author: Watkins, J.

text:
    No. 12,060.
    State ex rel. Sam Armstrong vs. the Judge of the Eighth Judicial District.
    The application disclosing that relator had been convicted of murder and sentenced to the extreme penalty of the law, and that the respondent had subsequently appointed, at his instance, a commission of medical experts to examine into, determine and report his mental condition; that the majority of the commission had reported relator to be of sound mind, though of a low grade, and thereafter the relator had made an application to the respondent for a trial by jury of the issue of insanity vel non, and same had been refused. Meld: That there is no law which imposes upon the respondent the ministerial duty of directing a trial of such an issue by a jury. In such case the allowance of trial by jury must be governed and controlled by the circumstances surrounding, and the situation of the case.
    QN APPLICATION' for a writ of Mandamus.

      John Dale for Relator.

      M. J. Cunningham, Attorney General, and D. N. Thompson, District Attorney, for Respondent.
    Submitted on briefs February 10, 1896.
    Opinion handed down February 24, 1896.
   The opinion of the court was delivered by

Watkins, J.

Relator avers that he was convicted of murder and sentenced to be hanged, and thereafter made an application to the Board of Pardons for a respite from sentence until his sanity could be inquired into; and, that a respite for that purpose was granted by the Board of Pardons upon the recommendation of the respondent.

Thrt, pending the respite, he made application to the respondent to appoint a commission of experts to examine into his mental condition and report the result of their investigation.

That the respondent appointed a committee of three experts, who acted and reported; and that a majority of the commission were of opinion that he was sane and responsible for his actions, though of a low order of intellect, while the third member was of the belief that he was “ affected with emotional insanity.”

That upon the filing of the report of the commission, he made application to the respondent to have said examination continued before the jury, but he refused to allow the same.”

On his statement the relator seeks, by mandamus, to compel respondent to try said interdiction proceeding as a criminal case;” and that he be compelled to permit same to be tried by a jury as in ordinary criminal cases.”

Respondent returns that, subsequent to the report of the commission having been made and filed, he called upon counsel for relator, and asked him if he had any evidence other than the report of the physicians to offer in support of his application for interdiction; and upon his replying that he had none, he announced that the demand for interdiction would be rejected.”

That, at this stage of the proceedings, for the first time an application was made to have the question of relator’s insanity referred to a jury trial, and that same was by him denied for two reasons, viz.:

“ 1. That it came too late, the case having been submitted when the application was made.

“ 2. That the proceeding came under the probate jurisdiction of the court, and was not properly triable by a jury. C. P. 924, 1036; Segur vs. Pellerin, 16 La. 66; Stafford vs. Stafford, 5 N. S. 136.” Counsel for the relator has taken as the ground of his contention that the inquiry into his sanity is of the nature of criminal investigation entitling him to a trial by jury — citing Arts. 6, 116 and 168 of the Constitution. — -but this is not correct.

That the plea of insanity may be interposed as one means of de - fence during the progress of a trial of a person who is accused of crime, there is no doubt. State vs. DeRance, 34 An. 187; State vs. Dennett, 19 An. 396; Bishop Crim. Law, Sec. 468; Desty Crim. Law, p. 61, Sec. 23.

But the relator has been tried, found guilty and sentenced to the extreme penalty of the law; and now seeks to have his insanity determined and established by a jury, as an independent proposition, wholly disconnected with the crime of which he has been convicted by a ¡ury.

Counsel has cited no specific authority for the contention on which he relies.

In State ex rel. Chandler vs. Judge, 45 An. 696, relator, entertaining an exactly opposite view from that which is presented here, sought to obtain relief from a decree of the respondent directing a trial by jury for the purpose of ascertaining whether or not he was insane.

In that case we said:

“The issue of sanity or insanity was one entering essentially into the question of the guilt of the accused and his punishment — for the purposes of the particular ease, the subject was not being investigated with reference to property rights or civil interdiction, but as a possible shield to the person convicted himself.

“ The proceeding is one well known to the law of England and of our sister States; and, if direct authority were needed to authorize it in this State, we think that authority can be found under the terms of Sec. 1768 of the Revised Statutes.

“We think that the judge was authorized under-that section upon the report of the physician to direct an investigation as to the mental condition of relator and to engraft the proceedings for that purpose upon the ease of Chandler, then in his court. .

“We think the judge authorized, in the absence of any direct mode of procedure being exacted by that section, to mould the proceedings to correspond with the methods of proceeding resorted to for the purpose of the trial of analogous issues; and we see no just ground of complaint that the issue should have been submitted to a jury of his court.”

Looking into the statute the court referred to (R. S., Sec. 1768), we find its provisions to be that “ whenever it shall be made known to the judge that any lunatic or insane person within his district ought to be sent to or confined in the insane asylum of this State,” it shall be his duty “to issue a warrant to bring before him, in chambers, said lunatic or insane person, and if, after proper inquiry into all the facts and circumstances of the case,” he shall be of opinion that he ought to be sent to or confined in the insane asylum he shall make out his warrant for that purpose and have him sent to the insane asylum.

And, considering said provisions, we are of opinion they are sufficient warrant for the action of the respondent in the instant case, notwithstanding this court approved of the judge’s ruling in the Chandler case under the circumstances related.

Clearly this is not a case for mandamus. The relator must obtain relief, if any, from the Board of Pardons.

It is therefore ordered and decreed that the preliminary order be set aside and relator’s application for a peremptory mandamus denied at his cost.


source: Caselaw Access Project

author: McEneey, J.

license: Public Domain

text:
    No. 12,063.
    State ex rel. Perilloux & Co. vs. Judge of the Sixteenth Judicial District Court.
    where a political corporation imposes a license tax, and the existence o£ the corporation Is denied, the legality of the tax is In dispute and this court has exclusive appellate jurisdiction of the case.
    In the answer of the defendant, wherein the legality of and constitutionality of the tax is attached, and an exception as to the existence of the capacity of the party plaintiff to sue is maintained, the appeal from the judgment must be to the Supreme Court. ■ An appeal can not ascend, by frac tions, froman inferior, 10 an intermediate and to a higher tribunal.
    N APPLICATION for Writs of Certiorari and Prohibition.

      Henry L. Garland for Relators..
    <?eo. E. Williams for Respondent.
    Submitted on briefs February 10, 1896.
    Opinion handed down February 24, 1896.
   Theopinon of the court was delivered by

McEneey, J.

The town of Slidell brought suit against relators for 'the sum of fifty dollars in a magistrate’s court for a license tax as liquor dealers.

The relators excepted to the suit on the ground that the town of Slidell had no corporate existence, and was without power to levy the license tax. Reserving the exception they answered that the ordinance was illegal which levied the license, because there was no grading of the license levied, as required by the Constitution.

The exception was maintained. The plaintiff applied for an appeal to the District Oourt, which the justice of the peace refused to grant. Application was then made to the District Oourt for a mandamus to compel the justice of the peace to send the appeal to the District Court. The mandamus was made peremptory.

An exception was filed to the jurisdiction of the court on the ground that this court, under Art. 81 of the Oonstitution, had jurisdiction of the cause. The court declined to dismiss the appeal. Application is now made to this court to prohibit the District Judge from entertaining jurisdiction.

The answer of the respondent judge is that the appeal to his court was from a judgment on the exception which did not present any •question as to the legality of the tax, and involved only the corpo - rate existence of the town. The amount in dispute was less than two thousand dollars, and the Supreme Court was without jurisdiction. •

The issues involved are disposed of in the cases of Decklar vs. Frankenberger, 30 An. 415, and Canal and Navigation Company vs. Tedesco, 37 An. 100.

In the first case the city of New Orleans was sued for the return of a tax alleged to have been erroneously paid under an illegal and unconstitutional ordinance. The city answered, denying the unconstitutionally of said ordinance, and that plaintiff had ever paid the advance in question. ■ From an adverse judgment the city took an appeal to the Third District Oourt. A motion was made to dismiss the appeal on the ground thatthe appeal should have been to the Supreme Oourt. The motion was overruled. On application for a mandamus the respondent judge answered that the city for answer, while denying the unconstitutionality of the act, also denied that plaintiff had paid'the amount claimed, that the question of payment vel non, as well as the constitutionality of the act, was involved. In this case it was held that, 6n questions • involving the legality, constitutionality of a tax, the jurisdiction of this court was exclusive as to the whole case, facts and law, and that no appeal could ascend by fractions from an inferior jurisdiction to both an intermediate and a higher jurisdiction.

In the second case the existence of the plaintiff corporation was denied. ' It had attempted to collect a toll from the defendant. The exception as to the existence of the corporation was maintained, and an appeal taken directly to the Supreme Oourt. The defendant and appellee moved to dismiss the appeal. The court held “ that the matter in dispute is a toll, the legality of which is attacked. It is immaterial on what ground the illegality is alleged. It suffices that it be claimed by the defence to give this court jurisdiction over the contention.

In this case it was held that the imposition of a toll by a corporation alleged to have no existence was a dispute as to a toll, the legality of which was attacked.

Viewing this case from either standpoint of the cases referred to, the District Court has no jurisdiction.

It is we think a well settled rule that if the appellate court has jurisdiction of the case, it necessarily must assume jurisdiction as to all incidental matters.

It is therefore ordered that the rule granted herein be made absolute and the provisional writ be made peremptory. •


author: Nicholls, O. J. Nicholls, C. J.

text:
    No. 11,983.
    Euzebe Leleu et al. vs. Mrs. Elizabeth Dooley.
    An attack upon a da¿/on cnpaiement from a husband to his wife, made by a plaintiff on the ground that it was in fraud of his rights as a forced heir of the vendor and an absolute nullity, because a disguised donation fails where the price paid was actually due by the husband to the wife, and" it was not out of all proportion to the value of the thing sold, saving to the heirs of the contracting parties their rights, if there existed any indirect advantage. 0. 0.2446, 2464.
    Though an acknowledgment of indebtedness to his wife, made by a husband in an act of dationen paiement to her, is not conclusive upon one of his forced heirs, attacking as such the act as a disguised donation, executed in fraud of his legitime, yet some effect must be given to it in connection with the other evidence in the case in determining the reality of the indebtedness when plaintiff in the suit declares that lie accepts unconditionally the succession of his father.
    PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      L. T. Dulany and A. & C. Fontelieu for Plaintiffs, Appellants.

