author: Bermudez, C. J.

text:
    No. 8081.
    State of Louisiana ex rel. Susan Howard vs. John J. Walsh, Constable.
    Relator applies to tins Court for a writ of Habeas Corpus on the ground that she is illegally imprisoned hy order of the Eighth Justice of the Peace of the Parish of Orleans, whilst there is now no such magistrate in existence, said office having been abolished by the Constitution of 1879.
    Held that the court of the Eighth Justice of the Peace of the Parish of Orleans, as a police-court, was not interfered with by the present Constitution and is still in force, subject to the future action of the Legislature, as provided for in Article 136 of said Constitution.
    Frank Hébert for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a habeas corpus, on the sole ground that the prisoner was arrested and is detained in custody by the defendant, under a mittimus issued by one P. Mitchell, styling himself Judge of the Eighth Justice’s Court for the City of New Orleans, and that there is no such court in legal existence. The return shows the caption and exhibits the mittimus in justification thereof and of the detention.

The existence or non-existence of such court is, therefore, the solitary question submitted for our determination.

When the City of New Orleans was reorganized in 1870, under the provisions of Act 7 of that year, its territory was divided into six Municipal Districts, sec. 3, p. 31, over which six recorders (who were to be justices and conservators of the peace) were to exercise the criminal jurisdiction previously vested in the recorders of said city. Sec. 31, par. 4, pp. 43, 44.

In 1873, by Act 95, those offices were abolished, and four Municipal Police Courts were created and organized in their stead. The first court-was to have jurisdiction over the first district; the second court over the second districtthe third court over the third and fifth districts ; the fourth court over the fourth and sixth districts. Their jurisdiction, was defined. It was to be exclusively criminal, and to be akin to that. of the former recorders. It was not extended beyond, and was, therefore, restricted to, those territorial limits.

Dp to 1874, there had been seven Justices of the Peace in legal existence in the city, clothed with civil jurisdiction only. By Act 129 of that year, criminal jurisdiction was conferred on the Seventh Justice of the Peace, and made to extend over the Sixth Municipal District, thus divesting the Fourth Municipal Court of such jurisdiction over that section.

In 1877, by Act 59, a municipal district was created by law, and added to the municipal territory of New Orleans, and an additional Justice of the Peace Court was located in said Seventh Municipal District, to be known as the “Eighth Justice’s Court of the Parish of Orleans.” He was to be, and was, clothed with civil and, besides, criminal jurisdiction as committing magistrate, with powers alike to those possessed by the Municipal Police Courts then in existence.

By Act 131, p. 199, of the same year, subsequently adopted, the four Municipal Courts were abolished and two Recorders’ Courts were created ; the first to have jurisdiction over the First and Fourth Districts, and the second, over the Second, Third and Fifth. They were vested with the criminal jurisdiction with which the Municipal Police Courts had been clothed.

In 1878, by Act 11, the Fifth Justice of the Peace was given exclusive criminal j urisdiction over all the portion of the city lying on the right bank of the River Mississippi, and that this jurisdiction was to be of the same nature as that which the Recorders of the city then possessed by law.

So that, on the 31st December, 1879, the seven Municipal Districts of the City of New Orleans were subjected to criminal jurisdiction, as exercised by committing magistrates, as follows :

The First and Fourth Districts were under the jurisdiction of the First Recorder’s Court; the Second and Third Districts, under that of the Second Recorder’s ; the Fifth, under that of the Fifth Justice of the Peace ; the Sixth, under that of the Seventh Justice of the Peace, and the Seventh, under that of the Eighth Justice of the Peace.

On the 1st of January, 1880, the Constitution framed in 1879 was promulgated.

It contemplated to provide for the government of the State of Louisiana and to repeal certain, and maintain other, laws in existence previous to its adoption. A considerable portion of that important instrument is devoted to that branch of the government which is indispensably necessary to the application of the law and the administration of justice in the State.

It provides generally, that the judiciary shall consist of a Supreme Court, of Courts of Appeals, District Courts and Justices of the Peace, (Art. 80); and further, specially, of City Courts for the City of New Orleans (Art. 135), and of police and magistrates’ courts. (Art. 136.)

By article 258 it is declared, that all laws not inconsistent with the Constitution, shall continue in force as if the Constitution had not been adopted.

By article 259, it is declared that no office shall be superseded by the Constitution ; that the laws relative to executive, judicial and military officers shall remain in full force though contrary to it, and that the duties of those officers shall be performed according to those laws, until the organization of the government under that Constitution and the entering into office of the ?iew officers to be appointed or elected under said government, and no longer.

The question which presents itself for solution in the examination of the quick of the case is, whether the law, which created the “ Eighth Justice’s Court ” for the City of New Orleans, was or not inconsistent with the Constitution at the time it went into force.

If it was inconsistent in its entirety, it was abrogated; if it was inconsistent in part, it was, to that extent, repealed ; if it was consistent in its entirety, it was continued in force; if it was consistent in part, it was continued in force to the extent that it was so consistent. It died or lived, as it conflicted or harmonized with the organic law.

It is claimed that it was inconsistent in its entirety ; that it was, therefore, abrogated ; and, consequently, that the commitment mentioned in the case of the State against the relatrix, by one styling himself “ Eighth Justice of the Peace,” and directed to the defendant as constable, is an absolute nullity, and that the prisoner must be released from custody.

It is contended, in support of that theory, that by article 125 of the Constitution, relative to J ustices of the Peace, it is provided that, thereafter there shall be as many such justices out of the parish of Orleans as may be provided by law, but that in the parish of Orleans, there shall thereafter exist none at all.

The first paragraph of article 125 reads as follows :

“ In each parish, the parish of Orleans excepted, there shall be as many j ustices as may be provided by law.”

The following paragraphs of the same article maintain the number of justices of the peace then in existence and define their civil jurisdiction. The next article (126) provides, that they shall have criminal jurisdiction and power to bail in cases not capital or punishable at hard labor.

We do not read article 125 in the light contended for. We consider that the framers of the Constitution intended by articles 125 and 126 to provide exclusively for justices of the peace out of the parish of Orleans, and, when using the words “ the parish of Orleans excepted,” proposed to leave the justices in that parish out of view for the moment, proposing soon to deal with them to some extent by a subsequent article (135), but only so far as they exercised civil jurisdiction.

Those courts have continued to exist in all cases, except those in which the Constitution has abolished them or has restricted their jurisdiction.

