text:
    No. 1317.
    The State ex rel. Stern’s Fertilizer and Chemical Manufacturing Company vs. City of New Orleans et al.
    Tlic amendment of Articte 207 of the Constitution of 1879 which exempts from taxation and license manufacturers of ice, fertilizers and chemicals, is not retroactivo and does not exempt them from taxes and licenses due prior to the adoption of the amendment.
    A PPEAL from the Civil District Court, Parish of Orleans. t\ Bightor, J.

      Gus. A. Breaux for Relator and Appellee.

      W. H. Bogers, James Moise and W. B. Sommerville for Respondents and Appellants.
   The opinion of the Court was delivered by

McEnery, J.

The City of New Orleans appeals from a judgment rendered against her, ordering the cancellation of the taxes and tax inscriptions in her favor and against Stern’s Fertilizer and Chemical Manufacturing Company for the’years 1880 to 1888, inclusive. The cause of action of the relator is based upon the amendment to Article 207 of the State Constitution adopted at the late general election, and officially promulgated May 12,1888. Article 207 as it originally stood in the Constitution of 1879, exempted from taxation and license for ten years the capital, machinery and other property employed in the manufacture of textile fabrics, leather, shoes, harness, saddlery, hats, flour and agricultural implements. f

The article as amended extends the exemption from the adoption of the Constitution of 1879 for a period of twenty years, and includes in the exemption manufacturers of ice, fertilizers and chemicals. The relator contends that the amended article exempts the articles which they manufacture from the period of the adoption of the Constitution of 1879. Tiie interftion in the submission of the amendment to the people by the General Assembly, and its adoption by them was to re-enact Article 207, and to extend for a longer period the exemption from taxation and license the capital, machinery and other property employed in the manufacture of textile fabrics, leather, shoes, harness, hats, saddlery, flour and ■ agricultural implements, and to further amend the article by including in tlie list of exemptions manufacturers of ice, fertilizers and chemicals. The object and intention in the adoption of the amendment was to preserve the original article .as amended — to continue the exemptions and to extend the period from taxation and license, and to include other manufacturers of articles not found in the original article and which were not exempt from taxation and license. The intention was evidently to continue for an additional period manufacturers of articles already exempt, and to add others thereto, and the fixing of the period for all the articles manufactured, from taxation and the manufacturers from license from the adoption of the Constitution of 1879, was .to make the Article 207 as amended consistent and uniform.

The amended Article 207 is not retroactive. The Stern’s Pertrlizer and Manufacturing Company owe taxes, as shown by the record, for a period extending from 1880 to 1888 inclusive. It was not the intention in the adoption of the amendment to said article to exempt said company and its property from taxes due the city of New Orleans or the state, prior to the adoption of the amendment. No presumption or implication will justify such a conclusion. Had there been an intention to exempt from taxation and license the manufacturers of ice, fertilizers and chemicals, it would have been stated in unambiguous terms. There would have been some legislation to relieve those who were exempted by the article as amended and who bad paid the tax and the license. It would be manifestly unjust to relieve those who had not paid, from their obligations to pay, and to have retained the amount of those who had promptly discharged their duty as citizens and paid their license and tax. Some provision would have been made to avoid this inequality and injustice, bad it been the intention in the adoption of the amendment to make the amended article retroactive. We, therefore, conclude that Article 207 of the Constitution of 1879, as amended, exempts from taxation and license the manufacturers of ice, fertilizers and chemicals, only from the date of the promulgation, the 12th day of May, 1888, of the amendment to Article 207 of the Constitution of 1879.

It is, therefore, ordered that the judgment of the lower court be avoided and reversed and plaintiff’s demand rejected with costs in both courts.

On Application por Rehearing.

The plaintiff, in the application for rehearing, says: • “And this makes it certain that the purpose was as far as possible to place all manufactures named, on absolutely the same footing of exemption, not only for the period of extension, but for the entire period of twenty years from the adoption of the Constitution of 1879.” Was it the intention in the re-enactment of the article to remit the taxes and licenses due by plaintiff prior to ihe 12th of May, 1888, and to retain to other manufacturers exempted by the amendment the amounts they had paid into the State treasury during the same period ?

If so, language and terms would have been used to convey this intention. The manufacturers of certain articles exempted in the original article are also covered by the amended article, when they had already been exempted for a period of ten years. What then, was the object in exempting them in the amended article for a time for which they had already been exempted ? It was evidently the intention to extend the period of their exemption by the simple method of re-enactment, and the plaintiff was included only as an amendment to said article, the period of exemption to commence only from the time the extension was given to the manufacturers originally exempted. There is no language in the article to convey the meaning that it was the intention to release plaintiff from taxes and licenses due, or to return taxes and licenses already paid into the State treasury.

In the case of Dennis, sheriff, vs. Railroad Co., this court quoted as follows from Fertilizing Company vs. Hyde Park, 97 U. S. Reports 666, in the construction of a legislative contract: “The rule of construction in this class of cases is that it shall be most strongly against the corporation. Every reasonable doubt is to be resolved adversely. Nothing is to be taken as conceded but what is given in unmistakable terms or by an implication equally clear. The affirmative must be shown. Silence is negative and doubt is fatal to the claim. The doctrine is vital to the public welfare. It is axiomattd in the jurisprudence of this court.”

In the case of Dennis, sheriff, vs. Railroad, it is stated that ‘exemptions are granted either by general or special laws. When they are granted'as a gratuity, as a bounty, they can be revoked at pleasure; while, when they enter into and form part of a contract in the shape of a charter, they must continue in force as agreed upon. The rule of construction in both cases is the same as to meaning and scope. 34 Ann. 954.

By Act 113 of 1882, submitting an amendment to Article 146 of the Constitution, it was adopted and amended so as to exclude the officers of the Criminal District Court from a participation ■ in the judicial expense fund.

Article 130, by an act passed at the same session of the General Assembly, was also amended at the general election of 1884. Suit was brought by the officers named in the amendment to Article 146 to restrain the treasurer from paying warrants drawn prior to the adoption of the amendments, claiming a preference out of the funds arising from the sale of stamps after the promulgation of the amendments. They assumed that Article 130 created a new and abolished the old Civil District Court; that the effect of the amendment to Article 146 was to establish an absolute preference on the judicial expense fund in favor of the officers of the new Civil District Court over the outstanding warrants in favor of the officers of the abolished court, in this suit, McGeehan vs. State Treasurer, 37 Ann. p. 156, this court said: “So far as the latter amendment (Art. 146) is concerned, we are clear that its only intention and effect were to relieve the fund from subjection to future criminal expenses.

The stamp system, and judicial expense fund were established by Articles 145 and 146, and they continue to-day, the same system and the same fund, originally provided unaffected by the amendment to the latter article, except as to the changes hereafter affecting them. When this amendment was adopted the warrants then outstanding had a legal and valid right to be paid out of the accumulations of said funds in rotation of months and by preference over all warrants of later date.”

No cunning of dialetics can evade the self-evident proposition that to give the amendment an interpretation destroying such vested rights would be to give it a retroactive effect.

It is presumed that the manufacturers not exempted by Article 207 prior to its amendment from taxation and license, have paid their licenses and taxes. To obtain restitution, a special act of the General Assembly would be required. Article 43. If it had been the intention to remit the taxes and licenses of plaintiffs and to return the licenses and taxes already paid into the treasury, the article would have made it mandatory upon the General Assembly to enact the necessary legislation.

It would not have been left to the discretion of the'legislative branch of the government; the State in its bounty would have left no doubt as to its interested generosity and munificence. If there be a doubt it is adversely construed.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 1322.
    Succession of René Gagneux.—On Oppositions to Accounts.
    In the absence of prayer and proof that a dative executor had received sums of money from the executor, his predecessor, no judgment can validly be rendered against him.
    In order to recover from such predecessor, suit must be brought against him or, in case of his death, his succession. Although prescription be suspended against the creditors of an insolvent, the principle is inapplicable to successions, whether solvent or insolvent.
    The right of a mortgage creditor is lost by the failure to reinscribe within ten years, although previous to the expiration of that delay the mortgagor had died.
    But no reinscription is necessary when the mortgaged property is sold within the ton years.
    Payment of a judgment not reinscribed and not revived cannot be sought after the expiration of the ten years by which it is proscribed.
    APPEAL from the Twenty-fifth.District Court, Parish of Lafayette. Débaillon, J.

      Bream: & Benoudet for the Executor, Appellant.

      Grow Girard and M. JS. Girard for the Opponents, Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

The original executor presented an account setting forth receipts $369 70 and disbursements $418 51, and mortgage claims of several parties named, aggregating a little upwards of $2500.

In connection with these claims which he placed on a footing of equality, he stated that the proceeds of property on hand, when realized, would be applied to those creditors concurrently.

At his death this account had not been homologated, and A. Adler, one of the creditors claiming a mortgage, had himself appointed dative executor and qualified.

After selling the property undisposed of, he prepared an account to propose a distribution of proceeds, and opposed the account of his predecessor.

By this account he acknowledges the amount on hand, proceeds of the unsold property, some $1900, and states privilege claims for some $200.

Referring to the account filed by his predecessor, lie charges that it is deficient in not accounting for $750, the proceeds of the sale of some land received by the executor; he denies the liability of the estate in favor of the parties placed thereon as creditors; claims that the succession of the executor should be made to account for the $369 70 admitted by him to have been collected. He further charges that he himself is a mortgage creditor for $525 27, as transferree of Hirsch and Adler & Co., mentioned in the account, and that he is entitled to be paid in preference to all others.

Some short time after the filing of his account, he opposed that presented by his predecessor, which has not as yet been homologated, urging substantially the same complaints.

His account is opposed by other parties, who contest his pretensions to a first rank.

The district judge rendered judgment holding the dative executor liable for the $750 and $369 70, over and above the amount acknowledged by him, (some $1909), the 'aggregate amount being $2479 70. The court admitted liabilities for $793 05 and decreed that the residue, $1686 65, be distributed pro rata among the parties claiming to be mortgage creditors, on the ground that they had, by themselves or their agents, agreed to be put on the same level.