      L. F. Hacker for Defendant, Appellee.
    Submitted on briefs January 7, 1896.
    Opinion banded down February 24, 1896.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaintiffs, two sons of Onezime Leleu, aver that their father died in the parish of Iberia on the 25th of January, 1894, leaving twelve children as his legitimate and legal forced heirs. That their father was twice married; that they and three others are the issue of the first marriage, while there are seven who are the issue of the second marriage with Elizabeth Dooley.

That on the 15 th August, 1879, their father made a pretended dation en paiement to his second wife, the present defendant, of all the property of which he was the owner, which property they describe in their petition as a tract of land in the parish of Iberia containing sixty-two 25-100 acres, more or less, with given boundaries; that the pretended dation en paiement was made for five hundred dollars; that at the date the same was made the property was worth, and it is still worth, at least twenty-two hundred dollars; that their father died possessed of no property other than that included in the dation. That the pretended act of dation is but a fraudulent simulation and a donation in disguise to his second wife in order to deprive petitioners of their legitime in their father’s estate; that said act is a fraudulent simulation, because their father never received any money from the defendant, and did not owe her the sum of five hundred dollars, because the property was worth more than four times the sum of five hundred dollars, and the object of the act was to defraud petitioners of their legitime.

That the pretended dation is but a donation in disguise to a second wife in violation of law and to defraud petitioners ofgtheir legitime, because there was nothing due by their father to defendant, who was always very poor and without means, and because the act is lacking the necessary formalities for a dation en paiement. They aver that their father died owing no debts and they declare they accept Ms succession unconditionally. They pray that they he decreed forced heirs of their father, and that the pretended act of dation en paiement be decreed a fraudulent simulation and donation in disguise, in violation of law, and absolutely null and void, and decreeing the property to belong to the estate of their father and recognizing petitioners as co-owners of one-sixth of the same and placing them in possession.

Defendant excepted that plaintiffs’ petition disclosed no cause of action, and that they are estopped by the positions which they assumed in their pleadings.- The exception was referred to the merits. Defendant answered, pleading first, a general denial, averring that her husband was justly and legally indebted to her in the sum of six hundred and seventy dollars, money belonging to her and received by him during her marriage and by him used and expended for his own use and benefit, and that in part payment or replacement to her- of her said paraphernal property he transferred to her by dation en paiement the property described. That she acquired the same in good faith for a just consideration, and that at the date of said transfer the property was not worth more than five hundred dollars. That at his death her husband left seven children, issue of their marriage, the youngest of whom is eight years of age; that he left no property or means whatever, and that she has no other property than that mentioned, and generally denying all the allegations of plaintiff, and substantially pleading in bar of plaintiffs’ action the prescription of one, two, three, five and ten years.

The court rendered judgment in favor of defendants, and plaintiffs appeal.

The opinion of the court was delivered by

Nicholls, C. J.

Plaintiffs in their brief say that the District Court based its opinion upon the conclusion that the wife did owe the defendant some amount; that the action was simply en declaration de simulation, and, therefore, as there was some consideration for the transfer, although inadequate, the act was real and not simulated, and plaintiffs had not made out their ease, and that the court basing itself on the case of Henshaw vs. Dowty, 39 An. 608, erroneously held that it was incumbent upon plaintiffs to prove that there existed no consideration for the transfer. They say the judge utterly ignored the question of the value of the property, giving his attention exclusively to that of indebtedness on the part of the husband to the wife. They urge that the court confounded the law applicable to the case of a creditor attacking the transfer made by his debtor as a simulation with the case at bar, where the act is attacked as a disguised donation. That while the disguised donation is in reality a fraudulent simulation, it differs essentially from that simulation where no contract is intended. In the one case no real contract is intended by the parties, and the act is but the paper mask to screen the property from the creditors. In the other a real transfer of the property is intended, and a pretended obligation on the part of the husband toward the wife is alleged in order that an act prohibited by law may be masked under the form of one that is permitted and approved. They contend that the dation en paiement by the husband is, in this case, a disguised donation; that the husband did not owe the wife at all, or if he did, he owed less than alleged. The husband transferred to the second wife all the property owned by him for one-third of its real value. That the husband knew that he had five children, issue of a former marriage, and in view of Art. 1752 Oivil Code he could not dispose of all his property in favor of his wife or the children of the second marriage, either by last will or donation inter vivos. That the husband died leaving no other property, and leaving the children of the first marriage penniless, while the second wife became the owner of the whole estate, her children the prospective beneficiaries. That when the husband attempted to evade the law as laid down in Art. 1752, the transfer was absolutely null. They cite in support of their position Succession of Ames, 33 An. 1330, and Scott vs. Briscoe, 37 An. 178, and rely upon Lovell vs. Payne, 30 An. 511, as establishing that the burden of proof to sustain the consideration of the transfer was upon the defendant.

Article 1752 of the Oivil Oode declares that a man or woman who contracts a second or subsequent marriage, having children by a former one, can give to his wife, or she to her husband, only the least child’s portion, and that only as a usufruct, and in no case shall the portion of which the donee is to have the usufruct exceed the fifth part of the donor’s estate.

Art. 1754 declares that “ husbands and wives can not give to each other indirectly beyond what is permitted by the foregoing disposi- . tions.” (Those of Arts. 1752 and 1753.) “All donations disguised or made to persons interposed shall be null and void.”

In the matter of the heirs of Casanova vs. Acosta et al., 1 La. 185, plaintiff’s father was possessed prior to his marriage of a certain lot of groun.d. The father in his will declared that all his property was acquired during the marriage, and community property. Plaintiffs contended that this was a disguised donation to the wife, and-as such null and void, but that if not absolutely null and void, it was reducible. On appeal this court said: “The next question is the correctness of the judge’s opinion that the declaration in the statement of the house and lot being common property amounted to a donation to the wife, which was not void, but reducible to the portion he might have given to her directly. The 228th article (of the old Code) provides that husband and wife can not give to each other indirectly beyond what is permitted by foregoing dispositions which permit them to give directly — md then proceeds to say that all donations disguised or made to persons interposed shall be null and void. By the first clause a violent presumption is raised — the law intended they might give indirectly to a certain amount, and the second would appear to positively prohibit it. It is difficult to make a satisfactory distinction between indirectly giving and a disguised donation. Indeed, were it not for a subtle distinction existing in the Roman law on the subject, and in reference to which we presume this legislation was made, we do not see any difference in the meaning of the two expressions. But the Roman jurists distinguished: according to them if the advantage conferred grew out of or was incident to a real contract which had not exclusively for its object the bestowing an advantage on one of the spouses it was reducible, but if the agreement was entirely simulated and had in view alone the conferring a benefit on husband and wife it was null and void. In the instance before us the declaration of the husband that the prop - erty was common, when and in truth it belonged to him before marriage, can be regarded in no other light than made in the sole view of conferring an advantage on his wife as distinguishing a donation, and we, therefore, conclude it was null and void. Pothier Oontrat des Donations, Vol. 2, Gap. 2, Art. 1, No. 78; Digest, Lib. 24, Tit 1, Law 5, Sec. 5.

That case was followed by Thibodeaux vs. Herpin, 6 An. 673, in which a wife sought to have declared null and void a sale made by her to one Victor Herpin on the ground that it was a disguised donation to her husband, Francois Herpin, through the apparent vendee as an interposed person. . In deciding the case the court after citing Art. 1747, C. C. (now Art. 1754), said: “That article contains two separate dispositions — one by which the spouses are incapacitated from giving to each other more than the law permits, in which case the excessive donation is reducible, and the other declaring null and void all donations disguised or made to persons inter - posed. This distinction of reducible donations between husband and wife and donations which are null and void on the ground of interposition or disguise came to us from the Roman law.” The court referred to the decision in Casanova’s heirs and the citations therein made, adding: “It is also recognized by the French commentators under a similar disposition of the Code of France. (6 Toul-lier, Nos. 76, 83, 901 and 902.) The second paragraph of Art. 1747 creates an absolute incapacity between husband and wife to make to each other disguised donations or donations to a person interposed, and if they do so the donation is null and void. This nullity being considered by jurists as absolute may, in all cases, be invoked by the contracting parties or their heirs.” (7 Toullier, No. 558.)

In the matter of the succession of Ames, 33 An. 1328, the forced heirs of Mrs. Ames (claiming additionally as assignees of certain special legatees) contested, as null, and void, a claim made by her second husband, Hugh Ames, based upon the following declaration in the will of the deceased: “I owe my husband ten, per cent, on my share of all the collections which he has made for account of the property and succession of Thomas Hale.” Referring to the claim the court said:

“ Much reflection has failed to indicate to us any category of valid claims against the succession in which this item could be placed, except that of a debt due by the deceased or a donation mortis causa.”

