author: W'ATKINS, J. Breaux, J.

text:
    No. 11,907.
    State of Louisiana vs. Stephen Barnes and Mary Russell.
    •A simple remark, made by the judge to defendant’s counsel, during tlie progress of the trial, that he seemed “to want no testimony except what suits his side of the case;” and that he propounded to him the question: “Are you afraid of your own witness?” do not amount to a comment upon the testimony, nor the intimation of an opinion in reference to the testimony.
    The trial judge is not in duty hound to give any special instruction to a jury which is not applicable to the proven facts in the case; and, in the absence of proof disclosing that two defendants are husband and wife, it would have been improper and misleading to the jury for the judge to have given them instructions with regard to the exercise of coercion and marital influence.
    Motions for new trials should contain all the grounds -which defendants rely upon to have verdiets set aside. The filing and overruling of one exhausts the right.
    On Rehearing.
    REFUSAL TO INSTRUCT JURY AS REQUESTED.

      Breaux, J.: Had the requested instruction been given the trial judge would have assumed that the defendants were husband and wife.
    The trial judge denies that there was any evidence of that fact.
    Itwasa question of fact for the jury, and the trial judge properly declined to assume that there was a marriage.
    MARITAL COERCION.
    If it be granted that the accused were husband and wife, the doctrine of presumed coercion does not apply in cases of murder.
    A PPEAL from the Fifth Judicial District Court for the Parish of ** 'Morehouse. Richardson, J.

      M. J. Cunningham, Attorney General, and J. P. Madison, District Attorney, for Plaintiff, Appellee.

      Ii. Flood Madison and William A. Collins, Jr., for Defendants, Appellants.
    Argued and submitted November 9, 1895.
    A rehearing was granted; opinion handed down November 18, 1895.
    Argued and submitted on rehearing February 15, 1896.
    Opinion on rehearing handed down February 24, 1896.
   The opinion of the court was delivered by

W'ATKINS, J.

The defendants, having been indicted for murder, prosecute this appeal from an unqualified verdict of guilty, without capital punishment, and a judgment sentencing them to lifetime imprisonment.

There are four bills of exception in the record upon which they rely for a reversal of that judgment.

I.

The first bill of exceptions relates to certain alleged improper conduct on the part of the trial judge, it being charged that he made certain remarks to the defendants’ attorney and certain comments upon the evidence, both of which had a tendency to prejudice-the accused and bring their said attorney into contempt.

The charge made is that, while one of the witnesses for the defendants was under cross-examination by the District Attorney, counsel for the defendants objected to any questions being asked relative to matters about which the witness had not been interrogated in chief, and that, thereupon, the trial judge remarked:

“ You seem to want no testimony except what suits your side of the case.” And that the judge again asked, in the same connection and in a few moments afterward: “Are you afraid of your own witness ?”

That these statements were made in the presence and in the hearing of the jury; and, for the reasons above assigned, counsel reserved his exception.

The judge'assigns the following reasons for his ruling:

“The counsel was incessantly, for some time, making objections of no force, and seemed disposed to prevent, or obstruct, cross-examination of the witnesses by the District Attorney. The questions, if not directly called for by what the witness testified, were pertinent and relevant to answers made by the witnesses to questions propounded by counsel for the accused.

“The counsel displayed so much nervousness as to what the witness might answer, that the court did ask, good naturedly, the question complained of:”

These statements of the judge do not amount to a comment upon the evidence, nor did he, in any way, intimate to the jury his opinion in reference to the testimony.

We are unable to discover any injury the defendants have sustained by the remarks of the judge thus jocularly made.

II.

The second bill of exceptions relates to the judge’s declination to give to the jury the following special charge, viz.:

“That if the evidence shows that the wife of the accused (one of the defendants) was acting under his (the other defendant’s) direction, and upon his request, in his presence, in attempting to take, or in taking, the life of the deceased, the law presumes that she so acts under marital coercion and influence, and holds her innocent, and the jury should acquit her.”

The statementin the bill is as follows, viz.: That one witness had testified “ that he had kno a n the accused parties for several years; that they lived as husband and wife, and held themselves out as such in the community where they lived.”

And that, in this connection, one of the accused swore as a witness “that while he and the deceased were grappling over a rifle, and the deceased was about to get sole possession of the same, he, the accused (one of the defendants), called to his wife (the other defendant) and said, Mollie, pick up the pistol and shoot him (the deceased) or he will kill us all.’ ”

The judge says of the foregoing statement, that it was “an assumption of fact not justified by the evidence;” and his statement has quite as much pertinency to the testimony of the witness with regard to the marital relations between the two accused as it does to the statement of the accused with regard to his coercion and undue influence over his alleged wife.

Oertainly, we would be unwarranted in assuming, on the face of the judge’s statement, that either marital relations did exist between the two defendants, or that undue coercion was proved.

III.

The next bill of exceptions relates to the judge’s refusal to grant the defendants a new trial.

Their motion is grounded on the claim that the verdict of the jury is contrary to the law and evidence; and, further, upon the alleged misdiseretion of the judge in declining to give to the jury the special instructions that are discussed in the previous bill.

Of course, a new trial could not, in the present state of our jurisprudence, be granted on the simple ground that the verdict was contrary to law and evidence.

State vs. Breckenridge, 33 An. 310; State vs. Bird, 38 An. 497; State vs. Butler, 42 An. 229; State vs. Bass, 11 An. 478; State vs. Lennon, 8 Rob. 543. With regard to the special charge, which counsel insist the judge erroneously overruled, he supplements the statement contained in the preceding bill, thus:

“There was no testimony introduced 'on the trial that Mollie Russell was the wife of Stephen Barnes, the other accused party.

“ Barnes, in his testimony in his own behalf, did refer to her in his narrative as his wife; but not in answer to any question as to their relation. The testimony did show that they lived together as man and wife.

“ A witness (for) the accused, some twenty-five or thirty years of age, stated that he was the son of Barnes’ wife, whojs still living.”

Conceding that the statement of the judge, in the bill of exceptions reserved to his ruling in reference to the defendant’s requested special charge, was inadequate, the supplement thereof in this bill puts the correctness of his ruling beyond question or dispute.

IY.

After a verdict had been rendered against the accused, their counsel moved to set same aside on several grounds: First, because of the errors that they had assigned in the three bills of exception we have discussed; second, because the verdict is not responsive to the indictment, and the charge of the court; third, because it was reached through error and deception in respect to one of the jurors, who had, in the juryroom, cast his vote in favor of manslaughter only, and declined to vote for any other verdict; but that he was influenced by the false representations of certain other jurors to change his mind, and vote for a verdict of “guilty, without capital punishment,” detailing what those false representations were.

Prom the record it appears that this motion was filed several days subsequent to the final disposition of the motion for a new trial. In view of this fact, we can not understand why the latter motion was entertained at all.

But the judge states in the bill of exceptions that he “declined to hear testimony on said motion and overruled the same for the reason that a juror could not be heard to impeach his own verdict; and (that) on the trial of this cause, when the jury had brought in (their; • verdict, said jury, on request of counsel for defendants, were polled, and each (member thereof) said the verdict announced was his verdict,” etc.

On this statement the correctness of the judge’s declination to hear evidence from the members of the jury in support of the allegations of the motion can not be doubted.

And we are equally clear upon the proposition that defendants’ counsel had no right to'file the motion at all. Motions for rehearing necessarily come after verdict, and they ought to embrace all the grounds that are relied upon.

An examination of the several bills of exception has satisfied us that the defendants have no well-grounded cause of complaint.

Judgment affirmed.

On Rehearing.

Breaux, J.

While it is of importance that the court should not invade the province of the jury, and that the judge should not give his opinion upon the facts, though the jury should be left to ascertain the facts for themselves, without a suggestion or influence of any kind, yet courts have not, with any degree of propriety, gone to the length of reversing a verdict for a playful remark to counsel for defendant, such as, “You seem to want no testimony except what suits your side of the case.” It was, the judge certifies, an utterance to counsel, made good humoredly, without the least intention of influencing the jury.

In regard to another point raised in argument and urged on the application for a rehearing, the court certifies in the bill of exception that the defendant assumed as a fact that which it was incumbent upon him to prove.

It is manifest that the issue of marriage was not raised in the District Court, and that only incidentally the word wife was used, and that in consequence the court was persuaded that there was no proof that the defendants were husband and wife.

In a case of this gravity the question of marriage was of the greatest importance, if one of the defendants relied upon the presumption of marital coercion of the husband as a ground of defence. The inference is unavoidable. The trial judge was surprised that attention was not in the first place directed to the marriage, if there was a marriage, and, in the second place, to the presumption arising therefrom. If there was no marriage, as stated by the trial judge, the principle that the court may refuse to instruct the jury on a point upon which there is no evidence,.direct or indirect, applies.

But be this as it may, we do not rest our conclusion entirely upon that ground. In regard to marital coercion, the presumption of inao-cenee does not necessarily arise in all cases.

Mr. Wharton in his Treatise on Homicides, par. 831, says: If a husband and wife jointly commit a murder they have been held to be co-principals, as the doctrine of presumed coercion doesnot apply to murder.

Such is also the conclusion of Archibold, Vol. 1, p. 45: a wife who commits treason, murder or robbery, in the company of her husband, is not to be excused.

Russell on Crimes states the principle: “If she be guilty of treason, murder or robbery, in company with or by coercion of her husband, she is punishable as much as if she were sole” (p. IV, Vol. 1).

Coercion, says Desty, has no application to capital offences (par. 16).

There being a question whether any evidence, such as required, was brought at all to the attention of the jury to prove marriage; and the presumption of coercion, as announced, having been considered, we think that our previous decision should remain as it is.

The requested charge was to have pronounced a verdict of not guilty, if there was marital coercion. In a ease of murder the judge could refuse to so charge. (There was no question before the court in regard to a lesser crime of the same nature of a lower degree of homicide.)

