text:
    No. 7698.
    Mrs. Julia Trager, Tutrix, vs. the Louisiana Equitable Life Insurance Company.
    A life insurance policy taken out by a father in favor of his children is not ipso’ facto extinguished by the failure of the assured to pay the first maturing premium note, taken by the assurers in place of the cash payment required by the policy merely because of a verbal agreement on the part of the assured, not-referred to either in the note orthe policy, made without the assent of the beneficiaries of the policy, and after the delivery of the policy to him, that he would surrender the policy on failure to pay the said premium note at its maturity.
    Yerbal evidence is not admissible to contradict, or vary the declarations, stipulations, admissions, or receipts contained in a written policy of insurance, when-the contract is not assailed for error, fraud, or violence.
    So long as a life policy in favor of third persons remains in the hands of the assured, and the latter’s premium notes are retained by the assurers; and the assurers take no legal action to dissolve the contract, the contract continues to-be binding.
    Where the stipulation of a life poliey is that the assurers shall not pay the amount of the policy until ninety days after notice and proof of the assured’s death, and it appears that due notice of death was not given the assurers, they will be liable- - for interest only from judicial demand.
    j^PPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Labatt & Aroni for plaintiff and appellant.

      Breaux, Benner & Hall for defendants and appellees.
   The opinion of the court was delivered, by

DeBlanc, J.

This suit is brought on two policies of insurance for each $5000, issued and delivered by defendant in favor of the minor children of Jefferson Thomas, on the life of their father.

The company admits the issuance of the policies, but denies its liability, on the grounds :

1. That the premium due and payable at the issuance of the policies, and the interest on the loan note have not been paid.

2. That — instead of paying the premium in cash, as is alleged in the policies, the assured gave his promissory note, in which are included the premium and interest — failed to pay it at its maturity, and — by said failure — forfeited his policies, which were declared canceled, and which he agreed to surrender.

The company lastly asks that — in case it be held that said policies are still in force — the amount of the notes delivered by the assured, for the premium and interest, be deducted therefrom.

The principal question presented in this controversy is whether parol evidence was admissible to show:

1. ThaL — in giving credit for the premium, and taking a note therefor, the intentions of the parties were that the clause of the policies which declares them not binding, and that no risk attaches until the premium is received, was to attach at the maturity of the notes given by the assured, if at that time they were not paid.

2. That, after Thomas’ failure to pay the premium notes, there was a distinct agreement between him and the company’s agent, in and by which he promised to surrender the policies, defendant to return his notes, and that — in pursuance to said agreement — the policies were canceled.

Two important facts are admitted : Thomas died without surrendering the policies — the company is now in possession of his notes. The policies were canceled on defendant’s books, but when and under what circumstances ? This was shown by oral testimony, to the introduction of which plaintiff objected, and for the following reasons :

1. That it is an attempt to vary, alter or modify — by parol — the stipulations, of a written contract, so as to destroy its vitality, and show that it never existed.

2. That an acknowledgment contained in a written contract, and without which it could not be enforced, is as conclusive against the party making it as any other part of the contract, and cannot be contradicted by parol.

3. That Thomas’ pretended promise to surrender the policies was made without the consent of the beneficiaries, and that at no time he had the right to give up their title.

These policies were issued on the 19th of June, 1871, and — in each of them — there are the declarations that,i: in consideration of the sum of §168 60 to them in hand paid by Jefferson Thomas, and of the annual payment o£ a like amount to be paid on or before the 19th of June in every year next succeeding the date of this policy, the company do assure the life of the said Thomas in the amount of five thousand dollars payable to his wife, and — in case of her death before the demise of her husband — to his legal heirs, etc.,” and “ that this policy shall not be binding on the company until countersigned by its agent at Baton Rouge, and the advance premium paid," &c.

Read alone, as written in the policies, those declarations assert a fact, and that is that the advance premium was paid by Thomas and received by the company, and justify the presumption that if the required payment had not been made, the policies would not have been delivered to the assured, and — according to one of its stipulated conditions, would have become null and void.

On the 19th of June 1871, Thomas subscribed and delivered to the company three notes payable to its order — two in twelve months, and the other in three months from their date, and — in each of them — he acknowledged that they were given for the premium due and payable on the policies, which — with the interest to accrue thereon — were, in the words of the parties’ agreement, pledged and hypothecated for the payment of the notes.

Thomas died after his wife, on the 1st of June 1872, before the maturity of two of the notes and without having paid that which matured ninety days after the issuance of the policies. During at least that delay, and though the required premium had not been paid in cash, the policies remained in force and constituted a valid agreement, entered into for a lawful purpose, by parties legally capable of contracting, and whose consent had not been produced by either error of fact, error of law, fraud, threats or violence.

The company contends that its obligations under that agreement have ceased to exist, and why ? Because the first maturing of Thomas’ notes arid the interest due on the loan which was capitalized and included in said note, have not been paid, and he — on that account— promised to surrender the policies. If so, its obligations were extinguished, not by the unexecuted promise to surrender the policies, but by the effect of the dissolving condition,

Under the written agreement evidenced by the policies and the notes, that position is untenable, and for two reasons — 1st: the contracts, sued upon do not — in this State, belong to that class of contracts which are dissolved of right, when either of the parties do not comply with his engagements, but to another, a different class, the dissolution of which must be demanded by suit or by exception — and 2d: because a contract, the consideration of which is — partly—an advantage — stipulated for a third person, whose assent is not necessary to complete or perfect the contract, cannot be extra-judicially revoked as to the advantage so stipulated, without the consent of said person, whose acceptance of the gratification is timely manifested, in such a case as this one, by presenting the policies at the death of the assured, and claiming to be paid the amount of the insurance. C. C. 2045 (2040) — 2046 (2041)— 2047 (2042) — 1890 (1884) — 1902 (1896). Marcada, vol. 4. p. 489 — Mourlom, 2 vol. p. 635 — C. N. art. 1184.

In this instance, relying on a pretended forfeiture of the policies, which — it alleges — occurred during the life of Thomas, the company did not, by a direct action against him, judicially ask the revocation of the agreement which it charges that he has violated, nor does it now, and •by exception to plaintiff’s demand, ask a revocation which it considers as already accomplished, and — as we have said — by the failure of the assured to comply with the conditions of that agreement, and by his subsequent promise to return the policies.

The counsel representing the company insist that the 'consent to take Thomas’ note,1 and the delivery of that note, do not constitute a payment of the premium, but that these facts only prove that time was ■granted for its payment. To sustain this defence, the company’s agent was examined, and he testified — in substance — that the extension so •granted carried with it the conditions of the policies, including that of a lapse of the risk; if the premium was not paid within the extended delay.

The note taken in lieu of the cash contains no such condition, but— ■on the contrary' — contains another, an adverse stipulation, which contradicts and repels the construction insisted upon by defendant, and that stipulation is that the payment of said note was secured by a pledge of the policies and all interest thereon accruing. How explain or Imagine the necessity of that pledge, if — unless the notes were paid at maturity — the policies were to be held as having never attached ?

There was — it is urged — between the company’s ageht and the as•sured, a verbal agreement, not inserted in either the policies or the notes, •and it was that, if he failed to pay the premium note at its maturity, the ■policies would be forfeited. When due, that note was sent to its agent to be collected, he so testified, and he gave it and the others to a sub--agent, with instructions to deliver them to Thomas and get back the ■policies. The sub-agent declared that he had presented the premium ■note, demanded payment of the same, and thereafter a surrender of the policies ; that the assured had told him that he could not pay the note, would call on the company’s agent and surrender the policies; but the sub-agent did not mention that he offered to return either the note which he presented, or any other.

These declarations, counsel argue, were introduced, to show the full intent oí the parties in making the contract of the 19th of June. To show that intent, the best evidence is that which was reduced to writing, which bears the parties’ signature; it is the contract itself. Its recitals are free from obscurity, and one of.the most important is “that the policy shall not be binding on the company until the advance premium be paid;” and another — as important as the first, is “that said premium was paid; and — inasmuch as the declarations referred to were introduced by defendant to prove, in contradiction of the company’s written acknowledgment, that this vital condition has not been complied with, their object — it is manifest — is not merely to establish the ulterior forfeiture of any admitted contract — but to establish that a contract ■evidenced by five written instruments — two policies and three notes— and which is not assailed on account of error or fraud, is not such as it is represented in those instruments; still more — that it has not for a moment existed, and from its inception to its pretended perfection, never was but a project to insure and to be insured, binding on Thomas alone.”

Mr. Greenleaf said : “ In so far as a receipt is evidence of a contract .between the parties, it stands on the footing of all other contracts in writing, and cannot be contradicted or varied by parol” — and eminent jurists, here and elsewhere, have almost invariably held that “ the written instrument is the safer criterion of what was the real intention of the parties, the terms of whose proposals, the conditions of whose acceptance are presumed to be merged in said instrument, and that — in the interest of justice and mankind — oral testimony should not be received to contradict it, as — in the absence of fraud, deceit or mistake, it is the highest and best evidence of the parties’ intent and of their contract.”

O. 0. 2237 (2234) — 1945 (1940) — 2276 (2256) — 11 L. 41613 L. 918 L. 3475 A. 31510 A. 73719 A. 217 — 1 Greenleaf Evid. 373 — 11 Mass. 38 — 5th Md. 109 — 14 Wend. 116 — 12 Pic. 40, 562 — 1 Bigelow 27, 51, 595, 703 — 25 Conn. 207, 542 — 9 Howard 403, 19 Howard 318 — Bliss. 598 — 49 111. 180 — 20 Barb. 471 — 6 Broom 429 — 17 N. Y. 199 — 7th Moakes 459.