Discussing it from the standpoint of being a debt, it declared the solution of the question an easy one, as it was clear that upon elementary principles that in the relation of husband and wife, sub - sisting between them, the services of Mr. Ames, referred to in the will, could not, either by contract or operations of law, be the source of any civil obligation on the part of his wife to him. Considering it in the light of a donation, it held it was not sustainable in view of the provision of Arts. 1752 and 1754 of the Civil Oode, which has been declared as applicable to testamentary donations as to donations inter vivos. (Depas vs. Riez, 2 An. 30.) The court rejected the contention made on behalf of the husband that it might be upheld as being a remunerative donation for reasons assigned by it in its opinion. Passing to the consideration of the provision of the will as a donation proper it said: “ It is urged that as a donation it would nob be null, but only reducible to the usufruct of one-fifth of the estate which the law permits to be given to the second spouse. Such is not the case. If a donation at all, it is unquestionably a disguised donation. It does not by its terms purport to be a donation, but is ‘disguised under the form of an acknowledged' debt. Being a disguised donation, ibis not merely reducible, but is struck with absolute nullity by the express terms of Art. 1754, which declares that all (such) donations, disguised or made to persons interposed shall be null and void. If this were to be held to mean that they were reducible merely, the clause would be without any effect. Every donation exceeding the amount permitted by law is necessarily reducible, and it would be useless separately to predicate that fact of a disguised donation. The law makes a distinction between avowed and disguised donations, and while the former are reducible merely, it declares that the latter are null and void. The motive of the legislator is apparent — bo prevent by such severe penalties all attempts to evade or perpetrate frauds upon the law. The point, however, has been already decided by this court. Thibodeaux vs. Herpin, 6 An. 673; Casanova’s Heirs vs. Acosta et al., 1 La. 179. See Commentaries on this article of Toullier, Grenier, Troplong, Delvineourb, and others. Difficult questions which might arise as to whether this nullity is available to any but the children of the first marriage, and as to whether, in a case like the one at bar, the nullity would enure to the benefit of those children or of the universal legatees, are shut out in this case by the confusion of the qualities of the children and the legatees in the same persons.”

The syllabus in the case of Scott vs. Briscoe, 37 An. 178, bo which case our attention is directed by appellants, declares that none but creditors and forced heirs can attack the acts of an owner of property fraudulently alienating it. That Art. 1754 of the Civil Code is applicable only to spouses who have forced heirs, and through the nullity of donations disguised or made to persons interposed is absolute in the sense that they are not reducible merely, but wholly' null, it is only relative to forced heirs, and can not be invoked by simple collateral heirs. In the body of the decision the court said: “ Briscoe had no children and no forced heirs. There was no limit as to his power of disposition of his property, saving the rights of creditors. He had the power to give to his wife all that he could to a stranger. 0. 0., Art. 1746. He had the capacity to give to her, and she to receive from him, his whole estate, without in any manner infringing the rights of this ordinary collateral heir. If it was his intention to give, it was a thing lawful in itself, operating no fraud upon any provision of the law, and he had the right to select the mode of doing so. If he had received the title directly from Mrs. Gregory and then donated it to his wife, neither plaintiff nor any one else save creditors would have had the right to complain. If to avoid circuity he had the title made directly to her, no law was violated and no injury done to plaintiff. We have not noticed the references made to Art. 2446, C. 0., prohibiting sales between spouses save in certain cases, because from no point of view can this be regarded as a sale from Briscoe to his wife.”

In the case at bar the plaintiffs who seek to have declared the nullity of the act between Leleu and his wife seek to do so as “forced heirs” of the vendor, but declaring that they accept his succession unconditionally. The act attacked is, in form, an act of sale or dation en paiement based upon the second paragraph of Art. 2446 of the Oivil Code. Art. 2446 says: “A contract of sale between husband and wife can take place only in the three following cases: * * *

“When the transfer made by the husband to his wife, though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.” * * *

“Saving in these three cases to the heirs of the contracting parties their rights, if there exist any indirect advantage.”

The consideration of the sale in this case is stated to be five hundred dollars, the vendor declaring that “ he was indebted to his wife ” in that sum, as “ being amount due her and received by him since his marriage with her on the 11th October, 1866.”

The first question before us is whether this apparently onerous contract is a disguised donation. Laurent, in his work on Donations and Testaments (Yol. 12, Sec. 302), says: “ II y a des donations par contrat onéreux dont la validité n’est pas douteuse. Lorsque le vendeur, dit Pothier, veut gratifier Pacheteur, en stipulant un prix qui est audessous de la valeur, cela n’empéche pas que le contrat ne soit une vente. Or, la vente est un contrat non solennel; dónela libéralité sera valable quoique faite sans solennité. Quelle en est la raison? Se je vends pour cinquante mille francs un domaine qui en vaut cent mille, je fais une libéralité de cinquante mille francs; porquoi cette libéralité est-elle dispensée des formes qui la loi prescrit comme condition d’existence des donations? Pothier avoue que le contrat qui reuferme un avantage pour Pacheteur, dans le but de le gratifier, n’est pas purement et entiérment une vente; c’est un contrat d’une nature mixte, qui tient quelque chose de la donation; si on le considere ceomme une vente, c’est que la principals intention des parties contractantes a été de faire une vente plptót qu’une donation.

Laurent declares this proposition a doubtful one and gives reasons for his doubts, but he says: “NouSaddressons Pobjection au législa-tew, pour Vinterpr&te, il n’y a aucun doute, puisque la tradition est constante. Et le code la confirme; aux termes de P article 1595 (our Art. 2446), lávente entre époux est permiso dans trois cas. Si tout en faisant une vente autorisée, l’époux vendeur gratifie Pacheteur, en lui 'cédant pour cinquante mil francs un immeuble qui en vaut cent mil, le contrat ne cessera point d’étre une vente, sauf, dit loi, le droit des heritiers, c’esb-á-dire des reservatairesqui pourront des-mander la réduction de cet avantage indirect. Voilá bien une liber-alité tout ensemble et une vente; et Pacte est maintenu comme vente.

The author then takes up the case where property worth one hundred thousand francs was declared to have been sold for that sum, . and thajt sum paid, when, in point of fact only fifty thousand francs were paid. Of this he says: “Il y a, dans ce cas déguisement, simulation; mais la simulation par elle seule, n’est pas une cause de nul-lité; il faut, pour qu’elle rende Pacte nul, qu’elle fasse fraude ala loi. Or, nous supposons que le vendeur est capable de donner et que Pacheteur est capable de recevoir á titre gratuit. Il n’y á done pas de fraude aux regles qui régissent la capacité. Y a-t-il fraude én ce qui concerne la forme? Pas davantage. II est vrai que l’Article 893 semble exiger que toute libéralité entre-vifs se fasse dans les formes solennelles; mais dans Pespéee il ne s’agit pas d’une donation, Pacte est une vente, et cette vente est valable, quoique faite endessous du prix. Dira-t-on qu’il y a fraude aux régles qui eoncernent le rapport et la réduction? Nous examinerons plus loin la question de savoir si le contrat onéreux est nul quand les parties ont eu le dessein de soustraire la libéralité au rapport ou á la réduction. Dans l’opinion généralement admise, Pacte n’est pas nul, les héritiers sont admis a prouver qu’il a libéralité déguisée, et si la preuve est faite l’avantage sera sujet á rapport et á réduction. Tout ce qui résulte du dóguisemeut c’est qu’il sera plus difficile d’établir Pexistence de la libéralité. Bn ce sens on pourrait dire que toute libéralité déguisée est frauduleuse, et le législateur aurait pu la frap-per de nullité. A notre avis.il aurait du le faire. II ne faut pas que le législateur autorise et encourage en quelque sorte les parties intéressées a éluder la loi. II veut que toute libéralité soit sujette á rapport et a réduction. Bt voilá que le donateur et le donataire entravent sa volonté dans une intention plus ou moins frauduleuse. Ne découvre-t-on pas la simulation? la loi est éludée; résultat funeste, puisqu’il ruine le respect que les citoyens doiveot a la loi. Que si Pon découvre la simulation, eeux qui ont essayé d’éluder la loi n’ont rien á risquer, la libéralité sera maintenue dans les limites du disponible; l”on va méme jusqu’á la dispenser du rapport.”

Article 1099, C. N.,' of the French Code, which corresponds with our Art. 1754, says: u Les époux né pourront se donner indirectement au delá de ce qui leur est permis pas les dispositions ci dessus. Toute donation ou déguisée ou faite á personnes interposées sera nulle.”

It will be seen from the quotations we have made that in spite of Laurent’s opposition to the jurisprudence on the subject of disguised donations, he none the less acknowledges that the matter has gone beyond the reach of courts and that if a remedy has to be applied it can only be accomplished through the Legislature. We need not follow him into his further discussion of this subject, as we do not think this case calls for it.

The act attacked, as we have said, is authentic in form, as evidencing a sale, in which the vendor, the husband of the vendee, acknowledges himself to be indebted to the latter in the sum of five hundred dollars. We are of the opinion that even were the property which was sold of greater value than five hundred dollars, the act will have to stand as an act of sale. The case would be, at best, one not of simulation, but of indirect advantage to the wife, not carrying as a consequence, absolute nullity. We do not think the case covered by either Article 2444 or 2464 of the Oivil Oode. Plaintiffs contend that not only was the, property of greater value than the price declared to have been given for it, but that there was no price at all, as the husband was not indebted to his wife. They claim that the burden of proof was on the wife to show positively not only that the husband owed her, but also the precise amount of the indebtedness. The wife holds under an executed contract. She is sought to be deprived of her rights under this contract by parties presenting themselves as unconditional heirs of their father, as plaintiffs in a demand in which they seek to contradict his recitals in the act. We find two cases where the burden of proof was thrown upon the party advancing a claim acknowledged to be due by a deceased person, where the defence set up was that the claim was a disguised donation, to sustain the consideration of the claim, but in both cases the claims were evidenced by promissory notes and executory. (Heirs of Cole et al. vs. Cole’s Executors, 7 N. S. 423, 424; Thibaut vs. Thibaut’s Heirs, 1 La. 495.) The case of Succession of Bernard Fox, 2 Rob. 292, was one of testamentary acknowledgment, also of an executory claim. In the case of Moore vs. Wartelle, 39 An. 1067, this court, citing Art. 2444 of the Oivil Oode, said: “The" sales of immovable property made by parents to their children may be attacked by the forced heirs as containing a donation in disguise, if the latter can prove that no price was paid, or that the price was below one-fourth of the real value of the immovable sold at the time of the sale. The law does not favor action by forced heirs to undo transactions of their ancestors as done in fraud of their rights. The burden is upon them, and in the absence of convincing proof, and in the presence of' evidence which merely casts a suspicion, the court will not take the property of one man to give it to another. The law does not in proper cases leave the heirs without relief.” It cited in support of this position Laycock vs. Bird, 13 An. 174; Montgomery vs Chaney, 13 An. 207; Carter vs. McManus, 15 An. 641; Succession of James Forsyth, 21 An. 367; C. C. 1324, 1326.