For the reasons now given and for those heretofore assigned by us in this ease on the original hearing, it is ordered, adjudged and de - creed that the judgment of the lower court is affirmed.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,995.
    John B. Foley vs. Leon Godchaux.
    It is the servitude ol the lower estate to receive and dispose oí the water that flows naturally from the estate above, and no obstruction to that flow can be created by the proprietor of the lower estate. Civil Code, Arts. 660, 661; 19 La. 351; 16 La. 151.
    If such obstruction is created the proprietor of the lower estate will be liable for the damage. Ibid.

    The abandonment of the legal servitude of drain imposed on the lower for the benefit of the upper estate, is not to be presumed, but requires clear proof; the court finds no such proof in this case.
    APPEAL from the Twentieth Judicial District Court for the Parish of Assumption. Caillouet, J. ad hoc.

      Beattie & Beattie for Plaintiff, Appellee.

      Pugh, Pugh & Marks and L&zarus, Moore & Buce for Defendant, Appellant.
    Argued and submitted January 25, 1896.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiff alleging that defendant has erected a dam and otherwise obstructed adrain to carry the water from plaintiff’s land over defendant’s plantation to the low lands in the rear, sues to remove the obstructions and for damages for loss of crops alleged to have been caused by the water accumulated on plaintiff’s land owing to the obstructions. The answer of defendant is in substance, that the drain, the stoppage of which is the basis of plaintiff’s demand, was abandoned prior to the acquisition by the plaintiff and defendant of their respective plantations, and denies the obstructions imputed to defendant in the petition. The answer sets up that in 1852, an agreement was entered into by the author of defendant’s title, and other planters in the neighborhood, by which the drainage of their lands was to be effected by means of a canal from above the plaintiff’s land, crossing the drain and leading to what is known as the Company Oanal. It is charged that this agreement was for the benefit of the lands then owned or that might afterward be added; that in accordance with the agreement the requisite canal to connect with that of the Company was cut at great expense, has been in use for fifty years, and it is charged superseded and made useless the drain, the stoppage of which is plaintiff’s cause of action. The answer avers besides that the plaintiff’s lands were acquired after the agreement by one of the contracting parties as part of his plantation, and thus became subject to the drainage system established by that agreement; that plaintiff, holding under one of these contracting parties, is bound by his contract; can not now insist on any drainage other than that created by that agreement, and can not partake of that without contributing to the expense, which it is alleged he has refused to do; and the answer, insisting that the drainage claimed by plaintiff would throw all the water from plaintiff’s land into the canal cut to connect with the Company Canal to the-detriment of those interested, prays that all such parties be made defendants, and that plaintiff be decreed to be estopped by the agreement set up in the answer; the drainage thereby introduced be maintained, that claimed by plaintiff be denied, and his injunction be dissolved.

The injunction obtained by plaintiff was dissolved and the dam complained of by him was thus maintained. The judgment of the lower court was in favor of plaintiff, reinstating and making perpetual his injunction. Prom that judgment defendant appeals, and answering the appeal the plaintiff asks for an amendment giving him the damages claimed by him and refused by the lower court.

The plaintiff’s plantation fronts on the Bayou Lafourche. In the rear is that of defendant. The natural drainage of plaintiff’s land it is claimed, was designed to be effected by a bayou passing through his plantation to that of defendant’s, thence to the swamp in the rear. The testimony shows the bayou to be thirty feet wide where it enters defendant’s land; in some places in his field to be partially filled by the crossing of carts and wagons, but distinctly traceable, and with a depth varying from eighteen inches to four feet. The draining capacity of this bayou was affected by the filling at some points, but we think it proved it served as a drain for plaintiff’s land. On this point defendant’s witness testifies, in an excessive rain the water ran in the bayou from plaintiff’s field through to defendant’s lands. Whatever the condition of the bayou in defendant’s field, and waiving the question whether it was not his duty to keep it clear as an outlet, it is the current of the testimony that the bayou was the means of carrying off the water from plaintiff’s land. It was across this dam that in the spring of 1894, defendant put the dam of which the plaintiff complains. It was removed by plaintiff, replaced by defendant, maintained under the order dissolving plaintiff’s injunction, and there is no kind of question the dam completely cut off plaintiff’s drainage.

The contention of defendant is founded on the agreement of 1862, and insists plaintiff is confined to the drainage then established. The contracting parties were four planters owning plantations on the Bayou Lafourche, lower down than that now owned by plaintiff. That drainage suited them, the canal then cut carrying the water from their places to the Company Canal, back in the swamp, as the witnessess express it, in or near the rear of the plantations of the four contracting parties. ' It was stipulated in this agreement that the expense of the proposed drainage should be borne proportionately by the four parties, and their agreement should embrace any future addition or enlargement of their then existing plantations. The plaintiff acquired his property forty years after this agreement. He holds by subsequent conveyances under one of the contracting parties who, after the agreement, became the owner of the land afterward acquired by plaintiffs, and it is insisted that land was bound for its part of the drainage expense under the stipulations that enlargements should contribute. The owner of forty years ago being bound, it is claimed the plaintiff succeeding to the ownership is in like manner bound. - .

The ownership of the land now belonging to plaintiff, preceding his, was that of Landreaux, owning the Trinity plantation. The plaintiff’s land is above the Trinity, and above all the other places whose owners entered into the agreement of 1852. Moreover, plaintiff’s land does not adjoin Trinity. The drainage of 1862 was important, if not indispensable, to the lands of the contracting parties. But plaintiff’s lands lying above, the natural drainage to the rear, was not dependent on the canal cut to the Company Oanal. It is for the land below to provide for the water that flows naturally from the superior estate. Civil Code, 660. Hence, the plaintiff contends the agreement of 1862 has no application to his land acquired by Landreaux after the agreement. It is urged in support of this, that the land was not within the enlargement stipulation, because not adjoining the Trinity plantation. The situation of plaintiff’s 'land not requiring the drainage system of 1862, is also urged to exclude the application of the agreement of that year for the benefit of lower estates, and plaintiff finds support in the additional fact that neither Landreaux or any succeeding owner of these lands were ever called on for any contributions under the agreement of 1862. The relinquishment of a natural servitude is not to be presumed.

The defendant urges that all the water, from plaintiff’s land, whether or not flowing through the bayou the defendant obstructed, is bound to find its way to the Company Canal through the connecting canal cut in 1852. If this is so, it is solely because of this connecting canal on defendant’s land, which we infer from the record crosses the bayou in its course through the swamp. It seems to us it is no concern of plaintiff how the lower estate disposes of the water it receives from the superior estate. It may be, as defendant claims, that if the water from plaintiff’s lands flows into the company dams, lessening the capacity of that canal, it will expose the lands of others to overflow. Here again it may be said, that is for the owners of all these lands lying below plaintiff to protect themselves by suitable drains. Neither defendant or any of these proprietors of the lower estate can, in our view, stop the natural flow of water from the superior estates on the ground that water will overflow their lands. It is their obligation to receive such water and their burden to provide means of disposing of it.

We can find in none of the contentions of defendant any justification for the dam erected by him. The text of the Code creating the servitude of the lower estate forbids the erection of such obstruc - tion. C. C., Arts. 660-661. If, indeed, the agreement of 1852 could be construed to require a contribution from plaintiff for the use of the canal drainage, we are clear that did not authorize the stoppage of all his drainage, whether by the bayou, to the swamp or to the canal or in any mode.

We are asked to remand this case to afford an opportunity for all parties interested in the canal drainage to be brought before the court. We would remand if it would serve any useful purpose. In our view the presence of these parties could in no manner affect the decision between plaintiff and the defendant.

If the defendant, as we hold, had no right to close the dam, and in consequence plaintiff lost his crop, in our view damages are due plaintiff. The judgment of the lower court is against plaintiff on his demand for damages. The judgment in that respect is placed on the ground that plaintiff took the law into his own hands by removing the dam .first erected. The plaintiff testifies he supposed that the dam was on his land.' Whether right or not, in this respect, his supposition deserves consideration in our appreciation of the act. In view of the fact that defendant replaced the dam since maintained,, the first removal by plaintiff of that he deemed an unlawful obstruction, afterward - reinstated and maintained, can not afford protection to defendant now sought to be held for his unlawful act.

We have examined the plaintiff’s proof as to his damages. We think an allowance for one hundred tons of cane at eighty five cents, and one hundred dollars for the corn planted, will compensate plaintiff for his loss on crops. As to the wood claimed to have been cut but not sold, by reason of the flooding of the land, we do not find.the basis for any judgment. We think, too, the attorney’s fee of one hundred dollars should be allowed plaintiff.

We are asked to give punitive damages. We have not felt at liberty to accede to this. The reasonable belief of his right of defendant enclosing the dam, though his appreciation of his right was entirely wrong, should, we think, protect him from punitive damages.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to allow the plaintiff damages, and it is therefore ordered, adjudged and decreed that plaintiff do have and recover from defendant three hundred and twenty-seven dollars and fifty cents, and as thus amended the judgment of the lower court be affirmed with costs.


text:
    No. 11,937.
    Theodore Bruno vs. Mary Oviatt.
    Interest accrued when the suit is brought is to be computed in the amount required to give this court jurisdiction of the appeal. Constitution, Art. 81; 12 La. 156; 2 An. 793.
    The remedy against judgments obtained by fraudulent practices is the action of nullity; the grounds for such an action can not be urged as a defence in the suit to revive the judgment. Code of Practice, Arts. 604, 607 et seq.; 28 An. 173; 30 An. 130; 33 An. 342; 34 An. 520.
    APPEAL from the Oivil District Court for the Parish of Orleans. J.

      Quy M. Hornor for Subrogee, Appellee.