From this judgment the dative executor appeals.

His complaints are:

1. That he ought not to have been charged with the amounts which had come to the hands of his predecessor and which he has never received; and,

2. That his claim ought to have been recognized with a first ranking mortgage and paid accordingly.

I.

It does not appear from the oppositions filed to the account presented by the dative executor, that any opponent asked that he be held liable for the two amounts in question, and even had there been prayer to that end, it is impossible to conceive how he could have been thus held in the absence of proof that he had received them, or that by his fault and negligence, the amounts which could have been recovered had become dead losses to the creditors.

' Had the pleadings and proof been other, then surely the dative executor could have been held; but certainly, under the showing made, there is error in the finding against him.

The opposition of the dative executor to the account of his deceased predecessor, though a salutary, was an insufficient proceeding to fasten judicially upon the succession of the latter, the liability for the two amounts.

The opposition was salutary in this, that it prevented the homologation of an account charged with incorrectness and error; but it was insufficient to warrant, even if well founded, any judgment against the succession of the executor, which liad not been made and was not a party to the proceeding, on a proper issue.

The proper action should have been a direct suit by the dative executor against the administratrix of the executor’s succession for a judgment for the two amounts.

It therefore follows, that, on the face of the proceedings, neither the estate of the executor, nor the dative executor could have beeif held responsible to the creditors of the succession for those two amounts, however true it may be, that there is proof in the record that the executor has actually received in cash and notes the $750, proceeds of the land sold by him.

II.

The next question to be determined is : whether the dative executor is, in his individual capacity, a mortgage creditor for the amount stated, with first rank, so as to be paid by preference over all others.

Pretermitting all inquiry into the validity of the alleged agreement, by which it is claimed that A. Adler, or those whose transferree he is, had consented to forego the rank now claimed, and which would perhaps require unnecessary attention, as it would involve the extent of the power of the party that undertook to act as an agent on the occasion, it is safer to consider whether, if the claim was once entitled to a first rank, it has or not lost that privilege and advantage.

The mortgage was consented on November 30th, 1875, and was recorded on the same day in the proper mortgage book of the proper office. René Gagneux died on the 25th of February, 1876, in a state of thorough insolvency, and the mortgage has never been reinscribed.

In the succession of Flower, 12 Ann. 216, the Court held that, although prescription does not run, but is suspended, against the creditors of an insolvent, the principle is inapplicable to successions, whether solvent or insolvent, and that, consequently, the right of a mortgage creditor is lost by the failure to reinscribe, within ten years, although before the ten years had expired the mortgagor had died.

The court rested its reasoning and conclusions on Art. 3327 of the Code of 1825, which is now Article 3363 of the Revised Code.

This ruling has been followed since. See 27 Ann. 527 (552), 630; 28 Ann. 811, and is adhered to.

For that reason, at least, the judgment of the district court, placing the creditors not privileged on an equal footing, is correct.

It is therefore ordered and decreed that the judgment appealed from, as far as it holds the dative executor liable for the two sums of $750 and $369 70, amounting together to eleven hundred and nineteen dollars ($1119), be reversed, and it is now ordered and decreed that said dative executor be declared not to be liable therefor.

It is further ordered and decreed that the right of the dative executor to recover the same from the succession of his predecessor, E. E. Mouton, by a direct action, be recognized and reserved.

It is therefore ordered and decreed that, thus reformed, said judgment be affirmed, the costs of appeal to be paid by the succession.

On Rehearing.

I.

The dative executor justly complains that by the judgment here rendered, Queyrouze & Bois, who claim to be judicial mortgage creditors, and who were ranked among the mortgage creditors by the district judge, were not stricken from among them.

It appears that the judgment on which they claim, was rendered on December 22, 1875, that, not only never was it reinscribed in order to preserve the mortgage secured by the inscription, but that it has besides never been revived. It is therefore clear that the claim has ceased to have any existence whatever.

It was incumbent on Queyrouze &-Bois, in order to be retained on the account, to have proved, not only their judgment, but its inscription, reinscription and revival and this without the necessity of the filing of any plea of prescription against it. This formed part of the evidence necessary to make out their case.

II.

The dative executor is also right when he charges that his individual claim as a mortgage creditor ought to have been allowed with the first rank.

We held that, as the mortgage had not been reinscribed within the ten years, the inscription of the mortgage had perempted. Such is no doubt the law, but the law does not apply to cases in which the property mortgaged has been sold within the ten years and proceeds reduced to possession. 8 Ann. 505; 13 Ann, 557.

Our attention is called to the material fact, which we had not discovered in the mixed up transcript .in the case, that the property mortgaged in favor of Hirsch, Adler & Co. was actually sold within those ten years and that the proceeds arc in the hands of the dative executor.

It therefore follows that a reinscription would have been áh idle and barren ceremony.

Tliis, now, necessarily imposes upon us the inquiry, whether, as was held by the District Judge, the first rank to which Adler & Co. were entitled, had been relinquished so as to constitute them, or their assign, A. Adler, a simple ordinary creditor.

We have looked carefully into the matter and have ascertained that the power of attorney given to E. E. Mouton in relation to tills claim, merely conferred upon him the right to collect the claim and consequently to enforce the mortgage.

Surely, he had no authority to give up to any extent the security by which the claim was guaranteed and the consent which he gave to have the same placed among the ordinary debts, was wholly unauthorized and is not binding on Adler.

As the mortgage was the first recorded, it firs affected the property and is entitled to the first rank.

As the claim will absorb the residue of the proceeds of the real estate sold at the instance of the dative executor, it would serve no useful purpose to pass upon the pretentions of the other mortgage creditors, whose rights are reserved, should the dative executor realize funds from the succession of E. E. Mouton, the executor, and propose to distribute them.

It is, therefore, ordered and decreed that the last portion of our previous decree which affirmed the judgment appealed from, be set aside, and

It is ordered and decreed that said judgment he reversed, and

It is now ordered and decreed that the names of Qneyrouze & Bois, figuring among those of the mortgage creditors, be stricken therefrom and that A. Adler he recognized to be entitled to be paid as first mortgage creditor out of the proceeds of the property securing his claim, and that the rights, if any, of the other parties claiming to be mortgage creditors be reserved to be exercised when other funds are realized and proposed for distribution.

It is further ordered that thus amended, our previous decree remain undisturbed and that the costs of appeal he paid by the succession.


author: Fenner, J.

text:
    No. 1319.
    Eastin & Breaux vs. Board of School Directors.
    When the principal and sureties on an official bond are sued together, the judgment as to the principal is res adjudícala as to the sureties, and within the limit of the amounts for which they are held under the terms of their bond, they are bound to make good the entire judgment against the principal, including the penalty.

      APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Débaillon, J.

      M. E. Girard & Grow Girard for Plaintiffs and Appellants.

      E. O. Smedes, District Attorney, and G. D. Gaffery for Defendants and Appellees:
    l.He who pleads payment mast prove it by preponderance of evidence and beyond doubt. 18 Ann. 228; 23 Ann. 84; 24 Ann. 288.
    2.The plea of payment admits the validity of the obiigation. 9 Ann. 528 ; 12 B. 397; 14 Ann. 54; 25 Ann. 172; Hen. Dig. p. 1150, 47 No. 6.
    3.Nacts which could have been urged before payment cannot be urged as grounds for an injunction. 21 Ann. 465; 26 Ann. 34; Lougue, p. 311 (b), 27 No. 3.
    4.The plea of general denial puts at issue all the allegations of plaintiff’s petition, and the judgment thereon will form res judicata as between the parties.
    5.The surety is liable for the five per ceno per month penalty imposed upon a defaulting school treasurer. 7_Ann. 121-596; 10 Ann. 492; 14 Ann. 679.
   The opinion of the Court was delivered by

Fenner, J.

The board of school directors brought suit on the official bond of J. N. Judice, against him and his sureties, Eastiu and Breaux, to recover a sum of $2641.72, for which said Judice, as treasurer of the board, was a defaulter, in which they recovered judgment against Judice “ for $2641.72, with five per cent per month interest thereon from August, 1886,” and against Breaux and Eastin, each, “for the sum of $2500, with legal interest of five per cent per annum from judicial demand ” — $2500 being the amount for which each had bound himself as surety on the bond.

This judgment was appealed from and affirmed by this Court. School Directors vs. Judice, 39 Ann. 896.

That this judgment operates as res adjudicata as to the amount of Judice’s indebtedness binding on all the parties to that suit, does not admit of question.

It does not lie in the month of tlie present plaintiffs to dispute its correctness.

The judgment against themselves for $2500 each, with legal interest, is equally beyond dispute; but, as they are sureties only, of course that judgment can be enforced against them only to the extent necessary to satisfy the judgment against their principal.

But to the extent of their principal’s liability and within the limit of the judgment against themselves, they are undoubtedly and irrevocably bound.

The board issued execution on its judgment for the total amount of the judgment against Judice, including the penalty of five per cent per mouth. The sureties claim that they are only liable for the principal amount, with legal interest, and on this ground they enjoin the execution.

There is not the slightest merit in their contention. It is not pretended that more is claimed of either of them than the amount for which they were adjudged to be liable; and within that limit they are unquestionably bound for the debt and penalty adjudged against Judice.

It is well settled that sureties on official bonds are liable for the penalty as well as for the principal amount of the claim against the officer. 7 Ann. 121, 596; 10 Ann, 492; 14 Ann. 679; State vs. Powell, 40 Ann.

The judge did not err in dissolving the injunction.

Judgment affirmed.


author: Watkins, J.

text:
    No. 1316.
    Charley Barbe vs. Thomas Hansen et als.
    Several individuals enter into an agreement to become the sureties insólido of another, on the foliowing terms, viz: Their principal was to purchase from a third person a quantity of land which he was to buy from the United States government at 25 per acre, and which was to aggregate in value a stipulated sum, and whereupon a special mortgage and vendor’s lien was to be retained as a security therefor.
    Their principal’s vendor was to give his “consent thereto, and on this condition the securities signed a note in his favor.
    Snoh third person, as payee of this note, purchased land of the government, but not for the aggregate amount specified; but he sold it to their principal for that amount.

