strong reason why he can not make a cession of goods belonging to it, for the purpose of discharging the same debts. The Civil Code treats of the cession of property in the chapter relating to the mode of extinguishing obligations, and Article 2166 (Old Code) says that it is the relinquishment that the debtor makes of all his property to his creditors, when he finds himself unable to pay his debis; and a subsequent article provides that the syndics shall sell the property surrendered. One creditor can not permitted, through the sheriff, to sell the common pledge of all, and indirectly avoid the effect of an existing decree of the court, to-wit, an order staying all legal proceedings against the person and property of the individual debtor, and of the firm, and of the surrender accepted by the court for the benefit of the creditors. Tyler and another vs. Their Creditors, 9 Rob. 376-77 ; 2 La. 188. <

    5. The purchase of immovables by the members of a commercial firm made with the partnership funds, for the account and use of the partnership, as shown by the books of the latter, though the title be taken in the names of the individual
    ' members, has precisely the same effect as if the title had been taken in the name of the partnership. In either case the partners become joint owners, but, as between themselves, they hold for the benefit of the firm. May et als. vs. N. O. C. R. R. Co., 44 An. 444; Allen vs. Whetstone, 35 An. 849; Thomas vs. Scott, 3 Rob. 256; Skillman vs. Purnell, 3 La. 486; Hall vs. Twigg, 7 Mart. 243.
    6. The rights of tile creditors of the individual partners must be subordinated to those of the creditors of the partnership. Their only recourse is on the residuum which may accrue to their debtor, after the full liquidation of the partnership ; and it is immaterial whether the partner be one in commendam or a full or active partner. Sherwood vs. His Creditors, 42 An. 103, 107.
    7. Partners own only the residuum after the debts of the partnership have been satisfied. Partnership property, whether ordinary or commercial, is liable to the creditors of the partnership, in preference to those of the individual members. The fact that some of the copartners had retired from the firm, and that one alone asked for a respite and made a surrender, does not alter the principle. Succession of Pilcher, 39 An. 362,.and authorities cited; Gueringer vs. His Creditors, 33 An. 1279, and authorities cited.
   The opinion of the court was delivered by

Watkins, J.

This is an action to annul and set aside an order of court appointing two provisional syndics for the insolvent estates of John Oalder & Oo. and of David R. Oalder, individually, in so far as it affects the one-half interest of the deceased member of the co-partnership, John Oalder, and also the order of the judge accepting the surrender of the interest of said John Oalder in the assets of John Oalder & Oo., consisting of real estate described in the schedule as property of the firm.

Also to strike from the insolvent’s schedule all of the real estate standing in the name of John Oalder, as described in list B annexed thereto.

Also to annul the order of court accepting the surrender of all the property of the deceased, John Oalder — reserving the rights of all parties having claims to assert against the same in the succession of the deceased.

Prayer is further made to the effect that the provisional syndics be enjoined from, in any way, interfering with petitioners, as executors of the deceased, in their possession and control of the property of his succession.

To this proceeding the syndics tendered the plea of no cause of action, and the judge a quo having sustained it and dismissed the suit, plaintiffs have appealed.

A fair summary of facts necessary to be stated is as follows, to-wit:

The commercial firm of John Calder & Co. was composed of John Calder, owning one-half interest, and of John H. Calder and D. R. Calder, each owning one-fourth interest. It was dissolved in 1884 by the death of John H. Calder; and in February, 1885, John Calder died — leaving David R. Calder as the only surviving member of the partnership. John Calder left at his demise a surviving widow and two minor children; and in his will he appointed three executors, all of whom were duly qualified. Subsequent to the death of his two partners, D. R. Calder conducted the business under the firm name, just as though no change had taken place, until business losses resulted in the cession and surrender above mentioned.

The petition accompanying the schedules purport the cession and surrender of John Calder & Co. as well as of D. R. Calder, though the names of the members of the firm are not given; and the order of acceptance of the surrender that is endorsed upon the petition, includes the property of the firm of John Calder & Co. as well as that of D. R. Calder.