We entertain no doubt “ that where a policy of insurance contains a condition that the insurance shall not be binding until the actual payment of the premium, the insurers — if they elect to do so — may waive that condition, it being one inserted for their benefit, and in which they alone are interested, and that such waiver may be established by evidence of an express agreement to that effect, or by circumstances from which a waiver may be inferred.”

As held by the Supreme Court of New York, “the general rule that receipts — being mere admissions — are liable to contradiction and explanation by parol, may be universally true as applicable to mere receipts when they are disconnected with, or unnecessary to give validity to, contracts or agreements of any kind. When they make part of a contract, as in deeds and bills of lading, the same rule is applicable when the paper is used as a receipt or acknowledgment simply, to defeat an adverse claim, and not as upholding the contract. But it is quite another thing when it is sought to contradict a written receipt incorporated into the contract, for the purpose of defeating the contract itself. The writing read as a whole shows a Valid contract, and in this case the' receipt, in connection with the condition, shows that to this policy the condition (thus waived) has no application. There being no pretense of fraud on the part of the assured, it would be a fraud upon them to allow the witness now to contradict this acknowledgment for the purpose of bringing the contract within the provision referred to, and thus defeat the policy. The defendants should be estopped by their receipt from alleging that the policy was void because the acknowledgment was untrue.” 25 Barbour, p.p. 190, 191, 192, 193.

This doctrine has not been invariably adhered to in the other States of the Union, but wherever adhered to, the reasons given for its application — if contestable — have not been successfully contested, and — in Louisiana — that doctrine, which we consider to be as just as it is wise, is embodied in the article of our Code which abolished the exception of non numerata, pecunia.

C. C. 2237 (2234).

In England, it was held by the House of Lords that a policy purporting to be signed, sealed and delivered, by two of the directors of an insurance company, in presence of their secretary, and according to the powers vested in the directors by the deed of settlement of the company, must be conclusively taken, as against the company, to have been not only duly signed and sealed, but also duly delivered ; that such a policy is complete and binding, as against the party executing it, though —in fact — it remains in his possession, unless there is some particular-act required to be done by the other party to declare its adoption of it, and that it is not necessary that the assured should favorably accept and take away the policy, in order to make the delivery complete.”

2d S. R. H. of Lds’ cases, 296.

In Massachusetts, policies, though not under seal, have, nevertheless, ever been deemed instruments of a solemn nature, subject to most of the rules of evidence which govern in case of specialties,” and there can be no division of opinion as to the fact that — if oral declarations were allowed to vary or change their terms and stipulations, it would often happen that an entirely or partially different contract would be substituted to the written one, and that the parties’ rights and their obligations would depend less on the written instruments, than on the memory and understanding of those present at the formation of the contract; and — as remarked by the Chief Justice of the Supreme Court of New Jersey — a rule of law admitting such evidence would be a repeal of the great primary rule that written agreements are not to be varied or contradicted by parol. .

Broom, vol. 6, p. 371, 372.

In a case in which — at the trial — the fact of non-payment of the premium was not denied — the same court said: “This policy of insurance, executed by the president and secretary of the company, contains a formal acknowledgment of the payment of the premium in question, and this should prevent the defendants from averring or showing non-payment for the purpose of denying that the contract ever had any legal existence.”

“ The usual legal rule is that a receipt is only prima facie evidence of payment, and may be explained; but this rule does not apply when the question involved is not only as to the fact of payment, but as to the existence of rights springing out of the contract. With a view of defeating such rights the party giving the receipt cannot contradict it. An acknowledgment of an act done, contained in a written contract, and which act is requisite to put it in force, is as conclusive against the party making it as is any other part of the contract; it cannot be contradicted or varied by parol.”

6th Broom, p.p. 430, 431.

In his Commentaries, Chancellor Kent said: “ The receipt in the policy of the premium is conclusive evidence of payment, and binds the insurer, unless there be fraud on the part of the insured.” Here, as no fraud is alleged, and as the evidence received in the lower court excludes even the idea that any deceit was resorted to, practised or intended by the insured, the testimony contradicting the acknowledgment that the premium has been paid should have been rejected.

Kent, 3 vol., Com. p. 260. 20 Barb. 471-19 A. 217.

Our own legislation expressly provides, as to contracts for the payment of money, which are not reduced to writing, that they may be proved by any other competent evidence; and — as to those which are reduced to writing, that parol evidence shall not be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.

C. C. 2277 (2287) — 2276 (2256) — 5 A. 315 — 12 M. 684 — 4 A. 44125 A. 491.

In Knox vs. Liddell et als. this court said : “ It has been urged that the acts spoken of in this article — the last referred to by us — are those only which are mentioned in the preceding one, and which relate to the transfer of immovable property; and the counsel has attempted further to restrict the article to authentic acts. This is contrary to the settled jurisprudence of the State.”

5 M. N. S. 1 — 8 M. N. S. 200 — 4 L. 1, 29 — 6 L. 2557 L. 3338 L. 2909 L. 57210 L. 205, 209 — 5 E. 113.

“ Les deux mots contre el outre le contenu aux actes expriment exactement le principe, qui revient á dire ceci: on ne peut ni contradiré en rien les énonciations de l’acte, ni lien ajouter á oes ónonciations * * du moment qu’on a fait un écrit, méme dans le cas oü l’on n’ótait pas tenu de le faire, la loi ne permet pas aux parties de se rejeter dans les difficultés de la preuve testimoníale, comme si cet écrit n’existait pas. * * La pensée bien evidente de la loi est qu’on ne sera pas admis a prouver les explications verbales qui ont précódó, accompagnó ou suivi la redaction de l’écrit, pour arriver, soit a restreindre, soit a ólargir, soit & modifier d’une maniere quelconque les mentions de cet écrit, qui doit toujours étre accepté tel qu’il est.”

Marcadé, vol. 5, p.p. 104 and 105.

Thomas died within one year from the issuance of the policies, and, by the delivery of his three notes, prepared at and sent from the company’s office, had settled on conditions written and accepted by the company — lor every cent which — as a premium or otherwise — was to be paid by him during that year. The policies were canceled on the company’s books; but that cancellation, without an actual return, or even a legal tender of the notes, was premature, unautliorized-and null. Whilst the policies remained in the hands of Thomas, the notes in the company’s possession, as long as the latter retained the privilege of electing between the dissolution or enforcement of the obligation evidenced by said notes, the contract which — by a proper course and proper proceeding — -might have been dissolved, continued to subsist. 27 A. 113.

“ It is urged — as remarked by the Supreme Court of New York— that Mr. Hathorn promised the agent to bring the policy to the office, to be canceled, when he was to receive the return premium, and the agent so testified. Were this undisputed, it neither amounted to a valid agreement that the policy should be held and deemed canceled, without a return of the premium, nor a waiver of performance of the condition on which the right to terminate the risk depended.”

55 Barbour, 42, 43 — 47 Ill. 51651 Ill. 350, 351 — 4th Bigelow’s Cases, 370.

Plaintiff claims interest at the rate of five per cent from the 4th of September 1872, and that is from about ninety days after the death of Thomas; but, as it does not appear that due notice was given of his death to the company, and — as by an express condition of the policies— its obligation to pay the amounts of insurance did not arise but ninety ■days after notice and proof of the death of the assured, no interest can be allowed, except from judicial demand.

It is therefore ordered, adjudged and decreed that, the judgment appealed from is annulled, avoided and reversed.

It is further ordered, adjudged and decreed that Mrs. Julia Trager, as tutrix of the minor children of the late Jefferson Thomas and Caroline E. Trager, recover of the Louisiana Equitable Life Insurance Company of New Orleans, the sum of ten thousand dollars, with interest thereon at the rate of five per cent per- annum from the nineteenth day of February, eighteen hundred and seventy-four, and the costs in both courts.

It is further ordered, adjudged and decreed that the following credits are allowed to said company — to wit: one for the sum of two hundred and forty-two dollars and ten cents, with legal interest thereon from the nineteenth of September, eighteen hundred and seventy-one, and two for fifty-six dollars each, with legal interest thereon from the nineteenth of June, eighteen hundred and seventy-two.

It appearing that Mrs. Julia Trager is dead and that Ben A. Day has been appointed dative tutor of the minor children of Jefferson Thomas and Caroline E. Trager, this case is re-opened as to this matter alone, and the decree thereon rendered on the 13th of January 1879 corrected so as to read as follows, to wit:

It is therefore ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed.

It is further ordered, adjudged and decreed that Ben. A. Day, as dative tutor of the minor children of Jefferson Thomas and Caroline E. Trager, recover of the Louisiana Equitable Life Insurance Company of New Orleans, the sum of ten thousand dollars, with interest thereon at the rate of five per cent per annum from the nineteenth day of Eebruary eighteen hundred and seventy-four, and the costs in both courts.

It is further ordered, adjudged and decreed that the following credits are allowed to said company, to wit: one for the sum of two hundred and forty-two dollars and ten cents, with legal interest thereon from the nineteenth September eighteen hundred and seventy-one, and two for each fifty-six dollars, with legal interest from the (19th) .nineteenth of June eighteen hundred and seventy-two.