      -Held: That proof of these averments does not establish a want of consideration, in the absence of proof that the land conveyed was worth less than the price it sold for.
    Appeal from the Twenty-fifth District Court, Parish of Lafayette. Debadllon, J.

      A. H. Mitchell and M. JE1. Girard for Plaintiff and Appellee.

      Geo. H. Wells for Defendants and Appellants.
   The opinion of the Court was delivered by

Watkins, J.

On the 22d of March, 1884, the plaintiff sold to the defendant, S. H. Clement, a tract of. land for $2300, for which he executed his promissory note, and consented to a special mortgage and vendor’s lien thereon as securing the same.

This note was signed by the other defendants, Thomas Hansen, A. Rigmáiden and H. C. Drew, as securities in solido.

The act of sale and mortgage contains the stipulation of ten per cent attorney’s fees in the event of suit, and the non-alienation clause.

Suit via ordinaria is brought against the principal and sureties, and judgment is demanded against them in solido for the principal and interest of the debt, and the ten per cent attorney’s fees; and also, for the recognition and enforcement of his special mortgage and vendor’s lien on the land.

For answer the securities make the following declaration, substantially, viz:

That they signed the note-in error, and there was a want of consideration for their signatures, in that before they signed same, and at the time they were requested by Clement so to do, the latter informed them that he wished to procure the sum of $2300 from the plaintiff for the purpose of purchasing timbered lands from the United States government, and on which he proposed to secure them by mortgage when purchased.

That afterwards and before reaching a final agreement, one of their number informed the plaintiff and Clement that if the former would himself purchase lands from the government with said sum of money, instead of advancing the $2300 to Clement, and would then sell the land to Clement for $2300, and retain a special mortgage'and vendor’s privilege thereon to secure the payment of the purchase price, he and his associates would sign Clement’s note as securities. j IThat this arrangement was consented to by the plaintiff and Clement, and it was upon this agreement and understanding that they signed the note sued on.”

They charge that by means of a fraudulent collusion between the plaintiff and Clement, and without their knowledge, the plaintiff did not use the whole amount of said sum of $2300 in the purchase of government lands” by the sum of $500, whichjj he loaned’ to Clement, and the contrary recital of the plaintiff’s'petition andfact of sale are untrue.

They farther aver that if they were to pay said note to plaintiff they would thereby become subrogated to his rights of privilege and mortgage as against their principal, and “ therefore they have been seriously injured and defrauded by said collusion and fraudulent conduct * * * * because if plaintiff and said Clement had performed, in good faith, (their contract), as aforesaid * * * ■ the said Clement would have had nearly $500 worth — at the government price of $1 25 per acre — of said lands morejthan he acquired by his said purchase ” on which such mortgage ¿and privilege would have rested; and that, by this means, and to [¡this extent, their security has been, and would be reduced in the event of their making payment with subrogation.

Subsequently they amended their answer by averring that since their original answer was filed they have been informed that the plaintiff really employed in his purchase of land from the government only a little more than fifteen hundred dollars, and that he did not loan any portion of the $2300, which was the ostensible consideration of the note and nominal price of the land which he conveyed to Clement.

They allege the intervening insolvency and pending and undetermined cession of Clement, and pray for their entire release and discharge from liability.

On the hearing the judge a quo disregarded the defense set up and gave judgment as prayed for by the plaintiff, and defendants have appealed.

In this Court the plaintiff and appellee requests us to give him judgment of ten per cent on the amount of the judgment appealed from, as damages for the prosecution of a frivolous appeal.

We have taken pains to give in detail the substantial averments of the defendant’s answers for the sake of precision, and for the reason that we regard them as stating no defense to their liability on the note.

Their is neither allegation in their answers nor proof in the record of the inadequacy of the land mortgaged as a security for the debt. Hence, if they should pay it, they could, presumably, be reimbursed. What matters it to them if their theory be correct, and that representations were made as stated, if their security be ample 1

The fact that their principal has become insolvent since the note was executed, and has made a cession under the insolvent law, does not absolve them from either their obligation or duty. Neither does his surrender impair the value of their security or deprive them of their right to procure a seizure and sale of the property.

The proof is positive to the effect that the land is worth $2300, and has not been disposed of by the syndic of the insolvent.

With regard to the rights of mortgaged and privileged creditors of an insolvent, see Spears vs. His Creditors, decided at Monroe at our recently adjourned term. The judgment appealed from is correot and should not be disturbed; but we do not regard this as a proper case for the infliction of damages for the prosecution of a frivolous appeal.

Judgment affirmed.


text:
    No. 1315.
    Don Louis Jean Louis et al. vs. Thérence Giroir et als.
    A patent granted by the United States under Sec. 2447, U. S. Rev. Statutes, operates only as a quit-claim or relinquishment of any claim on the part of the United States to the land, and is without prejudice to adverge claimants.
    When it concerns land which had passed into private ownership under Spanish grants, ante-dating the cession to the United States, and subsequently confirmed by acts of Congress, such land will bo considered as having been fully severed from the public domain, from the date of such confirmation, and fully subject to prescriptive titles.
    Rinding that defendants have established all the elements essential to maintain their plea of prescription, it must be sustained.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Bowrges, J., ad hoe.

      Felix & Ban Voorldes for Plaintiffs and Appellants.

      M. F. Girard, for Defendants and Appellees:
    If the party who claims the land has acknowledged that the title of ownership is in his opponent, his alleged ownership is destroyed. 39 Ann. 1033.
    In a petitory action met by the defense of the prescription of ten years, the main legal discussion involves the question of the alleged just title, the good faith and the length of time of defendant’s possession of the property in controversy. The legality or validity of the plaintiff’s title is a question of secondary consideration, which comes up in case only the defendant’s plea of prescription should not be found good. 38 Ann. 209, Barrow vs. Wilson.
    Good faith purifies the title of its defects and causes the possessor under a just title to be preferred to the true proprietor, who has remained so long neglectful of his rights. 38 Ann. 885, Pattisonvs. Maloney.
    Certificates of purchase from land office made in accordance with law operate an equitable severance of the land from the public domain. 33 Ann. 249, Gay vs. Ellis, and authorities. And it becomes subject to private contracts and adverse prescription. 35 Ann. 931, Lariviere vs. Perrodin; 35 Ann, 540, Lavidauvs. Trinchard.
    Confirmation by the United States is but a relinquishment of all claims on their part leaving the titles as under the former government in contests between different claimants. Hen 1272, § 1, Ho. 3; 5k. 457.
    A grant complete under the Rrench or Spanish government required no confirmation to give it validity under ours. The former government had no legal power or discretion over it, and none passed to the United States under the treaty. It was and has remained private property, which no legislation of Congress could affect. Hen. 1263 (c) 6.
    The United States are bound by the treaty ceding Louisiana to protect the private property of the inhabitants. Hen. 1263, Ho. 13; 5 Ann. 636.
    A private statute, snch as an act of Congress conferring private claims, should be introduced in evidence. The court will not take, judicially, notice of it. 28 Ann. 415, Marsden vs. Savings Institution; 33 Ann. 963, Bank vs. Converse et al.; Hen. p. 1272, B, § 1, Ho. 3; 12 Ann. 883; 2 Ann. 148; Hon. p, 1276, Hos. 17 and 18; Louque, p. 520, Ho. 3; 590 B, Ho. 1; 9 P. 117, Hen. p. 1263, Ho.6; 3 Wall. 478; 18 Wall. 255; 103 3 U. S. 593.
   Tlie opinion of the Court was delivered by

Fenner, J.

This is a petitory action, brought by the legal representatives of Jean Louis, deceased, to recover certain lands in the possession of the several defendants.

The title set forth in the petition is as follows: “ That said property belongs to your petitioners for having inherited the same from Jean Louis, f. m. c., who had title thereto by virtue of a confirmation from Congress and by a patent issued in or about the year 1880 or 1881 by the government of the United States in favor of said Jean Louis.”

In support of this title, plaintiffs offer: 1st, a report or decision of the Register of the Land Office, dated Nov. 10, 1880; 2d, a certificate of survey by the Surveyor General of Louisiana, dated Dec. 13, 1881; 3d, a patent from the United States government, dated January 16, 1882.

From these documents it appears that the claim of Louisas based upon a purchase by him from Smille Bourse, who held under a Spanish grant, and occupation and cultivation for eighteen consecutive^years preceding December 22, 1815, upon a certificate of survey made by the United States Surveyor, dated June 22,1814, and upon confirmation by act of Congress, approved February 25, 1825.

The decision of the Register simply recognizes the validity of the foregoing claim, but concludes as follows: “ This decision^shall in nowise be considered as precluding a legal investigation and decision by the proper judicial tribunal as between the parties to the above conflict of claims, but shall only operate on the part of the United States as a relinquishment of all title to the land in question.”

The patent also contains the statement that this patent shall only operate as a relinquishment of title on the part of the'United States, and shall, in no manner, interfere with any valid adverse right to .the same land, nor be construed to preclude a legal investigation and decision by the proper judicial tribunal between the adverse claimants to said land.”

From the foregoing it is apparent that these documents do not operate, or purport to operate, as a present conveyance of the lands, but are a recognition of a prior divertiture dating back to the Spanish regime, from which date, unquestionably, the land covered by it was severed from the public domain, had passed into private ownership, and was subject to all the modes of acquiring ownership provided by law.

The defendants claim under Spanish grants yet more ancient and equally confirmed by the government of the United States.

If the confiictof the original titles was open to investigation, the only questions that would arise would he: Which grant embraced the land in controversy? and, in case it was covered by both, which was the superior title ? But, however those questions might be decided, there could not he the slightest doubt that the land had passed into private ownership before the cession to the Unit id States, and never became incorporated into the public domain of t he latter, and that, therefore, the confirmations, patents and other dealings of the United States government with reference thereto were simply reeognitivp and intended and purporting to operate as mere quit-claims.

There is, therefore, no obstacle to the right of defendants to plead prescription against the action brought by plaintiffs. Lavidau vs. Trinchard, 35 Ann. 540.