The decision in the Moore case bore, it is true, upon a contest, seeking to have a sale between parent and child set aside, while the present one is an attack upon an act between husband and wife, as between whom the power to contract is more restricted than between father and son, but even if this difference would be such as to alter the onus of proof in cases generally, the present case is brought under the rule announced in the decision in 39 An., in view of the fact that the plaintiffs have accepted the succession of their father unconditionally, and his acknowledgment of indebtedness to the wife binds them, certainly, to the extent of their being prima facie true. The recitals of indebtedness made by the husband nnght not prejudice the heirs of the latter standing squarely on their rights as forced heirs (Succession of Ames, 33 An. 1329), but when they think proper to accept the position of unconditional heirs, we see no reason why the declarations of the ancestor in an authentic act should not be given weight to some extent, at least, in determining the rights of parties to an act of sale. (Brown vs. Brown, 30 An. 966; Successions of W. B. and Margaret Savory, 32 An. 506; Dopler vs. Feigel, 40 An. 850; Armorer vs. Case, 9 An. 242; Stewart vs. Mix, 30 An. 1036; Drumm vs. Kleinman, 31 An. 124; Succession of Turnell, 32 An. 1220; Heirs of Compton vs. Maxwell, 33 An. 688; Brown vs. Stroud, 34 An. 374; Kerwin vs. Insurance Co., 35 An. 33.)

The wife, in this case, went upon the stand as a witness and testified to the indebtedness due by her husband to herself. Plaintiffs call our attention specially to what they conceive to be proof positive that she was not correct in some of her statements. They say she testified that a portion of the moneys received by her husband were applied to the payment of a debt due by him to one Broussard, while the tableau ,in the successions of her father and mother, declared to have been the source of the moneys so applied was not filed until long after the payments to Broussard were made, but an examination of the mutilated account found in the record (the same having been partially destroyed by the destruction of the court house in Abbeyville, by fire), shows that the heirs had received a portion of their shares before the filing of' theaccount, and, therefore, there is not the necessary inconsistency which plaintiffs allege. Plaintiffs complain that the wife did not produce as witnesses, on the trial, the different parties who turned over her paraphernal iunds to her husband. It certiinly would have been more satisfactory had she done so, but we can not say that, as matters stand, the judgment is not justified by the evidence. (Buford vs. Collins, 41 An. 644.)

The judgment appealed from is affirmed.


author: Breaux, J.

text:
    No. 11,886.
    State of Louisiana vs. Paul Gelpi.
    The statute requires that stores, shops, groceries, saloons he closed on Sundays. This includes defendant’s corporation.

      Ilona fide social clubs arc under the terms of the acts of incorporation, properly private and not exposed to the intrusion of any one.
    If there is as an incident a place set aside, selected for social enjoyment and refreshments, as in the ease here, it comes within the prohibition. Social clubs, sueltas defendant’s, areplaees of enjoyment,pleasure and improvement The statute excepts places of amusement with a proviso, which excludes the defendant club from the benefit of the exception.
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General; Charles A. Butler, District Attorney, and John J. Finney, Assistant Attorney, for Plaintiff, Ap-pellee.

      Joshua C. Baker for Defendant, Appellant
    Argued and submitted November 9, 1895.
    Opinion handed down February 24, 1896.
   The opinion of the court was delivered by

Breaux, J.

The defendant was charged with violating the statute requiring stores, saloons arid all places of public business to be closed, and forbidding the proprietors of these places and their employees from making any sales on Sundays. He avers that an incorporated social club is not a “place of public business;” that furnishing liquors and refreshments exclusively to the members at • graduated scale of prices, without view to profit, is not the occupation or employment the law intended to prohibit as a measure to secure to-employers and employees a day of rest and amusement.

The facts, as shown on the hearing of the demurrer, are that the corporation was established for the improvement of the members, and for social enjoyment and pleasure.

There is a place within the precincts of the club where liquors are distributed to the members only, and it is in evidence that on a. Sunday of a date given drinks were sold to members. The treasurer of the club testifies that the revenues of the club are all derived from the dues paid by the members and from the sale of liquors to them. That these revenues are applied to the payment of the expenses of the club, and that the’ sales are not made with a view to profit.

The demurrer was overruled, and the case was tried.

From the verdict and sentence condemning him to pay three hundred and one dollars (being the second conviction for a similar alleged offence) the defendant appeals.

It is not argued at the bar, on the- part of the State, nor do the facts show that the defendant club attempted to escape from the. effect of the law commonly known as the Sunday law.

We infer that the defence is a common defence, and that the' clubs, similar to the defendant, in good faith seek to obtain an authoritative interpretation of the statute, and a construction that will be accepted as determinative of the points presented.

In the first case, State ex rel. Walker & Merz vs. Judge, 39 An. 132, 141, this court held that the compulsory duty of rest in each week is a legitimate exercise of the police power, and from that point of view the court sustained the constitutionality of the law upon the subject.

In the second, State vs. Fernandez, 39 An. 359, it was held that the keeper of a grocery store in a public market was not exempt, under the exemption clause of the law.

In the third, State vs. Boston and Pickwick Club, 45 An. 585, the question related to the imposition of license, and this court held that, licenses were due by the clubs, although they did not follow a busi-. ness and were not public, and were secure from intrusion.

We do not discover that the decision here will necessitate overruling any of these decisions. We adhere to the principles they announce.

We experience no difficulty in reaching the conclusion that the defendant club is not a public place. The evidence shows that none’ but memb .rs are admitted. The public have no right there., 1

But this conclusion does not dispose of the case. There remains a question both difficult and perplexing.

Within the precincts of the club there is a saloon in which liquors, are sold to the members and business is carried on on Sundays the. same as on week days. As we understand, it is a bar, save that it is not open to the public. There is a barkeeper. He accounts to the treasurer for the receipts of the sales and they form part of the general revenues of the club. To this point there is no great difficulty in interpreting the nature of this business. But it is urged at the bar that the statute was not intended to apply to places not of public business and not conducted with a view to profit.

We eliminate from further consideration all questions regarding the privacy of the club and take up the second ground of the de-fence — that is that the club did not intend to realize profits from the sales. In so far as relates to the sales, profit is not essential to their validity. Many sales are made at a loss. Although these transactions had every element of sales, it is urged on the part of the defendant that the non-profit feature takes them out of the category of business and removes them from the prohibitive provisions of the statute.

Prom the Am. and Eng. Ency., we quote: “The question whether it is a business carried on for the purpose of profit or not is not, in my opinion, material. Even if it is not strictly a business, it is, at all events, ! in the nature’ of a business. But I am distinctly of the opinion that this is business within the terms and meaning of the covenant.” Vol. 2, p. 740, note.

Here there is a saloon in which articles of property are sold.

The law reads in substance, that licensed stores, shops and saloons shall close on Sunday. While there is no profit made the club finds its advantage in these sales. They contribute toward paying expenses. They are sales contributing to legitimate advantage, prosperity and welfare, and therefore not entirely without profit, although limited, in good faith, as stated at the bar.

Under the Constitution there can be no special privileges. If others are enjoined, however much they may choose to select their customers, and despite their declaration that they are not realizing any profit, the defendant also is enjoined.

Persons include corporations; a declaration of the former that no profit was contemplated in their business from the gross revenues of sales, only the payment of expenses, would not have the exempting effect claimed for the defendant corporation.

Considering the statute as a whole it is not possible to conclude that the merchant who sells goods, and, by reference to his books, shows that he gets no profits, barely subsists, and declares in the utmost good faith that he expects no net profits, is exempt from the intendment of the statute.

The construction favorable to such a position would result in the absolute defeat of the statute.

This construction would cause the statute to perish.

The rule is ut res magis valeat.

If the law admits of two interpretations, that is to be adopted which is agreeable to the fundamental or primary law.”

If the enactment of a statute was ill-advised, or if because of hasty legislation it should be remodeled or amended, these must be left to the legislative department, and not to judicial interpretation or construction.

We have'endeavored to deal.with the questions strictly as judicial questions. With us it must be a matter of interpretation, and, if needful of construction of the statute, other considerations may influence other branches of the government.

“ The courts have no other duty to perform than to execute the legislative will, without regard to their own views as to the wisdom or justice of particular enactment.” Sedgwick on Construction of Statutes, 2d Ed., p. 325.

It is therefore ordered, adjudged and decreed that the judgment is affirmed.

Mr. Justice Miller dissents.


text:
    No. 11,919.
    Chickasaw Cooperage Company vs. Police Jury of the Parish of Jefferson et al.
    The staves, heads and iron hoops for the barrel were manufactured in another State and shipped to plaintiff company in. this city.
    Here the component parts of the barrel are put together, and to it is given proper shape and finish.
    The hoops are flared or splayed so as to fit the bilge of the barrel.
    Under the authority of Cooperage Company vs. City et al47 An. 1314, the points being similar, the court holds that the barrels were not manufactured in this State, and, in consequence, plaintiff’s cooperage company is not exempt from taxation under the law exempting the capital, machinery and other property employed in the manufacture of furniture and other articles of wood.

      \ PPEAL from the Twenty-first Judicial District Court for the Parish of Jefferson. Rost, J.

      Rice & Montgomery and A. E. Billings for Plaintiff, Appellee.