It should be borne in mind that at the time that the Constitution went into effect, there were eight justices of the peace and, besides, two recorders (who were also justices of the peace), who exercised in the City of New Orleans jurisdiction either in civil cases exclusively or in criminal cases exclusively, or in both.

Among the latter was the “Eighth Justice of the Peace Court,” which had been clothed with both civil and criminal jurisdiction.

It is a self-evident proposition, which no reasonable being can or does dispute, that by the creation of City Courts in the City of New 'Orleans, vested with civil jurisdiction solely, under article 135, the framers of the Constitution proposed, as well to abolish the courts of Justices of the Peace exercising civil jurisdiction only, as to strip of such jurisdiction those that exercised both civil and criminal jurisdiction, as to continue in the latter the last jurisdiction when- not provided to be exercised otherwise by the Constitution or by unprohibited subsequent legislation.

The Constitution, far from making any provision whatever for the exercise of criminal jurisdiction by committing magistrates for the City of New Orleans, has entrusted the mattter entirely to legislative wisdom, as appears conclusively by the tenor of article 136, which reads.,:

' “ The General Assembly may provide for police or magistrates’ courts ; but such courts shall not be vested with jurisdiction beyond the enforcement of municipal ordinances or as committing magistrates.”

Construed together with articles 125 and 126, which provide for ihe civil and criminal jurisdiction of justices of the peace out of the parish of Orleans, article 136 cannot but be interpreted as’applying to police or magistrates’ courts (whether known as Recorders or Justices of the Peace or any other name) in the parish of Orleans.

Justices of the Peace are conservators of the peace, and have always been considered as police committing magistrates exercising criminal jurisdiction, though at times clothed with civil jurisdiction, exclusively, or in addition. C. P. 1060.

Abbott, Bouvier, Burrill Dio. vol. 1, Vo. Justice of the Peace; Bacon’s Abridgment, vol. 3, p. 787 ; 1 Ohitty’s Blackstone, 354 ; Sec. 1 of Act of 1804, p. 30, ch. YIII; Secs. 23, 25, of Act of 1805, p. 206, p. XXY.

The original article in the Code of Practice, from the beginning, has continued, through the revision of 1870, to this day to read, (O. P. 1060): “Justices of the Peace have jurisdiction both in civil and criminal matters.”

The theory in support of the application for the writ is the less plausible as it is in flagrant conflict with article 259 of the Constitution, which deals with inconsistent laws and.with officers in existence under them.

It distinctly provides, that such inconsistent laws shall continue in force and that the officers thereunder shall remain in office until the organization of the government under the Constitution, and until the entering into office of the new officers to be appointed or elected under said government.

Inconsistent laws and officers in esse under them, were, therefore, to continue in existence until the happening of two events: 1st, the organization of the government; and, 2d, the induction into office of the new officers to be appointed or elected under said government.

It is true that a government has been organized, and that new officers have been appointed and elected under that government, but has the Court in question been thereby abolished and the judgeship thereof been vacated ?

As a preliminary question, we propose to settle that all offices have not been vacated by the mere adoption of the Constitution.

Offices, created by laws consistent with it, have continued to exist (article 258); offices, created by law inconsistent with it, were to continue in existence until the organization of the government, and until new officers were appointed or elected under it. So it is, for instance, that the Mayor and Administrators, that the Recorders of the City of New Orleans, that Notaries Public throughout the State, have continued in their functions ; so it is, likewise, on the other hand, that the district and parish courts throughout the State, the justices of the peace exercising a merely civil jurisdiction in New Orleans, prior to the adoption of the Constitution, have now absolutely disappeared.

It cannot be supposed for a moment that it ever entered the mind of the framers of the Constitution to leave any portion of the territory of the City of New Orleans and the inhabitants thereof in a state of emancipation from the criminal jurisdiction of a committing magistrate, at the mercy of the villains and wicked, and to refuse them the protection to which property, life, personal and other rights are entitled.

If it be true that the law creating the " Eighth Justice’s Court of the parish of Orleans ” has died away, it can only be because the government contemplated by the Constitution has been organized, and that the new officers intended by it have been appointed or elected to super-cede that court.

Where is, in that Constitution, the provision which relates to the creation of a court or to the appointment or election of a judicial officer to supersede the said Eighth Justice Court and the judge thereof, clothed with similar criminal jurisdiction over the Seventh Municipal District of New Orleans ? If there be such provision, and such new court has been organized and the new judge thereof has been appointed or elected and has been commissioned, then the Eighth Justice’s Court has ceased to exist and has been replaced by another court with another judicial officer. But no such provision is to be found in that Constitution. Hence, no court has superseded the “Eighth Justice’s Court of the parish of Orleans,” and no appointment or election of a judge to it has or can be made unless a vacancy occurs.

The framers of the Constitution had more important matters to deal with than to provide specially for a system of inferior judicial criminal organizations for the City of New Orleans. They were unwilling to condescend to those details, and have made them expressly, by article 136, a legitimate subject for consideration within the control of the General Assembly.

The Legislature has met since the Constitution of 1879 has gone into effect, and has not deemed proper to eliminate, as it might have constitutionally done, the “Eighth Justice’s Court of the parish of Orleans,” either by abolishing it altogether formally, or by extending over the Seventh Municipal District the criminal jurisdiction of one of the two police courts now in existence or some other judicial authority.

By the mere going into operation of the Constitution, neither the court of the Fifth Justice of the Peace, nor that of the Eighth Justice, exercising criminal jurisdiction, nor the two courts of Recorders of New Orleans, have been interfered with. They have been bridged over, and remain subject to legislative action by the General Assembly under article 136 of the Constitution.

Otherwise, there would exist a most lamentable hiatus, which it cannot be presumed the framers of the Constitution intended to leave. We are satisfied, and as the expounders of the law, wherever found, whether in the Constitution or in the Statute Book, we now declare, that they have not left any such hiatus.