They have pleaded the prescription of ten and thirty years, and the former was maintained by the judge a quo.

His decision is manifestly correct.

This land has been held and dealt with as owners by defendants and their authors from a very ancient date. Their possession and occupation for moro than ten years prior to the institution of this suit have been complete and unequivocal. Their good faith does not admit of question. Their titles rest on sales fully translative of property received from persons whom, without doubt, they believed to be the real owners. It is only necessary to read the articles of the Code treating of this prescription to see that defendants’ possession combines every element therein prescribed as necessary to support the plea. C. C. Arts. 3478 to 3498; Barrow vs. Wilson, 33 Ann. 209; Patterson vs. Maloney, id. 885.

Judgment affirmed.


text:
    No. 1320.
    Charles M. Thompson, Agent, vs. C. C. Duson, Sheriff, et al.
    ^11 of writing acknowledging the receipt of a specified sum as a part of the purchase price of a tract of land, the title to which is to he executed at a future date, and the terms of which are to "be ascertained by reference to another instrument, is not a sale i which transfers the ownership of the property, hut is only a promise of sale, on the con ditions imposed, and confers the right on the promisee to compel performance on the part of the promisor.

      APPEAL from the Thirteenth District Court, Parish of St. Landry. JSstilette, J.

      W. 8. Frazer, for Plaintiff and'Appellee.

      Kenneth Baillio, for Defendants and Appellants:
    1.A promise to sell amounts to a sale between the parties if clothed with the formalities, provided by O. 0 . 2440; C. C. 2462, 2456.
    2.Id centum est quod cerfcum reddi potest.
    3.A vondor’s privilege springs from the law alono. O. C. 3249; C. H. 2103; 31 Ann. 729.
    4.A suspensive condition is never implied, it must bo expressly stipulated. So, in a prom ise to sell, a vendor cannot defeat the rights of a vendee who has been in possession for several years, by" insisting that he (tho vendor) has not the benefit of a special mortgage to secure the price when none was expressly stipulated.
    5.The mere forra of a contract will not be looked to so much as the essence of the contract and the real intent of the parties. Hen., p. 1000, Ho. 4 and cases cited.
    6.In construing it, the manner in which a contract has beeD executed and treated by both parties, will be considered to determine its true nature. C. C. 1956; Hen., p. 1012, Ho. 7*
    7.The construction will he against a vendor, or [a promisor in a contract to sell. Hen., p. 1012, Ho. 6.
    8.Executed contracts. Hen., p. 1011, Hos. 7, 9,11 and oases cited.
    9.Obligations of the ancestors pass to tho heirs. C. O. 67i.
    10.TTncondit onal heirs are absolutely bond. C. O. 882.
    11.Acceptance by heirs is express when they assume that quality in a judicial proceeding O. O 88.
    12.Plaintiffs in this suit stand in the place of their mother, and are bound by her contracts. They are not third parties to her contracts.
    13."When a person by his words or conduct causes another to believe in the existence of a certain state of things, and induces him to act upon same, he is estopped from averring against him a different state of things. Bigelow on Est., pp. 64, 65; 30 Ann. 50.
    14.A judicial mortgage attaches, though the title to real estate be not recorded. 35 Ann. 829.
    15.A promise to sell, with no reciprocal agreement that a formal sale shall be executed, and with no express stipulation to that effect in favor of both amounting to a proviso or suspensive condition; amounts to a sale between the parties, and will be so treated, where tho promisee has gone into possession. 11 B. 349; 12 B. 474; 5 Ann. 656; 6 Ann. 26; 1L. 314; 3 H. S. 586, 336; 2 L. 460 ; 6 N. S. 432. The case is different where such agreements or stipulations are expressly included in the contract to sell, amounting to a suspensive condition, and where the promisor remains in possession.
    16.In cases such as the one at bar a mortgage attaches to promisee’s property. 12 B. 474.
    17.A general denial puts at'issue plaintiff’s capacity where he sues in a representative capa* city. 5L. 405; '7 Ann. 621.
    Acceptance of promisee may he proved by evidence dehors the act. 2 L. 460; 3 H. S. 583.
    If the Kilpatrick heirs were unaware of the transfer of T. to his wife they should have cleaily proved it. Hen., p. 495, Ho. 2.
    Plaintiff in injunction cannot recover counsel fees as damages. 17 L. 263; 4 Ann, 304; 12 Ann. 239; 2L.102; 5L. 246; 14 Ann. 333 ; 19 L. 357; 13 Ann. 449,193 ; 14 Ann. 311. 757 820; 16 Ann. 563; 35 Ann. Calvet vs. "Williams.
   The opinion of the Court was delivered by

Watkins, J.

Under a writ of fieri facias, issued under a judgment in the suit entitled John Chaffe & Sons vs. C. P. Thompson, three-fifths undivided interest in the Joel Tucker plantation was seized and advertised for sale in satisfaction thereof, and plaintiff, representing the heirs of Mrs. M. W. Kilpatrick, enjoins the sale of one third of said three-fifths thereof on the ground of ownership by their title of inheritance.

The sheriff and seizing creditors join in one answer. They plead the general issue and no cause of action, and aver that the plaintiffs and their deceased mother were well aware of the fact that, for a great while before the seizure complained of, C. M. Thompson and his wife not only claimed said property as owners, but had recorded titles to the rights of Mrs. Kilpatrick, and that Mary E. Glaze, the wife, at, and antecedent to the said seizure, was in the possession thereof as owner, under a elation en paiement from her husband, and which had been theretofore duly recorded, and against this assertion of title same is urged as an estoppel.

They further aver that Mary E. Glaze has also enjoined this seizure and sale on the ground of her ownership of the whole of the three-fifths interest, including that of Mrs. Kilpatrick, grounded on that elation, and on that account, aver that neither of their demands are serious or bona fide, and are only intended to obstruct their legal proceedings.

They pray for the dissolution of the plaintiff’s injunction, with statutory damages of ten and twenty per cent on the amount of the judgment sought to be executed, and special damages of $250.

On the trial the judge a quo sustained and perpetuated plaintiff’s injunction and'quashed the seizure of that part of the property claimed without damages, and the defendants have appealed.

Our decision must turn upon the construction of the following instrument of writing, viz:

Nava sota, Grimes County, Tex., Jan. 30, 1880.
“ Received of Chas. J. Thompson, of the parish of St. Landry, State of Louisiana, the sum of five hundred dollars, said amount being the first payment of a part of the purchase-price of a piece of land situated in the parish and State aforesaid, on the left descending bank of Bayou Boeuf. The titles to said lands not yet being made, I hereby obligate myself, my heirs and assigns to make a title to said land, to the said Thompson, when he shall call for the same.
The terms and conditions of the sale being the same as those in the sale of Mrs. L. B. Waller unto the said Thompson, foi a portion of the same tract of land.
‘‘ (Signed) Mary W. Kilpatrick.
I authorize my wife to sign the foregoing instrument of writing.
(Signed) A. R. Kilpatrick.”

The plaintiff’s petition avers that this “ instrument of writing ” was not intended by their mother to actually and really convey their interests in the property, but that same was only a promise of sale, which was never executed during their mother’s lifetime, or since. It is a noteworthy fact that there is no averment in the defendants’ answer to the effect that it was a sale to Thompson, but, in lieu thereof, the allegations quoted were made of acquiescence and estoppel.

In Broodwell vs. Raines, 30 Ann. 677, this Court had under consideration quite a similar instrument. Its concluding paragraph is as follows, viz r

Titles to said property to be made at our own convenience, as per our private agreement.”
The Court says : Under this agreement, Lane (the promisee), took possession of, and cultivated the plantation for seven years, during which he paid nothing on the purchase-price, and at the end of which he was heavily involved in debt.”

Then they proceed to discuss the question of Lane’s ownership under this document, and say: The mere reading of this instrument * * is conclusive on our minds that this was not a sale, but a mere conditional promise to sell.

The first part of the agreement seems to convey the idea of a sale, but the reference to the titles, which are to be made at a future time, shows clearly that the contract was not translative of property, and did not operate a mutation of title.”

Citing Knox vs. Payne & Harrison, 13 Ann. 361, and Garret vs. Crooks, 15 Ann. 483.

The two instruments are so perfectly alike in respect to the reference to the execution of titles, that we deem it unnecessary to cite further authority.

In the one under present consideration, tile condition is,that the promissor agrees to make a title * * to the said Thompson when he shall call for the same,” while in that just referredto, the titles were to be made at the mutual convenience of the parties.

The language employed in the promise of sale to Lane, viz: “I have this day bargained, sold and delivered” are wanting in that to Thompson -, and, if the former was correctly held not to be translative of property, the latter’s certainly cannot be. We regard the opinion In the case cited a,s perfectly correct, and hold that the instrument under consideration to be only a promise on the part of Mrs. Kilpatrick to sell to Thompson, which didnot operate a mutation of title, and which only entitled] Mm, upon full compliance with the conditions therein stipulated, to compel her to make title.

The fact, that'.Thompson entered into a joint possession of the property with others, and used the .revenues, and afterwards made a conveyance to his wife, does not exercise any influence over the title, or alter its status. The proof does not satisfy us that plaintiff had been advised of the'conveyance to Mary E. Glaze. They resided then, and reside now, in the State of Texas, and, while there are some circumstances pointing to their knowledge of it, they are altogether too inconsequential for a court of justice to act upon. The judgment of the court a qua does substantial justice between the parties. The demand of plaintiff for damages was properly rejected.

Judgment affirmed.

On Application por Rehearing.

1. The fact that the defendants’ counsel did not specially aver that the instrument in question was a title, and operated a mutation of the ownership of Mrs. Kilpatrick in theSland, was only cited a ground in support of the converse of that proposition.

The opinion concedes that, whether that instrument was a title or not, was a question in the case, and decides it.

2. Our opinion does not lay any particular stress on the question of consideration.

The Code provides that ‘‘ a promise to sell amounts to a sale when there exists']a reciprocal consent of both parties as to the thing and the price thereof; but, to have its effect, either hetiveen the contracting parties, or with regard to other persons, the promise, to sell must be vested with the same formalities as are prescribed in articles 2439 and 2440, concerning sales, in all cases where the law directs that the sale be committed to writing.” R. C. C. 2462.