The schedule of property of the insolvents includes, that of the firm; that which, though standing in the name of D. R. Calder, is that of the firm; and that of John Calder, individually.

The judge a quo maintained the exception of no cause of action, mainly on the ground, undoubtedly, that the plaintiffs had mistaken their action, or, in other words, that they should have sued the syndics for the property of the deceased partners, they claimed the right to control, and not for the revocation of the order accepting the cession of the partnership, because of it embracing, as they allege, property that did not legitimately compose a part of the assets of the insolvent who made the surrender.

Wé are of opinion that the judge a quo properly maintained the exception.

David R. Calder had undeniably the right to make a surrender of his individual share or interest in the commercial firm or partnership of which he was or had been a member. And we think it equally undeniable that he had the right to make a surrender of the partnership property and effects — at least so long as it was a going concern, and all the partners living.

It is a precept of the code that “ if there be a commercial partnership in which the deceased was concerned, the surviving partner, after the portion of the deceased in the partnership has been ascertained and the estimate of it made on the inventory, shall have a right to require that this portion remain with his own, in order that the whole may be disposed of for the common profit in the ordinary course of trade, and the proceeds applied, as far as is necessary, to the payment of partnership debts.” R. C. C. 1138.

It is likewise a precept of the code that partnership property is liable to the creditors of the partnership, in preference to those of the individual partner.” R. C. C. 2823.

While these precepts are not actually applicable to the administration and settlement of insolvent estates per se, yet there is to be drawn from them a good logical reason why the assets of a partnership should be controlled and managed by the surviving member of the firm, in order that they might be the more surely apphed to the payment of partnership liabilities, for which he is himself responsible ; and this reason suggests, at least, the propriety of the judge’s acceptance of the surrender as it was made.

There is another precept of succession law that, in our opinion, has a decided applicability, and that is the one authorizing a claimant to property in the possession of a succession representative to institute a direct action against the succession for its recovery. Dubuch vs. Wildermuth, Administrator, 3 An. 407; Succession of Porter, 5 Rob. 98; Succession of McCarthy, 5 An. 434; Carthey vs. Ker, 15 An. 228; Succession of Sanchez, 41 An. 504; Hen. Dig., p. 1513, B. 1, and authorities cited.

This principle is strictly applicable to the cession and surrender of an insolvent.

It is undoubtedly better practice to relegate the question of ownership vel non and all kindred questions, to a direct’ action in which the rights and interests of all parties concerned, as well as creditors, can be legally and finally determined.

For, if the plaintiffs should be successful in this suit, nothing could be determined but the right of the provisional syndics to exercise dominion over the property of the deceased, and the creditors of the partnership would be turned around to new proceedings, additional complications and expense.

Judgment affirmed.

On Application por Rehearing.

Watkins, J.

Considering plaintiff’s petition as one containing alternative demands, first for the revocation of the order appointing the provisional syndics, and second for the recovery of certain property therein described, if this appointment is maintained, it is our opinion that, while adhering to the views expressed, our judgment should be amended so as to remand the cause to the lower court, reserving to both parties the right to alter their pleadings in respect to the claim of ownership, so as to try that issue without instituting a new suit — though a rehearing is unnecessary.

It is therefore ordered, adjudged and decreed that the judgment heretofore pronounced be so amended as to maintain the cause of action in so far as plaintiffs’ claim of ownership of certain property is concerned, reserving to the parties respectively, the right to amend their pleadings; and that for this purpose the cause be remanded— the costs of appeal to be taxed against the estate of the insolvent.

Rehearing refused.


text:
    No. 11,187.
    Michel Heine et al. vs. Mechanics and Traders Insurance Company.
    Tlie purchaser ol dotal property legally alienated lias nothing to do with the reinvestment of its value. The husband alone has the administration of the dowry. All that the purchaser has to do is to pay the price to the husband, who may aol alone for the preservation of the dowry. The proceeds of the sale stand in lieu of the property itself, and become dotal. If the husband fails to reinvest the dotal funds the wife will have a legal mortgage on his immovables and a privilege on his movables for their restitution.
    a marriage contract executed abroad by persons who have a domicil in the place where it is executed, the part of the contract relating to the sale of immovable property in Louisiana must be construed according to the laws of Louisiana.
    the Civil District Court for the Parish of Orleans.