It is true that the Seventh Municipal District of the City of New Orleans, as much as any other portion of the State, is subject to the criminal jurisdiction of all the judges therein, who are virtute officii conservators of the peace (Art. 86), and that a capias issued on affidavit by any such judge for the commission of an offense, can be legally executed within said district, and anywhere in the State ; but it was not intended by the Constitution that such powers should be exercised by such judges, unless in cases of the extremest necessity. It cannot be supposed that it ever contemplated that upon such judges, to whom other functions are assigned by law, would afterwards devolve the duty of trying parties thus arrested. Therefore, it is that committing magistrates have been created throughout the State as well by the Constitution as by statute. The Eighth Justice’s Court was created by law in 1877. 'It has continued so far, and will remain, in existence until abolished by the same power that brought it to life, inasmuch as the Constitution now in force has not done away with it. How can it be claimed that the Convention intended that there should be a committing magistrate clothed with criminal jurisdiction in every section of the City of New Orleans except the Fifth and Seventh Municipal Districts ? Why the difference in the supervision and protection awarded ?

The rights of the inhabitants of the Seventh Municipal District of New Orleans, and of the people generally, have not been, as is claimed, forgotten or overridden by the framers of the Constitution, and are entitled to all the protection which it was originally intended by the Legislature that the court in question should afford them.

In the case of the State vs. Cheevers, 32 A. 649, we held that the Fourth Judicial District Court, having been abolished by the Constitution, passed from existence on the first Monday of April of the present year, when it was instantly replaced by a court created by that Constitution, with enlarged powers, but more restricted territorial jurisdiction, and that the officer eiected and commissioned to fill the office of judge of the new court had a right to enter immediately upon the discharge of the functions of his office, except in the case in which he was a defendant before that court.

In the case of the State vs. Pardee, 32 A. 639, which presented glaring features entirely different, which a sensible, unprejudiced mind cannot fail at first blush to realize, we held that, although the territory or circumscription over which the Second Judicial District Court previously entertained jurisdiction, had been restricted, the Constitution having provided expressly for the existence of courts, civil and criminal, in the City of New Orleans, which were to go into operation on the first Monday of August, 1880, only and not before, over persons and things within the portion of territory left, said Second Judicial Court had been continued in existence by the Constitution until the government, as concerned it, had been organized, i. e., until the new Civil and Criminal Court for the parish of Orleans and the new judges thereof had organized and gone into operation, that is, until the first Monday of August, 1880. It was not to be until then that the Second Judicial District Court was to die away. In the present case we cannot but view and expound the Constitution from the same standpoint and in the same light. A different construction would be an insult to the wisdom of the framers of the Constitution and a trampling under foot of the letter and spirit of the organic law.

Considering, therefore, that the Court of the “Eighth Justice of the Peace ” for the City of New Orleans has been merely divested of its civil jurisdiction and has been continuéd in existence, clothed with the criminal jurisdiction which it possessed ab initio, and, therefore, had full authority to issue the mittimus, charged against in this case, which is, therefore, valid and executory,

It is ordered that the application for a habeas corpus in this case be dismissed, and that the prisoner be remanded, to be dealt with as the law provides.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 7916.
    State of Louisiana vs. Laurent Desmouchet.
    TPben tbe regular venire is exhausted, the entire jury may he formed of talesmen.
    The formation and expression of an opinion by a juror, as to the guilt of the accused, based on mere rumor, when he is not prejudiced or biased, and the impression thus received by him, will yield to the evidence, do not disqualify him. Previous decisions affirmed.
    APPEAL from the Twenty-First Judicial District Court, parish of St. Martin. Fontelieu, J.
    J. C. Egan, Attorney General, for the State, Appellee.
    Mouton & Martin, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The errors relied upon by defendant and appellant are presented in two bills of exceptions to rulings of the Court a qua, viz:

1st. The regular panel of jurors having been exhausted without obtaining a juror, the judge ordered jurors de tálibus circumstantibus to be called, from whom a jury was drawn to try the prisoner — to which proceeding defendant objected and excepted on the ground that the law authorizing the jury to be completed with talesmen after exhaustion of the regular panel, does not authorize the formation of an entire jury of talesmen only. The precise question has been passed upoijt by this Court adversely to defendant’s exception, and we see no reason to depart from the precedent.

State vs. Reeves, 11 A. 686.

2d. Exception was taken to'the competency of a juror who stated on his voir dire “ that he had heard a good deal of the case at bar and had formed and expressed an opinion as to the prisoner’s guilt or in-nocenoe ; but that, if what he had heard was proven to be untrue, and if the evidence proved the reverse of what had been told him, being open to conviction and his mind not at rest as to the guilt or innocence, he was willing to change that opinion, and would decide the case according to the evidence and the law, notwithstanding what he had heard.”

It has been repeatedly held by this Court that the formation and expression of an opinion as to the guilt or innocence of the accused, based on mere rumor, accompanied by no ill-will, prejudice or bias against the accused, and not such as to prevent the juror from deciding according to the evidence and the law without regard to former impressions, is not a disqualification.

State vs. Bunger, 14 A. 462.

State vs. Ward, 14 A. 693.

State vs. Merryman, 23 A. 148.

State vs. Lartigue, 29 A. 642.

The case of this juror falls distinctly under those rulings.

It is very different from the case of the State vs. Ricks just decided, where the juror reiterated that he had formed a fixed and deliberate opinion. Here the statement of the juror, taken altogether, establishes that his opinion is not fixed, if, indeed, it can be called more than a mere impression — since he expressly says that “ his mind is not at rest as to .the guilt or innocence.”

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


author: Fenner, J, Poché, J.

text:
    No. 7825.
    Spencer Field vs. Daniel Weaver.
    A issued executory process on mortgage note made "by B. The latter enjoins on the ground that the note has been placed by himself in A’s hands as a deposit, and that the note -was extinguished by payment before said deposit. B in his injunction suit claims damages against A. Under a different judgment in favor of A against B, the former seizes all the right, title and interest of B in his injunction suit and becomes adjudicates of the same. Whereupon A, upon proof of the adjudication, obtains ex parte an order of court by -which the injunction suit is discontinued, and he proceeds with his executory process.

      BCeld, that A acquired nothing by the adjudication but the claim for damages — that B had no property in his own extinguished note, and that the discontinuance ex parte of the injunction suit was illegal. Case remanded.
    j^PPEAL from tke Sixth District Court, parish of Orleans. Bightor, J.

    Bentinck Egan for Plaintiff and Appellant.
    Chas. F. Claiborne for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J,

Weaver, as holder of mortgage notes made by Field, issued executory process against the mortgaged property owned by Field. Field brought this suit to enjoin the executory process, alleging that the mortgage notes were held by "Weaver merely as depositary for him (Field) who had himself acquired them after issuance, whereby the notes and the martgage given to secure them were extinguished by' confusion. He prayed for injunction, for judgment declaring the notes and mortgage extinguished, and for damages.