      W. 8. Benedict for Defendant, Appellant.
    Argued and submitted February 13, 1896.
    Opinion handed down February 24, 1896.
    Opinion refusing rehearing March 9, 1896.
   The opinion of the' court was delivered by

Miller, J.

The plaintiff sues to revive a judgment against defendant. The answer is that there was no consideration for the note of twenty-five hundred dollars, on which the judgment is based; that it was pledged by her for another note for five hundred dollars she was induced to sign; that the pledgee sold and purchased the twenty-five hundred dollar note, transferring it to plaintiff, who sued and recovered upon it the judgment sought to be revived; that the suit on the note was not defended; that she employed no counsel, but that such employment was effected by another, who, with the pledgee and his partners, are charged with a fraudulent combination to injure plaintiff, and the answer prays that the suit to revive be dismissed and the judgment sought to be revived be decreed a nullity. The plaintiff excepted to the reconventional demand and the exception overruled, answered averring the validity of the judgment and denying the allegations of the answer. From the judgment in favor of plaintiff defendant takes this appeal.

The defendant; moves to dismiss the appeal on the ground that the note, the basis of the judgment revived for -twenty-five hundred dollars, was reduced by a credit of date June 3, 1895, of seven hundred and ninety-three dollars, and hence it is contended the amount involved is less than two thousand dollars. But when the suit was brought the interest accrued, added to the amount of the note, exceeded two thousand dollars. McMicken vs. Smith, 12 La. 156; Mason vs. Oglesby, 2 An. 793; Cornell vs. Geddes, 10 An. 170. The motion to dismiss is overruled.

The controlling question in the case is whether a suit to annul the judgment for fraud can be grafted by defendant upon an action to revive that judgment. There can be'no question and none is raised by defendant’s answer in reference to the citation of defendant in the original suit on the note. When that suit was brought against her she excepted that being a married woman her husband must be joined. That was done and the husband and wife defended, resulting in the judgment now before us for revival. The answer is, substantially, that the two thousand five hundred dollar note made by defendant was a fraud on her as a married woman; that no real de-fence was made'in the suit; that the plaintiff, Bruno, and those from whom he acquired the note concurred in the fraud, and they, it is alleged, are the real parties and not the subrogee who brings the suit. These allegations import a defence to the origin'al suit. But can the defence find any place in the suit to revive, waiving the question unnecessary to be considered, whether defences available before judgment can be urged after its rendition, except, if it be a qualification, within the limits of the action of nullity. C. P., Arts. 604, 605, 606, 607.

The statute for the revival of judgments, enacted in 1853, was entitled an act x-elative to the prescription of judgments. The statute is now Art. 3547 of the Civil Code. It provides that ten years shall prescribe the judgment, but the party interested may have his judgment revived by citation served on defendant within ten years, unless the party show good cause against the revival. Obviously, neither the title to the act nor anything in the body of it, conlemplated that in the suit to revive, the defence to the suit could be presented again, on the application to revive. Any such interpretation would be utterly inconsistent with the finality the law attributes to the thing adjudged. Civil Code, Art. 2285. The judgment may be revived, set aside or revised, the law declares, by appeal, new trial, rescission or action of nullity. These remedies are prescribed under well defined limitations. Code of Practice, Arts. 556 etseq., 557 et seq., 564 et seq., 604 et seq., 614 et seq. Fraudulent practices in obtaining judgment are within the scope of the relief proposed by these articles. No purpose to enlarge these remedies can rationally be attributed to the statute to prescribe judgments and provide for their revival. No such purpose is avowed by the title or declared by words or vaguest implication in the act. To suppose any such purpose would be to extend the act beyond its title, and the fair significance of its terms. An interpretation of “the cause” that the defendant might urge against the revival is suggested by the act. Without citation there is no basis for the judgment. Hence, on the application to revive, the want of citation manifestly, is a defence. But under this revival legislation, it seems to us utterly inadmissible that the defendant can assail the judgment for alleged de-fences he- conceives existed at the time the original suit was brought.

The defendant supposes that what she calls radical defects may be urged in resisting the suit to revive. It is claimed that this view finds support in the expressions used in some of the decisions. Frauds on a married woman in obtaining her obligations or in respect- to her property protected from liability for her husband’s debts, undoubtedly are repugnant to prohibitory laws. In all such cases the law affords adequate relief. But we can not strain a statute for the prescription and renewal of judgments so as to give-under that statute a remedy against judgments susceptible, as she thinks, of defences either urged without effect or not urged at all. For such wrongs there are prescribed remedies, in our view, not ex-tended by the judgment statute.

Our view of this statute is, we think, fully sustained by the decisions. Without extending the discussion it may be stated that in all the cases involving this question, the solution, was that on the petition to revive the citation of the defendant, was the subject for investigation. If cited, the revival followed. The revival, however, gave to the judgment no force additional to that it originally possessed. This is expressed in the statute. The judgment is to continue in force. If assailable for fraud the reviv.al furnished no protection. The revival simply avoided prescription. As the defendant raises no issues as to citation, conclusively proved, in our view the judgment of revival is open to no objection. Drogre vs. Moreau, 23 An. 173; Marbury vs. Pace, 30 An. 1330; Folger vs. Slaughter, 33 An. 342; Conery vs. Rotchford, Brown & Co., 34 An. 520.

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

ON Application por Rehearing.

Our decision excluding the defences sought to be urged in this suit to revive judgment, could not deprive the defendant of and grounds available to assail the judgment. Our decision implies the right, if it exists, we are asked to reserve.

It is, therefore, ordered that our decree be so amended as to reserve to the defendant any grounds available to her to assail the judgment herein revived, without, in the least, affecting by this reservation any and all rights of plaintiff to resist such grounds as defendant may urge.


author: Millbr, J.

text:
    No. 12,078.
    The State ex rel. E. B. DuBuisson, District Attorney, vs. W. C. Perrault, Judge of the Eleventh Judicial District, Parish of St. Landry.
    The writs of certiorari and prohibition to correct the error of an order of the District Judge will not issue when, since the application to this court, the order has become inoperative.
    y^PPLIOATION for Writs of Certiorari and Prohibition.
    Relator in propria persona.

      Henry L. Garland, Jr., for Respondent.
    Submitted on briefs February 24, 1896.
    Opinion handed down February 26, 1896.
    Rehearing refused March 9, 1896.
   The opinion of the court was delivered by

Millbr, J.

The relator, the District Attorney of the Eleventh Judicial District Court, by his petition seeks to obtain the review by this court of the order of the District Judge to the sheriff, directing the release of a party indicted, arrested and imprisoned, though the party thus directed to be released had furnished no bail.

The District Judge, in his return, admits that he gave such order, giving as his reason that the party indicted was the Registrar of Voters for the Parish of St. Landry, whose presence at his office to discharge his public duties was necessary; that arrested for a bailable offence, he refused to be bailed and to remain incarcerated, thus preventing the registering of the voters in attendance for the purpose at his office, and that under these circumstances the respondent deemed it his duty to direct the sheriff to release the accused from custody.

We are relieved from the necessity of any discussion in reference to the power asserted by the District Judge of directing the rele'ase, without bail, of a party indicted and in custody. We can appreciate the grave consequences of a public official charged with the important duty of registering the voters, choosing to remain in prison to the prejudice of the public interests, instead of availing of bail, tendered for him, as we are informed by the return. But we do not think, the corrective of such an evil is to be supplied by the judge issuing an order for the release of the accused without bail, exacted by the laws as the prerequisite of such release. We think the basis for the application, when it was made, existed. But we are informed that subsequent to the application bail was furnished, and thus the order complained of by the relator is divested of importance.

It is therefore ordered that the writs be denied, the costs to be paid by the respondent.

On Application for a Rehearing.

The decree herein is amended so as to relieve respondent of the costs.


author: Breaux, J.

text:
    No. 11,979.
    Heirs of Wm. Wykoff, Sr., vs. David L. Miller.
    The admissibility of evidence given of facts not alleged should he objected to when offered, and the point reserved.

      Parol evidence (admitted over objecfcionyof ageneral character, of ex parte declarations, will not affect the validity of a title on the ground that the purchaser at tax sale was only the purchaser nominally and that his vendee was the real purchaser.
    A defendant who is sued for-property is not estopped in denying plaintiff’s ownership of it because previously, at a time not fixed, he paid rental money on the property.
    The tax sale was made by the proper officer and evidenced by a deed having no patent defects on the face of the papers; the purchaser was not in bad faith. The title became absolute and perfect by the lapse of ten years.
    APPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Eournet, J.

      Kenneth Baillio and E. P. Veazie for Plaintiffs, Appellants.

      B. P. O’Bryan for Défendant, Appellee.
    Argued and submitted December 21, 1895.
    Opinion handed down February 10, 1896.
    Rehearing refused March 9, 1896.
   The opinion of the court was delivered by

Breaux, J.

The purpose of the suit is. to annul a tax sale.

The petition sets forth a number of grounds of nullity of the sale and offers as to form, and sufficiency of the allegations; no basis for objection.

The answer, also, of itself gave no rise to controversy, save that plaintiffs seek to hold the defendants to a judicial admission in having alleged as to the agency of David J. Reid that he bought the property October 13, 1874, and transferred it to the respondent in December, 1877, as shown by a receipt for the price; and that in 1888, Rei6 having died, the administrator of his succession made to the defendant a deed of conveyance in conformity with the receipt of December, 1877. The answer alleges his possession and avers that he is the owner'by just title, duly recorded, and pleads the prescription of three and ten years. The property is described in plaintiffs’ petition as Spanish grant No. 129 for Sec. 4, T. 8, S. R. 3 W. and Sec. 38,‘T. 9, S. R. 3 W. in the S. W. land district of Louisiana, comprising an area of one thousand seven hundred and sixty-eight acres, and it is alleged by the petitioners that they are entitled to the ownership and possession of this property, but that the defendant claims the ownership of the undivided half under a purchase of August 21, 188 , duly recorded. This half is the property claimed of the defendant.