From these" provisions ife take it to be clear, that a reciprocal consent of both parties as to the thing- and the price thereof ” is essential, and is of the essence of a promise of sale, as well as of a sale.

There was evidently such “a reciprocal consent” between MrsKilpatrick and Thompson. But those provisions make the further requirement that the promise of sale must be clothed with the same formalities as a sale, in order that it shall have effect.

One of the most important of these is an act which purports to transfer the property. R. C. C. 2440. Such we understand to be the true import of the word “ act,” which is contained in the article True, it is, that no set phrase, or form of words is necessary to onerate a translation of property; but the ones employed must, of themselves, clearly express that object.

In the instrument we are considering there are no such words, or phrase. On the contrary, the instrument is given the form'of a receipt for a portion of the purchase-price advanced upon a sale of certain property which was to he completed and titles executed to Thompson, as vendee, when he shall call for the same.” This instrument is wanting in the essential formality that is necessary to give it effect as to the creditors of Thompson as a conveyance of the property. It does not vest a title in him.

3. The defendants’ counsel, in their application, propound this question, viz:

Why not declare document A to be a sale, and at the same time decree that the Kilpatrick heirs shall be paid by preference, out of the (proceeds) of the sale, the balance due them on the purchase, before the seizing creditors ?”

We are ata loss to see how this could be done.

The creditors have dealt with the land as the property of their debt- or, and seized it. Plaintiffs enjoined the advertised sale, claiming ownership. Title vel non is the only issue. If the title did not pass for one purpose it could not have passed for another. If this promise of sale contains obligations which the defendants, as the creditors of Thompson, may acquire and enforce, this is not the proper proceeding for its ascertainment, or determination. We feel bound to relegate them to some other proceeding for that purpose.

Rehearing refused.


author: MoEnery, J.

text:
    No. 1321.
    Laperle Richard et al. vs. Jean B. Bergeron et al.
    Where the judge a quo properly dismisses a suit for insufficiency of evidence to establish plaintiffs demand, and the defendants asks that it be affirmed, the judgment will not be disturbed.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      L. L. Bourges and L. T. Tansey, for Plaintiffs and Appellants.

      John B. Ogden, for Defendants and Appellees.
   The opinion of the Court was delivered by

MoEnery, J.

The plaintiff, authorized by her husband, as the forced heir of her father, Theodore Richard, alleges that she is entitled to one-seventh of his succession.

She brings this suit to annul the sales of certain property in the town of Arnoudville, made by her father to N. A. Guilbeau, and from Guilbeau to Bergeron, from Bergeron to Louisa Comeux, and from Louisa Comeux to N. A. Guilbeau, because they were simulations. The property was assessed in the name of Guilbeau, and was sold for taxes, and bought by defendant Bergeron.

This tax sale is also attacked.

The district judge dismissed the casé because the plaintiff failed to establish her demand. After a careful examination of the evidence we concur with the district judge, that the evidence wss insufficient to support the allegations in her petition.

The defendants, in their brief, state, “we content ourselves by ask ing for an affirmance of the judgment.”

Judgment affirmed, plaintiffs and appellants to pay cost of appeal.


author: Bermudez, C. J. Poché, J.

text:
    No. 220.
    The State of Louisiana vs. James Hendricks and D. M. Jameson, Surety.
    A defendant who files a special plea is to be judged on that plea and none other. All else is admitted.
    Hence, a surety who denies his signature to a hail hond, which is an act under private signature, on a proceeding to forfeit the same, the accused not appearing when called is barred from all other defences, the signature once proved..
    The principle applies whether the proceeding, which is intrinsically civil, he considered as civil or criminal in form.
    The consent of an accused, when arrested to correct a misnomer in the affidavit and in the warrant, will debar his surety on an appearance hond of the right of urging that the name of the principal in the hond is different from the name in the affidavit.
    The surety on an appearance bond furnished when the accused was in custody, and by which he was released is estopped from subsequently alleging irregularities or other defects of form in the confection of the bond.

      APPEAL from the Fourth District Court, Parish of Jackson. Bridger, J.

      J. Henry Shepherd, District Attorney, for the State, Appellant:
    1. Justices of the peace shall have power to hail or discharge in criminal cases not capital or necessarily punishable at hard labor. Const. 1879, Art. 126: “Whoever shall he guilty of larceny shall he imprisoned at hard labor, or otherwise, not exceeding two years.” Sec. 812, E. S.
    2. The binding force of a recognizance does, not depend upon tbe fact that the court before which the accused is required to appear has jurisdiction of the offence charged, but upon the duty and power of the magistrate to examine and admit the accused to bail. Waterman’s Criminal Digest, page 68, Sec. 92.
    3. A bond proves it self, and the law under which it was taken fixes the nature of a liability of the sureties toward the State, 7 Ann. 541, State vs, Lewis.
    4. It is not sacramental that a written order should issue to the sheriff by a magistrate for the sheriff to take bail. State vs. Wyatt et al., 6 Ann. 701.
    5. Where an accused is in custody of the sheriff, and by the execution of the bond the surety obtains his release, he is estopped from gainsaying the regularity of the bond or the regularity of the proceeding in which it is allowed. 13 Ann, 299; 14 Ann. 783; 16 Ann. 141; State vs. Hicol, 30 Ann. 630.

      'JE. JE. Kidd and F. W. Price for Defendant and Appellee :
    1. The bond furnished by the accused after preliminary examination, was required to secure his appearanceat the next District; Court. E. S. 1010, Sec. 4. Any insertion in the bond for any further or different appearance was unauthorized and may be considered as unwritten. On the appearance of the accused at first term of the District Court, after he was permitted to give bond, the obligation was cancelled and the sureties discharged. 34 Ann. 62, Sec. 3.
    2. The judgment of forfeiture cannot stand. The bond was given apparently without authority. It states on its face that it is given to answer a charge of murder, and hears date of the time of arrest, January, 1882. The bond that was ordered to be given at the March term of 1882, when the information for assault with the intent to murder was filed, was never given. It is not the bond that was required by the court. It antedates the time of filing the information and order permitting and prescribing the bond. 37 Ann. 202, State vs. Williams.
    3. Where the record does not show that at the terra of court for which defendant was hound to appear, an entry was made on the minutes o± the court for the continuance of all causes not disposed of, the sureties on a bail bond will not be liable on default taken for failure to produce the body of defendant at a subsequent term of the court. 6 E. 417.
    4. Where judgment has been rendered against one who had executed a bond to appear and answer a criminal charge against his surety, but it does not appear from the judgment, or any part of the record, that the accused was called upon his bond to answer the charge preferred in said bond, and no stipulation contained in said bond required defendant to answer any charge made by a grand jury, any judgment rendered against the sureties for failure to answer to an iudictment preferred by a grand jury subsequently should be set aside.
    5. The order (of the judge) should be so framed as to leave nothing to inference or conjecture, and it should be entered of record in terms sufficiently definite to identify the offence and the offender. 10 Ann. 550.
    6. The sheriff is without power to take a hail bond, unless authorized to do so by an order of the court admitting the prisoner to hail and fixing the amount of the hail required, 6 Ann. 700 ; 6 Ann. 744 ; 12 Ann. 324 and 349; 10 Ann. 532 ; 13 Ann. 288; 37 Ann. 200 ; 33 Ann. 345.
    7. An order of the court committing the prisoner, fixing the amount of the bond and authorizing the sheriff to take and approve a bond must he in writing. 6 Ann. 700 and 701.
    8. Parol evidence of an order without suggestion of its loss or destruction is entirely opposed to the rules of evidence. To supply or alter the record by parol proof afte they were made up, read and approved, would he most dangerous. 6 Ann. 800.
    9. The magistrate should have named and approved the security, and given a written order to the sheriff to discharge the prisoner on his executing the bond. But if he approves the bond after it is taken it is sufficient to bind the surety. 6 Ann. 701, State vs. Wyatt & Nicholls.
    10. Abill of exceptions that neither states the objection nor reason of the court will not he noticed by the court.
   The opinion of the Court was delivered by

Bermudez, C. J.

The State appeals from a judgment of the District Court annulling a previously rendered one, forfeiting the bond of tlie accused and condemning the surety therein to pay the amount thereof, the former failing to appear at the term when he was called to do so, the latter failing to produce then and there his body.

It appears that Hendricks was arrested by a justice of the peace on the charge of larceny, and was released on a bond for $300, with D. M. Jameson as surety therein, conditioned, substantially, that if the above bounden Hendricks shall appear at the jury term of the District Court, at tlie town of Vernon, Jackson parish, commencing on the b-rst Monday of February, 1888, to answer the charge of larceny, and shall there rem ain from day to day and term to term, and shall not depart thence without leave of court, the obligation to be null and void, otherwise, to remain in foree.

It further appears that a true bill was found against said Hendricks on February 11, 1888, and that a bench warrant was issued for bis arrest, which took place on August 18 following, he having failed to appear on August 14 preceding, when the bond furnished by him was forfeited and the surety, Jameson, condemned to pay the amount thereof.

On the day following that of the forfeiture, Janteson took a rule to rescind the judgment nisi on the sole ground that he had never signed the bond, which rule was discharged by the court.

Subsequently, the surety took another rule, averring other grounds for which the judgment of forfeiture should be annulled. This rule was treated as an answer, putting at issue the right of the State to demand the forfeiture.

After hearing, the District Court annulled the judgment of forfeiture and released the defendant as surety.

Prom this judgment the State appeals.

It is manifest that the proceedings below were palpably irregular and unwarranted.

After the judgment of forfeiture had been rendered, instead of asking that it be set aside and the matter reinstated as a motion by the State for the forfeiture, the surety made a solitary defence, as though he had been called upon to answer a rule to forfeit, and that defence was that he had never signed the bond in question. The issu,e then was tried by the court and determined adversely to the surety.

Now, instead of applying for a new trial, the surety took a rule, setting forth technical grounds, tending to affect the regularity of the bond and of the proceedings under which it was furnished, and the State, instead of objecting to this mode of proceeding, prayed that the rule be treated as an answer.