Weaver, as owner of another monied judgment against Field, issued execution and seized all the right, title and interest of Field in and to the claim, and to the notes and to the damages set forth and described in this injunction suit of Field vs. Weaver. At the sale thereof, Weaver himself became the purchaser.

He then appeared in this suit of Field against himself, and presenting the sheriff’s adjudication of Field’s right therein, and suggesting that, by his purchase thereof, the litigation was ended, on his ex parte motion, without notice to Field, the judge rendered and signed judgment ordering “ that the injunction herein issued be dissolved, and that the writ enjoined be proceeded with, and this suit dismissed.”

From this judgment Field has taken the present appeal.

We think it very clear that the judgment cannot be sustained.

By the sheriff’s sale, Weaver acquired only such rights of Field asserted in the suit as could be sold. He did not acquire any right in and to the notes as property, because Field did not assert any ownership of, or property in, the notes, but contended that the notes were no longer in existence as property, but had been extinguished by confusion. The only rights he asserted in the suit in reference thereto were the rights to have the notes and mortgage not extinguished — because he averred that they had already been extinguished — but simply declared extinguished. He could not assert a right of property in his own notes. An additional right claimed by Field in the suit was the right to enjoin and restrain the seizure and sale of his property under a pretended debt and mortgage which he averred had been extinguished and did not exist.

We are clearly of opinion that such a right cannot be seized and sold. It is a right inherent in, and dependent upon, the right of property, and incapable of being seized and sold separate from the property itself. Until Field was divested of the property itself, his right as owner to maintain and protect his possession and prevent depredation could not be sold. The case would not have been different had Field’s suit been for an injunction to prevent Weaver from unlawfully tearing down a wall upon his property. Could Weaver, as a creditor, seize and sell such a right, and, as purchaser, acquire the right to tear down the wall ? The right of property includes many incidental rights, inseparable from ownership, and incapable of being seized or sold separately from the property, and this is one of them. The objection to questioning a judicial sale collaterally has no application here. A sale ot what, in its nature, cannot be sold is such an absolute nullity that it can have no effect whatever and does not require to be annulled.

The only claim oí Field in the suit, which could be sold, was his claim for damages, and that was the only thing that Weaver acquired under the adjudication.

It is further properly objected that the court committed error in entering judgment dismissing the suit on the ex parte motion of Weaver without notice to Field. The latter’s suit could not be dismissed without his consent, express or implied, except by judgment rendered contradictorily with him, however clear, apparently, might be the title of Weaver to claim such dismissal. It is said that if Weaver had presented a written transfer signed by Field of all his right as plaintiff in the suit, on proving the signature, notice to Field would have been unnecessary. This may be true — but only because Field’s consent to Weaver’s doing as he pleased with the suit would be implied from his voluntary transfer. Although the sheriff’s sale is entitled to the same effect as the voluntary sale so far as transfer of title is concerned, it does not include the same implication of waiver of notice. The court had no more right to enter judgment declaring the rights of plaintiff in the suit extinguished by confusion as the result of Weaver’s purchase, without notice to Field, than it would have had to declare the notes in possession of Weaver extinguished in like-manner on the mere presentation of Field’s petition, without notice to Weaver.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the cause be remanded to be proceeded with according to law — appellee to pay costs of this appeal.

The Chief Justice recuses himself, having been of counsel in the case.

DISSENTING OPINION.

Poché, J.

I dissent from the opinion of the majority of the Court in this case, on the ground that we cannot on appeal from a judgment giving effect to a judicial sale, examine into the legality of the sale, and much less into the legality of the sheriff’s seizure.

The only remedy in law for a party who is aggrieved by a seizure is by injunction, and in case of a sale his remedy would be by direct action of nullity coupled with an injunction.

In deciding that the rights of Field to his injunction suit were not liable to seizure in this proceeding, we virtually reopen and investigate collaterally the sale of the sheriff, and annul the same in some of its effects in an unwarranted manner. 6 R. 100 ; 27 A. 703.

I cannot concur" with the majority in the opinion that Weaver, as the adjudicatee under the sheriff’s sale of Field’s right and claim in his suit in injunction and damages, could exercise no rights under his purchase, without notice on Field as the former owner, now expropriated.

The sheriff’s deed under our laws makes proof of all it contains, with as much authenticity as a notarial act, and by virtue of the sheriff’s sale subrogating Weaver to all of Field’s rights, including his right of. action in his suit, the latter ceased to be the plaintiff in the action, and Weaver as the subrogee could dispose of the suit at his option. •

I respectfully submit that the majority of the Court in trying to establish a difference in the nature of a transfer of rights on property when made by the owner himself, or when made by a sheriff in execution, is attempting to make a distinction without a differenco.


text:
    No. 7613.
    Henrietta Davidson et al. vs. City of New Orleans.
    1. So far as the object of a suit is to ascertain tlio nature and effect of the judgment of a certain court and to regulate the extent to -which that judgment should ho held entitled to receive execution, -j^he court itself -which rendered the judgment, is the only one which can entertain jurisdiction of the action.
    2. Causes affecting the execution of a judgment and requiring a limitation or restraint of that execution, when those causes have arisen after rendition of the final decree of this Court, are cognizable by the lower court.
    3. The plea of lies judicata cannot be opposed to an action of which the very object is the interpretation and regulation of the judgment pleaded in bar.
    PPEAL from the Third District Court, parish of Orleans. Monroe, J.

    B. E. Forman and Ogden & Hill for Plaintiffs and Appellants.
    Sam. P. Blanc, Assistant City Attorney, and Lacey & Butler for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

This case arises under the drainage laws and come® before us now exclusively upon exceptions, for the proper determination of which it is necessary to state the substance of a long and complicated petition.