      James David Coleman, Prentice E. Edrington, District Attorney, R. J. Perkins,. Jr., for Defendants, Appellants.
    Argued and submitted February 15, 1896.
    Opinion handed down February 24, 1896.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff claims exemption from taxation under the article of the Constitution which exempts from the payment of taxes the capital and other property employed in the manufacture of articles of wood.

The defendant answered, pleading a general denial.

From a judgment declaring the property, machinery and buildings of plaintiff exempt, the defendant appeals.

The facts are admitted that plaintiff’s principal business is in Memphis, Tenn., and it has a branch domiciled in this State, where plaintiff claims the barrels it sells are manufactured.

The evidence discloses that these barrels are of' wood with steel hoops. They are what are called tight barrels for holding oil, whiskey, molasses and other articles of commerce in a liquid state. The staves are manufactured at the central factory and cost delivered about twenty-six dollars per thousand. They are shipped, piled in cords or layers in the cars fitted to set up in barrels.

It takes eighteen staves to each barrel and eight iron hoops. After setting up the staves the package is steamed, the ends of the barrel are made tight by drawing the staves together, the bunghole is bored and the barrel is champered and howeled and the hoops driven home; the truss hoops are knocked off; it is then placed in a lathe, it revolves and a plane dresses the staves; the finishing hoop is put on with the hooper and the barrel is complete.

The hoops are received in straight strips of required length, each is passed through rollers and bent on the edge or margin and is thus lengthened on one side so that it may be driven down and made to take the shape of the protuberant part of the barrel. Before the rolling mill process of flattening and lengthening one of the margins of the hoop had been adopted, this work was accomplished by hand work; hammering with the hammer. From the record it appears that the cost of the barrel to the plaintiff is about one dollar and twenty-four cents, sixteen cents of which represents the cost and labor of preparing the hoop.

Oounsel for the plaintiff estimate the cost of the labor to each barrel at twelve per cent. The bungs are not manufactured at the factory. Adding the entire cost of the material and of the labor, it is evident that considerable of the one dollar and twenty-four cents, cost of the barrel, is to the credit of capital, or in other words, machinery, buildings and grounds occupied by the plaintiff.

The defendant in order to rebut plaintiff’s testimony introduced evidence of the operations of another coopering company; that the tax collecting authorities have treated as exempt from taxation.

This company saws the staves and heads, joints, dresses and binds them and puts them up in bundles to dry. They make the material complete to set-up as a barrel. The president of the company (the Union Stave Company) testifies that it does not require skilled labor to put up a barrel. The difference consists in the fact that the latoer makes the barrel, known as slack barrel in the market, for rice, sugar and other similar articles of commerce. They are made on the same principle, save the work is not as finished, the barrels are not air-tight, and are worth about thirty-four cents, each. He further testifies as follows, in regard to one of plaintiff’s barrels (brought in the District Court as a sample during the trial) before it is made complete at their shops:

Q. Please look at this barrel or these staves marked package ‘ A; ’ tell me what is necessary to be done to make a complete barrel?

“ A. I only consider that setting up a barrel.

“ Q. What is necessary to be done to this barrel package A, in order to complete a barrel like barrel marked package B ?’ What further manufacturing is necessary ?

“ A. I don’t know; I can not tell.

“ Q. You knowthere is a good deal of labor yet to be put upon it?

“ A. Some trimming.

“ Q,. Only trimming ?

“A. What else ? Yes, sir; trimming.

“ Q. Setting up the barrel and'finishing it out of the staves that is already manufactured ?

“A. That is all I call it.”

Two witnesses testified, viz.: the manager of the plaintiff company, for plaintiff, and the president of the Union Stave Company for the defendant.

The question is one chiefly of fact, and it devolved upon the plaintiff to show that the property was exempt from taxation.

In order to encourage activity and development in this State in the manufacture of needful articles and thereby adding to the value of the commonwealth, the law exempting designated capital was adopted. Oonstruing and interpreting the law, it has heretofore been held, as shown by the syllabus, which reads: “Articles hot manufactured in this State and carried in stock by the manufacturer with his articles manufactured here, although incidental to his business, are subject to taxation” Taylor Bros. Iron Works vs. City, 44 An. 555. A statute exempting manufactured articles does not exempt manufactured articles whether manufactured here or not. The material point in view of the article of the Constitution in question is that the article shall be manufactured here.

Plaintiff does not claim to be exempt because of the work performed on the material before it was received, but claims that the work it did perform here was a substantial part of the whole. The contention is not fully supported by the evidence.

Beyond question the material used had been prepared before it was shipped to the factory, and setting up the barrel and completing it in the manner described in our summary of the facts is not the manufacture of an article of wood. It was not putting into a new form, but it was the completing of the article by setting it in the manner intended when it was worked up in Tennessee into shape for use.

We quote from United States vs. Semmes, 41 Fed. Rep. 324, 326: “ Fortunately we have a very clear definition of the word ‘manufacture’ given to. us by the Supreme Court in a recent case. I refer to the case of Hartranft vs. Wiegmann, 121 U. S. 609, in which the court states that the mere fact of the application of labor to an article either by hand or by mechanism does not make the article necessarily a manufactured article within the meaning of that term as used in the tariff laws, unless the application of such labor is carried to such an extent that the article suffers a species of transformation and is changed into a new and different article having a distinctive name, character or use.”

'In a comparatively recent case this court held that one engaged in cutting and making coats and pants out of jean cloth which had been already manufactured by another is not a manufacturer.

It follows that one who sets up the component parts prepared for completing the barrel is not a manufacturer. When shipped to plaintiff it was a barrel nob set up, and the subsequent work on it was not the manufacture of a barrel. Cohn & Feibelman vs. Tax Collector, 41 An. 894.

But without reference to these cases our conclusion is rendered unavoidable by the reasoning of a recent decision. Brooklyn Cooperage Company vs. City et al., 47 An. 1314, 1316.

In that case'as here the material consisted of staves, hoops and headings.' The staves were dressed and jointed, ready for use. The hoops came prepared; they were of wood. The heating powers were Substantially the same, also the manner of completing the barrel at the machinery works. We reiterate: “We find no warrant to increase these exemptions based on the processes performed by plaintiffs upon the staves, hoops and headings already adapted to be shaped into the barrel by ordinary hard labor, for which plaintiffs substitute machinery.”

It-is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed and avoided, and plaintiff’s demand rejected at its cost.


text:
    No. 12,067.
    State ex rel. John Garvey, James O’Brien and Thomas Kelly vs. E. S. Whitaker, Recorder, el als.
    The record of respondent’s court disclosing that relators had been committed to the parish prison for a period of two thousand one hundred and sixty days, in default of their making payment of fines aggregating seven hundred and twenty dollars in amount for each and costs of prosecution, for violation of a city ordinance in committing a trespass upon one of the public parks of the city of New Orleans; and it further appearing therefrom that, upon, essentially, one complaint, the respondent has found them guilty of seventy-two distinct violations of one ordinance within one hour and forty minutes, each one of said offences succeeding the other, only one and one-half minutes intervening between the commencement of any two of them. Held: That such a penalty is an unusual and unreasonable punishment in the sense of the Constitution.

      /~\N APPLICATION for Writs of Habeas Corpus, Certiorari and Pro '^'hibition.

      John Q. Flynn for Petitioners.
    Submitted on briefs January 11, 1896.
    Opinion handed down February 24, 1896.
   The opinion of the court was delivered by

Watkins, J.

Relators represent that on the 29th of November, 1895, they were tried before the respondent, Judge of the First Recorder’s Oourt for the Parish of Orleans, on the charge of having violated Oity Ordinance No. 11,019 by destroying plants, etc., in one of th.e public squares. That after hearing evidence in said case the respondent found them guilty and sentenced them on seventy-two different counts to pay a fine of ten dollars, or in default of payment of said fine to imprisonment in the parish prison for a period of thirty days on each and every count, making a total fine inflicted on each and every one of relators of seven hundred and twenty •dollars, or in default of payment of said fine imprisonment in the parish prison for a period of two thousand one hundred and sixty days; nearly six years.”

That all the evidence elicited was such as had been adduced on the trial of the first affidavit. That at the same time and on the same evidence, which was taken down in short-hand at the said trial and constitutes a part of the record, the respondent committed your relators to the Criminal Court on a single charge which was subsequently disposed of, etc.

Relator further avers, “ that the offence charged was continuous and could not from its very nature have been divided into a number of offences.

That the evidence on the trial of the cause did not warrant the separation and division of the charge in the manner and form adjudged by the respondent. That the commitments charge your re-lators with having committed these different offences, seventy-two in number, at an interval of one and one-half minutes between each and every offence. That the evidence did not, and does not, show any such condition of things, and said specific demarcations of time and division and subdivisions, of the charge were the result of illegal, arbitrary and unjust action of the (respondent) judge, unwarranted either in law or by the facts of the case,” as shown by the evidence at the trial.

Relators aver that there is no appeal from the respondent’s decree, and they can only obtain relief by invoking the supervisory powers of this court. That they have been deprived of their liberty without due process of law. “ That the fines inflicted are excessive and the punishment cruel and unusual, and beyond the power and authority of a court of limited jurisdiction,” such as that of the respondent; and that same are violative of the provisions of Arcs, six (6) and nine (9) of the Oonstitution of the State.

That no city ordinance authorizes the imposition of a greater penalty for a violation thereof than a fine of twenty-five dollars, nor imprisonment in the parish jail for a greater length of time than thirty days; and that the respondent could not pronounce sentence under any municipal ordinance a greater penalty against the re-lators than the law allows.

Relators further aver that they were unrepresented in respondent’s court, but that they made due and timely protest against his arbitrary and unprecedented proceedings; and their prayer is for relief by means of certiorari and habeas corpus. And finally that, upon due examination, the judgment of the respondent be pronounced nu‘1 and void, and they be discharged and set at liberty.