We deem it unnecessary to pass upon any of such grounds, for the reason that it is a well estáblished principle of law, which has never been deviated from, that one who files a special plea is tp be judged on that plea and none other. All else is admitted; and this, apart from the consideration that it may perhaps be claimed as settled, that a surety who, upon the execution of a bond, obtained the release of an accused in actual custody, is estopped from gainsaying the regularity either of the bond or of the proceeding under which it was allowed.

The principle applies whether the proceeding be considered civil or criminal.

Intrinsically, the proceeding may be viewed as civil in character. It is based on a contract under private signature, on which a money judgment can be rendered, which may be executed on the issuance of a fi. fa. It is not a proceeding for the recovery of a fine inflicted for the commission of an offence.

In so saying, we do not lose sight of the fact that it has been treated asa criminal proceeding, in order to determine questions of jurisdiction in cases of appeals from judgment of forfeiture of bail bonds.

The rules laid down in the Code of Practice on the subject of suits and obligations, or acts under private signature, are in consonance with the above announced principle, and may serve as safe guides in the determination of the matter now under consideration.

That Code provides that when the demand is founded on an obligation, or an act under private signature, alleged to have been signed by the defendant, lie shall be bound, in his answer, to acknowledge or deny his signature, C. P. 324; also, R. C. C. 2244; and that, if his signature has been proved, he shall be barred from any other defence, and judgment shall be rendered against him without further proceeding. C. P. 326. See, also, Burbanks’case, 9 Ann. 528; Commercial Bank, 24 Ann. 362; 22 Ann. 439; 12 L. 11; 8 U. S. 329, and 1 Ann. 325.

Now, the signature of the surety, after the denial thereof, was fully proved below, so much so that he does not complain, on this appeal, to the contrary.

It is, therefore, ordered that the judgment appealed from be reversed, and it is now ordered and decreed that the rule of Jameson, the surety, to rescind the judgment declaring his bond herein forfeited, be discharged; that said last judgment remain undisturbed, and that, accordingly, the State of Louisiana recover -of the defendant, D. M. Jameson, the sum of three hundred dollars, with legal interest, from the date of forfeiture, August 14,1888, per annum, and costs in both courts.

On Application por Rehearing.

Poché, J.

Counsel for the surety complain that, in construing their rule to set aside the judgment nisi, forfeiting the appearance bond furnished by the accused, this Court entirely misunderstood the true meaning and purport of their pleadings, and they disclaim any intention on the part'/of the surety to thereby deny his signature to the bond which he had signed, his only purpose being to deny any liability on the bond which the court was proceeding to forfeit, for reasons therein set forth.

The language of the rule is very vague and quite inartistic, rendering a proper construction of the same an embarrassing problem. We are, therefore, disposed to accept the construction given to the document by the counsel themselves, and we shall now consider the merits of the points presented in their application for a rehearing, as well as the contention argued in the original brief.

1. Their first point rests on the contention that the forfeiture of the bond was predicated on an indictment, and not on the original bond, and on the denial of the existence of any charge in any court against said Hendricks, and for whose appearance the mover was bound. The bond executed by the surety was conditioned to secure the appearance of Hendricks, the principal, at the next jury term of the court, and there remain from day to day and term to term,” etc.

This language certainly contemplated his appearance after an indictment had been found against him, or otherwise the whole proceeding would have been worse than a judicial farce. And his failure to appear when called to answer to the indictment was a breach of the essential condition of the bond, for which a forfeiture was legally warranted. The denial of the existence of any charge against Hendricks is presumably intended to refer to the fact that the affidavit before the magistrate was directed against “ James Henry,'1'1 and not James Hendricks, showing nothing more than a misnomer, which could be corrected with the consent of the accused, and that consent is proved by the execution of the bond by both principal and surety, with special reference to the charge as originally made against James Henry. Hence, they are now both estopped from taking any advantage from the misnomer as above stated. The bond before the Court had been executed by James Hendricks, the indictment found by the grand jury was against Jemes Hendricks, and the forfeiture flowed from the non-appearance of Jamies Hendricks, and as he bound himself, so will the surety be bound.

2. In view of the condition of the bond, as above quoted, the objection that it was not forfeited at the term at which the accused was bound to answer, but at a subsequent term, is too trivial for consideration.

3. It is also contended that the bond was not ordered or accepted by the justice of the peace, and that the sheriff accepted the bond without a written order from the magistrate. The minutes of the justice of the peace court show that the bond was ordered and the amount thereof fixed by the magistrate. And his testimony and that of the sheriff both show that the latter was authorized by the justice of the peace to accept ihe bond. A verbal order to that effect was sufficient, and no authority can be invoked to show that a written order would be necessary to legalize such a bond. But as several of these objections involve only alleged irregularities, the surety is estopped from urging them by the fact, as shown by the sheriff’s returns and also by the minutes of the magistrate’s court, that the accused was in actual custody when the bond was executed, and that he was thereby released. Having reaped the advantages and realized the object of the bond, the parties cannot be allowed to avoid its effect or be heard to gainsay the regularity of the proceeding. State vs. Mosley, 13 Ann. 299: State vs. Badon, 14 Ann. 783; State vs. Canady, 16 Ann. 141; State vs. Nicol, 30 Ann. 628.

We, hence, conclnde that the objections which go to the substance of the bond are not sustained by the record, and that the complaints tonching alleged irregularities are met by an effective estoppel.

These considerations lead us to the same judgment heretofore rendered by us.

It is, therefore, ordered that our previous decree remain undisturbed.

Rehearing refused.


author: Poché, J.

text:
    No. 235.
    The State of Louisiana vs. Henry Brown et al.
    The refusal of the judge in a trial for murder to charge the jury that under the laws of Lou isiana, “in all trials for murder the jury may find a verdict of manslaughter,” in accordance with section 785 Revised Statutes of 1870, is a fatal error, which will vitiate the verdict found against the accused, and entitle him to a new trial.
    A PPEAL from the First District Court, Parish of Caddo. Hieles, J.

      J. Henry Shepherd, District Attorney, for the State, Appellee:
    1. The action of the court below in denying a motion for a continuance, will not be reversed in the absence of a showing that the court has abused its discretion. The matter of continuance is within the sound discretion of the district-court, and the Supreme Court will not interfere in such matter unless the action of the lower court involves palpable injustice. 31 Ann. 179; 82 Ann. 1003 in particular. 33 Ann. 202, 681; 36 Ann. 153, 852.
    2. It must be an arbitrary and oppressive exercise of power on the part of the court in re fusing a continuance to justify the interference of the Appellate Court, and the remanding of tile case. O. I. Bermudez in State vs. Chevalier, 36 Ann. 86, 852, 877.
    The onus rests upon the accused to show the same affirmatively. 37 Ann. 128.
    3. Due diligence must he shown to have been used. Diligence isa matter of fact upon which the judge’s opinion is, if not conclusive, surely presumptively correct. The Appellate Court will not go to counterit, unless the record shows that the judge was wrong. The mere declaration in the affidavit that the diligence was used, does not conclude the judge. It may so happen * * * that the judge had before him the proof that due diligence was not used as alleged. 37 Ann. 129.

      “Is it credible that a prisoner about to be tried for his life would not compel an important ■witness to give recognizance to attend the trial, and thus secure his testimony, if the witness was truly material ? All that enters into the question of the diligence.” State vs. Clark, 37 Ann, 130 ; 39 Ann. 420.
    4. When the life and liberty of a prisoner are at stake and the prisoner confined in a dungeon, it is the duty of the sheriff iu charge of subpenas for his witnesses, to go to his dungeon and obtain from him any information which may enable Mm to execute the process of the court; nor is this all, their return must show what inquiries they have made, from whom, and where those inquiries were made, to find the prisoner’s witnesses. * * * They must state every fact which in their opinion justifies their belief. State vs. Boitreaux, 31 Ann. 189. It is want of diligence on the part of the accused in not seasonably giving the sheriff, when ho calls on him to do so, the locality at which the witness could have boon fouud or served. 34 Ann. 73 ¡ 39 Ann. 674.
    Facts and circumstances occur under the eye of the court which govern its discretion. 37 Ann. 128. It is the duty of the sheriff to show truly every effort he has made to secure a witness and to whom he has applied, if to defendant, that person's answers would materially aid the court in passing on defendant’s diligence.
    5. The fact that a witness was an accomplice may affect his credibility, but not his competency. 23 Ann. 78; 25' Ann. 522. As juries are the exclusive judges of the evidence in this State, it is plainly good law to charge them only as to tlie competency of the evidence, and not hy a oharge as to credibility trench on their functions.
    6. There is no rule of law requiring the judge to charge the jury that the testimony of an accomplice needs confirmation ; it is a rule of practice (25 Ann. 522) reaffirmed. State vs. Bussell, 33 Ann. 138; State vs. Mason, 38 Ann. 476; State vs. Crowley, 32 Ann. 782.
    7. Under the common law practice, the testimony of an accomplice is alone an unconfirmed, legally adequalo, to sustain a verdict of guilty, should the jury believing him see fit to render it thereon. Bishop, i vol., C. P., section 1169. Uo statute of Louisiana abrogates this common law practice, hence it is the law of this State.
    8. Where an accused on an appeal complains of a refusal of the trial judge to charge tlie jury that they ought not to convict on tho uncorroborated testimony of an accomplice, the burden is on him to show, by tho record, that.there was no corroborating evidence of the testimony of an accomplice. Tho failure to show such a state of facts is fatal to his demand for reversal, as the court will presume that the jury convicted on sufficient competent evidence.
    In short, lie must show the applicability of the rule to his caso, and failure to do so is presumptive that the court charged all tho law applicable to tho case. 38 Ann. 478.
    9. The evidence of a conspirator of facts, which occurred while the conspiracy was on foot, is admissible. 35 Ann. 89; 37 Ann. 360; Bisbop C. P. 228, 230. Again, the testimony of particular facts after the consummation made hy one of the co-conspirators, as detailed hy another in his presence, is admissible. Bisbop C. P., vol. 2, section 228; Bishop, 1 C. P. 1248,1249. There is a wide difference between the confession of a co-conspirator after the consummation of the crime and his evidence as to declarations of other conspirators of acts and declarations while the conspiracy is on foot before the end of the act.
    10. A separation will not vitiate a verdict unless it he of such a character that prejudice to the party complaining may he expected to have resulted therefrom. The rule does not reach such temporary separations as may he reasonably anticipated, or must necessarily occur in the course of a protracted trial.
    The fact that while the jury engaged in the trial of a capital case were deliberating upon their verdict two of the jurors rotiro from the room to obey a call of nature, is not such separation as would vitiate tho verdict, when it appears that during such separation they were under tho direct supervision of a deputy sheriff', and that they were not communicated with. State vs. Turner, 25 Ann. 573 ; 28 Ann. 657; State vs. Johnson, 30 Ann. 921.

