the application for the certificate as Georgie Jackson Rayne. There can be no question that the plaintiffs are the legitimate children and heirs of their mother, and that their mother was the only wife of Benjamin O. L. Rayne. This suffices to clear away any uncertainty that might result from this variation in the name of the beneficiary, since she is further designated in the certificate as the wife of Benjamin O. L. Rayne.

Another defense is that, after issuing the certificate the American Legion of Honor adopted a by-law by which all policies of $5,000 issued by it should be reduced to $2,000, and that this has had the effect of reducing accordingly the amount of this certificate. The simple answer to this is that the policy is a contract, and could not be changed by one of the parties without the concurrence of the other.

It is claimed that Rayne paid the assessments after the reduction, and that this was an acquiescence in the reduction. The proof is that he protested against the reduction, and invariably with great care tendered the full amount that would have been due if the reduction had not taken place. What more could he have done as a protest against the reduction?

It is also claimed that Rayne agreed to abide by and be governed by all the by-laws of the defendant then existing or that might thereafter be adopted, and that, the reduction having been effected by means of a change in the by-laws, the same is binding on Rayne under the express terms of his contract. This identical question was passed on by the Supreme Court of Massachusetts in the case of Newhall v. Supreme Council American Legion of Honor, 63 N. E. 1, and by the United States Circuit Court of Appeals for the Eighth Circuit (Mo.) in the case of Knight Templars' and Masons' Life Indemnity Co. v. Jarman, 104 Fed. 638, 44 C. C. A. 93. Were we to discuss the question, we should merely repeat what is there said so well. The decisions are all the more satisfactory from the fact that the one is from the court of the home of the defendant, and the other from one of the national courts. Summing up the law on this point, Niblack on Benefit Societies, p. 39, has the following: "By-laws cannot be permitted to destroy or amend the express provisions of a contract of insurance without the consent of the member."

The cases cited by the defendant, if scrutinized, will be found not to be opposed to this. In Stobr v. St. Francisco Musical Fund Society, 82 Cal. 557, 22 Pac. 1125, and Poultney v. Bachman, Treasurer, 31 Hun, 49, and in numerous other decisions of which these are types, the plaintiff had no claim except under and by virtue of the by-laws, and the right was expressly reserved "to repeal, alter, or amend" the by-laws. In the language of the court in the Stohr Case: "The plaintiff can have no right to have the contract

remain unchanged, because, as we have seen, the contract itself provides that it may be changed." In the other cited cases, of which Daughtry v. Supreme Lodge of Knights of Pythias by this court (48 La. Ann. 1203, 20 South. 712, 55 Am. St. Rep. 310), is a type, the right to forfeit the policy of a member for committing suicide is put by the court upon the ground of the inherent right of a mutual benefit association to make such "a police regulation in the interest of the discipline and welfare of the endowment rank." It was a regulation for the conduct of the members, and the member had agreed in advance to be bound by all such regulations that might be made. Here precisely lies the point of distinction between that line of cases and the instant one. In the present case the change is not a matter of the regulation of the conduct of members, but is a change in the contract, irrespective of the conduct of the member. The principle of those cases is not to be carried over into cases like the instant one. This is clearly pointed out by the court in the Daughtry Case, as appears from the following excerpt, with which we shall conclude this opinion:

"Orders like the defendant association have multiplied in recent years. They are organized for the mutual benefit of the members, taking care of the sick and afflicted in life, and providing for the family of the deceased member after death. Rules and regulations, a constitution and by-laws, are enacted for their government. Every member who joins one of these orders does so with full knowledge of its laws and usages. He is bound by the constitution and by-laws, and subjects himself to their discipline in order to receive the benefits conferred by the order. There can be no law or regulation enacted after his membership that would destroy the benefit agreed to be conferred upon him by the laws and regulations in force at the time he joined the order. His contract of insurance could not be abridged or violated without his consent. But provision is made in the constitution for its amendment, and we see no reason why the members of an association of this kind cannot, like the body politic, change its laws, enact new ones, and discipline its members by police regulations."

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

No. 14,820. STATE v. BROWN.

(110 La. 591)

(Supreme Court of Louisiana. May 11, 1903.) PERJURY-INDICTMENT-EVIDENCE-VER

DICT-AUTREFOIS ACQUIT.