      Chas. J. Théard for Plaintiffs and Appellees:

      A marriage contract executed abroad, by non-residents, and never recorded here, is o£ no effect whatever as to third persons, with regard to immovable property situated in this parish. Const, of 1868, Art. 123; Act. No. 95 of 1869; Const, of 1879, Art. 176; Lafarge vs. Morgan, 11 Martin, 527; De Armas and Wife vs. Hampton, 11 Martin, 534; Cambre vs. Grabert, 33 An. 246; Skipwith vs. Glathary, 34 An 33.
    When the existence of such a contract is noticed by the purchaser of immovable property situated here, and the production of said contract is called for by said purchaser, the latter must accept or reject said contract as a whole; lie can not accept the contract only in so far as it affixes the character of dotality to the property, and reject it in all other respects. The express conditions and reservations under which the property has been brought in marriage, as dowry, can not be effaced from the contract.
    Tlic marriage contract is the law of the contracting parties, and of third persons dealing with them. Troplong, quoted in Stratton vs. Rogers-, 11 An. 381.
    It may be validly stipulated, in a marriage contract, that dotal immovables shall be alienable, and that the value of the same shall be reinvested in other immovables situated here, or in immovables situated in France, or in bonds of tin; United States.
    Under the French law it is not disputed that such a stipulation is valid.
    The. marital rights of spouses, the rights resulting from their marriage, are regulated by the laws of their matrimonial domicil. Gamier vs. Poydras, 13 La. 182; Fisher vs. Fisher, 2 An. 776; Hayden vs. Nutt, 4 An. 67; Percy vs. Percy, 9 An. 186. See also 6 An. 256, 327; 9 An. 318; 10 An. 440,566; 11 An. 598.
    The aforesaid stipulation is also perfectly valid under the law of Louisiana.
    In relation to property our law regulates the conjugal association only in the absence of particular agreements by the spouses, who are at liberty to make any stipulation that they may please; the sole limitation being that they can make no convention contrary to good morals or in contravention of prohibitory laws. C. 0., Arts. 2323, 2326, 2327, 2333 and Art. 11; Marcadé, Yol. 5, p. 383; Toullier-Duvergier, Yol. 6, tit. Y, oh. 1, pp. 13 and 14; Duranton, Vol. 14, tit. V,ch.l, pp.2 and 3; Pothier, Yol. 6, p. 41; Laurent, Yol. 23, pp. 507, 508, 511; Pritchard vs. Citizens Bank, 8 La. 133; Union Bank vs. Slidell, 11 La. 26 and 27; De Young vs.DoYoung, 6 An. 787; Desobry vs. Schlater et als.,25 An. 428. See also 8 Martin, 708; 9 Martin, 219; 11 An. 598.
    Article 2360 is not a prohibitory law.
    The provisions of our code with regard to reinvestment of dotal funds are addressed to the spouses, to the husband in particular, and are merely directory.
    The inalienability of dotal immovable property is only of the nature, not of the essence, of the dotal regime. Duranton, Vol. 15, tit. V, pp. 370, 371.
    Article 2360 is not a law of public order. Marcadé, Vol. 6, eh. Ill, pp. 14,15 and 16; Laurent, Vol. 23, ch. IV, pp. 451, 452, 453, 458, 459,48S.
    Article 2360 is an exceptional disposition in favor of certain persons. It may, thorefox-e, lie renounced by the individuals for whose benefit it has been made. State ex rel. Buisson vs. Lazarus, 33 An. 1429, and authorities there cited; Stein vs. Brunner, 42 An. 772.
    Under our law the purchaser of dotal property has nothing to do with the reinvestment of the dotal funds. C. O., Arts. 2360, 2361, 2362; Arts. 2337,2347, 2350; Arts. 2376, 2426. 2446 and Art. 2363. And particularly Montfort vs. Her Husband,4 Robinson, 453.