There is, in consequence, plaintiffs urge, a variance between the title of the defendant and the property actually possessed by him, he being, it is stated by their counsel, in possession of the undivided half of Sees. 42 and 38, although his title calls for the upper half of the Spanish grant or Sec. 42; he further argues that if the tax sales of October 13, 1874, be held valid, the plaintiffs would be entitled to a judgment for an undivided half of the land occupied by the defendant.

The defendant upon this point disclaims ownership in argument, of Sec. 38, and points to the fact that without objection his title deeds were admitted in evidence, proving both title and possession.

The tax deed admitted in evidence describes the property as follows, viz.:

Spanish Grant No. 129, being the Sec. 42, Tp. 8, South range 3 West, and in Sec. 38; Tp. 9, South range 3 West, and containing one thousand seven hundred and fifty-eight acres and sixty-nine one-hundredths. The receipt given by the adjudicates at the tax sale of 1874, reads: Received of David L. Miller the sum of one hundred and eleven dollars and seventy-five cents, being in full payment for the upper north half of the William Wykoff, Sr.; Grant No. 129, in T. 8, S. R. 8 W. The one-half now sold to David L. Miller, is eight hundred and seventy-nine acres.

(Signed.) D. S. Reid.

Lake Charles, Dee. 7, 1877.

In the deed of sale in 1888, based upon this receipt, the property is described as the upper north half of the William Wiekoff, Sr., Grant No. 129, in T. 8, S. R. 3 West, containing eight hundred and seventy-nine acres, and being one-half of the tract of land purchased by D. S. Reid at tax sale.

Having stated the facts bearing upon the asserted admission, we will consider the admission in a moment.

Further, in regard to the facts, the record discloses that the assessment and tax proceedings were made and carried on in the name of a former owner who had died, it was generally known, long prior to their dates; no notice was served upon the petitioners wh ) were the owners by inheritance from this former owner; no appointment of a curator was made to represent the owners who did not reside in the parish; nor legal advertisement — the only advertisement made was by posted notice in the town of Lake Charles; the property was not divided into lots. The tax deed shows that the property was sold under act approved March 14, 1873; that “necessary publication and advertisement were made, to-wit: in three stated public places and one on the door of the court house in the parish of Cal-casieu,” and after having complied with all the formalities required by the act that the property was seized for the payment of the taxes due by William Wickoff, Sr., as owner according to the assessment for the years 1870 and 1871, at which sale D. J. Reid became the owner.

It is also a question whether the defendant was at one time a tenant of the plaintiff and thereby estopped from contesting their title.

The witnesses have testified upon the subject of lease; neither is positive of the amount paid by the defendant as tenant, the year for which payment was made, and the property said to have been leased is not referred to by them with any great degree of certainty.

Lastly, in regard to the asserted purchase by D. J. Reid for the defendant at tax sale of the property, upon objection the court ruled that parol evidence was not admitted to affect the right or title to real estate, but to show the manner of possession.

To this ruling the counsel for the defendant reserved a bill of exceptions.

The evidence consists of the recollections of a witness who was a boy at the time as to what his father, D. J. Reid, said about the title as being in defendant.

The District Judge rendered judgment decreeing defendant owner of section 42. From this judgment the plaintiffs appeal.

EFFECT OF EVIDENCE ADMITTED WITHOUT OBJECTION.

Resuming in regard to the admissions by which plaintiffs contend the defendant is bound, it is evident that under very strict interpretation of the pleadings originally, the defendant had limited his title in this suit to the half; it remains for us to consider the effect that should be given to the evidence, admitted without objection, of title to the whole tract.

Respecting admissions in judiee, Mr. Greenleaf says: “If a material averment be well pleaded and it is passed over by the adverse party without denial, it is thereby conclusively admitted.” Evidence, par. 27, Vol. 1.

Here there was no denial; the evidence was admitted with consent of plaintiff, as will be seen by the following:

“By consent the following testimony that was introduced in another case * * * sale from Joseph Reid, administrator, to David L. Miller, with accompanying receipt,” was admitted in evidence.

In consequence the issues were enlarged and the legal rights of the respective parties to the whole tract are before us. There was really no admission; plaintiffs had claimed the half and not the whole property.

The defendant met the issue tendered, and by meeting it did not admit away his title to the remainder, which the plaintiff had not claimed.

After having filed his answer he might have amended by claiming the whole, instead of half. There would have been no inconsistency in pleading.

“Evidence which goes to sustain a reeonvention will be considered, if received without objection, as if the formal plea had been made.” Ames vs. People’s Telegraph, 5 An. 184; Eastman vs. Harris, 4 An. 193; Gayarre vs. Tunnard, 9 An. 255; Kean vs. Brandon, 17 An. 37.

Moreover, we do not discover that there is an admission such as claimed.

Again, upon that subject, evidence received without objection will be considered “as. if responsive to an amended answer filed with consent (England vs. Gripon, 15 An. 304); and it has been held that an objection to an amendment not allowed is waived by evidence received without objection. Baines vs. Riggins, 2 La. 222. Even in regard to a plea which involved an admission it has been decided, if the other party does not avail himself of it, “ but permits evidence to be filed negativing the fact, he in turn waives the advantage.” Fenn vs. Holmes, 6 An. 199.

ILLEGALITIES OF TAX SALE ALLEGED.

This brings us to a consideration of the nullities urged by plaintiffs.

The alleged failure to advertise the property for sale is not as fatal an objection as at first appears. Under the tax statute of that date it was possible to sell property without advertising it for sale in a newspaper, by posting as in this case, if there was no official newspaper in the parish. There is no evidence of record showing that there was such a paper published. The presumption is that there was no official organ.

The other irregularities alleged against the validity of the tax sale are sufficient to have the act declared a nullity, if they are not cured by the prescription of ten years.

The defendant, or his authors, was in possession since the latter’s purchase at tax salé more than ten years prior to the date this suit was brought.

The good faith of the defendant is attacked upon several grounds.

ALLEGED SIMULATION.

First, that Reed, the purchaser at the tax sale in 1874, was an interposed person who bought for the defendant. The evidence upon the subject is not of a sufficiently positive character to disturb a land title. The adjudieatee, Reid, died several years since. His ex parte statements were admitted, the court held, for the purpose of proving possession and not to affect the title. The defendant reserved a bill of exception to the court’s ruling. From any point of view, it is not legally shown that-defendant did not become the owner as declared in the written documents of transfer.

The receipt was complete as a sale under private signature. It contained a description of the property and a statement of the price paid, and that without any reference to the prior tax sale. After these many years its verity could not be assailed in the manner proposed.

ESTOPPEL BY LEASE ASSERTED.

In'the second place it is urged by the plaintiffs that the defendant was their ancestor’s lessee of the property. The evidence shows that some time in the early seventies one of the plaintiffs collected rent from the defendant; this witness did not remember the amount, and was not exact as to the date. Whether it was prior to the date of the tax deed or subsequent, we are not informed. It may have been in 1870 or some time thereafter. The defendant as a witness denied that he was a tenant $t any time. The other witness for the plaintiff testifies that in the' year 1876 he and his father called on the defendant, who was. living on the land in question, and that he paid his father some rent which was afterward turned over to the agent of the Wykoff heirs. These statements are wanting in definitiveness; moreover the payment was made in 1876; the title of the •defendant dates from the receipt already mentioned.

The receipt being under private signature it is argued by plaintiffs that it can not affect their right, as they are third persons. He held his right from the law under the receipt from his author; the tax ■deed had evicted the plaintiffs.

THE PRESCRIPTION OP TEN YEARS.

The question is one of good faith, of the possessor who invokes title acquirendi causa by the effect of ten years’ prescription.

Upon that subject we quote from Baudry Lacantinerie, Voi. 3, p. 979, par. 1695: Dans les cas ou le titre d’acquisition du possesseur est soumis a la transcription, Vaccomplisement de cette formalité n’est pas néeessaire pour qu’il puisse prescrire la propriété par dix ans, la loi exige un justre titre, elle n’exige pas un titre transcrit. D’ailleurs le juste titre n’a été requis que comme base a la bonne foi du possesseur, et ci ce point de vue il importe pas que le titre soit ou non transcrit.’’

Upon this point the application of the principle is to one who held under a tax title transferred as we have stated.

Good faith is defined as the legitimate belief of the possessor that his title has made him proprietor justa opinio qusesita domini. II a cette croyance legitime, par cela seul qu’il a peusa traiter avec la veritable proprietaire. Ainsi j’achéte un imeuble de quelquun que je crois proprietaire et qui ne Vest pas a non domino quern dominum esse credideram. Dai la bonne foi requise par Varticle 2265, pour la prescription de dix et vingt ans. Baudry-Lacantinerie, vol. 3, p. 979, See. 1697.

In regard to good faith, this court held in Davenport vs. Knox, 35 An. 486-87, although the sale was annulled for defects and irregularities in the proceedings relatiag thereto, yet inasmuch as it was ordered and made by competent authority the purchase was doubtless bona fide on the part of this defendant and he must be regarded as a possessor in good faith and entitled to the rights of such. (Italics ours.)

To the same effect is Hickman vs. Dawson, 35 An. 1086, 1087, citing numerous authorities.

Under circumstances similar to those in the cases just cited this court held that the purchaser was in good faith. Eldridge vs. Tibbitts, 5 An. 380, and Robert vs. Brown, 14 An. 597-98.

Having determined that the defendant was in good faith, it only remains for us to state' that a purchase in good faith, at a sale made by the proper officer, evidenced by a deed, becomes valid after ten years’ possession as owner.

In Giddens vs. Mobley, 37 An. 417, 420, this court said: “Good faith purifies a title of its defects and causes the possessor under a just title to be preferred to the true proprietor who has remained so long silent and neglectful of his right,” citing McCluskey vs. Webb, 4 Robinson, 205.