1. The defendant was charged with having sworn feloniously, willfully, falsely, and cor*Rehearing denied June 22, 1903.

1. See Perjury, vol. 39, Cent. Dig. § 92.

ruptly in a civil suit in which he testified as a witness. Upon his trial on the charge he ob jected to testimony offered to prove that he was aware at the time that the matter to the truth of which he had sworn was false. The trial court excluded the testimony at instance of defendant on the ground that the defendant was not charged with having testified, as before stated, knowing that his testimony was false.

The ruling of the trial court is correct. Scienter enters into the definition of perjury, and should be expressly charged. The indictment should not leave it to be implied that defendant knew that he was swearing to a false fact at the time he testified.

2. In thus holding the court does not wish it to be inferred that the interpretation of the stat ute requiring that it shall be sufficient to set forth the substance of the offense charged is in any respect changed. The court only holds that there should be a proper averment to falsify the matter wherein the perjury is assigned, and setting forth specifically that the fact sworn to is false. The indictment, because it did not include an allegation of knowledge, is fatally defective.

3. After a person has once been put on his trial before a court of competent jurisdiction upon an indictment which is sufficient to sustain a conviction, and the jury has been charged with his deliverance, he is in jeopardy.

Here the indictment was not sufficient to sustain a conviction, and therefore defendant was not legally acquitted. The verdict does not sustain the plea of autrefois acquit.

Provosty, J., dissenting.
(Syllabus by the Court.)

Appeal from Third Judicial District Court, Parish of Bienville; Benjamin P. Edwards, Judge.

E. Brown was indicted for perjury. From a judgment sustaining the plea of autrefois acquit, the state appeals. Reversed.

Walter Guion, Atty. Gen., and John C. Theus, Dist. Atty. (Lewis Guion, of counsel), for the State. Joseph Rush Wimberly, for appellee.

BREAUX, J. The state appeals from a judgment sustaining the plea of autrefois acquit interposed by the defendant.

Originally the defendant was indicted for perjury.

The indictment charged him with having feloniously, willfully, and corruptly committed perjury after having been duly sworn by F. L. Mayfield, deputy clerk of the district court of said parish and state, on trial of the case in the district court of said parish and state in No. 1,999, entitled "E. Brown v. D. E. Brown, Jr.," by feloniously, willfully, falsely, and corruptly testifying and swearing, after having been sworn as aforesaid, in substance, "that he, the said E. Brown, did not, on the day D. E. Brown, Jr., defendant in said cause, struck him, to wit, in December, 1900, go into the house of Mrs. White or Mrs. Lizzie White."

The gravamen of the indictment contains further and necessary allegation to complete the bill, except in one particular.

It does not contain the averment that he well knew that his testimony was untrue.

The case in which the asserted false swearing was done was called and the trial pro

ceeded with. A jury was impaneled, and evidence of the state begun, which evidence was met by an objection of counsel for defendant, based upon the deficiency of the indictment on the ground just stated; i. e., that the indictment did not show scienter of accused, or falsify the testimony.

The trial judge sustained the objection, and refused to admit evidence of the state to show the falsity of the testimony of the ac cused in the case before mentioned, in which it was charged he had perjured himself, on the ground, the trial judge held, that there was no particular averment to contradict the matter sworn to by defendant. After the judge had thus ruled, the plaintiff moved for a discontinuance of the case, which motion was overruled.

The case was submitted to the jury, and a verdict of not guilty was returned.

The district attorney shortly afterward presented a bill of information against the accused, charging him with the same crime. This information contained the words, which are not included in the indictment before mentioned, "And at the time well knowing same to be false," nor their equivalent. In every other respect the crime was charged as it had been charged in the indictment before referred to. In due time after the bill of information had been filed, the accused pleaded autrefois acquit and former jeopardy, basing his plea on the verdict found by the jury on the indictment in question, the first referred to above.

The plea was sustained by the district court, holding, as stated, and as shown by the bill of exceptions before us, that the original bill of indictment was absolutely null; that it could have been amended; that the jury had been impaneled and sworn; and that the state commenced its evidence, and had proceeded some time, when the district attorney offered to discontinue the prosecution, which the court would not, at that stage of the trial, permit; and the jury found the verdict of not guilty before mentioned.

Whilst it is true that good pleading would require that an allegation in indictment, such as that which was not included in the indictment in the case in which the defendant was found not guilty, it is always absolutely necessary, as a general rule in every case, to set forth that the defendant was well aware of the fact that his testimony was not true.

Proceedings in the cases of perjury have been simplified by statute. It still remains necessary to aver in the indictment the substance of the offense charged, or by what court or before whom the oath was taken, together with a proper averment to falsify the matter wherein the perjury is assigned. Rev. St. 858.