Rehearing refused.


source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    No. 7352.
    Citizens’ Bank vs. P. S. Wiltz. Bush & Levert, Intervenors and Third Opponents.
    The privilege and pledge oí the factor, or furnisher of supplies, on the growing sugar cane crop, under the act of 1874, only covers that portion of the crop which was, in the ordinary sense of the words, to become merchantable. It does not cover that reasonable portion of the crop which is necessarily reserved for seed cane, or the corn grown on the place, and necessary to the production of the subsequent crop.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Duffel, J.

      Armand Pitot & Son for plaintiff and appellee.

      Breaux, Fenner & Hall for intervenors, appellants.
   The opinion of the court was delivered by

White, J.

The Citizens’ Bank, being creditors of the defendant, secured by mortgage, seized, to enforce the payment of their claim, the mortgaged premises, a sugar plantation in the parish of St. Charles. Bush & Levert, who had made advances to Wiltz for the year 1877, and who were secured by a pledge under the act of 1874, intervened and claimed their privilege and pledge on certain sugar and molasses, as well as on the seed cane, corn, and a quantity of coal levied on along with the plantation. They also asserted the rights of various laborers, whom they claimed to have paid with express subrogation. There were several other interventions, which seem to have been abandoned, as they were not noticed by the judge of the lower court in rendering his judgment, and the controversy now before us is limited to the seed cane, corn, and coal. The evidence establishes that the quantity of seed cane is normal, less, in fact, than in the previous years, and that the quantity of corn is about what would be required for the necessities of the plantation. Under this state of facts the intervenors contend that their privilege and pledge of the crop covers the seed cane and corn for the following reasons :

First — Because their privilege under the act of 1874 is in the nature of a pledge importing possession, and, being one on the growing crop, included all the crop, even that portion usually reserved for seed or for the necessary conduct of the plantation.

Second — That the fact of these articles being immovables by destination does not render the privilege inoperative because the privilege on the growing crop is one on an immovable.

Third — That if the seed cane and corn by becoming immovables by destination are not liable to the privilege and pledge, then they could not so become because forming part of the growing crop they were as such stricken, with the privilege and therefore could not be immobilized to the prejudice of the existing privilege and pledge.

1. The privilege on the growing crop ” we think only covered that which in the usual and ordinary sense of the words was to become merchantable crop, and was not intended to reach and did not apply to the immovables by destination which were a part of the realty, nor to that portion of the crop which in the normal course of things was never to become merchantable crop, but was intended to continue the immovables by destination necessary for the continued production of the realty. We think the parties must have contracted with reference to the known and indispensable usage of keeping from each crop the necessary seed -to continue production, as also the corn necessary to make that production possible. The terms of the contract accord with this view of the Intention of the parties. The obligation to ship the crop is expressed as follows : “ The entire crop of sugar and molasses and other marketable products made, produced, and gathered.” We do not take the words growing crop as found in the act of 1874 isolatedly, but we read them with reference to and in connection with the laws in pari materia, among which is the provision of C. C. 468, making certain designated articles immovables by destination, and that of O. P. 645, forbidding the seizure separately from the plantation of the articles therein enumerated. The act of 1874 was passed not only in the interests of merchants, but also in those of agriculture, and we can not so construe it as to destroy the very object of its being, The record admits that the seed cane and •corn had been used from year to year for the purposes of making the ■crops ; they entered into the crop and became as it were a debt due to the realty to be deducted before the fruotus or crop was ascertained. JPrucius non intelliguntur nisi deductus impensiis was the rule of the Roman law, and long anterior to the Code Napoleon, in 1649, the Pari, of Paris established the doctrine that the value of seed must be deducted before ascertaining the fructus, or crop. Journal des Audiences, tom. 1, p. 405.

2. If the crop quoad the pledge thereof under the act of 1874 was an immovable, it would be destructive of the very objects of the act, it would render the pledge of the crop impossible, for if the crop was an inseparable part of the realty possession of the latter would be necessary to that of the former; but such is not the case. True, by article 465 C. C. it is provided that “ standing crops and the fruits of trees not gathered and trees before they are cut down are likewise immovable and are considered as part of the land to which they are attached;” but the immovability provided for is only one in abstracto and without reference to rights on or to the crop acquired by other than the owners of the property to which the crop was attached. The immovability of a growing crop is in the order of things temporary, for the crop passes from the state of a growing to that of a gathered one, from an immovable to a movable-. The existence of a right on the growing crop is a mobilization by anticipation, a gathering as it were in advance, rendering the crop movable quoad the right acquired thereon. The provision of our Code is identical with the Napoleon Code, 520, and we may therefore obtain light by an examination of the jurisprudence of France. When article 520, C. N., was reported by its authors to the Council of State it contained a proviso allowing the seizure of growing crops separately from the land-, which was stricken out on the ground that the immobilization referred to in the article was an abstract one, having no reference to rights of creditors or to rights acquired on or to the growing crop which could be mobilized by anticipation. Fenet, Discussion, Motif, vol 11, p. 10, 11, 12. This opinion, expressed and acted on by the compilers, has been adopted by the commentators : “ Enfin, dans le cas máme d’inhérence parfaite et perpetuelle au sol les produits peuvent se trouve meuble dans un certain cas. Ainsi, quand des grains, fruits, ou bois sont vendus sóparément du sol, c’est la une vente de meubles, et l’acheteur n’a qu’un droit mobilier. Oes objets, en effet, ne sont vendus que comme produits, comme choses distinctes du sol, et tant que devant étre separes de lui, dans la réalitó ils sont immeubles, mais ils sont cependant vendus comme meubles ; l’acheteur achote des choses encore immeubles, mais sous la condition et avec le pouvoir de les mobiliser.” Marcadé, vol. ii. p. 338. Our own jurisprudence recognizes the possible mobilization of a growing crop. Poché vs. Bodin, 28 A. 762 ; Sandell vs. Douglass, 27 A. 629. The pledge, then, of the growing crop was an anticipation of the mobilization of that which was to become movable, and not of the immovables by destination attached to the realty for its perpetual use and production.

3. The pledge on the growing crop, which was pro haovice a movaable, did not prevent the immobilization of the seed cane and corn, because their fictitious character of immovability had come into existence before the consenting of the pledge of the growing crop. As we have seen, the plantation' had from year to year produced seed and crop therefrom; had produced corn in like manner. The character of immovability of seed was not lost by the mere use of the seed to produce crop and hence to reproduce itself; nor was the immovability of the corn necessary for the cultivation of the crop destroyed by the use of the corn for its own reproduction. The reproduction was not an act of new immobilization, but the continuation of one previously made. Th© rule is thus stated by Laportein his Pandects Frangaises in commenting onO. N. 524, similar in most respects to our own : “We must understand by seed * * * * those destined to sow the ground, whi-eh results from the word sowing, used by the law. That which is in excess of the quantity necessary for planting will be ordinary grain not covered by the legal fiction, and will therefore keep its real nature of a movable. Thus this immovable renews itself yearly and lasts until the seed is in the earth. We perceive that the fiction is established in the interest of agriculture, to prevent the farmer or proprietor from being deprived, either by a seizure or in any other way, of the seed required to plant his fields.” Vol. v. p. 57, No. 41; Duranton, vol. ii. p.230, Nos. 57 and 58.

The judge of the lower court concluded that the coal was not an immovable by destination, and as the crop had been manufactured we think he was correct. He rejected the claim of Bush & Levert to the seed cane and corn, in which conclusion we equally agree.

The judgment is affirmed.


author: Manning, C. J.

text:
    No. 6472.
    Josephine Howell et al. vs. Charlotte Cronan et al.
    When a decree dissolving an injunction with damages does not expressly condemn the surety on the injunction, a separate suit may be instituted on the injunction bond by the defendants in injunction, to recover of the surety the amount of the damages.
    An action on an injunction bond to recover damages allowed on the dissolution of the injunction is only prescribed by ten years from the date of the bond. The prescription of the judgment which was enjoined can not affect the judgment in the injunction case wherein the bond was given.
    ^PPEAL from the Fourth District Court, parish of Orleans. Campbell,

    Plaintiffs unrepresented.

      Hornor & Benedict for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

Oliver Dubois obtained a judgment in 1865 against William Mish. In 1868, Mish’s heir brought suit to annul that judgment, and injoined its execution, giving bond for five thousand dollars, with Denis Cronan as one of the sureties thereto, and judgment of nullity was rendered in the lower court. On appeal to this court, that judgment was reversed, and the injunction was dissolved with ten per centum damages. The amount of the original judgment, principal and interest, was 822,499.00.

The plaintiffs are Dubois’ heirs. The defendants are Cronan’s widow in community and his daughter and sole heir. The object of this suit is to recover of the defendants two thousand two hundred and forty-nine 90-100 dollars, being ten per centum of the injoined judgment, which the widow and heir of Cronan are liable for, as is alleged, because ■of his suretyship to the injunction bond.

The decree of this court, rendered in the case above mentioned, is in these words ; ,

It is therefore ordered and adjudged that the judgment of the district court be avoided and annulled, and that there be judgment in favour of the defendants, rejecting the plaintiffs’ demand, and dissolving the injunction with ten per centum on the amount of the judgment as general damages.