The respondent has made no return, and we are, consequently, not advised of his views on the questions relators have propounded to us for our consideration and decision.

The record shows that on the 29th of November, 1895, the respondent issued a mittimus to the chief of police of the city of New Orleans, and to the sheriff of the parish of Orleans, commanding him to convey the relator, Tom Kelly, to the parish prison, there to be kept and detained until he shall pay a fine of ten dollars, or until he shall have been imprisoned for thirty days.

That mittimus is based on a judgmert of the respondent finding Tom Kelly guilty of having violated Ordinance No. 11,019, on the 8th of. November, about 10:20 o’clock p. m., on Annunciation, between Race and Orange streets.

On the same date another and precisely similar mittimus was issued by the respondent commanding the incarceration of Tom Kelly in the parish prison on the same conditions — the only difference between it and its predecessor being that the time of the violation is stated to have occurred at “about 10:2114 o’clock p. M.;” just one and one-half minutes later than the former.'

Another mittimus of precisely the same tenor was issued on the same date, placing the hour of the alleged violation at “ about 10:23 o’clock F. m. just one minute and one-half later than the one previous.

And upon the same date the respondent issued sixty-nine additional mittimuses of exactly similar import as those just described, each one of which only differing from its immediate predecessor one and one-half minutes in respect to the time of the violation of said city ordinance; so that the last one of the total of the seventy-two offences was alleged to have been committed at “ about 12:7 o’clock A. m.” on the 9th of November, 1895 — all the said offences having been committed between 10:20 P. M. and 12:7 a. m., within one hour and forty minutes consecutively.

Against the other two relators, Joseph O’Brien and John Garvey, respectively, the respondent issued seventy-two exactly similar mittimuses, commanding their imprisonment in the parish prison under exactly similar conditions as those above described.

It is thus conclusively established by the record that the three relators were found guilty by the respondent of seventy-two distinct violations of one city ordinance within the brief space of one hour and forty-seven minutes, each offence having been committed only one-and one-half minutes subsequent to its predecessor; and, under one single judgment, each one of the relators has been adjudged and condemned to pay the aggregate amount of seven hundred and twenty dollars in fines, and to suffer alternate imprisonment of two thousand one hundred and sixty consecutive days.

The mandate of the organic law is that excessive fines shall not be imposed, nor cruel and unusual punishments inflicted.” Const., Art. 9.

The foregoing is an exact reproduction of the eighth amendment to the Constitution of the United States, and relators invoke the protection of that constitutional provision.

In State ex rel. Schoenhausen vs. Judge, 47 An. 701, a very similar question arose, involving the legality of the respondent’s decree sentencing the relator to sundry penalties of fine and imprisonment for a number of consecutive contempts of an order of his court.

The opinion states that “ at one and the same time ” eight rules were taken to punish for contempt, each rule assigning the violation of the injunction on a particular night of the period of the opening. Each rule was made absolute, imposing a penalty of ten ■days’ imprisonment, so that beginning with the first ten days the remaining terms of imprisonment were to be inflicted until the -petitioner had been confined eighty days.

“ The application raises the question whether it was competent for the lower court to sentence the petitioner on those eight rules, the sentences all pronounced |at the same time, to eighty days’ imprisonment.”

And in passing on that question the opinion says: “ When the power of the court is invoked to punish for contempt for conducting a saloon contrary to the laws and the injuction of the court, the court is called upon to inflict the appropriate penalty, not to exceed the maximum of ten days. If it is .competent to divide the ■offence of conducting a saloon in disregard of the law into parts corresponding with the number of nights the saloon has been opened, and thus authorize eight sentences of ten days each, pronounced at the same time, on eight different rules, there w'ould be no potency in the law fixing the maximum penalty for contempt at ten days’ imprisonment. 0. P. 131.

“The same theory of dividing the offence into parts might be extended to the hours of the days of the opening, treating each hour as a distinct offence, and thus sanction an indefinite and prolonged imprisonment, notwithstanding the limitation of ten days in the Code.”

In our opinion we held that that was a proper case to grant relief; and we. annulled the order of imprisonment beyond the first period of ten days and discharged the relator, who had already endured the full time of ten days’ imprisonment under the respondent’s order of contempt.

A somewhat parallel case is found in the Supreme Court reports, entitled O’Neil vs. Vermont, 144 U. S. 323.

A- complaint having been made before a justice of the peace against the plaintiff in error, for a violation of a Vermont statute against selling or giving away spirituous or malt liquors, by the terms of which “every distinct act of selling,” etc., was declared to be a separate and distinct offence which was made punishable by fine, the justice, upon the proofs presented, entered up judgment against him for four hundred and fifty-seven offences, and decreed him to pay the sum of nine thousand one hundred and forty dollars in fines, and four hundred and seventy-two dollars and ninety-six cents in costs of prosecution, and to be confined at hard labor in the house of correction for the term of one month; and, “ that in case such fines and costs should not be paid on or before the expiration of said term of one month’s imprisonment, he should be confined at hard labor in the house of correction for the further term of twenty-eight thousand eight hundred and thirty-six days, to be computed from the expiration of said term of one month’s imprisonment.”

The judgment of the county court affirmed the judgment which was rendered by the justice of the peace, slightly reducing the figures ; and its judgment was affirmed by the State Supreme Court.

Complaint was made in that court that the punishment was “ cruel and unusual ” within the sense of the Constitution of the State of Vermont; but that court held that if the plaintiff in error had been “ subjected to a severe penalty, it was simply because he has committed a great many such offences. * * *

“The mere fact that cumulative punishments may be imposed for distinct offences in the same presecution is not material upon that question. If the penalty were unreasonably severe for a single offence, the constitutional question might be urged; but here the unreasonableness is only in the number of offences which the respondent has committed.”

In the Supreme Court of the United States a majority of the justices were of opinion that no Federal question was involved, and consequently the court was without jurisdiction, the provision of the eighth amendment to the United States Constitution only .having reference to the courts of the United States; but four of the justices dissented, and Mr. Justice Field, speaking for the'others, said:

“The accusation describes only a single offence; yet by the addition of the words at divers times,’ that document is held to justify a trial and uphold a conviction for three hundred and seven distinct offences, only one of which is set forth in the accusation * * * all the others being brought within it by the use of those words.

“ The punishment was one exceeding in severity, considering the offences of which the defendant was convicted, anything which I have been able to find in the records of our courts for the present century.”

It is evident that the Supreme Court of Vermont would have been of the same opinion as the dissenting justices of the United States Supreme Oourt were had they entertained the same opinion that three hundred and seven distinct offences had been cumulatively charged against the complainant in substantially one accusation.

But in any event that decision serves to forcibly illustrate the ■ unusualness and severity of the punishment the respondent has inflicted upon the relators in the proceedings complained of.

But we are of the opinion that considering the offence to have been a continuing one, as in the case stated by the Vermont court, the severity and unusualness of the punishment which was inflicted upon relators is even more apparent than in the case of Schoenhausen or O’Neil, because the respondent found the relators guilty of seventy-two offences within the space of one hour and forty minutes, each offence embracing only one and one-half minutes and one offence following after the other immediately and consecutively.

If this theory of punishment by the respondent be affirmed as legal it would be equivalent to recognizing his power to sentence an individual to an indefinite period of imprisonment in default of paying exorbitant or numerous fines for the simple infraction of a city ordinance.

We think it manifest that relators are entitled to relief under the writ of certiorari, they having suffered imprisonment since the 29th of November, 1896.

It is therefore ordered and decreed that the sentence to pay a fine in excess of twenty-five dollars and to suffer alternative imprisonment in excess of thirty days was illegal and void and violative of the provisions of Art. 8 of the Constitution of the State; and it .is further ordered and decreed that the relators be discharged from custody, and that the respondent be taxed with costs.


author: WATKINS, J.

text:
    No. 12,062.
    State of Louisiana vs. Baker Smith.
    A complete foundation has been laid for the introduction of dying declarations in evidence by making proof that the attending physician had told the deceased that his wounds were dangerous; that the deceased had stated that he was going to die; that at the time of -making his statement his extremities were-cold, and shortly afterward he died.
    The evidence objected to as nev> evidence not in rebuttal not being before us, we-must accept the trial judge’s statement that it was not, and sustain his rulings-conformably thereto.
    A PPEAL from the Seventh Judicial District Court for the Parish’ of East Carroll. Montgomery, J.

      M. J. Cunningham, Attorney General, and Joseph E. Bansdell.,, District Attorney, for Plaintiff, Appellee.

      Clifton F. Davis, John B. Stone and H. P. Wells, Jr., for Defendant,. Appellant.
    Submitted on briefs February 15, 1896.
    Opinion handed down February 24, 1896.
   The opinion of the court was delivered by

WATKINS, J.

Baker Smith and George Smith were jointly indicted’ on a charge of murder, and a severance of trial having been granted,, and the former having been tried and convicted of manslaughter and sentenced to twenty years’ imprisonment at hard labor in the State-penitentiary, he has appealed.

I.

The first bill of exceptions was by defendant reserved to the testimony of one witness as to certain statements of the deceased as his. dying declarations, on the ground that a proper foundation had not-been laid for their introduction.

The statement of the trial judge is, that the proof furnished by another witness who had previously testified on the same subject in. behalf of the State showed that the deceased had said to him, that, he was going to die.

That the witness to whose testimony objection was taken said that, at the time of the deceased making his statement, his hands, and feet were cold, and there was every sign of impending death. That the' attending physician had previously testified that the deceased was shot through the breast, and that he had informed.him. that he was very dangerously wounded.

That all the proof showed that the death of the deceased occurred within one hour after the statement he made to the witness whose evidence is in question.