Here the indictment was defective in that It did not, as required, falsify the matter wherein the perjury was assigned. It did not allege that the defendant knew said statement to be false, or that he was ig

norant whether or not said statement was true. This was a matter of substance, and in that respect the indictment was informal. Where knowledge is an ingredient of the offense, it must be alleged.

The position of defendant does not find unqualified support in McClain on Criminal Law, vol. 2, p. 882, to which he invites our attention. In one sentence the commentator says that the indictment must also show knowledge on the part of the accused of the falsity of the statement at the time it was made, and that it is not sufficient merely to negative the truth of the statement. In the sentence following it is laid down that "knowingly false" may be inferred from the fact that the court charges that it was willfully false.

In the note the commentator, in support of the first proposition, refers to State v. Morse, 1 G. Greene, 503, in which the court held: "The omission in the indictment to charge in the language of the statute that the defendant deposed, affirmed, or declared some matter to be a fact knowing the same to be false, is a substantial defect, and is not cured by any statute."

From that point of view it follows that the word "falsely," as pleaded, is not an equivalent to scienter on the part of the defendant. It does not show that the defendant swore to a fact knowing it to be false.

"Negation of false matter should be express." Wharton, Crim. Ev. § 1300.

Without the expressed negation, there is no negation of false matter at all in the indictment. Not only must it be alleged that the defendant swore "falsely" or "corruptly," but it must also be alleged that he knew that he swore falsely. A person may swear falsely or corruptly, although the fact to what he swears may, in its bearing, be the truth.

To sustain the second proposition, the commentator in his note cites one case in which the verdict was drawn under a special statute of the state of Minnesota, not requiring, as we take it, as in Louisiana, the negation of a false matter to be express.

Well-considered decisions hold that knowledge must be alleged in order that a valid indictment may be written when an indictment is found under a law which requires that a proper averment be made "to falsify the matter wherein the perjury is assigned," to quote from the Louisiana statute.

Having arrived at the conclusion that "knowledge" must be alleged to the extent required by the statute, we are next led to inquire into the effect of the verdict rendered.

We think that the indictment was not only defective, but that it was fatally defective.

From that point of view it follows that the verdict could not form the basis of autrefois acquit. No decision can be found to the contrary, and no commentator has expressed himself to the contrary. The test is, was

the indictment fatally defective? If it was, the verdict is equally as null. State v. Meekins, 41 La. Ann. 543, 6 South. 822.

The law and the evidence being in favor of the state, it is ordered, adjudged, and decreed that the judgment appealed from is avoided, annulled, and set aside; the bill of information is reinstated; also the case, in order that it may be proceeded with in manner and form required.

The case is therefore remanded to be tried.

AUSTIN et al. v. SCHWING et al. (Supreme Court of Louisiana. June 22, 1903.) SALE-ACTION FOR PRICE-BURDEN OF PROOF. 1. Plaintiff declared on an open claim or account.

Defendant pleaded a verbal contract, which plaintiff admitted.

Difference grew out of the term of the contract; plaintiff testifying that it was restricted to a time stated, and the defendant denying.

The onus was with plaintiffs of showing that it was as limited as contended for by them.

Besides, preponderance of the testimony, all parties being of equal credibility, is with defendants.

(Syllabus by the Court.)

Appeal from Twenty-First Judicial District Court, Parish of Iberville; E. B. Talbot, Judge.

Action by John W. Austin and others against S. P. and E. B. Schwing. Judgment for defendants, and plaintiffs appeal. Affirmed.

Hébert & Hébert, for appellants. Calvin K. Schwing, for respondents.

BREAUX, J. Plaintiffs' suit is for $347.34, with 5 per cent. interest from judicial demand, amount claimed for 363 trees, measuring 99,241 feet, at $3.50 per 1,000 feet, making the total just stated.

Plaintiffs allege, in substance, that defendants have removed other timber, of which they have been unable to secure the measurement, for which they reserve right to bring suit.

The defendants admit that they removed that number of trees from plaintiffs' land, for which they owe plaintiffs $124.05, tendered by them to plaintiffs. The tender is admitted by plaintiffs. They set forth that the trees were removed under an agreement with plaintiffs to deaden, cut, and remove all merchantable timber from certain lands at $1.25 per 1,000 feet; that annually they have mov. ed the trees, and have been paying for them.