There is no judgment here in express words condemning the surety to pay damages, and the defendants insist that since he is not included in the decree, he cannot be held condemned by implication, and is therefore not liable in the present action. The mistake is, in supposing that this suit is based on that decree. The suit is on the injunction bond, and the omission to include him in that decree necessitated the present supplemental suit. Otherwise, if he had been condemned to pay damages by that decree along with the principal, execution could have issued against him upon it. The defendants’ counsel inform us (Eor there is no appearance in this case for the plaintiffs) that it was urged in the lower court on behalf of the plaintiffs, that the decree is to all intents and purposes a judgment against the surety, inasmuch as the law declares that on the trial of an injunction, the surety shall be considered a party plaintiff in the suit, and in case the injunction be dissolved, the court in the same judgment shall condemn the plaintiff and the surety, jointly and severally,, to pay the defendant interest and damages. But the court did not comply with this mandate. If it had, this suit would have been unnecessary. That the principal in an injunction bond is sometimes condemned in damages, and the surety not, is apparent from the rule that in the latter case he may be also surety on the appeal bond, Leeds v. Yeatman, 12 La. 383, and from the fact that when not expressly condemned in the lower court, its judgment may be amended in this court so as to include him. Mora v. Avery, 22 Annual, 417.

Prescription is pleaded. The injunction bond is dated October 20, 1868. The citation in this suit was served December 20, 187B. Ten years had not elapsed. The defendants however seek to apply it in another way. The original judgment was rendered June 17, 1865, and never having been revived, was prescribed on the same day of 1875, six months before citation of the present action. We cannot perceive how the extinction of the original judgment by prescription affects the judgment in the injunction case, wherein the bond was given, and its date we have seen was in 1868.

By the statement of facts, signed by the counsel of all parties, we find that the injoined judgment had been reduced to $6,971.68 principal, before the rendition of the decree by this court, and that a further payment of $1,897.20 was made afterwards, so that the balance due was ^$11,488.34, principal and interest. The plaintiffs are entitled to judgment for ten per centum of that sum. Therefore

It is ordered and decreed that the judgment of the lower court is amended by reducing the sum named therein to eleven hundred and forty-eight dollars and eighty-three cents, and that the plaintiffs pay costs of appeal.


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    No. 7215.
    The State vs. Peter Davis.
    "Where an accused under one verdict of condemnation, is twice sentenced by the court to two punishments, to be inflicted at different places, and of different duration, the last sentence is null and void.
    A PPEAL from the First District Court, parish of Orleans. Abell, J.

      H. N. Ogden, Attorney General, for the State.
   The opinion of the court" was delivered by

Manning, C. J.

The defendant was convicted of an assault upon one William Reiss by wilfully shooting at him. There is neither any assignment of error, nor bill of exception, in the record, nor any brief on either side.

On examination of the record, we find that on July 19, 1878, the prisoner was brought into court to receive sentence, and he was then ■condemned to seven months imprisonment in the parish prison.

Five days afterwards, on July 24, 1878, the same prisoner vras brought into court to receive sentence upon the same verdict, and he was condemned to six months confinement in the Penitentiary.

The counsel for the prisoner in the lower court abandoned him after taking the appeal, and apparently has not discovered that his client was twice sentenced to two punishments, to be inflicted at different places, and of different duration.

The last sentence is null, and the judgment inflicting it is void. The prisoner was already under sentence, for the same offence, by the court which had first condemned him.

The first judgment is not appealable, and therefore the appeal must be dismissed, and it is so ordered.


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    No. 7163.
    Louisiana Levee Company vs. the State of Louisiana.
    The claim which the Louisiana Levee Company has for work done in constructing, maintaining and repairing levees, under the act No. 4 of the Legislature of 1874, and subseauent acts amendatory thereof, is a debt, not against the State of Louisiana, but against and payable out of the fund created by said act No. 4, and known as the “levee construction fund,” which fund is composed of taxes assessed for levee purposes.
    A party who formally declares in his pleadings that he has a certain claim due by and exigible against a certain fiscal fund, and that alone, and provokes a judicial decree affirming his claim, will not be heard, in a subseauent suit, to ask that the State be adj udgeS the debtor of his claim,
    The act of the Legislature, No. 139, extra session of 1877, authorizing plaintiffs to bring this suit, does not give them any rights or claims against the State not previously possessed by them, and by suing under that act they are concluded by its terms.
    ^PPEAL from, the Third District Court, parish of Orleans. Monroe,

      Thos. Gilmore & Sons for plaintiffs and appellants.

      Jas. G. Egan, Assistant Attorney General, for defendant and appellee.
   The opinion of the court was delivered by

White, J.

The plaintiff by section four of act No. 139 of the extra session of 1877 (acts of 1877, p. 210) was authorized to bring suit against the State of Louisiana for any cause of action it might have against the State growing out of the construction, maintenance, or repairs of any levees, constructed, maintained, or repaired by said company, and in consequence thereof instituted the present action, alleging the following sums to be due by the State :

Balance due up to first of October, 1873..................§1,004,745 62
Balance up to January 25, 1877 .......................... 588,442 27
Due for work done in advance of taxes of 1877, collectible in 1878................................................ 115,124 00
Total.............................................§1,708,311 89

The State, after excepting that the petition disclosed no cause of action, answered in substance as follows;

First — By a general denial.

Second — That the plaintiffs had no claim whatever against the State, thatwhatever might be the amount in arrears for the maintenance, construction, and repairs of levees, such sum was not a debt against the State, but simply a claim against the fund resulting from the taxation levied under the Levee Company laws; that even if the claim of the company was one against the State, the company was estopped from so contending because of its pleadings and the judgment in consequence thereon in the case of the State ex rel. Louisiana Levee Company vs. Clinton, Auditor.

Third — That if the laws creating the Levee Company and those passed in furtherance of its being created a debt against the State they were null and void and of no effect, because at the time of the passage of these laws the constitution prohibited the contracting of any debt exceeding the sum of $25,000,000, which limit had then been reached.

The lower court came to the conclusion that the plaintiff had no claim against the State and dismissed the suit.

The matters in contest embrace a wide inquiry, but may be determined, we think, by answering the following questions :

First — What amount, if any, is due the plaintiff'? Whether it isa 'debt against the State, or simply a debt against the fund created by the taxes hitherto levied or to be hereafter collected from those already levied in support of the Levee Company.

Second — If any sum be due, is it a debt due by the State or simply a claim against the taxes as collected under the Levee Company acts ?

Third — If only a claim against the taxes as collected, ought the plaintiff’s suit, under the terms of the act of 1877 authorizing it, to be dismissed ?

First — Before the trial of the cause below, by consent of both parties, auditors were appointed who reported as follows:

Amount chargeable first of October, 1873.................$2,168,045 62
Amount paid out of the taxes of 1871 and 1872........... 1,158,096 67
Balance............................................$1,009,096 67
Amount chargeable from the first of October, 1873, to June 25, 1877............................................... 1,804,433 54
Amount paid out of the taxes from October 1,1873, to June 25, 1877............................................... 1,224,101 05
Balance............................................. $580,332 49
Amount of work done in advance against the taxes of 1877, ' collectible in 1878..................................... $115,124 00
Total..............................................$1,704,553 16

The report of the auditors was not homologated, but was referred to be disposed of with the merits of the action. The sums, however, are now admitted to be correct, and the question to be determined is, has the plaintiff a claim against the State for the amount, or is the amount simply payable out of the taxes hitherto levied for levee purposes as they are collected ?

Second — The solution of this inquiry involves the examination of the various enactments in favor of the Levee Company. By act No. 4 of 1874 the Levee Company was created. The act was entitled “ An Act relative to the Louisiana Levee Company, a corporation organized under the general laws of the State, constituting it a body politic and corporate, with certain powers, privileges, and franchises, and contracting with said corporation for the construction, maintenance, and repairs of certain levees, and providing for the compensation therefor.” After ratifying the notarial charter by which the company had taken being, the second section of this act provided as follows :

“ Seo. 2. That for the purposes of providing and maintaining proper and efficient levees throughout all portions of the State watered by the Mississippi and the rivers and streams and bayous running into and from the same, and protecting the inhabitants from inundation, the State of Louisiana contracts and agrees with said Louisiana Levee Company in terms as follows :

The first paragraph of this section creates a board of engineers or commissioners with power to fix the dimensions and work to be done.

The second paragraph is as follows;

“ That the said Louisiana Levee Company for and in consideration of the compensation, benefits, and rights and powers herein stated shall take charge of, manage, control, construct, repair, and keep in repair all the levees in this State on the Mississippi river, its tributaries and outlets, and such levees in the State of Arkansas as may be necessary to protect any of the lands of the State from overflow by the waters of the Mississippi or the Arkansas rivers.”

The third paragraph gave the corporation the management and control of these levees.

The fourth provided that “ the said corporation shall within sixty days from the receipt of the report of said commission commence the construction of said levees, and shall thereafter construct not less than three million yards per year until the said levee shall be completed according to the standard required by the report of said commission.” .

The fifth paragraph made the corporation responsible, for damages to persons injured by their neglect or failure to do their required work.

The sixth provided as follows : “ That within thirty days after the receipt of the report of said commission the Governor of the State shall ■cause an estimate to be made of the cost of constructing or building said levees according to the standard required by the said report, said estimate to be made at the rate of sixty cents per cubic yard of said work; to transmit said estimate to the Auditor of the State; and said Auditor shall thereupon apportion the sum total of the estimated cost of said work among the several parishes according to the assessment rolls "of the State, and shall annually thereafter for a period of twenty-one years cause to be collected ten per centum of the sum of said estimates ; provided, however, that until said estimate is made as provided in this article the Auditor of the State shall levy and collect annually in lieu of said ten per cent of said estimate two mills upon the dollar of the assessed value of the taxable property of the State. The said ten per centum of the sum of said estimate, or said taxes in lieu thereof, shall be collected at the same time and in the same manner and by the same officer as the ordinary taxes of the State are collected. Said ten per centum, or said taxes in lieu thereof, when collected shall be paid over to the Treasurer of the State and shall be set apart as a special fund to-be known as the * Levee Construction Fund,’ which shall not be used for any other purpose than as compensation to said Louisiana Levee-Company, and said fund shall be paid on the order of the president of said company to the treasurer thereof.”