The court in that case approvingly refers to the utterance of Blackwell on Tax Sales. The good faith required in matters of tax titles should be construed liberally, because the statute of limitation is intended for repose; the good faith required “ means that the occupant in acquiring did not act mala fide.”

In Carroll’s Heirs vs. Cabaret, 7 Martin, 375, 406, the court decided that there was no defect stamped upon the face of the title. If latent nullities were admitted, unknown in point of fact to the possessor, to prevent prescription, the whole purpose of the law upon the subject would be defeated.

See also Frique vs. Hopkins, 4 N. S., pp. 212, 229, on the same point.

We quote from Dufour vs. Canfrenc, 11 Martin, 715: “The title presented here is perfect as it respects form; it pursues the very words of the statute; the defect is a want of right or authority in the sheriff.to make such a conveyance, not a defect in the manner he made it. As nothing, therefore, appears on the face of the deed which is defective, the knowledge of the want of right in the person who sold is not brought home to the vendee, and his error was one of fact, not of law. It is difficult to see where is the difference between this case and an ordinary one of sale, where the purchaser acquires from a person who has no title, by a regularly executed act, before a notary public; in such a case the buyer acquires none, but he has that good faith which enables him to plead prescription.”

In Pillow vs. Roberts, 13 Howard U. S. 471-78, it was announced that the purchaser was not bound to know that all the requirements had been followed in order to obtain a valid title under the statutes of limitation. '

“ There is no doubt that a tax deed, fair on its face and purporting to convey title to the lands sold, will constitute color of title under which adverse possession for the period prescribed in the statute of limitations will operate as a bar, notwithstanding it may'be insufficient to pass an absolute title by reason of defects and irregularities in the tax proceedings prior to its execution.” Eng. and Am. Ency., Vol. 25, p. 704.

The following quotation is as applicable here as it was in the decision from which we quote:

“The Constitution of 1868, under which the sale was made, directed that all deeds from tax collectors shall be received as prima facie valid sales, so that tax titles were placed on the same footing as other judicial sales and were subject to the same rules as sheriff’s deeds. Jurey & Gillis vs. Allison, 30 An. 1235. Formerly the assesssment could not be assumed, but must be proved. Under that constitutional provision it is presumed without proof, and the tax deed is prima facie valid, citing Innes vs. Bank, 29 An. 115; O’Hern vs. Hibernia Ins. Co., 30 An. 960; Renshaw, Cammack & Co. vs. Imboden, 31 An. 661; New Orleans Insurance Association vs. Labranche, Ibid. 840; Ludeling vs. McGuire, 35 An. 893. Under these authorities the tax deed was translative of property and after ten years had lapsed the title became absolute and perfect.”

It is ordered and adjudged that the judgment appealed from is affirmed.


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    No. 11,974.
    Cyrus A. Powers vs. The Calcasieu Sugar Company.
    It is the duty of the master to keep his premises in a safe condition, so as not to endanger the life and limbs of the servant. Hence, the master will be responsible in damages for the injury to the servant, who, without knowledge ©r warning to guard against the accident, falls into a ditch of scalding water permitted by the master on the premises, the servant’s duties requiring him to approach or pass the ditch, left uncovered, with no railing or other means provided to guard against accidents. Wharton on Negligence, Secs. 206, 208, 211, 212; 17 Wallace, 553; 100 U. S. 215.
    Such a risk is not incident to the servant’s duties, and, unless he had knowledge of the danger and assumed the risk or by his own negligence fell into the ditch, his action against the master for the damages will not be affected. Ibid,.

    Nor in such case will the master’s responsibility be affected by the fact that when the accident occurs the servant is not in the actual employof the master, but is being conducted by the master’s manager to that portion of the premises where the danger exists and the master proposes to employ the injured party.

      A PPEAL from.tlie Twelfth Judicial District Oourt for the Parish of Calcasieu. Fournet, J.

      O'Bryan & Fournet for Plaintiff, Appellee.

      Arsene P. Pujo for Defendant, Appellant.
    Argued and submitted February 11, 1896.
    Opinion handed down February 24, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiff sues the Calcasieu Sugar Company for damages, caused by his falling in a drain on the company’s premises ■partially filled with scalding water. The drain was for carrying the waste water from the boilers of the company’s sugar mill, was left uncovered, and plaintiff, an employee of the company called on to work on the drain, but unaware, as he claims, of its location, or of the danger from the hot water, accidentally stepped into it, the accident occurring while plaintiff was being shown by the company’s manager the work to be done. The answer is that the plaintiff’s injuries were due to his carelessness in stepping into the drain. The verdict of the jury and judgment thereon was in favor of plaintiff for three thousand dollars, and defendant appeals.

The plaintiff is a cooper, had been employed in the cooper shop on the company’s premises andis an old man. On the night of the accident he asked the manager for work, was told help was needed outside the mill to clean up, as he understood, or as the witness for the defendant expresses it, to clean the bagasse ditch, and thereupon the manager proposed to show the plaintiff the work expected from him. The manager led the way, going toward a passage over the ditch or drain to receive the waste water from the boilers or double effect or vacuum pan. The ditch led outside the sugar house, was uncovered for a space of nine feet, and contained the hot water that scalded the plaintiff. Alongside that portion that was un'covered, there was, as we appreciate the testimony, a ledge of three feet of brickwork. The manager in advance, the plaintiff following, reached and passed the door, the exit from the passage. The plaintiff, at or just beyond the door, fell into the ditch. His account' is, he followed the manager to the outside of the mill; “ there is a floor until you come near the door, there the floor is all gone,” below a \acant spacefilled with hot water; the manager crossed on a stick, but the witness, testifying, not knowing of the stick or the ditch, he fell, threw out his hand to save himself, fell on the other arm, scalding it up to the elbow, and his leg from top to toe. The manager testifies, that passing the door to the outside he went to the end of the boilers for a rake for use in cleaning the ditch; thought plaintiff was following, looked behind, found he was not, and was told the plaintiff had fallen in the ditch, and assisted in his extrication. There is testimony the ditch did not on the out - side come up close to the door, but that there was the ledge of brickwork, the ditch being, we infer, on the right side of it, and it is claimed on this brickwork the defendant could have stood or walked. It is claimed the plaintiff was familiar with the locality; there is testimony that in leaving his work at the cooper shop to get water to drink or procure wood, he went to that part of the premises, and that he had crossed the ditch. It is further shown there were lights in the passage, by which it is claimed the-ditch could have been perceived, and the manager testifies, before reaching the door he warned plaintiff of the ditch. The plaintiff testifies he had no knowledge of the ditch or hot water, that the lights were of no aid; that he had no warning, and it is in proof that the point of the alleged warning was twenty feet from the place of the accident.

It is well settled the employer is bound to protect his servant against unusual risks or dangers i. e. other than those naturally incident to the servant’s duties. This obligation extends to the premises of the employer, and requires that they be kept in a condition not to menace life or limb of the servant. Wharton on Negligence, Secs. 199, 210, 211, 212; Railroad Company vs. Fort, 17 Wallace, 553; Hough vs. Railway Company, 100 U. S. 215. An open ditch of scalding water, with no railing or provision of any kind to guard,against accidents, is certainly a menace to the servant called in the course of his duty to the locality, and required to walk near the ditch. A slight deviation in stepping might cost life or cause the most serious injury to the servant. Unless there are circumstances placing on the servant the risks of falling into scalding water while performing his duties, or he is chargeable with negligence, in our view, the responsibility for such accident should be on the employer.

There is testimony that this ditch, intended to carry the waste water from the boilers and apt to be choked with bagasse chips, was necessarily left open when required to be cleaned. But that would not excuse the employer from all precautions to prevent, employees falling in, when no necessity for cleaning existed or when required to be uncovered. Again, there is testimony that, serving for cold as well as hot water drainage, the temperature of the water, except for a brief period, could not be hot enough to do any damage. The fact itself, the plaintiff was badly scalded, answers this contention.

The argument to sustain the negligence attributed to the plaintiff assumes he knew the ditch, received warning and that there were lights. The insistence of plaintiff's knowledge of the danger would have its force with reference to a servant whose functions were performed at the ditch and knew its uses. The plaintiff worked at the cooper shop away from the sugar house. With all due weight to the testimony that occasionally he passed in the neighborhood of the ditch to get drinking water or wood, and had stepped across it, we do not feel authorized to attribute to him knowledge of the ditch with its water, and the' peril of a step from the narrow path on which the manager was leading to show plaintiff the way to where the cleaning was required. The testimony of the plaintiff that he was not familiar with the locality or surroundings, impresses us as truthful. The lights were in the passage at some distance from the point he fell. Unless he had some special reason to suspect a ditch of scalding water to open ac any moment at his feet, especially as he was following his guide, the lights he had passed when his mishap occurred exert, in our view, no appreciable influence in the controversy. It is our conclusion the accident occurred at the door of the passage or after the plaintiff had passed it. As he had to encounter the ditch beyond and within three feet of the door, an admonition at that point of his danger would have been serviceable. There was none. The manager emerging from the door turned to his left in search of a rake, leaving the plaintiff unwarned to stumble into the ditch on his right. The warning, such as it was, implies the manager knew plaintiff was ignorant of the locality. The manager states he told plaintiff to be careful, there was a ditch alongside and the floor was uneven. In other portions of the testimony the warning is stated simply to be careful, addressed to plaintiff. It is suggested by the testimony that this admonition was in a low tone of voice, and the plaintiff testifies he heard nothing of the kind. Be that as it may, the suggestion of a ditch and an uneven floor can hardly be deemed an adequate premonition against the plunge into hot water that was the menace at or just beyond the door, more than twenty feet from where the alleged warning is claimed to have been given. If an admonition of danger is relied on, it must be timely and explicit. We are of opinion that caution urged in this case was utterly insufficient, even if heard.