The district court gave judgment in favor of plaintiffs for amount admitted by defendants to be due, but refused to grant the remainder of plaintiffs' demand for the asserted value of the timber, and from enjoining defendants from removing other trees. From

this judgment plaintiffs prosecute this appeal. Defendants, in their brief, urge for the first time that the action should be dismissed for want of jurisdiction ratione materiæ. There is a jurisdictional allegation in the petition of value of plaintiffs' interest as being in excess of the minimum limit of the court's jurisdiction. This, taken in connection with the fact that plaintiffs claim other logs have been removed, the right to recover which is reserved and taken in connection with the further fact that the judgment appealed from refused to recognize any further right in plaintiffs than those specially allowed, we are justified in holding that the court has jurisdiction.

On the Merits.

The contract between the parties was verbal, entered into in the summer of 1899. The agreed price was the price alleged of which we have before made mention.

According to defendants, plaintiffs had agreed to sell them all their cypress timber in a region of swamp country well known by the name of "Pigeon." It was further agreed, they say, that the timber was to be removed when they would locate the lands and find labor to get it out for them.

This was not plaintiffs' account of the agreement, and on this point there is material difference between plaintiffs and defendants. Plaintiffs contend for a short term within which the defendants were to remove the timber, and defendants that they were to have a time more reasonable than plaintiffs are now willing to admit within which to remove the trees.

The record discloses that the swamp land in question had been abandoned by plaintiffs. The timber, as they must have thought, had all been removed. They allowed it to go to the state for taxes, and from the state it passed to the levee board. Within the year after the land had been adjudicated to the state, one of the defendants called on one of the plaintiffs, and it was agreed that defendants would redeem the land and remove the timber therefrom for their account, they to pay the price before mentioned.

They were at this work when, in August, 1901, they were notified by plaintiffs after that date not to cut, circle, trail, or remove any timber from lands belonging to plaintiffs. We understand the defendants complied with this notice, except as to the trees which had been circled by them, trailed, and prepared to be removed, on which, in this work, they had expended a considerable sum.

Plaintiffs had the right to consider the contract as one which had some limit within which to take away the trees, yet it devolved upon them to bring it to a close without the necessity of causing a loss to those with whom they had contracted. They knew they were working on these lands after the float or high water, which plaintiffs claim was to be the last float to remove the trees. They

said nothing to defendants, and some time after gave them the notice before mentioned.

In view of the facts and circumstances of the case, defendants had the right to remove the trees as they did on which they had worked while the agreement was in force, and when the plaintiffs had not signified the least intention to terminate it. We think it was fair and just that these trees should go to defendants.

The onus of proof was with plaintiffs originally. They did not choose to allege the contract and submitted their side of the case without once referring to this contract.

In making out their defense, defendants invoked the contract which plaintiffs had sought to ignore. This verbal contract was then submitted by plaintiffs, who, by way of rebuttal of defendants' testimony, sought to show terms different from those to which defendants had testified.

The onus of proof had not changed. It still devolved upon plaintiffs to sustain their demand (or claim) by preponderance of proof, and to sustain their position regarding this contract. This they have failed to do. The facts and the circumstances point the other way. The time was not as limited as plaintiffs contended. It devolved upon them, as first parties to the contract, to have it well understood that it was to be as they now contend it was. In the absence of special terms, we are inclined to the view which enables defendants to recover back their expenses in preparing these trees for the market.

In the condition the case comes before us, we understand that defendants challenge the correctness of plaintiffs' statement regarding the term of the contract.

One (plaintiffs) as witnesses affirm, the other (defendants) deny. All parties being of good standing, we accept the conclusion usually arrived at in such cases, and in this case that conclusion is further sustained by ' the opinion of the district judge who saw and heard the witnesses.

The judgment is therefore affirmed.

No. 14,561.

(110 La. 598)

MORIARTY v. BAGNETTO et al. (Supreme Court of Louisiana. June 22, 1903.) ACTION ON LEASE-DEFENSES-SURETY

RELEASE.

1. Where a person binds himself in solido with a lessee for the obligations of a written lease, waives discussion and division, and, when sued thereon, judicially admits that he became a party to such lease and to the rent notes given in accordance with its provisions, and there is nothing to show that he contracted in any other capacity than as appears, the defense that, as surety, he is discharged by reason of the prolongation of the terms of payment granted by the lessor to the lessee, cannot be sustained. (Syllabus by the Court.)

Certiorari to Court of Appeal, Parish of Orleans.

Action by Daniel Moriarty against Thomas Bagnetto and others. Judgment for plaintiff was affirmed by the Court of Appeal, and defendant Fitzpatrick appeals. Dismissed.