The averments are substantially, and so far as necessary to be stated for our present purpose, as follows :

That by Act 165 of 1858 the Legislature established certain Draining Districts for the purpose of leveeing, draining and reclaiming the swamp lands therein situated, and created Boards of commissioners for each of said districts and defined their powers and duties, amongst which were the duty to make plans designating the drainage work to be done, the limits of subdivisions of property within the districts, the names of the proprietors, the probable cost of the work proposed, and the probable time within which the work would be completed ; that the said plans, when completed, were to be deposited in the office of the Recorder of Mortgages and were to be published ; that in 1859, such plans were deposited and published, and the cost therein estimated was $350,000 for the first drainage district, and the time fixed for completion of the work was three years; that after such publication, the Boards of commissioners were authorized to levy such uniform assessments upon the superficial square foot of lands within each district as may be necessary to defray the work, no't exceeding $350,000; and that the Board for the first drainage district did assess a tax of 3 .3-10 mills per superficial foot on the lands of that district; that more than $350,000 have been collected in said district, and that, though more than twenty years have elapsed since the work was begun, the district has not been drained; that, in 1871, the City .of New Orleans, having succeeded to the rights and powers of the several Boards of Draining Commissioners, filed tableaux of assessments in the Seventh District Court in a proceeding (authorized by Act 57 of 1861) entitled: “ In the matter of the commissioners of the first draining district, praying the homologation of the assessment roll, etc.; ” that the petition was rejected in that Court, but that, on appeal, the Supreme Court reversed that judgment and decreed that said roll be homologated, and that this homologation shall operate as a judgment against the property described, and also against the owner or owners thereof, with ten per cent, additional for costs and counsel fees ; that the only reason, basis or consideration for said assessment or the judgment thereon, was that the land had been, or should be, drained, and that, when drained, the land would be bene-fitted thereby so as to be increased in value at least the cost of the work or amount of the tax assessed; that since the judgment aforesaid, the City of New Orleans, now lawfully vested with exclusive control of all the drainage work, has entirely abandoned it, and has removed and advertised for sale the dredge-boats and machinery employed in the work; that the Legislature, recognizing that a certain portion of the lands embraced in the drainage districts had not been, and would not be, drained, had passed Act No. 48 of 1877, which repealed all drainage laws providing for the drainage of the lands lying within the limits therein defined, and cancelled all judgments and legal proceedings creating, or seeking to create, liens for assessments for drainage of said lands; that, by Act 67 of the extra session of 1877, it was further provided that no assessment or judgment for drainage should operate on any property except that assessed, or should be collected from that property until benefited to value oí the assessment. The petition, in addition to these general allegations, specifically alleges that petitioners are owners of four hundred acres situated within the limits excluded from drainage by Act 48 of 1877, containing over 16,000,000 of superficial feet, upon which the assessment claimed would amount to more than $50,000, exceeding many fold the value of the property; that it has not been drained, and that, so far from draining it, the city has made a ditch and thrown up banks of earth, by which the natural drainage is destroyed ; that to enforce the said assessment as a personal claim against them, would take, not only all their swamp property, but a great deal more besides ; that the city has recorded a large claim for drainage assessments as a privilege and mortgage upon the property of petitioners ; that the only consideration of the j udgment and claim against, them for drainage having entirely failed, it would be against equity and good conscience to enforce said judgment as a privilege against the lands, and still more as a personal judgment against them.

The petition contains various allegations charging the unconstitutionality of the laws under which the taxes are claimed and of the taxes, and charging sundry other matters not necessary to be here set out, and concludes with a prayer for injunction restraining the city from executing the judgment referred to, or from enforcing any privilege or mortgage against any lands of petitioners on account of any drainage claims in the first drainage district; and for judgment perpetuating said injunction ; annulling the judgment complained of ; decreeing that the city has no lawful privilege or mortgage on property of petitioners for drainage; ordering the erasure of all inscriptions of such privilege or' mortgage, or, if such relief be denied, restricting the said draining claims and privileges to the property on which they are assessed, and decreeing them not to be a personal debt against them.

To this petition the defendant filed the following exceptions :

1st. To the jurisdiction of the Third District Court, on the ground that the cause fell within the exclusive jurisdiction of the Probate, or Second District Court.

2d. To the jurisdiction of the Court, on the additional ground that, the judgment sought to be annulled being a final judgment of the Supreme Court of the State affirmed by the Supreme Court of the United States, the said District Court had no jurisdiction to annul, or set it aside.

3d. Res judicata. Alleging that all the matters set forth had been determined by the aforesaid judgment of the Supreme Court.

4th. No cause of action, as to all matters (if any) not embraced within the plea of res judicata, and particularly the portion based on Act 48 of 1877 — which is alleged to be in violation of Arts. 110 and IIS' of the State Constitution of 1868, and of Section 10 Art. 1 of the Constitution of the United States.

The first exception above noted is now deprived of useful object since, under the Constitution of the present Civil District Court, both probate and ordinary jurisdiction are centred therein. We are of opinion, however, that so far as the object of the suit was to declare the effect of a judgment of the Third District Court, and to regulate the extent to which it should be held entitled to receive execution, such matters could be enquired of only in that Court. The object of the law in requiring the “payment” of judgments against successions to be “ enforced ” in the Probate Court, was simply to force judgment cred~-itors, in common with others, into the concursus of distribution of the succession property ; but, in that concursus, the Probate Court would be compelled to give effect to the rights of the judgment creditor as determined by the Court which rendered the judgment, and was not vested with power to review its validity or to determine the effect of the judgment, or to. decide whether or not it should be executed at all.

As to other relief sought in this action, it is clear that this exception could not prevail.

The second exception to the jurisdiction is also confined, in its 'scope, to the relief asked against the judgment and its execution.

Plaintiffs, in their brief, disclaim and abandon that portion of the prayer of their petition asking that the judgment of this Court be annulled — ánd we are, therefore, dispensed from considering here the question of the power of inferior courts to entertain actions of nullity of judgments of this Court.

Plaintiffs confine their relief, with reference to this judgment, to a demand to regulate and interpret the judgment and to restrain and limit its execution for causes occurring after its rendition.

Under articles 905 and 915 of the Code of Practice, it seems very clear that the jurisdiction of this Court with reference to its own judgments terminates with their rendition and finality, and that all matters touching their execution are remitted to the original cognizance of the inferior courts. Differences as to the effect or interpretation of such judgments equally find no forum for original assertion except in the same courts. It is easy to conceive that such differences may honestly arise; and it is plain that cases may arise in which causes, occurring subsequently to the rendition of judgments, may render their execution illegal and inequitable and violátive of rights not within the contemplation of the Court when the judgment was rendered, and not intended to be foreclosed thereby.

Examples are suggested of eviction of the vendee of an immovable after judgment against him for the price ; or eviction of a tenant, or destruction of leased premises, after judgment for future rents; and such examples might be easily multiplied. Here would be failure of the only possible consideration of such judgments, and it could not be doubted that such failure would furnish just ground to enjoin their execution.