On this summary of the evidence the judge relied in holding that a proper foundation had been laid, and we think his judgment was well founded. State vs. Keenan, 38 An. 660; State vs. Scott, 12 An. 274; State vs. Newhouse, 39 An. 862; Whar. Crim. Ev., Secs. 282, 286; 1 Bishop Crim. Proc., Sec. 1212.

II.

The second bill relates'to the refusal of the judge to sustain defendant’s objection to certain questions which were propounded by the District Attorney to his witness while under examination.

The statement made by defendant’s counsel in the bill is that on the cross-examination of one of his witnesses she was asked if she had not heard one Hannah Hamilton remark the day after the shooting occurred that she also had been shot at the time the accused shot and killed John Giles, for the murder of whom the de - fendant was indicted; and that to this testimony counsel had urgéd the objection that the witness had not been questioned on that point in his examination-in-chief, and that it did not serve to explain anything brought out in the direct examination of the witness, nor to test the credibility of the witness — the judge remarking at the time that “the District Attorney had the right to find out all the witness knew.”

The judge assigns as the reason for overruling the objection that the question asked was, in his opinion, in rebuttal of the evidence of Hannah Hamilton, which had been offered by the defence to the effect that she had been shot in the fight between'the accused and the deceased. That the witness whose testimony is in question had testified relative to all, or nearly all, the circumstances of the killing, and the cross-examination was, in (his) opinion, intended to test the credibility of the witness, and the objection was overruled for that reason.”

Taking all the statements together, there is nothing to show that the testimony objected to was not íd rebuttal of the testimony in. chief; and this being so, the objection disappears. State vs. Boswell, 45 An. 1158.

III.

The third bill relates to certain evidence which the State offered in rebuttal, but which defendant’s counsel claims was testimony in chief.

The statement of the defendant is that the State offered to show that certain pistol balls belonged to George Smith, the brother of the accused, who is jointly indicted, and that he objected to same on the ground that he had offered proof only to the effect that the pistol balls were of the same kind as those the deceased had at the time of the Wiling, and not to prove that he was the owner of them.

And the statement of the judge is that the objection was overruled because the pistol had been offered in evidence by the defence, and much evidence had been introduced concerning the same, and with reference to cartridges, also, which were said to have been found on or near the deceased, the tendency of which was to prove that the pistol belonged to the deceased.

The complaint of defendant’s counsel chiefly is that the ease having been closed on the part of the accused, the ruling of the court imposed upon him a great hardship from the effect of which he is entitled to be relieved; but in the light of the judge’s statement we can not view it in that way. The question of the ownership of the particular pistol balls may not have been gone into by the defence; but it *s quite evident that questions of a closely kindred nature have been explored, the object of which was to place the matter in doubt as to the party using them. In response it was a proper in - quiry to ascertain their ownership.

IV.

The fourth bill relates to the declination of the judge to permit the defendant to introduce additional testimony in reference to the pistol balls, after the State had closed her evidence in rebuttal, and had submitted the case — said evidence relating to the size and shape of the balls, and to the general effect that same could not have been reasonably used by the accused in the pistol which had been exhibited to the jury.

In his statement, the judge recapitulated the facts adduced to the effect that the pistol to which the cartridges in question belonged was that owned by George Smith, the brother of the accused on trial and his co-defendant; and hence, in his opinion, the evidence referred to was strictly in rebuttal, as stated and explained in the previous paragraph, and the defendant was not entitled to reopen the question after the case had been closed, on the theory that this was new evidence.

Our examination of this case has satisfied us that the trial judge has committed no error in the rnlings he made.

Judgment affirmed.


text:
    No. 12,023.
    S. Levy and L. M. Carter, Syndics, vs. A. R. Thompson, Sheriff, et als.
    A probate sale only divests mortgages which have been imposed upon the property by the deceased, and not those which have been imposed upon it by his vendors; and no greater right can be affirmed of a sale made by a syndic of an insolvent’s estate.
    A holder of a mortgage first in rank, which was granted by the vendor of the insolvent. may proceed by seizure and sale in its foreclosure, disregarding a previous order of sale, granted in favor of the syndic of his mortgagor’s vendee.
    Under the provisions of Act 50 of 1886 actual damages resulting may be awarded in the suit in which the injunction has been dissolved.
    A PPEAL from the Second Judicial District Oourt for the Parish of Bossier. Watkins, J.

      A. H. Leonard, F. G. Thatcher and D. T. Land, for Plaintiffs and Appellants.

      Wise & Herndon, for Defendants and Appellees.
    Submitted on briefs January 22, 1896.
    Judgment handed down February 10, 1896.
   The opinion of the court was delivered by

WATKINS, J.

Plaintiffs enjoined the sheriff from proceeding with the execution of an order of seizure and sale in the foreclosure of a first mortgage on property in their possession as the syndics of the creditors of the insolvent, S. J. Zeigler, on the following grounds, viz.:

.That by the cession and surrender of the insolvent, and the acceptance thereof by the judge, the District Court of Caddo parish acquired complete jurisdiction over the property; and that in pursuance of the recommendations of a meeting of the creditors of the insolvent, that court granted an order for the sale of all the property surrendered on the 30th of July, 1894; and that conformably to that order a writ of sale was issued and placed in the hands of the sheriff, and the property was seized and advertised for sale.

That for good and sufficient reasons ” the sale was postponed by the-syndics.

Petitioners aver that the court of Caddo parish having first acquired jurisdiction of said insolvency and of the property surrendered, and having issued an order for its sale, the subsequent order of seizure and sale in behalf of a mortgage creditor is absolutely null and void for want of jurisdiction.

The answer of the defendant Thompson is that he is not a creditor of the insolvent, Zeigler, and, for that reason, was not bound by his cessio bonorum; but he avers that he is a creditor of S. W. Vance, whose indebtedness to him was secured by a mortgage upon his property, which has been since conveyed cum onere to Zeigler.

That this mortgage contains the stipulation of the pact de non alienando, and imports a confession of judgment, and that these provisions of the act entitle him to proceed against the mortgaged' property in whatsoever hands the same may be found without reference to any alienation thereof.

That he has not had any notice of the proceedings in the insolvency of Zeigler, and has a right to proceed without any reference thereto.

He prays for the dissolution of the injunction with seven hundred and fifty dollars damages, for this, viz.:

For attorneys’ fees five hundred dollars, and two hundred and fifty dollars general damages for the delay and loss of time in the collection of his debt.

On the trial there was judgment in favor of the defendants, dissolving plaintiffs’ injunction, and condemning them to pay the sum of four hundred and twenty-eight dollars damages for the wrongful issuance of the writ.

The case Was submitted and decided upon the following agreed statement of facts, viz.:

That on the 19bh of June, 1891, S. W. Yance executed a mortgage upon the lands in controversy in favor of Norman F. Thompson, of New York, the act containing the stipulation of the non-alienation pact.

That subsequently Vance mortgaged the same property'to S. J; Zeigler, the act containing the non-alienation clause also.

That subsequently S. Levy became the owner of the second mortgage notes which were issued to Zeigler and foreclosed the mortgage, and purchased the property at sheriff’s sale.

That 8. Levy then conveyed the property back to Zeigler, who thereafter continued to be the owner, and it was embraced in the schedule of his assets which was filed on the third of July, 1894.

That on the 14th of July, 1894, a meeting of the creditors of the insolvenc was invoked, and they recommended a sale of all the real estate which.had been surrendered, directing that all property mortgaged should be sold upon the terms and conditions specified in the mortgage acts.

That conformably to said recommendations an order of sale was granted by the judge directing the sale to be made by the syndics, and a commission was duly issued and the sales were advertised to take place on December 1, 1894.

That the sale was postponed by the syndics, and they have retained' the aforesaid commission, the sale order remaining un-revoked.

That the property was seized by the sheriff under a writ of seizure and sale taken out by Thompson on the 23d of March, 1895, under an order of seizure and sale which was granted on the 14th of March, 1895.

That prior to the order of sale in the ¡insolvency of Zeigler the children of Zeigler brought suit in the parish where part of the property is situated to recover one-fourth interest therein, and this-suit is still pending and undecided.

Under this state of facts we’are to determine whether the writ of seizure and sale was legally issued.

It did unquestionably, unless the power to order a sale had been exhausted by the allowance of the previous order of sale in the insolvency of Zeigler.

The seizing creditor, Thompson, was not a creditor of the insolvent, and was neither party or privy to the insolvency proceedings of Zeigler.

His mortgage was granted by Vance, who subsequently mortgaged the same property to Zeigler.

Each of those acts contained the pact de non alienando.

Thereafter Levy acquired the mortgage notes last secured, foreclosed, purchased and conveyed to Zeigler, retaining a mortgage.

Zeigler surrendered the property, and the syndics procured an order for its sale.

It has been repeatedly held that a probate sale of succession property only divests it of the mortgages which have been imposed upon it by the deceased, but not those which had been imposed upon it by his vendors. Johnston vs. Bell, 6 N. S. 384; Swindler vs. Peyroux, 5 La. 468; Succession of Triche, 29 An. 384; Powell vs. Hayes, 31 An. 789.

Certainly no greater power can be affirmed to exist in the syndic of an insolvent.

On this view of the law a sale made by the syndic under the order granted in the insolvent proceedings would not have the effect of divesting the defendant’s mortgage; and it follows, necessarily, that he had a right to proceed with the seizure and sale of the property, ■ disregarding the order in the insolvency altogether.

The right of such a mortgage creditor to proceed, by executory process, against the succession representative of his deceased debtor, during the period of administration, is well recognized; and there is ample authority in our jurisprudence for an executory creditor to procure an order of seizure and sale after an order of sale has been obtained in the succession, under exceptional circumstances.

A familiar illustration of this sort is found in Succession of Adam Thompson, 42 An. 119, wherein all of the authorities pro et eon are collated.