      Perca Roberts contra.

   The opinion of the court was delivered by

McEnery, J.

The Mechanics and Traders Insurance Company bought from plaintiffs’ property situated in New Orleans, at the northwest corner of Carondelet and Common streets, and deposited 10 per cent, of the price, $8000, in the hands of the real estate agent through whom the sale was effected. Clarisse Blanche Marie Louise Heine, wife of Charles Achille Pould, owned one-sixth of said property. On the presentation of the power of attorney of the vendors to execute the sale, it was discovered by defendant that Fould and his wife had entered into a marriage contract in Prance, where they resided, in which it was stated that the property in question shall be alienated only upon the condition that Madame Pould shall reinvest in accordance with the stipulations of the marriage contract, her share of the proceeds of the sale of said property.

The marriage contract was demanded by the defendants, which was produced, and a duly certified copy of the same is in the record.

That part of the marriage contract which it will be necessary to consider is as follows:

“Article I.
Régime.
“ The future spouses adopt, as the basis of their union, the dotal régime as established by the Civil Code, under the modifications hereinafter expressed.” * * * * *
“Article Y.
Alienation of the Dotal Property.
‘ ‘ Notwithstanding the adoption of the dotal régime, as above stated, Miss Heine, the future wife, shall always have the right, with the authorization of her husband, and without being obliged to fulfil any judicial formality—
“ To alienate, exchange or transfer, by private sale or by public auction, all her property, present or future, movable or immovable, * * * shares or undivided portions of property held in common with others. * * * *
The proceeds of said sales, exchanges or transfers * * * shall, when received, be invested in the manner hereinafter prescribed.”

The contract then goes on to enumerate every species oí property in which said proceeds may be invested. The list is too lengthy to transcribe it here. It includes every security considered hy the spouses available and safe. Among others it naturally specifies immovables, whether situated in France or in the United States of America, and bonds, of any denomination, of the United States of America.

After this contract had been submitted to the purchaser, he refused to accept title, on the ground that under Art. 2360, Civil Code, the dotal property of the wife can not be alienated during marriage, unless its value is contemporaneously reinvested in other immovables situated in this State, and that the obligation of reinvesting the value of such immovable in other immovable property is imposed jointly on the husband of the vendor and on the vendee.

The plaintiffs brought their suit to compel defendant to accept title. There was judgment in their favor and the defendant appealed.

The marriage contract was made in France, where the husband and wife resided and had their permanent domicil.

That part of the contract which related to the ability of the party to transfer the property situated in Louisiana must be governed by the law of Louisiana. Saul vs. His Creditors, 5 M. W. S. 569: Story Conflict of Laws, Secs. 431 and 219; 23 Miss. 42; 11 Mo. 314.

Article 2360, Civil Code, is a restraint upon the alienation of immovable property, and all restraints on the alienation of land are governed by the lex loci rei sitte. 12 Eng. L. and Eq. 206.

Article 2360, Civil Code, is as follows:

“Immovables settled as dowry may be alienated with the wife’s consent when the alienation of the same has been allowed by the marriage contract; but their value must be reinvested in other immovables.”

In commenting on this article of the code, in the case of Montfort vs. Husband, 4 Robinson, 453, this court said:

“It has been urged, however, that it was the duty of the purchaser to see that the funds proceeding from the sale were reinvested orlaidoutas dotal funds for the benefit of the wife. * * * We have been unable to find anything in our law that would favor any such pretension. Article 2341 does not say by whom, the investment is to be made; and we are not prepared to say that the purchaser of the dotal property thus legally alienated had any right to interfere in the wife’s funds and in the administration of her dotal effects. This properly belongs to the husband, who alone has the administration of the dowry (C. C., Art. 2330) ; and it seems to us that all that the purchaser has to do is to pay the amount of his purchase to the husband, who, according to our law, may act alone for the preservation or recovery of the dowry. The proceeds, of the dotal property stand in lieu of the property itself; they become dotal, and, as such, they must be given or paid over to the husband (C. C., Art 2327). Articles 2355 and 3287 of the Civil Code, which say that the wife has a legal mortgage on the immovables and a privilege on the immovables of her husband for the restitution of her dowry, and for the reinvestment of the dotal property sold or alienated by the husband, corroborate the view we have taken on this subject, and show clearly that the dotal rights of the wife are so secured by the legal mortgage and privilege thus allowed her that if the husband fails to reinvest her dotal funds his own property will immediately become subject to the reinvestment, and will, as as such, under the mortgage, stand in lieu of the property itself, to secure the replacing of her dotal effects (pour le remploi des Mens dotaux).”