Similar failure of consideration is alleged in this case, and additional relief is asked not connected at all with the judgment. We have no doubt that the causes of action are within the jurisdiction of the court a qua,.

The third exception of res judicata encounters three insuperable objections to its maintenance, viz :

1st. The petition distinctly alleges that “ the heirs of John Davidson ” (who are parties plaintiff here) “ were not parties to said proceeding in the late Seventh District Court, and that John Davidson was dead at the time.” There is nothing in the record to contradict this allegation, which must be taken as true, and eliminates a necessary element of the plea.

2nd. The record and judgment pleaded as res judicata are not put in evidence in support of the plea and do not appear in the transscript, thus leaving us without any proper basis for a determination of the merits of the plea.

3rd. The plea itself is a clear petitio principii. The very questions at issue are, what are the meaning, effect and consideration of the judgment and whether the causes alleged are sufficient to justify the restraint or limitation of its execution. It involves an illogical anachronism to say that these questions, arising upon, and after, the judgment, could have been determined by the judgment. 'As to other relief sought in the petition, of course the plea has no application.

The fourth exception of no cause of action we shall not discuss at length, for the reason that we are desirous of avoiding the slightest trenching upon the merits of this important cause.

We are of opinion that the allegations of the petition, if established, present a case of great hardship and urgently demanding relief which could not be denied unless the stern estoppel of the thing adjudged has indeed operatedjhe miraculous conversion, “ ex nigro, album, ex curvo, rectum.” It is certainly a case demanding an investigation and determination upon the entire merits.

In overruling the plea of res judicata as here presented, it is perhaps proper to say that we do not mean to debar the Court á qua from considering it as a defense to the merits and giving the judgment pleaded such effect, for that purpose, as it may be found entitled to.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, that the exceptions of defendant be overruled, and the case remanded to be proceeded with according to law ; appellee paying costs of this appeal.


text:
    No. 7945.
    W. B. Conger, Executor, vs. City of New Orleans.
    The pledgor himself may be in some cases the detainer ad hoc of the pledge for account of the pledgee, hut when, having been so, he has sold the property pledged, it cannot be held that prescription of the debt remains interrupted by the existence of the pledge.
    Though by Act No. 5 of 1870, writs of fieri facias and mandamus could not be issued against the City of New Orleans, yet a creditor was not prevented from bringing his suit against said city, and he could, therefore, interrupt prescription by citation.
    The statement, made under Act No. 7 of 1870, by the Administrator of Public Accounts to the City Council, of the debts of the City, cannot be held as an acknowledgment of those debts, which should interrupt prescription.
    When a coupon once attached to a bond has been severed from it, and both are negotiable^ they represent separate and independent debts or securities, and the payment of the coupon is not an acknowledgment of the debt represented by the bond and will not interrupt prescription on the latter.
    APPEAL from the Fifth District Court, parish of Orleans. Bogersr J.

    Joseph Brewer and E. T. Elorance for Plaintiff and Appellant.
    Pirst — Prescription does not run duriDg the existence of a pledge.
    Second — Act 109, of the Acts of 1854, made a perpetual pledge of the stock of the railroad company, subscribed for by the City of New Orleans, in favor of each and every holder of the bonds issued in pursuance of the provisions of said Act, and the ordinance of the Common Council of said city, approved April 7th, 1854, and subsequently ratified by the duly qualified voters of said city, on the 21st da'y of April, 1854, and consequently prescription cannot, and did not, run against said bonds.
    Third — The action of the City of New Orleans in issuing the bonds sued on, secured as they were by the law which authorized their issuance, and acting as owner of the stock of the railroad company, estope her from denying that the stock was pledged to meet the redemption of the bonds.
    Fourth — The bonds themselves state on their face that the railroad stock stands forever pledged to secure their redemption. On the faith of which statement the bonds found a money market, and, therefore, the city is again estopped from denying the existence of the pledge.
    Fifth — Act No. 53, of 1874, postponed the maturity of the bonds sued on until December, 1876, from which time, therefore, prescription should be calculated.
    Sixth — The prohibition to issue a ft. fa. against the city (Act 1870, No. 5), and to mandamus (under Act 1874, No. 53), makes applicable the rule “ Contra non valentem, non currit prescription

      Seventh — The bonds sued on were acknowledged by semi-annual statements of the city, within the time required for prescription, and prescription was thereby interrupted.
    Eighth — The payment by the city of interest coupons to the holder of the bonds sued on, less than five years before the institution of this suit, interrupted prescription on the several bonds of which these coupons formed a part.
    E. H. Farrar for Defendant and Appellee.
    First — A statutory pledge of stock in a railroad corporation, made to secure the payment of certain bonds, issued by a municipal corporation in payment of its subscription to said stock, where the pledgee never has any possession or control of the stock so pledged, does not interrupt prescription on the bonds.
    Second — It is not the contract of pledge which tacitly interrupts prescription, but the actual possession by the creditor and pledgee of the thing pledged.
    Third — The Act No. 53, of 1874, applies on its face and by its terms only to those classes of bonds for which sinking funds had been provided by law. No sinking fund was ever provided to pay the railroad bonds.
    Fourth — The maxim contra non valentón has no application, because Act No. 5, of 1870, did not hinder, delay, or obstruct the bringing of an action on the bonds.
    Fifth — The reports of the Department of Public Accounts are mere statements of the fact of the issuance and outstanding of certain bonds, and are not acknowledgments of the right of the bondholders.
    C. C. Art. 3520 ; 1 An. 343 ; 13 An. 579.
    Sixth — Where a bond and coupon both fall due on the same day, and the coupon is subsequently presented for payment, severed from the bond, and is paid, such payment is no acknowledgment of -the right of the holder of the bond ; and this, for the reason that the coupon and the bond, though physically attached, and though originating contemporaneously from the same contract, are separate and independent instruments, the one representing the capital of the debt, and the other representing the interest, capitalized by anticipation. The coupon has lost its character as mere interest, and has become a principal debt, itself bearing interest from maturity. 21 How. 539 ; 1 Wall. 175 ; 9 Id. 477; 20 Id. 583 ; 92 U. S. 502; 96 IT. S. 62, 631; 98 U. S. 473 ; 32 Md. 501.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit to recover the amount of three bonds of the City of New Orleans, of one thousand dollars each, dated May 1st, 1854, payable twenty years after ■ date, issued under the pro- ' visions of Act No. 109, approved March, 1854. The bonds are unaccompanied by any coupon.