But as the question presented in the instant case is dissimilar, we need not go over the authorities again. We consider it of no practical importance that the creditors of the insolvent ordered sale to be made on precisely the same terms as those contained in Thomp - son’s mortgage, inasmuch as we are of opinion that a sale made under the order in the insolvency would not discharge his mortgage. Troendale vs. DeBouchel, 33 An. 753; Succession of Vancourt, 11 An. 334.

We are of opinion that the judge a quo correctly dissolved the plaintiff’s injunction.

The allowance of four hundred dollars attorney’s fees is ample.

The controversy was not an animated or protracted one, and the mortgage provides for attorneys for the collection of the debt.

We must decline to increase that allowance.

The twenty-eight dollars allowed cover the expenditures.

Such damages are in their nature actual and do not come within the purview of G. P. 804.

They may be awarded in the injunction suit. Act 60 of 1886.

Judgment affirmed.


author: Wateins, J.

text:
    No. 11,904.
    Mrs. Jennie B. Fenn vs. Union Central Life Insurance Company.
    In case an insurer and insured agrhe tliat the latter may give and the former will accept notes for the first annual premium on a policy of life insurance, payable in. instalments, and that the default of the maker in paying any one of them at maturity should operate as a revocation of the policy, default on the part of the insured makes the contract void ipso facto, both as to the insured and the beneficiary.
    The rights of a beneficiary in a life insurance policy are purely derivative, and altogether dependent upon the terms and conditions of the contract. He can insist upon the integrity of the contract being preserved and maintained in statu quo. Nothing more. He can not claim the right to be placed in a better position than the insured has placed himself.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      DinJcelspiel & Hart and-James J. MeLoughlin and Frank MoGloin for Plaintiff, Apellant.

      Fenner, Henderson & Fenner for Defendants, Appellees.
    Argued and submitted February 13, 1896.
    Opinion handed down March 9, 1896.
   The opinion of the court was delivered by

Wateins, J.

This suit is brought by the beneficiary named in a life insurance policy for the recovery of five thousand dollars on a contract of life insurance, and from a judgment in favor of the defendant the plaintiff has appealed.

Resistance to the plaintiff’s demand, as stated in defendant’s answer, is that notwithstanding the policy of life insurance was executed in due form and duly delivered to the insured, “ it was not in force at the date of (his) alleged death on the 30th of December, 1893.

“That the said policy was, at the time, absolutely null and void, and of no effect for this, to-wit: that the said policy was issued in terms upon its face, in consideration of the payment, when due, of any and all notes given for premiums or parts of the same, and contains upon its face the express stipulation that the failure upon the part of the insured to pay any of the first three annual premiums or notes, or interest upon notes, given to the company for any of said premiums on or before the days upon which they may become due, at the office of the company in the city of Cincinnati, 'or to the authorized agent on producing a receipt therefor signed by the president, vice president or secretary, should avoid and nullify the policy without action on the part of the company or notice to the assured or beneficiary; and all payments made upon said policy shall be deemed earned as premiums during its currency, and the further stipulation that all notes given- for premiums, with their conditions, were made a part of the contract,’’ etc.

That Oharles J. Eenn, the insured, “in payment of the first annual-premium upon the said policy, gave four certain promissory notes, all dated on September 15, 1893,” — contemporaneously with the date on which the policy was executed — and each one of which contained “upon its face the express stipulation that the policy in part payment of the premium on which it was given, should, without notice to any of the parties interested therein, be null and void on the failure to pay the note at maturity, etc.

That each of the notes contained the further stipulation “ that, in ease the note was not paid at maturity, the full amount of premium should be considered earned as premium during its currency, and the note payable without reviving the policy or any of its provisions.”

That at the time of the death of the insured the note for twenty-four dollars and fifty cents was past due and unpaid, and “the policy was thereby rendered null and void and of no effect.” (Our italics.)

We have made from the answer the foregoing extracts as clearly expressing the theory on which the insurance company seeks to establish its non-liability on its contract, and we take the following to be an accurate synopsis of it, viz.:

1. That it appears upon the face of the policy and from the terms therein employed that it was issued in consideration of certain notes which the insured gave in payment of the first premium.

' 2. That upon the face of the policy it is stipulated that the failure to pay any of the first three annual premiums, or notes give .1 for premiums, on or before their maturity, “ should avoid and nullify the policy without action on the part of the company, or notice to the assured or beneficiary.

3. That “in payment of the first annual premium upon said policy,” the insured executed four notes, one of which was due and unpaid at the time of the death of the insured; and that each of said notes contained the stipulation that, upon failure of the insured to pay at maturity, the policy should be revoked and annulled ipso facto, and without notice to him or the beneficiary.

4. That each note contained the further stipulation that in case any of the notes should not be punctually paid at the maturity thereof, “ the full amount of premium should be considered as earned as premium during its currency, and the note payable, without reviving the policy or any of its stipulations.”

Manifestly, the defendant’s contention is that the failure of the insured to pay. one of the four notes, which he gave in payment of the first premium, resulted in the annulment, ipso facto, of the policy, without action on the part of the insurance company, or notice to the beneficiary; and not that the policy had not been regularly executed and issued, and delivered into the possession of the insured for the benefit of the beneficiary.

It is equally evident that, ’ in support of the alleged revocation of a previously existing and valid policy, the defendant solely relies upon the/ace of the policy and the terms thereof, and those of the notes of the insured.

On the contrary, the contention of the plaintiff is that there is nothing in the recitals of the policy to indicate that the insured gave notes in payment of the first annual premium; that she had no knowledge or notice of, their existence, and is in no way bound by the stipulations thereof, and has a right to rely upon the policy as the beneficiary therein named, and to insist upon the company’s performance of its obligations therein contained, as stipulations pour cmtrui, of which she claims the benefit.

There is no controversy as to the facts. They are admitted by the plaintiff to be as stated; but her counsel objected to the introduction in evidence of the notes of the insured, or any statement in reference to them, on the ground that same are not binding upon her as beneficiary, representing as they do transactions between the company and the insured, to which she was neither a party or privy. That while there was a blank space on the notes expressly reserved for her signature, the same was never signed by her as beneficiary; and that the same had never been presented to her for her signature. That the policy acknowledges the receipt of the first premium by the company, and declares that the failure to pay any particular note does not annul or avoid the same; and that the company alleges the default of the insured “ and claims as the debt of the insured the amount of the unpaid notes.” That if the effect of the evidence would be to destroy the contract of insurance, the evidence is further inadmissible on the ground that a contract can not be created and destroyed by the same act. That while the notes and the evidence of the default of the insured may be binding and conclusive between the insured and the company, same can not have any effect upon the rights of the plaintiff as beneficiary.

In connection with the notes of the insured the defendants’ counsel offered in evidence the company’s receipt which is annexed to the policy. To this offer the same objections were urged.

The court ruled that the objections went to the effect which is to be given to the testimony, and not to its admissibility.

We think the ruling was correct, as it is always the better practice to admit testimony rather than to reject it, as by this means the court is placed in possession of all the facts, and is thereby frequently aided in arriving at a juster and more accurate conclusion than it could otherwise have done.

Having premised this much, we are prepared to examine and consider the terms of the insurance company’s engagement.

The policy provides that the company insured the life of Charles J. Fenn in the amount of five thousand dollars for the term of his natural life, and upon the death of the insured it agreed to pay that sum to Jennie B. Fenn his mother or to her legal representatives, the balance of the year’s premium, if any, and all other indebtedness to the company being deducted.

It provides further, that “ in case the insured dies while the said term policy is in force the amount of foreborne premiums shall be * * * deducted from the sum insured.”

Upon the reverse of the policy are endorsed certain conditions and agreements, from which we extract the following, "Tiz.:

1. “ This policy shall not be valid and binding until the first premium. is paid to the company or its authorized agent, and the receipt hereto attached countersigned by the company’s agent, and delivered during the lifetime of the assured; and all premiums or. notes, or interest upon notes given the company for premiums, shall be paid on or before the days upon which they become due,” etc.

8. “ Upon the violation of any of the foregoing conditions this policy shall be null and void without action on the part of the com-' pany, or notice to the insured or beneficiary, and all payments made herein * * * shall be forfeited to the company,” etc.

As if to make “ assurance doubly sure,” the following general stipulation is appended at the foot of the said “ conditions and agreements,” viz.:

“The contract of insurance between the parties hereto is completely set forth in the policy, and the application for the same, nor is any forfeiture under it waived save by an agreement in writing, signed by the president,” etc.

The receipt annexed to the policy contains the following recitals, viz.:

“ Received ninety dollars and fifty cents, being the first premium upon policy number one hundred and nine thousand five hundred and eighty-one, issued upon the life of Charles J. Fenn, continuing said policy in force to the 15th of September, 1894.

This receipt is subject to the conditions of any and all notes which have been given, or may be given, for the amount of said premium, or any part thereof,” etc.

It was signed by the secretary and countersigned by the local agent of the company, and became an essential part of the contract of insurance. Thereupon the policy was delivered to the insured, and the rights of the beneficiary named in the policy attached; but they attached subject to the conditions and limitations imposed by the terms and the conditions of the contract and the receipt.

The policy, receipt and notes must be deemed and treated as parts of the same engagement.

They are of contemporaneous date, and each one refers to the other. Isador Bush & Co. vs. Wolf, 48 An.

The rights of a beneficiary in a policy of life insurance are derivative, and altogether dependent upon the terms and conditions of the contract. He can insist upon the integrity of the contract being preserved and maintained in statu quo; but he can not claim the right to be placed upon a better footing than the insured has placed himself.

In the instant case the insurer and insured consented and agreed that the latter might give, and that the former would accept, time notes for the first annual premium, in instalments; and that the default of the maker in paying either at its maturity should have the effect of resolving the contract and avoiding the policy.

Of that option the insured availed himself, and afterward failed to pay the note first maturing, and in that situation he died.

On' this state of facts the policy became null and void, ipso facto with regard to the insured and the beneficiary.

Judgment affirmed.