We have given attention to the insistence that when the accident occurred there was no contract relation between plaintiff and defendant. He was being shown the work to be done, hence it is urged he was entitled to no protection against the danger he encountered. He was in charge of defendant’s manager at the time to be shown the work he was to perform. It seems to us he was within the shelter of the responsibility of the master or proprietor to those lawfully on his premises in his service. If not actually in that service, the plaintiff at the time of the accident, was, on the invitation of the master, being conducted to that portion of the premises where it was proposed to employ him.

The case is, we think, with the plaintiff on the issue of responsibility. The injuries sustained by plaintiff were due to the dangerous exposed ditch of hot water on the defendant’s premises, well calculated to injure employees or others called to that locality. We find no basis for the contributory neglect attributed to plaintiff, an old man called by defendant’s agent to work in a dangerous locality on the premises, with no knowledge on his part or precautions of the defendant, enabling pla,intiff to foresee and guard against the serious peril in which he became involved to his serious injury.

The jury gave three thousand dollars damages. As a cooper the plaintiff was- earning one dollar and fifty cents to two dollars per day, but was not always employed. His injuries were severe and confined him to the house for four months. He endured great pain. His bills for medical attendance, we infer, were paid by defendant. His capacity for hard work, it is testified, was.diminished by the injuries to his limbs, but in appreciating that element of damage, it must be borne in mind that age brings a limit in that respect, and the plaintiff was 62. We think the verdict excessive. In our opinion two thousand dollars will be a reasonable allowance. Money it is true is no alleviation for suffering endured, a main element in plaintiff’s-ease. We have, in reaching our conclusion, allowed for the pain to which plaintiff was subjected and other causes of damage as much as we think the circumstances warrant.

It is therefore ordered, adjudged and decreed that the judgment, of the lower court be reversed, and it is now ordered, adjudged and decreed that plaintiff do have and recover from defendant two thousand dollars, the costs of the lower court to be paid by defend - ant, those of the appeal by the plaintiff.


text:
    No. 12,001.
    Louise M. Delogny vs. Her Creditors.
    A long settled account, made the basis and consideration oí a mortgage, given in due form ■will not be opened and disturbed, unless upon clear and positive evidence that the error was owing to misrepresentation and fraud. If there was error in the settlement (resulting from the failure to properly examine an account), the mortgage given some time prior to the declaration in insol ven cy remains as a binding obligation; also, the notes identified with the act of - mortgage. (This rule applies to the amount acknowledged by the debtor as due for advances made prior to giving the mortgage; as to advances “to be made,” covered by the terms of the mortgage, the debtor is not concluded from pleading the illegality of the charges.
    No actual delivery of the bounty of the government was ever made by the pledgor to the pledgee. Without delivery there was no pledge.
    The provisional syndic is entitled, for his trouble and services, to one per cent, on the appraised value of the property.
    The syndic is entitled to a commission on the proceeds of the sale of the mort gaged property, though purchased by the mortgagee, who retained the price in satisfaction of his mortgage.
    All mortgages (save those excepted by law) must be recorded, and their inscription renewed before the expiration of ten years; otherwise their effect ceases even between the parties.
    APPEAL from the Twentieth Judicial District Court for the Parish of St. James. Guión, J.

      Albert Voorhies for Plaintiff, for Mrs. W. E. Brickell, and W. Kirchoff^ syndic and individually. Opponent, -Appellant.

      Harry H. Hall for J. H. Laws & Co., Defendants, Appellees.

      Argued and submitted January 11, 1896.
    Opinion handed down February 10, 1896.
    Rehearing refused March 9, 1896.
   The opinion of the court was delivered by

Breaux, J.

The syndic of the plaintiff insolvent filed his final account.

The insolvent opposed the account; also John H. Laws & Oo. and other creditors.

The former alleges, in her opposition, that the claim of John H. Laws & Oo. consists of usurious interest and commissions. The schedule annexed to the petition for surrender in insolvency shows, an indebtedness of $20,299.26, by the insolvent to that firm.

This indebtedness, the insolvent, in her affidavit to the schedule,, declared was open to inquiry and objections.

Subsequently the insolvent was discharged from her debts and liabilities. She avers that she has the right to oppose claims against her estate; because of her interest in the residuum.

Douradon Guidry and other creditors oppose the claim of John H. Laws & Oo. and alleged that they (Laws & Co.) are creditors, on open account, as commission merchants for advances for the years 1887 to 1894; that there are many items of the account not due for commissions and interest, and that they are not pledgees of the bounty of the government.

John H. Laws & Oo., appellees, apply to amend the judgment by-reducing the commissions allowed to the provisional syndic; by reducing the commissions allowed to the regular syndic; by reducing the amount allowed Mrs. W. E. Brickell from $18,000 to $9000.

The judgment orders the syndic to pay the claims secured by-privileges, and that the balance, after that payment, be paid by him to Laws & Oo. and Mrs. W. E. Brickell, mortgage creditors of the insolvent, by first applying to the payment or partial extinguishment, of the claim of Laws & Oo., the sum of six thousand one hundred and fifty-nine dollars and twenty-four cents, being the amount of bounty collected from the government, and thereafter by applying the remainder in paying these creditors pro rata.

From this judgment Mrs. Brickell appealed, also other creditors.

We do not set forth all the grounds in the different oppositions. We deem it sufficient to state that the issues raised by the pleadings «over the questions we are to decide.

The remaining facts of the record are stated in-deciding the different issues.

The first issue raised is in regard to the claim of John H. Laws & Co. The facts are, that in the act of mortgage in their favor dated March 4, 1893, Mrs. Delogny, the mortgagor, solemnly declared that her indebtedness at that time amounted to eleven thousand five hundred dollars, and she, in addition, by the act, secured a loan to be made of twelve thousand and five hundred dollars.

The act made provision for the discount of the notes, identified with the mortgage, and for %% per cent, for endorsing and negotiating the notes.

In another paragraph of. the mortgage the mortgagee pledged the bounty granted by the government.

As to the amount first mentioned, to wit, eleven thousand five hundred dollars, the mortgagor must be held. Settlements fixing balances included in mortgages are contracts. They are in their nature, to an' extent, at least, compromises. To open a long settled account, the evidence must be clear and positive. The Code defines error of fact as that error which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none. C. 0. 1821.

Doubtful testimony or testimony in its character probable is not sufficient to open a long settled account which has passed into a mortgage in the absence of mispresentation, deceit, or fraud. Not only the debtor had the means of knowledge, but the statement rendered prior to the mortgage mentioned every item. It was rendered to her in due time and presumably was considered before giving the act of mortgage to secure balance due. Since 1887, each year, these settlements were made, and the debtor assented to the •charges for interest and discount for which she subsequently gave a mortgage. The court is without authority to grant relief against the alleged mistake; it will not assist a man whose condition is attribuable to that want of due diligence which may be fairly expected from a reasonable person.” Kerr on Fraud and Mistake, 407; 3 Jones Eq. 178.

Research does not result in discovering any precedent for setting aside a mortgage or decreeing as not due any part of a mortgage on the ground here alleged.

She could, under the terms of the statute relating to the capitalization, consent to make notes for the amount and interest in excess of eight per cent, and give a mortgage for the security of their payment.

They, in the absence of error or fraud, established the consent the statute declares is binding.

This applies exclusively to the mortgage and notes. We do not think that we are authorized to extend the rule so as to include the account showing amounts advanced since March 4, 1893, the date of the last mortgage. These amounts are not protected by notes and mortgages.

In a well considered ease, upon the subject, this court decided that an acquiescence in an account containing illegal charges will not estop the debtor from pleading their illegality, and that in regard to commissions for discount; where the factor has made advances to the planter from his own resources, all charges for negotiations, discounts and commissions, if charged in addition to eight per cent, per annum, are illegal. Koane vs. Branden, 12 An. 20.

These charges are unprotected by a mortgage or attempt at capitalization since they were made.

Relative to endorsement and discount, the paper was never endorsed or discounted, nor was there at any time proceeds, as in case of discount, placed to 'the credit of the maker of the note.

The notes were not negotiated; the funds advanced were raised by the mortgagees from their own resources.

While it is true, as urged, that the mortgagor, Mrs. Delogny, obtained the advances, and that endorsement was not necessary for the reason that the notes were transferred by delivery, none the less they were not endorsed and no advances were obtained by endorsement. The debtor had the right to stipulate for special endorsement. It may, in certain contingencies, prove a protection to the borrower’s interest; moreover, it was the contract, and in the absence of compliance it must be disallowed.

This brings us to the interest account on amounts advameed subsequent to March 4, 1893, upon the mortgage of that date.

On the credit side the interest on the proceeds of the crop was properly calculated from November 11, 1893, and proper credit at the rate of 8 per cent, interest.

On the debit side it is urged by the opponents that Mrs. Delogny was charged interest before she drew the money. Her merchants testify that it was subject to her order and thus they seek to justify the charge.

The advances had not been actually made, and therefore, without a settled agreement, interest was not chargeable. The notes made and the mortgage, in so far as given for advances “ to be made,” were without consideration before the date of the advances. In so far as related to these advances “to be made,” it would have been impossible to collect the notes before the advances had been actually made, and for the same reason interest was not due. The interest was not capitalized and could not have been capitalized before the advances had been made. The debtor did not, as in case of the mortgage, give her consent to any such capitalization, and there - fore the interest overcharged in the last account must be deducted. In the last account, dated November 10, 1893, the first advance bears date March 4, of that year, and amounted to $1050. All prior advances were included in the notes and the last mortgage.

Interest is due on that amount and each amount advanced since, from the dates of the respective advances.

On the other hand, interest was charged on, the face value of the Delogny notes from that date, March 4, 1893. The difference, as calculated under the rule here laid down, from the amount as calculated on the 'face of the notes and as carried on the last account, is not due by the debtor and must be deducted.