Paragraph seven, That the Auditor of the State shall cause to be assessed and collected annually for the period of twenty-one years from and after the passage of this act two-tenths of one per cent upon the assessed value of the taxable property within the State, to be set apart and be known as the Levee Bepair Fund, which said fund shall be collected at the same time and in the same manner and by the same officers-as the ordinary taxes of the State.

Paragraph eight gave to the company the power to mortgage or-assign the taxes to be collected for its benefit.

Paragraph nine provided “That whereas no taxes as provided herein can be levied and collected during the year 1871, the Governor of the State is hereby authorized and required to issue the bonds of the-State to the company to the amount of one million dollars.”

This act was amended by act No. 27 of the same year, ratifying and confirming the contract between the Louisiana Levee Company and the Governor of the State of Louisiana. This act amended by providing that the commission to be appointed shall be required to limit the amount of levees to be constructed and repaired as required by their report so that they shall not exceed one million five hundred thousand cubic yards, nor the total amount collected for the construction fund ever exceed nine hundred thousand dollars annually. Acts of 1871, pp. 29 and 64. These enactments were modified by act No. 43 of 1873, the main change being the reduction of the compensation to be paid from sixty cents to fifty cents per cubic yard, with the following provision :• That the Auditor shall annually levy and cause to be collected in the same manner and by the same officer as the ordinary taxes of the State-are collected a sum sufficient to cover the cost of all levees required to be built by the Commission of Engineers in their annual report, with twenty per cent additional.

Said taxes when collected shall be paid over to the Treasurer of the-State, and shall be set apart as a special fund to be known as the Levee-Construction Fund, which shall not be used for any other purpose than as compensation to said Louisiana Levee Company, and the said fund shall be paid on the order of the president of said company to the treasurer thereof ; provided, however, that any surplus moneys derived from the taxes collected in any year shall be placed to the credit of said fund for the year next succeeding ; and provided, further, that all levees constructed by the said company before the first day of October, 1873, shall be paid for by the State at the rate of sixty cents per cubic yard, “ as the existing contract and laws provide.”

By the Funding Act of 1874, being act No. 3 of 1874, the levee-tax was reduced to three mills, and in the same year an act entitled an act providing for the acceptance by the Louisiana Levee Company of a reduction of the rate of certain taxes to be •collected as compensation to said company from four mills to three mills, and in.consideration of said reduction relieving said company from liability for damages in certain cases. This act stipulated that upon the acceptance by the Levee Company of the reduction of taxation, made in the Funding Act, the clause in the original grant making them liable for damages shall be repealed. Such is the legislation under which the Levee Company took its being and exercised'its functions, except the act of 1875, which we shall hereafter notice.

Did these acts give to the company a claim against the State ? We think not. They point out what the compensation of the company is to be ; make it result from taxation, and in no manner, even by implication, point to a responsibility on the part of the State over and above the amount of taxation to be levied. The very title of the original act indicates that the compensation provided by the act is the compensation to which the company was entitled. The very clause creating the contracts provides, as we have seen, that the said Louisiana Levee Company for and in consideration of the compensation “hereinafter set,” etc., etc. These laws forbid the idea that the taxes were to become the property of the State, for they delegate to the Levee Company the right to mortgage them by anticipation. They are made payable after collection, not as ordinary State taxation, upon the warrant of the proper State office^ but directly to the Levee Company.

What are the reasons given for the contrary view of these various statutes ? We are told that the original act provided for the issueof bonds, and thereby creates a fairinference that the State was to be liable for the work. We think, on the contrary, the provision authorizing the issuance of the bonds is the very strongest light by which to read the intention of making the taxes the compensation, where bonds were not provided for. In fact, the inevitable conclusion from the language of the statute is that the bonds were intended to cover only the period where there was to be no taxation. It is said that the amendatory act o£ 1874 points to the liability of the State. This claim results from the language of sec. 6, which we have already quoted, and is predicated on the following ; “And provided, further, that all levees constructed before the first day of October, 1873, shall be paid by the State at the rate of sixty cents per cubic yard, as the existing contract and laws provide.” This provision admitted no liability on the part of the State. The section reduced the compensation from sixty to fifty cents, and the language quoted was simply a reservation of the rights of the company to be paid at the rate of sixty cents for levees constructed- during the period when the law allowed sixty cents. The words “shall be paid by the State” were qualified by the words “ as the existing contract and laws provide,” and clearly pointed to the payment in the manner directed by the original law, without any additional guarantee or source of revenue.

That original law made the taxes the means of payment, and such was the construction given to these laws, or, at all events, to those pertinent to the present controversy, by our predecessors. In State ex rel. Louisiana Levee Company vs. Charles Clinton, Auditor, this court through the organship of Mr. Justice Morgan said :

“We do not see in what manner the amendment of the constitution of the State which limits the State debt to twenty-five millions is violative of the law creating the Levee Company. The State has created no debt in their favor. It has assumed no responsibility on their account. It is not paid or to be paid out of the funds of the treasury proper. The State incorporated the company, giving it certain rights and privileges, and imposing heavy burdens upon it, at the same time it contracted with the company with regard to a work of great public utility, secured the company by imposing a general taxation upon all property and made it the duty of the tax collectors to collect the same and deposit the sums collected in the treasury. But it provided at the same time that the moneys so collected should be placed to the credit of a certain fund to be drawn upon by the officers of the company. But this does not create a liability on the part of the State. The State does not pay; its bonds are not out, nor any one its creditor ; nor can they be its creditor for any sum contracted by the Levee Company.” 25 A. 401.

This adjudication was provoked by the Levee Company itself; was rendered at its instance in a suit to which it was a party. The company was therein claiming the amount of the taxes in the treasury, and the payment was resisted on the ground that the Levee Company laws created a debt and hence violated the constitution. The company in response contended that their act created no claim against the State, but simply a claim to the taxes, and their pretensions were sustained.

This view whs re-affirmed in State vs. Maginnis, 26 A. 559. It is now urged by the company that this construction was erroneous ; but as we have seen it was a decision provoked by themselves, rendered on their own construction of the contract; and, whether or not it suffices to create an estoppel, we are clear that it points to the contemporaneous construction given to the acts not only by the company themselves, but by the court to whom they submitted it for adjudication, and as such it falls directly within the domain of stare decisis. This interpretation, which is now strenuously attacked, was not only provoked by the plaintiff but was made the basis of action by the General Assembly, for when in 1874, in the act providing for an acceptance by the company of the reduction of taxation, the taxes were spoken 'of as compensation, this language is to be considered as having been used with reference to the previous construction which it had received. Could we overlook these overwhelming conclusions, we would gravely hesitate before declaring that the enactments under review created a debt against the State, for we would be then obliged to recognize their nullity. When the act of 1871 was passed the constitution limited the debt to twenty-five millions of dollars, and that limit was then reached. State ex rel. Solomon & Simpson vs. Graham, Auditor, 23 A. 404.

If, then, the Levee Company acts created a debt, that debt would be unconstitutional, and we would be compelled to reject the whole amount. Some claim is made in this instance as to the erroneousness of the declarations of the amount of State debt made in the referred-to case; but we will not re-examine it, and if we did we could reach no other conclusion. In the suit to which we have already referred the Levee Company by their counsel expressly admitted that the limit of the debt had been reached, for the purpose of taking their claim out of the grasp of the constitutional limitation, and we can look with little favor upon their attempt now to reverse the concluded jurisprudence to which they have by judicial admission given adherence.

We are told that the Supreme Court of the United States has given a contrary construction to the Levee Company laws, and the case relied on is that of the Board of Liquidation vs. McComb, 2 Otto, 536. If the claim were true it would not command our attention, because at the date of th'e rendition of the judgment of the Supreme Court of the United States this court had not only declared that the Levee Company acts created no debt, but that if it did they would have been violative of the State constitution, because at the date of their passage the twenty-five-million-dollar limit was already attained. If, then, the construction given to the opinion of the Supreme Court of the United States were correct we should have to conclude that that high tribunal had disregarded the construction given to a State statute by the highest court in the State, and had disregarded the adjudication of the tribunal of last resort within this State as to a question whether the State debt had attained the constitutional limit. Such, however, is not the case. The decision in the McComb ease was rendered on the following state of facts: The Legislature of 1875 had appointed a commission to ascertain the amount due the Levee Company, and had provided for the issuance to it of evidences of debt therefor, and had made these evidences of debt fundable in consolidated bonds. The funding of these evidences of debt was enjoined by McOcmb, and the opinion of the Supreme Court of the United States proceeded upon the hypothesis that the State had recognized the debt, and therefore the sum due the Levee Company was a debt of the State. The language used by Mr. Justice Bradley clearly sustains this conclusion. He says :

“ The amount payable to the Levee Company for its services is none the less a debt because already provided for by special taxes, and so far as the State is concerned it is no more of a public burden when chargeable upon one fund than it is when chargeable upon another. If the General Assembly for cause assigned sees fit to alter the mode of payment, it is difficult to see who else has the right to complain, unless specially injured by the change. The taxes formerly appropriated to it will be liberated and made available for other State purposes.”