The sale of the wife’s dotal immovable in this case had been made to effect a partition, and the comment on Article 2360 was unnecessary and was oMter dictum. But the reasoning we thinkis conclusive, and applicable to the instant case.

While the ownership of the dotal immovable remains in the wife, the husband alone has the administration of it. C. C. 2350.

“ Immovables settled as a dowry can not be alienated or mortgaged during the marriage by the husband or wife, nor by both together, except as is hereinafter expressed.” C. C. 2357.

Among the exceptions is that they may be alienated with the wife’s consent when it has been allowed by the marriage contract, but their value must be reinvested in other immovables. O. O. 2360.

There is no reason why the exception granted in this article should not fall under the same rules'which govern the alienation of the dotal immovable in other cases where its alienation is permitted. The condition in this article is that the alienation is allowed in the marriage contract, and the declaration in the article that their value must be reinvested in other immovables is no limitation upon the power to alienate. It would practically render the article inoperative and would impose upon the vendee such responsibilities that no purchaser would assume. If he be compelled to see that the value of the immovable is reinvested in other immovable, the duty to investigate the title of the other immovable, and the value would necessarily be an accompanying duty also. The husband has the undoubted right to receive the price of the sale as the administrator of the dowry. Art. 2350, O. 0., declares that the wife can not deprive him of it. The Art. 2360 certainly did not intend to repeal or modify said article. The Art. 2760 of the O. O. intended that the husband, as administrator of the dowry should reinvest the value of the dotal immovable, alienated, in other immovable property, and until he does so Art. 2876, O. 0., gives the wife a legal mortgage on her immovable and a privilege on his movable property. If he reinvests it in his own name it is still dotal property. Art. 2356, O. O.

It is claimed that the ease of Belouguet vs. Lanata, 13 An. 2, supports the views of defendants in the interpretation of the Art. 2360, O. O. But in this case the court said: “ That the question here is not what might the parties have done, but what have they done; not what the code means, but what the marriage contract means.” The marriage contract allowed the sale of the property with the wife’s consent. It was mortgaged for the avowed purpose of paying off her old debts. It was decided that under the power to sell allowed in the marriage contract she could not mortgage.

The case has no bearing on the issues involved here.

Judgment affirmed.


author: McEnbby, J.

text:
    No. 11,018.
    Consumers Ice Company vs. Jacques Trautman & Co.
    Where an ice dealer agrees with another to furnish him ice at certain prices until a pool is formed to advance prices, in which the latter is also to be a member, and the pool is formed, the contract is ended.
    In the formation of the pool if acts are done, and resolutions offered, with which the party to whom the ice was to be sold does not agree and refuses to become a member, he can not hold the other party to the contract and make him responsible for the acts of the members of the pool.
    In case the facts of the case are disputed, and leave the existence of the contract in doubt, we will not disturb, without urgent reasons, the judgment appealed from, as the district judge was in a favorable position, from seeing and hearing the witnesses testify, to ascertain the truth.

      A PPEAL from the Civil District Court, Parish of Orleans. tx Bightor, J.

      Francis B. Lee and Harry H. Hall for Plaintiff and Appellee.

      Bice & Armstrong for Defendants and Appellants.
   The opinion of the court was delivered by

McEnbby, J.

The plaintiff company sued the defendants for §906.50, amount of ice sold and delivered to them from May 1 to June 20, 1890.