As to the date, in order to establish, that difference: The notes given to cover these advances had full consideration as to principal and interest on the day that the advances and the principal thereon amounted to twenty thousand two hundred and ninety-nine dollars and twenty-six cents, i. e., interest on notes between the dates indicated must be reduced to interest on amounts from dates the amounts were respectively received (i. e., March 3, 1893), so as to include item one thousand and fifty dollars, to or about June 16, 1893.

To illustrate only, if June 16, 1893 (calculating on the account 49) , the interest and amount advanced in the last account, as charged, amounted to twenty thousand two hundred and ninety-nine dollars and twenty-six cents, from that time the notes have full consideration (or at any date the principal and interest amounted to that sum).

As relates to the pledge, the facts are that the mortgagor bound herself to pay the bounty of the government to the creditor immediately after receipt of amount “just as if the bounty had been a portion of the proceeds of the crops of the plantation.” (The quotation is from the act of mortgage.) The bounty was not delivered at the time the attempt was made to pledge it as an additional security for the debt. It was collected from the government by the syndic some time after the act of mortgage had been executed. It is hardly necessary to cite authority in support of the proposition that delivery is an essential in order to secure a pledge (save in statutory pledges, not the case here). The bounty was not a portion of the proceeds of the crop; it was no part of the crop. We know of no principle of interpretation .under which it is posssible to hold that the bounty was delivered as required and came within the provisions of the statutes relative to pledge as a security.

Relative to the commissions of the provisional syndic: the creditors, John H. Laws & Co., urge that this syndic can not claim commissions upon the inventoried value of the immovable property.

The provisional syndic is entitled to one per cent, on the appraised value of the goods and effects confided to his care. R. S., Sec. 193.

The property surrendered to him and for which he was responsible as provisional syndic was valued at forty-three thousand one hundred and forty-two dollars and sixty-one cents. There is no rule of law excluding the value of immovable property in fixing the amount of his commission. He is as responsible for the prptection of this property as he is for that which is movable.

The amount allowed was less than one per cent, and was properly charged.

In regard to the commission of the regular syndic, it is objected that he can not charge his commission upon the proceeds of sale of mortgaged property retained by the mortgagor.

The commissions must be calculated, as it was, on the whole amount received, or disbursed. The syndic is entitled to commissions on the proceeds of the sale of mortgage property, though the amount of the mortgage was not actually received by him, having been retained by the mortgagee in discharge of his claim.

The settlement with the mortgage creditor involved as much responsibility as if the syndic had exacted payment of the amount of his bid, and afterward returned it to him in payment of his mortgage. Maxan vs. Creditors, 1 R. 560.

With reference to the claim of James H. Laws & Co. that as mortgage creditors they are entitled to the mortgage first in rank, it is stated by counsel for Mrs. Brickell, that she is a creditor as holder of four promissory notes, secured by mortgage, recorded prior to the claim of J. H. Laws & Co.; that the judgment of the District Court recognizes her claim and ordered them to be paid pro rata with the claims of Laws & Co.; that the rank of these claims is correctly set forth on the account; that there is error, however, in ordering a pro rata payment.

The position is correct, save as to the note for four thousand dollars.

The mortgage in favor of Mrs. Brickell, securing this note, is dated January 19, 1884; it was inscribed on- the 22d day of that month and never reinscribed; that is, after diligent search, we have not found evidence of reinscription in the voluminous record. More than ten years had elapsed from the date of the inscription to the insolvent’s surrender of her property. The mortgage as to this amount had perempted, and the mortgagee as to third persons became au ordinary creditor from the date of the peremption. John H. Laws & Co. became, in so far as relates to that amount, prior creditors, in rank, and the mortgagee only has recourse in concurso, as an ordinary creditor, for the amount of this mortgage.

In consequence of this peremption, Mrs. Brickell’s claim is reduced to nine thousand dollars and interest. It ranks to that amount as first mortgage, and the other mortgage creditor is second as to rank. The distribution can not, between them, be pro rata.

It was urged by Laws & Co. in argument that the syndic owes more interest than he has acknowledged as being due.

The syndic during the trial below admitted that interest was due upon the notes he held representing the credit portion of the purchase price.

Under the terms of the judgment of the District Court he will have to account for that interest without the necessity of amending the judgment.

They also object to the item charged:

Newspaper publication included in auctioneer’s.”

This item was not opposed in the lower court, and is not mentioned in the answer on appeal as one that should be rejected.

The appellees, John K. .Laws & Co., object to the payment of the following in the manner proposed, that is, that two hundred and nineteen dollars and twenty cents be paid to the auctioneers.

The following agreement in regard to this claim was entered of record during the trial:

•“ Macon, Denis and Kernaghan, six hundred and two dollars and five cents, and one hundred and fifty-nine dollars and twenty cents are not opposed, but it is agreed that out of that sum the amount of two hundred and nineteen dollars and twenty cents shall be paid to J. H. Laws & Oo.; they having paid the amount to Mr. Macon.”

It devolves upon the syndic to carry out this agreement and pay the amount to the respective creditors and no amendment is needed to that end.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount allowed Mrs. W. E. Brickell from thirteen thousand dollars to nine thousand dollars, with interest thereon as stated in the account; that the claim of John H. Laws & Co. be reduced by deducting from it the sum of seven hundred and seven dollars and thirty-three cents and interest thereon at eight per cent, since November, 1893, and by deducting the difference in interest on the account (49) from and including the item of one thousand and fifty dollars to items or item of date amounting in principal and interest to twenty thousand two hundred and ninty-nine dollars and twenty-six cents on March 4, 1892, at eight per cent, per annum and from the interest as calculated on the creditor’s last account after these deductions, the remainder is secured as to its payment by mortgage second in rank.

It is further ordered, adjudged ánd decreed that the account be further amended by striking therefrom the pledge allowed to John H. Laws & Co. of the bounty granted by the government, and their demand as alleged pledgees of that amount is rejected; the said amount of bounty and the amount set aside to pay the mortgage not re-inscribed are ordered to be distributed as an asset of the insolvency without reference to any alleged pledge and without reference to the four thousand dollars mortgage perempted.

The judgment appealed from is further amended by striking therefrom that portion of the decree ordering a pro rata payment to Mrs. Brickell and John H. Laws & Co.

After payment of privileges and mortgaged recognized, the remainder is to be distributed pro rata among the creditors whose claims are not secured by privilege or mortgage.

After these amendments the judgment appealed from is affirmed at appellee’s costs.


author: Nicholls, 0. J.

text:
    No. 11,969.
    Calvin W. Marionneaux vs. Valiere P. Dupuy, Executor.
    Legitimate children only fall under the provisions of the law relative to forced heirship. The law divides children into three distinct' classes, legitimate, illegitimate and legitimated. Legitimate children are those who are born during the marriage; illegitimate children those born out of marriage-illegitimate children may be “ legitimated ” in certain eases in the manner prescribed by law, but illegitimate children are not by “ legitimation” transformed into “ legitimate” children. Legitimated children taire “ the rights of legitimate children” only by force of affirmative provisions of law to that effect. By Art. 199 of the Civil Code children legitimated by a subsequent marriage of the parents have the same rights as if they were born during marriage. This special exceptional privilege throws legitimation resulting from any other cause outside of the purview of the law-malrer under the rule afiirmatio unius est cxclmio alterins.

    APPEAL from the Fourteenth Judicial District Court for the Parish of Iberville. Talbot, J.

      ■George Wailes and Guy Hebert for Plaintiffs, Appellants.
    Sims & Gondran for Defendants, Appellees.
    Argued and submitted December 19, 1895.
    Opinion handed down February 24, 1896.
   The opinion of the court was delivered by

Nicholls, 0. J.

This case was before us in 1895 on exceptions and was remanded for a trial on the merits. The facts and pleadings will be found in the 47th Annual, page 948. Plaintiffs now bring it up on appeal from a judgment in favor of the defendants.

A very brief reference to the facts will be here given. ' On the 80th of August, 1898, Silvert Marionneaux appeared before a notary public in the parish of Iberville and two witnesses and acknowledged the present plaintiffs as his natural children. The authentic act evidencing this acknowledgment closed with the words that he ” (appearer Marionneaux) “further declared that it is his intention in making this declaration to legitimate said children.” On the same' day and place, and fifteen minutes after the act of acknowledgment was passed, Marionneaux executed his last will and testament before the same notary and three witnesses, two of the witnesses being the same as those in the first act.

The will opens by the announcement made by Marionneaux that he left no forced heirs.. The testator proceeds to make to the different plaintiffs herein special legacies of particular lots of ground, willing that after these special legacies and his debts should have been paid, the residue of his estate should be divided into twelve equal parts and pass to his nephews and nieces as indicated in the testament. He refers to these relatives as his heirs, while.in each of the successive legacies before mentioned he refers, as each is made, to the children as being simply his “ acknowledged child.”

The plaintiffs, claiming that the first act to which we have referred “legitimated” them, and by so doing gave them the status and rights of “ forced heirs ” of Marionneaux, brought the present action, in which they prayed that judgment be rendered in their favor decreeing them to be owners of the undivided two-thirds of all the property belonging to the succession of Silvert Marionneaux; and that all the legacies made to other, parties in the will be reduced to the disposable portion, and that they be placed in possession upon paying the debts against it.