. We would be compelled to reach the same conclusion if the act of 1875 were before us, and if the constitutional limitation had not been reached. But in the present controversy the act of 1875, which was the cause of the decision in the McComb case, is blotted from the statute book. The act of 1877, under which this suit is brought, and the provisions of which have been accepted by the company, provides “ that nothing herein shall be considered as affecting any legal right of said Levee Company for the purpose of said suit, except any rights claimed by them under the provision of act No. 24 of 1875, which shall be considered in said suit as non-existing, null, and void, and no claim in favor of said company shall be considered as flowing from said act or any certificate presented thereunder.”

It is said that the act of 1877, under which this suit is brought,'constituted a new contract with the company, and provided for its payment part in bonds and the remainder in levee taxes; hence, whatever might be the force of the original acts, they are enlarged by the act of 1877. The terms of the act of 1877 afford the best denial of this pretension. Section five of that act provides that nothing in this act shall be construed to waive any of the defenses of the State to the suit herein authorized to be instituted, it being the true intent of this act to refer to the court for decision and adjudication under existing laws the entire subject matter of the controversy between the State of Louisiana and the Louisiana Levee Company growing out of the alleged contract made under the provision of act No. 4 of 1871, approved February 20, 1871-, and act No. 43 of the acts of 1873, and all acts amendatory thereto: and nothing moreover herein shall be considered as affecting any legal right ■of said Levee Company for the purpose of said suit, except any rights claimed by them under the provisions of act No. 21 of the acts of 1875, which shall be considered in said suit as non-existing, null, and void, •and no claim in favor of said company shall be considered as flowing from said act, or any certificate thereunder.

Language could not make it plainer that the sole intention and •agreement of the act of 1877 was to refer the claimed rights of the Levee Company to the courts for adjudication under the laws as they stood. True, the* act of 1877 provided “ that in the event judgment •should be rendered against the State of Louisiana in favor of said company, the same shall be liquidated and paid as follows :” But that act also provided for the contingency of no judgment being rendered against ■the State, but one simply against the fund, for the act specially declares ■that all levee taxes heretofore assessed are hereby set apart as a special •fund for the payment according to the provisions of this act of such judgment as may be rendered in favor of the company. The terms of the act contemplated the possibility of the non-rendition of the judgment against the State, and provided for that contingency by declaring ■that the taxes should be specially set apart to pay “ such judgment ” as may be rendered against the fund. The act made the institution of the suit by the Levee Company under its provisions an acceptance of its •terms, and by it they are concluded.

The act of 1877, we think, was an act of compromise by which the Levee Company was authorized to institute suit for the liquidation and ascertainment of the amount of their claim, whether against the State •or against the fund, with a provision for the issuance of bonds if the ■claim was decided finally to be one against the State, with a provision for the payment of the amount ascertained to be due out of the fund if only a claim against the fund. This conclusion is a solution of the third •inquiry which we proposed in commencing this opinion.

We do not consider that although the Levee Company was found to •have no claim against the State such conclusion should have entailed the dismissal of their suit, as we think the purpose of the act of 1877 was the fixing of the amount which they were entitled to claim, whether against the State- or against the fund. In this view, we think the judgment of the lower court erroneous. We will therefore amend it in that particular.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court in so far as it dismisses the suit of the Levee Company be and the same is hereby reversed; and, proceeding to render such judgment as should have been rendered by the lower court, it is ordered, adjudged, and decreed that the Louisiana Levee Company be recognized as having a claim against the fund created by the levee taxes heretofore assessed under the provisions of the various laws creating and amending the power of the Levee Company and specially provided for in section six of act No. 139 of 1877, approved,May 9,1877, for the following sums :

One million and nine thousand and ninety-six 67-100 dollars due up to June 25,1877................................§1,009,096 67
Five hundred and eighty thousand three hundred and thirty-two 49-100 dollars.................................'.... 580,332 49
Due up to June 25, 1877, for work in 1877 anticipating levee tax 1878................... -115,124 00
Total.............................................§1,704,553 16

All the sums paid thereon since June 25,1877, to be deducted from this amount; said amount not to be considered a debt against the State, but to be paid by the application of the levee taxes heretofore assessed as provided in section seven of act No. 139 of 1877, approved May 9th, 1877. The sum fixed as due for the amount of work done in advance against the taxes of 1877, collectible in 1878, to be paid from the one third of the levee tax of 1878, as provided in section nine of the aforementioned act. The costs of appeal to be borne by the defendant and those of the lower court by the plaintiff.


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    No. 7379.
    Aristide Miltenberger vs. Weems Heirs.
    A presumptive heir, who is not shown to have aeeepted the succession of his deceased mother either unconditionally, or as beneficiary heir, and who has subsequently renounced the succession, is not liable for the debts of the deceased, and may in the absence of proof of an intent on his part to defraud creditors make a valid purchase of the property of the succession sold at a tax-sale.
    To maintain a revocatory action it is necessary to make not only the holders of the title, but also the debtor, parties to the action.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Bowman, J.

      M. Byan for plaintiff and appellant.

      B. J. Bowman and B. A. Hunter for defendants and appellees.
   The opinion of the court was delivered by

White, J.

Plaintiff sues for recognition of debt and mprtgage, and for the annulment of a tax-sale made of the elaimed-to-be mortgaged property on the ground that the same was collusive and fraudulent, having been illegally and fraudulently provoked by the heirs of the deceased mortgage debtor, Mrs. Weems, with the purpose and object of destroying his mortgage. He avers that one of the heirs bought at the tax-sale, and that portions of the property have since been transferred to the other heirs, one of whom was the dative executor of the deceased, all of which was in consequence of a fraudulent collusion between the heirs to obtain a tax-sale of the property and thereby acquire it free from mortgage. The defendants are six in number; viz., Eugene Y. Weems — Anne Weems, Widow Pearce — Mary Y. Weems, wife of Crawford — Sarah E. Weems, wife of Wells — B. B. Weems, and Charles C. Weems. Three of them, viz., Eugene Y., B. B. Weems, and Mrs. Pearce, excepted that they could not be sued as unconditional heirs until called upon to decide whether they accepted or renounced the succession. Their exception having been overruled, reserving their rights, they answered that they were not bound by the debts of their ancestor, never having in any manner taken the quality of heir or committed any act from which legal acceptation could be deduced ; that on the contrary they had formally renounced. They averred that the validity of the tax-sale was covered by the presumption of the thing adjudged resulting from a decree homologating the account filed by the executor of their mother’s estate ; and that if liable as heirs, then they set up in the alternative the non-existence of plaintiff’s debt. Sarah E. Wells answered that she had never committed any act of heirship or as an intermeddler or otherwise claimed or exercised any rights as to her mother’s estate, and that she made no claim thereto. Mary Y. Weems, wife of Crawford, and.C. C. Weems answered substantially to the same effect. The matter was tried below on these pleadings, there was judgment in favor of the defendants, and plaintiff appealed. The facts as disclosed by the record are as follows :

Mrs. A. E. C. Weems died in the parish of Bapides, where she was domiciled, some time in the spring of 1874 Her succession was duly opened on May 24th, 1874, and her son, Eugene Y. Weems, appointed and qualified as her dative executor. By the inventory it appears that she was the owner of certain real estate in the parish of her domicile. On the 8th day of November, 1875, at a tax-sale made to enforce the payment of the delinquent taxes for 1872, ’73, and ’74, Mrs. Pearce, one of the defendants, became the purchaser of the real estate described in the inventory, and has since transferred portions of it to the other or some of the other defendants. The executor filed a final account, in which he stated the loss of the property by the tax-sale, and upon its homologation he was discharged, on the 23d of October, 1876, the present suit having been filed December 30, 1876.

1. The first question for logical consideration is, are the defendants liable for the debts of their mother as her unconditional heirs ? and, secondly, was and is the tax-sale null in consequence of the heirship of the parties ? But these twofold inquiries are involved one in the other, because it is urged that the purchase being illegal, the heir and those of her co-heirs to whom she sold became thereby unconditional heirs. We will therefore consider them as one question. We see no reason to declare the sale null for matters connected with it independently of the alleged existence of heirship. There is no proof that the executor illegally allowed the taxes to accumulate, so as to infer a combination between himself and his co-defendants. The evidence makes it clear that a larger part of the taxes were due at the death of Mrs. Weems ; nor is there any proof that the executor had funds on hand belonging to the estate wherewith to pay the taxes and thus prevent the sale. The record likewise fails utterly to show that either the purchaser or any of her co-presumptive heirs were at the time of sale either beneficiary or unconditional heirs. The sole question then is, can a presumptive heir buy at a tax-sale the property of his ancestor ? We answer, yes. In so doing we are not unmindful of the doctrine current in the books and which we have applied, teaching that those whose duty it is to discharge the taxes or who hold a fiduciary relation toward creditors or the property can not take advantage of their own wrong or neglect to acquire at a tax-sale to the prejudice of the owner or creditors. But such is not the case before us. The purchaser was not either unconditionally or beneficiarily liable irrespective of the purchase. She was only a presumptive heir. She had not accepted the succession, or by word or deed made herself unconditionally liable. She was not, as we have said, even a beneficiary heir ; but only a presumptive one, having subsequently renounced. The other defendants are in a like position, all having either formally renounced or disclaimed all heirship in their answers. Were there proof in the record of unconditional heirship, or even of beneficiary acceptance on the part of any of the defendants who have since acquired portions of the property, the principle which we have referred to might be applicable; but resulting as it does from the existence of an obligation to pay the taxes or a duty toward the creditor or property, we can not extend it to the case where neither the duty nor obligation exists. Such being the case, we can not entail unconditional heirship from an act which the heir presumptive had a legal right to do ; at all events, not without proof of the existence of facts connected with the purchase showing the intention to become heir or to defraud the estate.