On the 17th of May, 1879, five years and sixteen days after the maturity of the bonds, the petition herein was filed.

Under Article 3540, R. C. C., the city pleads the prescription of five years.

In reply to this defense, the plaintiff says:

1st. Prescription does not run during the existence of a pledge. By the terms of the act cited, which was ratified by the people, and became executory, the stock owned by the city in the railroad company, for whose relief the bonds were issued, was perpetually pledged in favor of the bondholders.

2d. The City of New Orleans, by acting as owner of the stock and issuing the bonds, is estopped from denying the pledge.

3d. The time of maturity was extended by Act 53, of 1874, until December, 1876.

4th. The bondholders were prevented by Act 5, of 1870, from enforcing by fieri facias or mandamus the payment of their bonds, and the maxim, contra non valentem applies, and prescription was suspended.

5th. The city acknowledged her liability for the bonds in the reports of the Department of Public Accounts, and by paying the last coupons due on said bonds within five years prior to the institution of this suit, viz : the 18th of March, 1874.

I. The law requires, as an essential element to the contract of pledge, that the creditor be put in possession of the thing given to him in pledge, and, consequently, that actual delivery of it be made to him ; but the rule does not apply to incorporeal rights, the delivery being merely fictitious and symbolical. R. C. C. 3152, 3153. However, the pledge of stock, to be valid, must be followed by delivery. R. C. C. 3158 ; 1 R. 516 ; 7 A. 221; 19 A. 364 ; 1 A. 340 ; 1 R. 516 ; 23 A. 478 ; 22 A. 107 ; 15 A. 165; 14 A. 375, 393 ; 11 A. 223, etc. Possession, though essential to the validity of the pledge, need not be always in the creditor. It is sufficient that the thing pledged be in the possession of one occupying, ad hoc, the position of a trustee. The debtor himself may, in some cases, be considered as such trustee and be given possession of the thing by him pledged, provided his tenure be precarious and clearly for account of the creditor. The Louisiana doctrine is in perfect accord with both the common, the Roman and French laws. R. C. C. 3162 ; C. N. 2076; 21 Wall. 360 ; 5 Bing. N. C. 136 ; 1 Sandf. N. Y. 248 ; 2 Pick. 607 ; 15 Mass. 389 ; 2 Taunt. 266 ; Story on Bailments, 299 ; 14 Pick. 497 ; D. L. ,xiii, t. vii, 1. 35, 1. 37.

Pothier Nart. 8 ; Pothier Pandects, v. vii. p. 360 ; 2 Bell Com. on Scotch. Law, 7th ed., p. 22 ; Troplong Nant., Nos. 97-99, 309, 311, 312; Dalloz Rep., xxxii, p. 455 ; 93-129, 313, 119, 121, 209, vo. Nant.; Duranton, v. 18, Nos. 525-531.

6 L. 516 ; 26 A. 35 ; 5 A. 274, 539 ; 7 A. 225 ; 5 Denio, N. Y. 269 ; 21 Wall. 360 ; 96 U. S., S. C., p. 476, in which the above authorities have been reviewed, analyzed and applied.

So that it is not correct to say, that the statutory pledge in this case (the stock remaining in the hands of the city) is not a valid pledge, and would not interrupt prescription, see 98 U. S. 396, because not in the hands of the creditors.

But of what avail can this position be to the plaintiff, when it appears that the stock pledged was sold by the city under legislative authority (Act 76 of 1870), and its proceeds applied to ordinary purposes. The bondholders might have interposed objections to the sale, but they did not do so. They have slept upon their rights. The pledge perished, as such, more than eight years before the institution of this suit. The plaintiff cannot claim that there exists a thing pledged in this case. His prayer does not ask for a privilege on the pledge. Even if it did, how could the Court allow it, when the pledge is no longer in existence, therefore beyond subjection.

II. What becomes of this second defense of estoppel, when it appears that the pledge is no more ? Even if the city were estopped from denying the original existence of the pledge, what does it avail the bondholder to set up the estoppel, when the denial is verified by the absence of the pledge ?

The proposition advanced by plaintiff, that prescription does not run during the existence of the pledge, is indeed too firmly established to be, nor is it attacked. 21 A. 128 ; 22 A. 107, 117 ; 23 A. 293 ; 7 Marcade 205 ; Troplong Presc., 618, 628, 534; 10 Otto, 450. It is not the contract or act of pledge that interrupts prescription, but it is the detention of the thing pledged by the creditor, or some one, by consent, for his •account. Such possession is a constant renunciation of prescription every instant that it begins to run. Troplong Pr.; 65, 75, 254.

III. The Act of 1874, No. 53, did not postpone the maturity of the bonds in question. It merely dispensed the city from levying any tax for sinking fund purposes of any bond whatsoever. It has no reference at all, in that respect, to the bonds sued on, or similar ones, as the law under which they issued never required a tax for a sinking fund for their benefit.

IY. Whatever may be said concerning Act 5, of 1870, which was prohibitive‘of the issuance of writs of Herí facias and mandamus against the city, to draw money, directly or indirectly, from the municipal treasury, it-cannot be claimed that, under the provisions of that statute, suits could not be brought against the city, the service of citation in which would have interrupted prescription, for the act distinctly provides for the institution of proceedings via ordinaria, and for the registry of judgments thereby obtained against the city. Had the plaintiff instituted suit, and cited the city within the five years following the maturity of the bonds, the city could not be listened to to-day when urging the defense of prescription.

V. Act 7, of 1870, sec. 9, g 6 (city charter), which relates to the Department of Public Accounts, provides that it “ shall have a general superintendence of all claims and demands against the Oity of New Orleans. It provides also for the laying before the Council of a report of the claims and accounts, and of a statement of the indebtedness of the city, showing, in detail, all outstanding obligations, their date, amount, to whom and for what issued, when due, and under what ordinances and resolutions authorized.

By this law the duties of the Administrator of Accounts are defined and regulated between him as a municipal officer or agent, and other municipal officers or agents, all representing the corporation. Nowhere does the law authorize this administrator to acknowledge any claim against the city, so as to make it an indebtedness binding on the city. The object which the law had in view was the transmission by this administrator to the City Council of information touching the condition of city affairs as disclosed by his books. The statement of indebtedness required to be furnished by him, semi-annually, was to serve as an exhibit of the apparent (real or nominal) indebtedness of the city. The statute does not bear any other interpretation. The entry and statement of the outstanding debt was never designed to prove an acknowledgment of indebtedness so as to interrupt prescription. 1 A. 343 ; R. C. C. 3520.