In our opinion remanding the case, after quoting the provisions of the will, we said that that particular instrument, upon its face, would negative the claim advanced by the plaintiffs; that it was the clearly expressed intention of the testator to dispose thereby of his entire estate, and to direct that the plaintiff should take nothing from it beyond the specific legacies made to each. We held that the two acts were so closely connected that they really form one and the same transaction and were to be read together; that in matters of testamentary dispositions, the will of the testator was to be carried out if possible; that where a term which the testator has used is susceptible of two meanings, and it is shown by the testator’s contemporaneous acts and conduct that the meaning which would have been accepted, in the absence of such acts and declarations, was not the one intended by him, we felt ourselves authorized to go into the inquiry as to what the testator’s real purpose was; that it was quite probable that neither the notary nor Marionneaux understood the significance of the word “legitimate;” that, so far as the will itself would show, it was clear that Marionneaux himself did not. We therefore said that on the return of the cause to the District Court; this whole question should be left to be disposed of as one of the issues on the merits. The ease comes back very much in the same situation in which it was before; the only new testimony bearing upon the point is that of the notary who drew up the two acts, who declared that he copied the first act (that of acknowledgment) from a paper prepared and written out, not by Marionneaux himself, but by Samuel Mathews, his general attorney. No explanations or discussions seem to have taken place in regard to the instrument. Mathews died before the case was tried in the District Court.

Defendants maintain that even had Marionneaux intended to have given- to plaintiffs the status of “legitimate” children his purpose would have failed by reason of his having referred to them in the act as “ his natural children.” This declaration would of itself (they contend) do away with “legitimation” as the consequence of the act. They refer us to Sec. 2L73 of the Revised Statutes, wherein it is said: “Another way of legitimating natural children is, where a father declares by writing executed by his own hand or which he causes to be executed by a notary public and attested by three witnesses that he acknowledges such a one for his son, designating him expressly by name. But in such acknowlegment the father ought not to say he is his natural son, for if he does the legitimation will have no effect.”

Plaintiffs reply that this section of the Revised Statutes was repealed by Act No. 68 of 1870, which in its first section enacts that “ natural fathers and mothers shall have power to legitimate their natural children by acts declaratory of their intentions made before a notary public and two witnesses; provided, that there existed at the time of the conception of such children no other legal impediments to the intermarriage of their natural father and mother except those resulting from color or the institution of slavery,” and ■in its second section that “ all laws or parts of laws in conflict with the provisions of this act, except an act entitled an act relative to marriages, approved November 5, 1868, be and the same are hereby repealed; and in .the third section makes the law take effect from and after its passage.

They claim that though Act 66 of 1870 was approved March 16, 1870, none the less the special statute controls in matters of conflict under the provisions of Act No. 50 of 1870 and the decision of this court in the Succession of Colwell, 34 An. 269.

We think appellants are correct in their contention that under the provisions of Act No. 68 of 1870 the declaration of the natural father in the authentic act, in which he announces his intention to legitimate a particular child, that the child so intended by him to be legitimated was his natural child, no longer has the effect of destroying the proposed legitimation. An act of just such a character was recognized and enforced by this court in the Succession of Llulla, 41 An. 87.

So holding, we are called on to examine the acts referred to and to see what their legal effect is. We have already decided that they were to be read together, and therefore that particular question is not before us. We thought it right, in remanding the case, to leave open the door to the introduction of other evidence Of contemporaneous acts or conduct which might assist us in construing the word “ legitimate ” as used in the act of acknowledgment, but the result of our doing so has been as just stated.

Assuming that Marionneaux intended to legitimate these plaintiffs and did legitimate them, did forced heirship result from “legitimation.”

The District Judge correctly states that “the quality of heirship and the rights of inheritance are the creature of the law and regulated by positive provisions. They do not exist by implication. The demand of the plaintiffs to be included in the category of heirship must be made to appear by-some positive or affirmative legislation.”

The system of forced heirship is, if we are not mistaken, peculiar in the United States to Louisiana and it includes within it such persons, and none others, as are affirmatively declared to fall under its operation. Legal heirship, unless accompanied by certain special enumerated conditions, is outside of the system. Collateral relations, for instance, do not fall under its terms.

Art. 1493 declares that donations inter vivos or mortis causa can not exceed two-thirds of the property of the disposer, if he leaves at his decease a legitimate child; one-half if he leaves twochildren and one-third if he leaves three or a greater number. Under the name of children are included descendants of whatever degree they be, it being understood that they are only counted for the child they represent.

Art. 1494. Donations inter vivos or mortis causa can not exceed two-thirds of the property if the disposer, having no children, leaves a father or mother or both.

Art. 1495. In the cases prescribed by the two last preceding articles the heirs are called forced heirs because the donor can not deprive them of the portion of his estate reserved for them by law, except in cases where he has a just cause to disinherit them.

Art. 1496. Where there are no legitimate descendants, and incase of the previous decease of the father and mother, donations inter vivos or mortis causa may be made to the whole amount of the property of the disposer, saving the reservation made hereafter.

The persons selected as the objects of the law’s solicitude are “legitimate” not “legitimated” children.

Plaintiffs assume that this is a classification not recognized by the law, but we think otherwise. The law divides children into three distinct classes, for Art. 173 declares that “ children are either legitimate, illegitimate or legitimated.’’ (Italics ours.)

Legitimate children are those who are born during the marriage (Art. 179).

Art. 180. Illegitimate children are those who are born out of marriage.

Illegitimate children may be legitimated in certain cases in the manner prescribed by law (Art. 180).

These plaintiffs were not born during marriage; they therefore did not fall under the first classification, but being born out of marriage they did fall under the second.

The law has never attempted arbitrarily to break up this, its own classification, and convert an “illegitimate” into a “legitimate” child. The most it has done through the power which it can exercise over the subject has been to authorize the converting of an “illegitimate” into a “legitimated” child, and this having been done, then, under certain circumstances, to give to this “legitimated” child “ the rights of a legitimate child.”

Art. 199 says: “Children legitimated by a subsequent marriage have the same rights as if they were born during marriage,” but none the less these children here alluded to are not by this provision of the law made “legitimate” children; on the contrary, the preceding article speaks of marriage simply as legitimating them. If they take the rights of a “ legitimate ” child, it is not by force of their being “legitimated,” but by the direct affirmative force of the special revision of Art. 199 investing them with those rights.

We know of no law other than that contained in Art. 199 of the Civil Code which gives to a “legitimated” the rights of a “legitimate” child. The very fact of this special exceptional privilege throws all legitimation resulting from causes other than that of a subsequent marriage between the natural parents of the child outside of the purview "of the law-maker under the rule affirmatio unius est exolusio alterius.

Plaintiffs’ counsel suggests that that portion of Art. 199 of the Oode of 1870 which recites by a subsequent marriage” should, in the interpretation of Art. 199 with Art. 180, be eliminated, or regarded as surplusage, so that it would read: “ Children legitimated have the same rights as if they were born during marriage,” but we know of no authority under -and by virtue of which we could thus change the law.

While we have gone into an examination of the rights of the parties upon the assumption that Marionneaux intended, through the act executed by him, to transfer these children into “legitimate” children, we are of the opinion that such was not in point of fact either his intention or his expectation.

The declaration made by him in his will (made practically simultaneously with the act of acknowledgment) that he had no forced heirs, the reference to these plaintiffs, as he successively made them special legacies as his “ acknowledged children,” the disposal of the whole residue of his property, by testamentary dispositions, to his nephews and nieces, designating them as his heirs, exhibit in an unmistakable manner that plaintiffs’ pretensions and claims are utterly without foundation both in law and in fact. Marionneaux evidently intended by the first act to confer upon the plaintiffs a status which they did not have before — a status such as would give effect to the bequests immediately afterward made in their behalf by him — he certainly did not intend to render nugatory bequests made to others at the same time under an absolute power of disposal.

Had, however, Marionneaux desired and expected to have made “ legitimate” children of these natural children, his desire and expectations would have failed; the utmost he could have done would have been to have “ legitimated ” them, and “legitimating” them would not have been a sufficient basis upon which to predicate this action.

We think the judgment appealed from is correct, and is hereby affirmed.


author: Milleb, J.

text:
    No. 12,010.
    The State vs. George Delaneuville.
    The court applies the rule excluding proof of contradictory statements of a witness, unless his attention has been first directed to the statements and the opportunity for explanation thus afforded him, 1 Greenleaf on By , Sec. 462.
    Such statements, the required basis forthe proof of them previously supplied, are admissible to impeach the credit of the witness; if the statements are sought to be put in evidence for any other purpose they are inadmissible because hearsay.
    APPEAL from the Twenty-first Judicial District Court for the Parish of St. John the Baptist. Rost, J.

      M. J. Cunningham, Attorney General, P. E. Edrington, District Attorney, (A. E. Billings, of Counsel), for Plaintiff, Appellee.

      H. N. Gautier, for Defendant, Appellant.
    Submitted on briefs February 15, 1896.
    Opinion handed down February 24, 1896.
   The opinion of the court was delivered by'

Milleb, J.

The defendant appeals from a sentence for burglary.

He relies on a bill of exceptions to the ruling against the question whether the prosecuting witness had not made statements to the witness on the stand in reference to the facts of the case. On objection the court refused to permit the question on the ground it was thus sought to impeach the testimony of the prosecuting witness without previously asking him the usual questions as to the statements claimed to have been made by him.

The argument is that the bill concedes the testimony sought to be introduced was to impeach that of the prosecuting witness by contradicting him, which it is claimed was the right of the defendant. The right of contradicting the State’s witness by competent testimony is undoubted. But the statements of the prosecuting witness to the witness on the stand were inadmissible, because hearsay. If admitted it is to impeach the credit of the State’s witness by proof of his contradictory statements, but such proof is not permitted unless the attention of the witness is first called to the imputed contradiction and an opportunity thus afforded him of explanation. 1 Greenlief on Evidence, par. 462. The judge of the lower court applied this rule. The argument for defendant attaches importance to the expression of the judge in signing the bill, that the testimony was offered to impeach the testimony instead of the credit of the witness. This is a mere verbal distinction. Then, too, if the ruling was manifestly right the reason assigned is immaterial.

It is therefore ordered, adjudged and decreed that the sentence be affirmed with costs.