Defendants admit this indebtedness, but, assuming the position of plaintiff in reconvention, allege that plaintiff is indebted to them in the sum of $5288.75. The reconventional demand is based on an alleged contract with plaintiff, by which the company was to furnish defendants with ice, some 1500 tons, at a certain price, and failing to do which, the defendants had to get ice elsewhere for their business, the extra cost of which, including waste in shipping and freight bills, amounted to the above amount.

The alleged contract was the result of several interviews between the president of the company and the defendants, which resulted in the agreement as alleged by defendants, that the plaintiff was to furnish ice to the defendants at $5 per ton, in stated amounts at certain dates, until a pool was formed, in which defendants were to be included. Ice was furnished defendants at §5 per ton to the 10th day of June, 1890, after which the company declined to furnish it, except at market rates to large consumers.

The contention of defendants is that no circumstance has ever occurred to put an end to the contract, and that plaintiff was bound, under the same, to deliver ice at the rate of $5 per ton.

It was in contemplation that all the ice dealers would go into the pool. Trautman & Co., the defendants, were as active as the rest in procuring its formation. It was formed, and it seems a resolution was offeretd at the meeting to perfect the organization, that the dealers in natural ice should furnish their percentage in natural ice, whereupon Trautman & Co refused to enter the pool.

This action of the meeting is the ground for the argument that the contract to furnish ice at $5 per ton until the pool was formed still continued, as the president of the plaintiff company, who made the contract, was present and made no protest, or effort to oppose the proposition. It may be very true, as urged by defendants, that they had no interest after the adoption of the resolution to enter the pool. It would have been undoubtedly to their advantage to stay out, sell any quantity of ice above the percentage, at rates below the combination price.

The Consumers Ice Company would have been furnishing the means to defeat the object for which the pool was formed. It must have been known to defendants that the object of the combination was to advance prices, and its formation, with his consent, would annul his contract. The president of the Consumers Ice Company was not alone to fix the conditions of the membership. It was a future transaction of a body to be organized, in which defendants were to be participants.

They h ad as much voice as the president of the company in its organization. Its future deliberations were unknown, and its deliberations and conclusions could not be the acts of the Consumers lee Company alone. It could not individually be held liable for the result of the organization and the conditions of membership. Each company engaged in the manufacture of ice went into it with expectations of procuring an advantage which was not accorded to it. The testimony shows that each was dissatisfied with the percentage allowed; yet the pool was formed and the contract as understood by defendants was ended.

To say that the refusal of defendants to go into the pool continued the contract alleged to have been made with them by the plaintiff would be to make the condition potestative, and therefore null and void. Civil Code, 2034.

In examining the mass of conflicting testimony in the record, we find only one agreement that can be construed into a contract between the parties. It was the memorandum on the back of an envelope, purporting to contain the agreement made by Joseph Trautman and handed to Phillippi, the book-keeper of the Consumers Ice Company, in the presence of the president of the company.

The contract was made in the year 1890, according to the statement of Trautman, at the request of the president of the company, who informed him. through the telephone that he wanted to make another contract with him in the event of the formation of a pool among the ice dealers of New Orleans. The memorandum on the envelope is the furnishing of ice, one-half over 40 per cent, of the percentage to be allowed defendants in the pool at the rate of $6 for June, July; $7 for August, September and October; |6 for November, December and January; $5 for February, March and April. If plaintiff could be held, it would be according to the terms of this contract, and the damages would be, not what defendants lost in freight and waste by 'melting, but the difference between the prices plaintiff agreed to furnish defendants and the market price in New Orleans.

The defendants have, however, not declared on this contract, but on one the existence of which is shrouded in doubt and uncertainty. We do not, therefore, feel authorized to disturb the finding of the district judge on disputed facts, as he was in a favorable position to enable him to ascertain the truth, by seeing and hearing the witnesses, an opportunity that is not presented to us. Under such circumstances we will not disturb the judgment appealed from, without urgent reasons. Ohopoton vs. Creditors, 45 An.; Payne vs. James & Trager, 45 An., recently decided; Commission Oo. vs. Bond & Williams, 44 An. 841.

Judgment affirmed.

Rehearing refused.