      John W. Jones and Wise dz Herndon, for Defendants and Appellants.
   The. opinion of the Court was delivered by

Poché, J.

Henry Brown, the appellant, and several others were jointly indicted for conspiracy and murder. Before his trial, the case was continued as to one of the defendants, and a nolle prosequi entered as to the others, confining the trial to Henry Brown alone, who was convicted of murder, and sentenced to death.

On appeal, his counsel complain of numerous errors to his prejudice, but the conclusion which we have reached as to one of those complaints obviates a discussion of all others.

In his general charge to the jury the trial judge instructed them as to the different verdicts which they could find, in the following language :

“ In eases of this character there are three verdicts the law has provided may be found by the jury according to the law and the evidence of cases:
1. “Guilty. Death is the penalty to be pronounced upon such verdict.
2. “ Guilty, without capital punishment.
“ The penalty for such verdict is confinement at hard labor for life.
3. “Not guilty. Upon such verdict the defendant will be discharged without any punishment.”

As the judge had been entirely silent throughout his whole charge on the subject of manslaughter, counsel for the defense requested him to give the following instructions to the jury: “There shall be no crime known under the name of murder in the second degree, but on trials for murder the jury may find the prisoner guilty of manslaughter,” which is a literal copy of section 785 of the Revised Statutes of 1870, and of a section of act 130 of 1855.

The cha'rge was refused by the judge on the ground, substantially, that the ruling invoked by the defense was inapplicable to the state of facts developed during the trial, which admitted of no mitigated verdict, but called absolutely for a verdict of “guilty,” or “not guilty,” and that to have given the charge requested would have been simply the enunciation of an abstract legal proposition which had no bearing upon the case on trial. And in an able and learned opinion he quotes in support of his conclusion a multitude of authorities, both from this and other courts of the country, from whose uniform rulings the principle has been formulated as follows:

“A judge not only may, but should, refuse to charge an abstract legal proposition, which has no bearing upon the case on trial, whether the proposition be correct or incorrect, or whether it be correct in part and incorrect in part.” State vs. Daly, 37 Ann. 576.

But in his ruling, the judge confounded the rule of jurisprudence as established by the line of authorities which he invokes, with a rule o' law emanating directly from the law-making power, made imperative in terms and in spirit on tlie courts of the State, applying directly to the case on trial, and unaffected by the state of facts as disclosed by the evidence, in the opinion of the trial judge. The laws’ command is that the jury must be informed by the court that on trial for murder the jury may find the prisoner guilty of manslaughter, and the omission or the refusal to so inform them is a flagrant disobedience of the law, and is a fatal error.

In such cases the jury are the sole judges of the state of facts disclosed on the trial which may justify them to return a verdict of manslaughter, and the court is powerless to avoid their verdict, because in its opinion the evidence called for the finding of the higher offense. The verdict under the law would be responsive to the indictment,and it should stand, although it might be illogical, unjust or unjustifiable under the evidence.

Examples are not wanting of cases in which the jury have condemned some of the conspirators in a murder case for the highest offense charged, and the other conspirators for manslaughter only. Ford’s case, 37 Ann. 443.

The question is not one of a proper charge under the test of the evidence on the trial, but one of compliance with an absolute mandate of the law.

Under the present state of our legislation, the jury have the option to find one of four verdicts, namely: “Guilty, without capital punishment,” “Guilty of manslaughter,” and “Not guilty.” But under the effect of the charge as given to them in this ease, they were restricted to only three; that of guilty of manslaughter having been completely eliminated from their consideration by the refusal of the judge to give them the instruction requested by counsel, and required by law.

The practical effect of his charge to the jury was to require them, in case they found Henry Brown guilty at all of the charge for which he was on trial, it was murder, and nothing else, a positive mandate of the law to the contrary notwithstanding.

A charge of similar import came under the consideration of this court in the case of State vs. Obregon, 10 Ann. 799, under an indictment of arson.

In that case the judge omitted to charge the jury that, “in all cases where the punishment demanded by law is death, it shall be lawful for the jury to qualify their verdict by adding thereto ‘without capital punishment,’ as required by the Statute of May, 1846, now embodied as section 1000 in the Revised Statutes. A.mong other things, the court said:

The upshot of the charge was, to impress the jury with the idea that if they found the prisoner guilty of arson at all, it was their duty not to qualify their verdict by adding the words without capital punishment. * * *
“Aside from the general tenor of the judge’s charge in this instance, there was error in instructing that it was their duty to find an unqualified verdict, if the case was clear ; * * and the charge amounted to an instruction that, if a person was found guilty of arson he should always be punishable with death, overlooking the act of May 29,1846, hereinabove quoted.”

It must be noted that the case originated before the enactment of the statute of 1855, section 785 of the Revised Statutes, which we are now considering. In that case the judge merely omitted to charge the jury •• while in the instant case he not only omitted but positively refused tbe charge, notwithstanding counsel’s urgent request.

We have been at great pains to scrutinize our jurisprudence on this point, and to closely examine the large array of authorities relied on by the district judge in support of his conclusions herein, but we have been unable to find, and we apprehend that it is impossible for anyone to produce a single judgment of any American court of last resort, which upholds that the trial judge of a criminal court in refusing to charge to the jury a statute of the State, defining the duties and powers of the jury in reference to the verdict which they may render in the particular case on trial.

But, on the other hand, we find among the decisions quoted by our learned brother of the district court, a general current of thought decidedly to the reverse. Thus, in Patton’s case, 12 Ann. 288, (quoted by him), we find the following :

“ The prisoner pleaded not guilty to an indictment for murder. Upon the issue thus joined, the jury had power to find the prisoner guilty of manslaughter. (Rev. Stat. 136, sec. 2). It was, therefore, pertinent and right for the judge to instruct the jury on the law both of murder and manslaughter, although his counsel chose to assert that the only issue for the jury to try was the insanity of the accused.” See also Stouderman’s case, 6 Ann. 236; State vs. Ford, 30 Ann. 311.

We are thus forced to the conclusion that, under the rulings of the district court, the accused in this case has been denied one of the shields of protection which the law extends to him, and that he is entitled to relief at our hands.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury in this case he set aside and avoided, that the judgment rendered thereon be annulled and reversed, and that the cause be remanded t° the district court for further proceedings according to law and to the views herein expressed.


text:
    No. 230.
    The State of Louisiana vs. Cæsar Robinson.
    When an accused, person is charged in separate counts with burglary and larceny and he confesses himself “guilty as charged,” it is competent for the judge to sentence him to one term of imprisonment for the commission of burglary, and to another term for the commission of the larceny — the latt r to begin at tho expiration of the former.
    PPEAL from tiie Tenth Judicial District, Parish of Red River. j Rail, J.

      J. Henry Shepherd, District Attorney, and <7.(7. Pugh, District Attorney, for the State, Appellee:
    1. A general verdict operates as a conviction upon all the well charged counts of an indictment. Bish. Cr. Pr., sec. 1005; Prazier vs. State, 5 Misso., 536; People vs. Magallows, 15 Cal., 426 ; 49 Barb., 122.
    2. Better practice is to make one sentence begin to run where the other ends. Bish. Grim. Pr., sec. 1327, and authorities noted.
    3. A general verdict upon an indictment charging burglary and larceny in separate counts will authorize a separate sentence on each count.

      J. P>. Poach and S. A. Hall for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The accused is charged in the indictment with burglary and larceny, in separate counts, and to the charge, in general terms, pleaded guilty. Thereupon the trial judge sentenced him to seven years’ imprisonment for the commission of the burglary, and one year, in addition, for the commission of the larceny — the latter sentence to begin at the expiration of the former. From the judgment and sentence the accused appeals, and assigns as error that the judgment and sentence is contrary to law. The argument of his counsel is that, under a general verdict, rendered under an indictment containing several counts, the accused cannot be sentenced to cumulative punishments; that inasmuch as there has been but one conviction there cannot be more than one punishment j that the effect of such a rule would be to cumulate several punishments for one offense, and under a single finding.

There is no statute on the subject, and the question has never been passed upon by this court, or its predecessors; hence the decision of it must rest on the principles of the common law.

On this subject Mr. Bishop formulates the following rule, viz :

“ The courts hold, that, if a man in the night time breaks and enters a dwelling-house, intending to steal therein, and actually steals, he may be punished for two offenses or one, at the election of the power prosecuting him. If a single count of the indictment charges him with breaking, entering and stealing, they say his offense is single, being burglary committed in a particular manner; but, if the first count sets out, in the other form, the burglary as done by breaking and entering with intent to steal, then a second count may allege the larceny as a separate thing, and he may be convicted and sentenced for both.” Vol. 1. Bishop’s Crim. Pro., Sec. 1062 (fifth edition.)

The district attorney has drawn the bill under present consideration in conformity with the latter paragraph of the foregoing quotation ; and it would seem to sanction the course pursued by the judge a quo in the instant case.

Reference to the record shows that the accused in open court withdrew his plea of not guilty and pleaded “guilty as charged.”

Now, inasmuch as he was charged with burglary and larceny, in separate counts, his plea of “guilty” extends to both; and as he confessed himself guilty of both, what good reason is there for saying that sentence for both could not be pronounced 1 There is none.