2. Were we, however, to conclude otherwise as to the intrinsic nullity of the sale, we could not presently give the plaintiff relief. It is clear, as we have seen, that even if a presumptive heir can not lawfully buy at a tax-sale the property of his ancestor, yet such an attempted purchase would not per se make him an unconditional heir. This being true, there is no defendant before us ; the succession is in no way represented. The heirs are not before us ; those cited in that capacity have renounced. True, the persons holding the tax-title which is sought to be annulled are defendants ; but not only the holders of the title but the debtor are necessary parties to a revocatory action. C. C. 1970; 1 L. 503; 10 R. 387; 8 A. 386.

We think the judgment below correct, except in so far as it finally passed on the demand of the plaintiff. We consider the case a proper one for nonsuit, and will therefore amend the judgment in that regard.

It is therefore ordered that the decree of the lower court be so amended as to reject plaintiff’s demand as in case of nonsuit, and as thus amended it be afiirmed with costs.

The Chief Justice took no part in the decision of this cause, having been counsel therein.


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    No. 7371.
    Caroline Perry vs. John C. Burton.
    The lettex- of one was has signed a receipt, written on the same paper with the receipt, and with special reference to it, is admissible in evidence to explain the receipt.
    Parol evidence offered by a defendant in explanation of an alteration in a receipt signed by him, which is responsive to the averments of his answer, and relevant to the explanation, is admissible.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupée. Yoist, J. '

      Edward Phillips for plaintiff and appellee.

      W. W. Leake and Sam’l Powell for defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff sues to recover $868.71 with interest, alleging that the defendant collected that sum for her as her agent, and retains it. The defendant specially denies the agency, and the collection for her, and avers that he collected the sum charged for one Joseph Rudman, and is entitled to compensate it by an indebtedness of Rudman to him of $725 25 with interest, and that this suit was instituted in the plaintiff’s name to avoid the plea of compensation. He further avers that the plaintiff, who is a coloured woman, is impecunious, without business capacity, while Rudman has large means, is much in debt, and has placed all of his property in the name of the plaintiff, and in her name carries on business under the pretence of being her agent,, and that Rudman and the plaintiff live in concubinage.

There was judgment for the plaintiff, and the defendant appealed.

The receipt of the defendant for the notes he was to collect conforms, in the sums stated therein, to those set forth in the petition. Below it is a letter addressed by Rudman to the defendant in these words; — “ This receit should have bin given in the name of Caroline-Perry, myself acting as her agent so as to corispond with the other papers, please write it out so and send it to me as my terns returns. I want you to look to my interest in this matter as it was for you I went in to it.” The signature of J. Rudman follows. On the back of this paper is Burton’s reply, mentioning the alteration, but it is not copied in the record, and we learn of it from the bill of exception.

From this it appears that the receipt, as originally written, contained the name of Rudman alone as the person from whom the notes were received for collection, but complying with the request made in Rudman’s letter, it was altered by adding the words, ‘ agent for C. Perry,” after his name. The receipt is headed, ‘ notes of J. Rudman on ’ the several parties whose names follow. It was evidently Rudman’s expectation that Burton would write a new receipt, or he would not have written his letter on the same sheet of paper, but Burton, very likely from carelessness, merely appended the words mentioned above, and sent it back with his letter in reply on the reverse side. It is one of the. rare instances when carelessness produced a benefit.

The plaintiff offered in evidence the receipt alone in its altered form, and did not offer the letter beneath it, or the reply on the back. The defendant objected to receiving a part of the paper in evidence without the other writings thereon, which explained it, but his objections were-overruled, and the receipt alone admitted, and he reserved a bill.

No reasons are stated in the bill for the rejection, and we are left to the inference that it was under the rule excluding parol testimony in explanation of, or for varying a, written instrument. It would be extending the application of that wholesome rule very far, if it should operate the exclusion of writings on the same paper, that had special reference to the subject matter of the instrument which is sought to be explained. It has often been held that such testimony was admissible. Cole v. Smith, 29 Annual, 551, and authorities there cited. Berard v. Boagni, 30 Annual, 1125.

The defendant then offered documentary and oral proof to shew the alteration, and how it was made — to prove that Rudman was not the plaintiff’s agent, and that the notes mentioned in the receipt belonged to Rudman — that the words, agent etc., were added at Rudman’s instance, who was apprehending a process of garnishment, and were intended by Rudman only to shield the notes from it — that the plaintiff is an ignorant and penniless negress, having no property, and Rudman was using her name in .this suit, and in the management of his property, to defraud his creditors, and preclude the defendant from availing himself of his claim in compensation.

The whole of this testimony, which is responsive to the averments of the answer, was excluded for irrelevancy. It was certainly not irrelevant. The same reasons apply to the admissibility of this testimony as to that in the first bill, and the same authorities warrant and justify its reception.

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and the cause is remanded to be proceeded with according to law in the lower court, the plaintiff paying costs of appeal.


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    No. 7381.
    Britton & Moore vs. Miss Virginia Bush.
    The issuance of a ft. fa. under a judgment against one of the solidary debtors on a promissory note, will not interrupt prescription of the note as to the other solidary debtor, against whom no judgment has been obtained.
    The rendition of a judgment against one of the makers of a solidary note, does not, as to the other maker who has not been sued, substitute the prescription applicable to judgments, for the prescription applicable to promissory notes. The maker who was not sued is liable only on the note, which is, as to him, prescribed in five years from tho date of the judgment against his co-maker.
    ÁEPEAL from the Ninth Judicial District Oourt, parish of Grant. Kelly, judge ad hoc.

      B. J. Bowman and B. A. Hunter for plaintiffs, and appellees.

      A. Gazabat and B. P. Hunter for defendant and appellant.
   The opinion of the court was delivered by

White, J.

In July, 1871, plaintiffs obtained judgment against William and Virginia Bush in solido for the sum of $3146, with interest from December 10, 1868. The cause of action made the basis of the demand covered by the judgment was two certain promissory notes for $1575 45 each, dated the tenth of December, 1868, and payable twelve and fifteen months after date. Virginia Bush thereafter instituted an action to annul the j udgment rendered against her on the ground of want of citation. She was finally successful. Opinion Book 48, p. 301. On the twenty-eighth day of December, 1878, the present suit was commenced with the object of obtaining judgment on the notes as above mentioned. The defense is the prescription of five years. The notes matured respectively December 10, 1869, and March 10, 1870, hence were prescribed December 10, 1874, and March 10, 1875, unless the course of the running prescription has been interrupted or suspended. Is such the case? Plaintiff relies on the proceedings and judgment against William Bush as establishing the necessary interruption or suspension. But we do not think they are adequate for that purpose. The judgment was rendered against William Bush on tenth of July, 1871. Grant that the citation on him, as a co-solidary obligor, interrupted prescription ; grant that the prescription thus caused by the interruption to begin anew its legal course was stayed or suspended by the effect of the suit, so as to prevent it from continuing in its.career until the rendition of the judgment — $9 An. 298: grant that not only the interruption but also the suspension, good as to one solidary obligor, is good as to the other, the notes now sued on would be none the less prescribed as to the present defendant.

The judgment was rendered on the tenth of July, 1871, the present suit was instituted on the twenty-eighth December, 1878, a period intervening of over seven years.

It is contended that in the suit and judgment against William Bush execution issued against him and property was advertised for sale, which constituted an interruption of prescription as to him, hence as to the present defendant.- This claim is predicated on C. C. 2097, saying that a suit brought against one solidary obligor interrupts as to others. But afi. fa. does not interrupt prescription as to the defendant in execution, and a fortiori does not do so as to the obligor not sued.

We are referred to Wilson vs. McMain, 29 An. 288. That case only decided the very elementary doctrine that a citation interrupts prescription, which remains suspended until judgment, when it again commences its course. It is said that the effect of the rendition of the judgment was to make the prescription on the note similar to that on the judgment. This is erroneous. Hite vs. Taught, 2 An. 471; Dwight vs. Brashear, 5 An. 551 ; Richard vs. Butman, 14 An. 144. This current of authority is now strenuously assailed, but we think unsuccessfully. Hite vs. Taught is charged as being ill-considered and not in accord with elementary principles. We do not think so.

The opinion of Mr. Justice Slidell is none the less perspicuous because of its terseness. The industry of counsel has been expended in collecting opinions from the commentators on the Napoleon Code, claimed as ovérwhelmingly showing the want of proper authority for Hite vs. Taught. We can not with any regard for conciseness review all the authorities quoted, but we will endeavor briefly to show the incorrectness of the propositions which are sought to be defended.