John Patrick Sullivan, for applicant. McCloskey & Benedict, for respondent.

Statement.

MONROE, J. Plaintiff, by written contract, leased certain premises in New Orleans to B. Bonell for one year from October 1, 1899, at an annual rental of $480, for which the lessee gave 12 notes of $40 each, payable monthly. Upon March 10, 1900, the following agreement was indorsed upon the lease so made, to wit:

"It is this day understood and agreed that Mr. Thomas Bagnetto Sr. will assume this lease and the notes made by Mr. Bonell * * from March 1st, 1900, to the expiration thereof, for the same rental, $40 per month. And now comes Mr. John Fitzpatrick who says that he will bind himself, in solido with said Mr. Thomas Bagnetto Sr., for the faithful performance of all his obligations as well under this lease as under any express or implied renewal thereof, waiving the benefit of discussion or division. "[Signed]

John Fitzpatrick. "Thomas Bagnetto Sr. "Daniel Moriarty.

"Per Louis Schuler, Agt." The outstanding notes which had been issued by Bonell were also signed by Bagnetto, and were indorsed by him and by Fitzpatrick, and Bagnetto took possession of the leased premises, and paid the rent for March, when it fell due. He, however, failed to pay the rent for April, and demand therefor was made upon Fitzpatrick, who refused to pay it on the ground that he was released from his obligations in the premises by reason of the lessor's having granted Bagnetto an extension of time, without his consent. And thereafter, though Bagnetto continued to occupy the premises, no rent was paid. In November, 1900, plaintiff brought suit on the lease and the unpaid notes, praying judgment against Bagnetto and Fitzpatrick in solido. Bagnetto made no appearance, and there was judgment against him by default. Fitzpatrick answered, admitting "that on or about the 10th day of March, 1900, he became party to the said lease and notes assumed on the said date by Bagnetto, codefendant." And he further answers alleging "that the first note that fell due was paid by the said Bagnetto, but that when the second note became due the plaintiff's agent granted to the said Bagnetto an extension of time-definite time-of fifteen days, more or less, within which to pay the said note, without notifying the defendant, thereby making a new contract with the said Bagnetto, to which defendant was not a party, and, according to the provisions of the Civil Code, thereby releasing the defendant John Fitz

*

patrick from any liability under said lease." He subsequently filed an amended answer, in which he alleges that he "signed the lease and notes * in the capacity of surety for the said Thomas Bagnetto, Sr., and, reserving the benefit of the original answer, wherein defendant John Fitzpatrick claims to have been discharged from liability by reason of the extension of time for fifteen days, granted to the defendant Thomas Bagnetto, Sr., * he prays to be dismissed.

Upon the trial in the district court the plaintiff objected to the introduction of evidence in support of the allegations of the amended answer, but the objection was overruled, and certain testimony was admitted tending to show that plaintiff's agent had granted a definite extension of time for the payment of the April rent. There was, however, no evidence offered to show that Fitzpatrick signed the contract sued on in any other capacity or subject to any other conditions than as expressed upon the face of that instrument. And there was judgment for the plaintiff condemning the defendants in solido, as prayed for in the petition.

In the reasons assigned, the judge a quo, referring to the amended answer and to his ruling permitting it to be filed and admitting evidence in its support, says: "In so far as it seeks to explain the original answer, as containing a plea of discharge of a surety because of a definite prolongation of the time of payment granted to his principal, it is clearly open to the objection urged against it that it changes the substance of the defense, and must be disregarded as having been improperly allowed."

He further says, inter alia:

"But the exclusion of the amendment in no wise impairs the defense, because, after a careful analysis of the evidence of record, I have been unable to gather from it anything else than a request by Bagnetto for a few days' grace when the April note was presented to him for payment, and an assent by plaintiff's agent, Schuler, to such request.

*

*

* * There was no agreement to wait until a day fixed, preventing Moriarty, the creditor, from suing Bagnetto, the debtor. * My opinion, therefore, is that, even if the supplemental answer be considered as not altering the original defense, and if Captain Fitzpatrick be viewed as an ordinary surety, entitled to invoke the protection of article 3063, he has failed to show a state of facts justifying his release from his obligation."

The learned judge then expresses the opinion that under Civ. Code, art. 3045, the defendant having specifically bound himself, in solido, with the principal debtor, and having renounced the benefit of discussion, does not occupy the position of an ordinary surety, but that his obligations are to be determined by the law applicable to debtors in solido. He, however, prefers, in view of the