If it be permissible, under our law — and it assuredly is — for an accused person to be indicted as the defendant has been, it is equally permissible for the judge to sentence him accordingly upon conviction. R. S. Secs. 852; 1059.

In a certain sense separate counts are distinct indictments cumulated into one, in order that they may be tried by one jury. Oftentimes such offenses as may be thus cumulated for trial and sentence, are those that arise in a single transaction ; and should the accused be separately indicted and tried, one trial might prove a bar to the other, and the ends of justice be, in part, defeated. Is it not equally clear that, if we should hold with defendant’s counsel that but one punishment can be inflicted under such ikial indictment, the ends of justice would be likewise defeated, and just to the same extent ? We think so. What good purpose would be accomplished by thus permitting the cumulation of counts charging different offenses in one indictment, if but one punishment could be inflicted? None. This construction would defeat the law. We are of the opinion that the sentence and decree of the court are correct, and same are affirmed.


author: McEnery, J.

text:
    No. 224.
    The State of Louisiana vs. Solomon Williams, Jr.
    Under tlie provisions of Section 1056 R. S. on the trial on a charge of larceny, the jury, if the facts warrant it, can return a verdict against the defendant, “not guilty of larceny hut guilty of embezzlement.” Such a verdict is not in conflict with Articles 5 and 8 of the Constitution of 1879.
    APPEAL from the Eleventh District Court, Parish of Natchitoches' Pierson, J.

      J. ’Henry Shepherd, District Attorney for the State, Appellee :
    1.Charges to the jury will not be reviewed by the Supremo Court unless they were in writing and the defendant excepted thereto at the time they were given. 34 Ann. 1213 ; 35 Ann. 543, 619, 770; 38 Ann. 497.
    2.When an instruction to the j ary appears misleading it it should be excepted to at the time, in order to give the court below an opportunity to correct the erroneous instruction or explain or qualify it, or make it more distinct. 35 Ann. 543; 37 Ann. 52.
    3.Por the purpose of interpretation all the parts of a statute are to be looked at together, and one part may control another. If possible they are to bo reconciled.. Bishop on Statutory Crimes, Sec. 64. Where the legislative meaning is plain there is not only no occasion for rules to aid tho interpretation, but it is contrary to the rules to employ them. Sec. 72, Bishop on Statutory Crimes.
    4.Section 1056, R. S., has received judicial interpretation in case of State vs. Poland, 33 Ann. 1161.

      J. H. Breda and II. H. Oarver for Defendant and Appellant.
   The opinion of the Court was delivered by

McEnery, J.

The accused was indicted by the Grand Jury of Natchitoches parish for the crime of larceny, “that Solomon Williams, Jr., late of the parish of Natchitoches, district and State aforesaid, on the 9th day of January, 1888, at and in the parish, district and State aforesaid, did feloniously steal, take and carry away, one beef of the cow kind, of the value of twenty dollars, the property of A. G. Loteher.” He was convicted of embezzlement; the jury, under R. S. 1056, returned into court a verdict as follows : “ We, the jury, find the defendant not guilty of larceny as charged, but guilty of embezzlement,” in direct response to the requirements of said section of the Revised Statutes.

Defendant’s counsel contend that he was taken by surprise, as he was not informed of the nature of the charge against him in the indictment, and that the offense of which he was convicted was of a higher grade than the one with which he was charged.

The defendant was not taken by surprise, because he was bound to know the law, which informed him that on an indictment for larceny, if the facts proved warranted it, he could be found guilty of embezzlement. The statute under which the defendant was convicted is unambiguous.

If it shall be proved thai he took the property in question in any such manner as to he current in law to embezzlement, he should not b.y reason thereof he entitled to he acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of larceny, hut is guilty of embezzlement, and therefore such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such embezzlement. And no person so tried for embezzlement or larceny, as aforesaid, shall be liable to he afterwards prosecuted for larceny or embezzlement upon the same facts.”

It was the intention of the law makers to destroy on the trial the nice technicalities that formerly distinguished the crimes of larceny and embezzlement, so that, as in this case, if the facts established the crime of embezzlement, the defendant could he convicted of that crime, and conversely, as enacted in the first part of the section, if indicted for embezzlement be could be convicted of larceny in the degrees mentioned in the section.

Defendant’s counsel further allege that the statute is in direct conflict with Articles 5 and 8 of the Constitution of 1879. Article 5 provides that prosecutions shall he by indictment or information. This was by indictment. Article 8 provides that in all criminal prosecutions the accused shall enjoy the right to he informed of the nature and the cause of the accusation. He was informed of the nature of the accusation and the cause of the accusation, fully and specifically set forth in the indictment.

Judgment affirmed.


text:
    No. 225.
    The State of Louisiana vs. Primus Wingard.
    A writing of the following tenor: “Prime Wingard, 507 I. cot. T. T. P.” is such in form as to "be apparently of some legal efficacy, and may serve as a basis for a prosecution for forgery, uttering, etc.
    In order to justify tbe admission of proof to show in what the forgery consists, it was unnecessary to make specific averment to that end in the indictment.
    APPEAL from the Second District Court, Parish of Bienville. Boone, J.

      J. Henry Shepherd, District Attorney for the State, Appellee:
    1. In any indictment for forging, uttering, stealing, embezzling, destroying or concealing, or for obtaining by false pretenses auy instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or "by tlie purport thereof, without sotting out any copy or fac simile thereof, or otherwise describing the same, or the value thereof. R. S. Section 1049.
    2. The essential elements of a forgery are: 1st. A writing in such a form as to be apparently of some legal efficacy. 2d. An evil intent of the sort deemed fraudulent in the mind of thedefendant. 3d. A false making of such writing. Bishop, C. P.,400Criminal Law, Vol. 2, Section 523.
    3. To constitute forgery it is not absolutely essential that the instrument uttered as true should be one so well executed that it would be likely to deceive a person of ordinary caution, nor the particular person intended to be defrauded. The true rule is, did the accused make or materially alter, with intent to defraud, any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability. Bish op’s Criminal LaV Í, Section 572, page 352; Wharton’s Criminal Law, page 338; State vs. Ferguson, 35 Ann. 1042; State vs. Ford, 38 Ann. 797.
    4. Proof of part of a charge of forgery is sufficient. A trifling variance between the proof and description are not deemed material. Waterman’s Cr. D., p. 213, Sections 198-201. Especially where the substance andlegal eifect are the same. Bishop’s C. P. 488, State vs. Given, 32 Ann. 782; 38 Ann. 799.

      B. F. Edwards for Defendant and Appellant.
   Tlie opinion of the Court was delivered by

Bermudez, C. J.

The defendant was convicted of forgery and sentenced to two years at hard labor.

He complains, on appeal, that the lower court erred in holding that the instrument alleged in the indictment is such as can be forged; that said instrument is complete and can be the basis of legal liability; and that, under the averments, evidence could he received explanatory of the instrument.

The indictment charges that the accused, on a day stated, in the parish named, did falsely and fraudulently forge and counterfeit a certain writing or paper of the tenor following, to-wit: Prime Wingard 507 I. cot. T. T. P., with intent to defraud C. W. Hanmer * * * and wilfully and feloniously did offer, utter and dispose of, put off and publish as true, a certain false, forged and counterfeited writing, or paper, of the tenor following, to-wit: (as above), with intent to defraud C. W. Hanmer, he, the said Primus Wingard, at the said time, he so uttered and published the said last mentioned false, forged and counterfeit writing, or paper, a person well knowing the same to be false, forged and counterfeited, contrary, etc.

I.

One of the three essential elements of forgery to be charged against a defendant, is that what is averred to have been forged, etc., be a a writing in such form as to be apparently of some legal efficacy. Bishop Cr. Pr., Sec. 572, p. 352; Wharton Cr. L., 338; 35 Ann. 1042; 38 Ann. 797.

On a germane question, this Court recently held that, certain papers reading: “ Willy Johns has picked 215 pounds of cotton (signed) Henry Heastly,” and “David Jefferson has picked 852 pounds of cotton (signed) Henry Woothen,” were writings of some legal efficacy, which could serve as the basis for a prosecution.

It said: “ The law does not require, in cases of forgery, that the instrument charged to have been forged shall on its face purport to be an order for the payment of money or delivery of goods. It is sufficient that the instrument be one by the use of which money or goods can be obtained,” and the Court referred to a New York case, 5 Johns, 236, in which it has been held that an instrument reading: . Due F. F., one dollar, on settlement this day,” is one which can be treated as a note for the payment of money. 39 Ann. 331.

The district court ruled that the indictment contains the essential elements to support the charge.

It is evident that the paper mentioned in the indictment is in a form which apparently has some legal efficacy, and that upon it money could have been obtained, as, in fact, it was in this case. The court ruled correctly.

II.

The second objection is that the writing or instrument in question is incomplete on its face, so that, as it stands, it cannot be the basis of any legal liability.

This objection may be considered as involved in the first, and the ruling just made disposes of it.

III.

The third objection is that the indictment contains no allegation explanatory of the alleged forged instrument or writing, and hence evidence cannot be received to that effect.

The testimony offered was indispensable to establish how the alleged forgery had been committed. Indeed, it is impossible to conceive how the jury could have concluded that the paper had or not been forged, nnless proof had been adduced to show what the paper was, and in what manner it was originally drawn up.

It was unnecessary to aver in the indictment how the paper had been tampered with and forged.

Forgery may consist in making and issuing with fraudulent intent.,, etc., a paper or writing false or forged, either in its entirety or in some significant or important portion or part of it.

In the instant case, it was not pretended that the whole writing had been forged, but simply that one of the figures in the number had been forged, by changing it from I to 5, so as to make the number to be 507 instead of 107.

By tlie alteration the party named would have been entitled to receive a larger sum than he would, had not the writing been tampered with.

It was legitimate to receive evidence under the circumstances, and the lower court did not err in admitting it.

IV.

The motion in arrest is based on the grounds set forth in the first bill just passed upon. The second bill is to the overruling of the motion in arrest. The views above expressed justify the action of the trial judge on the motion in arrest, and dispose of the second bill.

Judgment affirmed.