We are told that a judgment constitutes a perpetual acknowledgment on the part of the judgment debtor, therefore the acknowledgment of the debtor interrupted as to his co-solidary obligors. The fallacy is exposed by saying that if the premise were true there would be no prescription of judgments. It is urged that the rendition of the judgment against one of the solidary obligors from the nature of things created a common term of prescription for all. Why so ? The theory upon which the law proceeds in making an interruption as to one good as to others is the existence of a legal mandate, ad conservandum obligationem, but such mandate gives no power “ ad augendam obligationem.” This limitation on the scope of the fictitious legal mandate prevents a judgment rendered contradictorily with one only of the obligors from creating the presumption of res ad.judicata as to the obligor not sued. C. C. 2098 ; Rodiére de la Solidarité, p. 84 ; Marcadó, vol. 5, p. 199 ; Duranton, vol. —,,No. 520 ; Aubry et Rau sur Zaeharie, vol. 5, p. 74 ; Mourlon, vol. 2, p. 541.

We are aware that the contrary opinions are expressed by Toullier and Demolombe, but their views are in conflict with those of the commentators to whom we have made reference, and we think not reconcilable with the fundamental principles of solidarity — in fact destructive of them, for if adopted the limited and qualified mandate would be extended beyond the power of preservation to that of augmentation. We can not therefore adopt or follow them. If then the judgment against one is not res judicata as to the others, the obligation of the defendant was not merged in the judgment, and remained subject to the prescription of notes, unless we were to say that the judgment and the note, although distinct, at least quoad the present defendant, were yet subject to the same prescription, despite the provision making one prescriptable by five the other by ten years. But apart from the question of res judicata, we think the acquisition of a new term of prescription greater than that governing the obligation when contracted, even by the express consent of one of the co-obligors, would be of no avail against the others. The power to preserve does not import the power to increase. “Every thing,” says Rodiére, in concluding his admirable examination of the scope of the agency between solidary obligors, “ we have said can be resumed in two principles, which are that a co-debtor can never make the obligation of his co-obligor more onerous, but he can improve it.” * * * p. 95.

And after clearly stating the same general theory, Laurent, in his recent and valuable commentary, applies it as follows": “One of the co-debtors recognizes a debt which is subject to a short prescription. It is a settled principle that the short prescription is thereby substituted by the prescription of thirty years. The acknowledgment, it is evident, produces its effect as to the debtor who has made it, but does it do so as to the other debtors? The court of Rouen so held. It was an error. The prescription was more than interrupted; it was changed, its nature enlarged, creating thereby an increase of the obligations of the debtor, since instead of being able to prescribe in six months or one year, he will only be able to do so in thirty years. The co-debtors however give to each other only mandates to preserve the debt and not to increase it. This is decisive.” Laurent, vol. 17, p. 308, No. 309 ; Mareadó, vol. 5, p. 199.

These views are decisive of the issue before us. The proposition that if both co-debtors do not remain bound after the rendition of a judgment obtained against one the judgment will be retroactively, at least in part, destroyed, is an argumentum ab inconvenienti which can not impair the force of the application of well-defined principles, when greater inconveniences must result from disregarding them. However, the force of the pretension can only be considered when the effect of the acquired prescription is properly presented for decision.

The judgment of the lower court overruled the plea of prescription. It is reversed and the plea maintained, with costs in both counts.


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    No. 7236.
    The State vs. Briney Woods et al.
    Where the accused is charged with feloniously breaking into a store “with intent to steal” evidence is admissible to show that certain articles were actually stolen from the store at the time it was broken into and entered.
    Whether a witness for the defence in a criminal trial who has already testified of the matter may be re-introduced in order to contradict evidence in rebuttal introduced by the State, is a matter left to the discretion of the court.
    The allegation that “ the information is defective as not being in conformity to the common-law principles established by section 976 of our Revised Statutes,” is too vague to support a motion in arrest of judgment.
    A motion in arrest of judgment in a conviction for burglary, on the ground that certain language was not used in the charging part of the information, will not be sustained, when it appears that the charge in the information would not have been increased in perspicuity by the employment of the language.
    In an information which charges burglary committed during a certain night, it is not necessary to specify the hour of the night.
    The prosecution of all except capital offences may be made on information.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, I.

      Jff. N. Ogden, Attorney General, for the State.

      T. A. Bartlette and Paris Childress for defendants.
   The opinion of the court was delivered by

Manning, C. J.

The defendants were convicted of burglary, and were sentenced to confinement at hard labour for eight years.

The charge is, that they “ did in the night-time, and with the felonious intent to steal, feloniously and burglariously break and enter the store of one Jacob King, contrary,” etc.

The first bill of exception is to the admission by the court of evidence to shew that certain articles had been stolen and carried away from the store at the time of the breaking and entering. The defendants’ objection to this is, that they were charged with the breaking and entering with intent to steal, and evidence of actual stealing was therefore inadmissible.

Intent can rarely, if ever, be proved except by an act. The commission of an offence is the best proof of an intent to commit it, or as it is put by a law-writer, “ the act will be prima facie pregnant evidence of an intent to commit it.” Waterman’s Archbold Crim. Pr. & PI. 339-3.

The second bill was to the refusal of the court to permit the recall of a witness under the following circumstances;

A woman named Kelly, a witness for the defendants, swore that Briney Woods had in his possession previous to the trial a cigarette lighter which she minutely described as a piece of red tape, flat in shape, half an inch wide, and of the thickness of four sheets of ordinary letter paper, and about fifteen inches long. The defence having closed its case, the State in rebuttal produced a cigarette lighter found in Wood’s possession at his arrest, and which was then taken from his person. This lighter was round in shape, and a mixture of yellow and black in colour, whereupon the defendants’ counsel asked to recall the woman to say whether or not the lighter produced was the one, or one similar to that which she described. The State objected, and the court sustained the objection on the ground that the witness had already testified upon the point in question, and had described with particularity and positiveness the lighter she had seen in the prisoner’s possession, and on the further ground that the prisoner should not be allowed to introduce evidence in rebuttal of rebutting testimony offered by the State. On the other hand the defendants’ counsel seem to rest their right to introduce their witness again, upon the idea that the State had introduced new evidence in rebuttal, and therefore they had a right to rebut it.

What but new evidence was the State to introduce in rebuttal ? It would be supererogatory, and a useless consumption of time, to re-introduce the testimony in chief. When the State rebuts the testimony of the defendants, its evidence is necessarily new, but it can only be of such matters as are pertinent for a rebuttal. As a general observation, applicable to criminal trials, we think that artificial rules ought not to be so far enforced as to exclude any fact from the jury which would aid them in forming a righteous verdict, however remotely relevant the fact may be, or from whatever source derived. But a motion to reintroduce a witness, who has already testified, or had an opportunity to testify of the matter, must be addressed to the sound discretion of the court. This is juster, and more in accordance with modern construction of the laws of evidence, than to lay down a rigorous rule which could not be relaxed under any circumstances. The discretion of the court will generally be successfully invoked when the testimony has been omitted through mistake or inadvertence, and it has so been held elsewhere. Freligh v. the State, 8 Mo. 606. Vicaro v. Commonwealth, 5 Dana, 504.

The discretion of the judge was well exercised in the refusal complained of. I£ the witness’ description of the ‘lighter’ was correct, she could not have truthfully said, the one produced in evidence was the same she had seen.

A motion in arrest of judgment was made on several grounds;

1. The information is defective as not being in conformity to the common-law principles, established by section 976 of our Rev. Statutes.

This is too vague. That section requires the forms of indictment divested of unnecessary prolixity, the method of trial, etc. in criminal prosecutions, to bo according to the common law. In what respect the forms and method used in the present case differ from the common law is not pointed out.

2. The information is defective in this, that but one person can commit burglary. All others present are accessories before the fact.

No authority is cited to that effect, and we know of none.

3. That the information does not charge that “ the accused feloniously and burglariously did break and enter with intent the goods and chattels of the said Jacob King in the said store there being there in the said store feloniously and burglariously to steal.”

The charge would not have been increased in perspicuity by the employment of this language, and unnecessary prolixity was avoided by not employing it.

4. There is uncertainty as to time, the hour of the night when the burglary was committed not being set out.

It is not necessary that the hour should be specified in the charge. State v. Tazewell, 30 Annual, 884.

Lastly it is urged in the brief, but was not on the trial, that the information is filed without sanction of law, and that the trial should have been by indictment. The contrary has been uniformly held as tO' crimes, not punished capitally, and this is one of them. State v. Anderson, 30 Annual, 557.

But it is insisted that the act establishing the Superior Criminal Court requires all prosecutions, there instituted, to be commenced by-indictment. This is its langnage ; — sec. 6. No indictment shall be found by the grand jury for offences cognisable, or within the jurisdiction of the First District Court for the parish of Orleans ; all trials in said court, except in cases of indictment previous to the passage of this act, shall be’upon information of the Attorney General or district attorney, or attorney acting for either of them. All indictments shall be for offences within the jurisdiction of the Superior Criminal Court and shall be returned into said court. Sess. Acts 1874, p. 220.

The first section of that Act gives to the Superior Criminal Court jurisdiction of all crimes, the punishment whereof is death, or imprisonment for life, or at hard labour for more than five years, together with numerous other offences, and the 4th. section makes that jurisdiction exclusive. If the construction of the defendants’ counsel be correct, there are certain crimes which are permitted to be prosecuted by information, that this act forbids or prevents being thus prosecuted. But the Act in question, though draughted with conspicuous unskilfullness, does not admit of such interpretation. It must be construed along with other acts in pari materia. Its meaning is this. All prosecutions before the First District Court must be by information. All trials upon indictments must be before the Superior Criminal Court. This latter court has exclusive jurisdiction of certain crimes, the punishment of some of which is capital, and others, not. And those not capital may be prosecuted under information.

There is no error in the proceedings of the lower court, and its judgment is affirmed.