The distinction between the acknowledgment that an evidence of indebtedness has been uttered and is outstanding, and the admission of the right of the holder of such evidence of indebtedness, to demand and enforce payment, is quite apparent. R. C. C. 3520 ; 13 A. 579.

One may well admit, as a fact, the issuance by him of a certain note, since the maturity of which ten years have elapsed without exposing himself by such admission, to being dealt with as having acknowledged thereby an indebtedness and an obligation to pay. Unless the acknowledgment be clear and precise, courts cannot consider it. Troplong Pr., p. 131; No. 614, p. 51; No. 524; Cass. 21 Sept. 30; 13 A. 579 ; Marcadé Pr. 145, x ; Dal. 31,1, 23 ; 9 A. 15 ; 11 A. 83-212.

“Simplex recognitio, non disponit nec immutat statum rei,” says Dumouiin.

We cannot admit the correctness of the proposition advanced by the plaintiff, that the payment by the Oity of New Orleans of the last matured coupons of the bonds, some seventeen days after the maturity of the bonds themselves, is an admission by the city of the existence of the debt, which was the principal obligation, of which the interest, represented by the coupons, was the accessory. The proposition may be, in most cases, a correct one, but it is not so in the present instance, in which the bond and the coupons are independent debts, which have a distinct and separate value. They evidence different obligations to pay money. For convenience only is it that the diminutive promises to pay, styled “coupons,” are attached to the original or primitive debt, the.bond. They can be detached from the bond, and sold in the market separate from the bond. They can be sued upon by one who is not the holder and owner of the bond. They pass as negotiable securities. 21 How. 539 ; 1 Wall. 175; 9 Id. 477; 20 Id. 583; 92 U. S. 502 ; 96 U. S. 62, 631; 98 U. S. 473; 32 Md. 501.

Daniel on Neg. Inst., $1488-96, vol. 2, p. 442, second ed.; Bouvier v. 1 (14th ed.), 373.

A bond is generally issued with coupons attached to it, but those coupons may be secured and negotiated before the maturity of the interest they represent, and thus pass as separate and independent securities, like other commercial instruments.

18 Gratt. 776 ; 20 Wall. 584; 21 Howard 539 ; 3 Wall. 327 ; 44 Penn. 60 ; 10 Wis. 136 ; 2 Metcalf Ky. 56 ; 17 Conn. 243 ; 25 N. Y. 496 ; 13 Ind. 161; 102 Mass. 503 ; 8 R. I. 375.

In this ease the coupon was detached. From the moment it was so-severed, it became a separate and independent security, ceasing to be part and parcel of the bond as a substantive part thereof. 9 Wall. 483 ; 14 Wall. 296. There exists a marked difference in the character of coupons according as they are or not detached or severed from the bond. Arny vs. Dubuque, 96 U. S. (8 Otto), p. 470, and authorities there quoted and reviewed.

We can well conceive of the possibility of a bondholder selling his-bond before maturity to the corporation by which issued, and of the outstanding, after such sale, of the coupons originally attached, but subsequently severed from it. Could it be claimed that, because of the payment of the coupons after the purchase of the bond by the corporation, the debt evidenced by the bond has revived ? Surely not. The debt was extinguished by payment. But that is not the only mode of extinction of obligations. R. C. C. 2130. Prescription, as effectually destroys an obligation before the law, so as to prevent its enforcement, as payment does. It is based on the presumption of payment, or of remission or abandonment of the debt, and is based upon consideration of public order and policy.

Troplong on Prescription, Art. 2219, O. N.

Marcade on same, and numerous authorities quoted by them.

There exists a case, in which a principal debt, resulting from a contract, may be due, while the fruit thereof may be prescriptible. R. C. C. 3538 ; Suco. Canonge, 1 A. 209.

The maxim minima agnitione debiti, tollitur prescriptio, does not apply, because of the severance of the debt which was represented by distinct evidences of indebtedness, payable separately, at different dates, except that of the maturity of the bond, and of last coupon thereof. A part payment of the bond; or a part payment of the coupon, or a judgment of interest, however small, of the interest running directly on the bond at its maturity, or on the coupon, if any do run thereon, would certainly be susceptible of being urged as an acknowledgment of indebtedness of the remaining unpaid portion of the debt. The maxim partis approbations, totum approbamus would then receive application. Take the case of a purchaser of real estate on credit, who issues in settlement of the price two notes at one year, and who pays one of them on the last day of the five years following its maturity, could it be claimed that by such payment he has acknowledged his liability to pay the other note, although more than five years had elapsed since its maturity, without any interruption of prescription within that time ?

Troplong, Prescription, Art. 2248, p. 130.

Marcade, Prescription, same Art., p. 122, X 145.

The judgment cf the lower court sustained the plea of prescription. We find no error in it.

It is, therefore, ordered that the j udgment appealed from be affirmed with costs.

Eehearing refused.


author: Bermudez, C. J. Bermudez, C. J.

text:
    No. 8109.
    State of Louisiana ex rel. Lucien DeBuys vs. Judges of Civil District Court, Parish of Orleans.
    This Court has the power, under Article 90 of the Constitution, in its sound discretion, to issue a writ of Certiorari to revise the proceedings of a District Court, in cases where no Appeal lies and where serious injury roiglit accrue for want of other legal remedies.
    Each judge of the Civil District Court of the Parish of Orleans exercises, in the cases allotted to him, all the powers of the court.
    Recognition of the great constitutional law that “ no person shall he deprived of life, liberty, or property, without due process of law”

    Contempt of Court is of two hinds: that which is committed in open court, and that which is committed out of the view and hearing of the court. Por tlie punishment of the first hy commitment and fine, no proceeding needs he talcon contradictorily -with the offender.
    But for the punishment of the latter by the same means, the offender must he granted a Buie to show cause and he allowed, to offer evidence and argument in his defense.
    J. O. Nixon, Jr., and E. W. Huntington, for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a certiorari, to ascertain the validity of certain proceedings by which the relator was sentenced, for a contempt of court, to an imprisonment of ten days and to a fine of fifty dollars.

In substance, the relator charges that, on Saturday, the 18th December, 1880, he was arrested in his office by the Civil Sheriff of this parish, under a pretended order of court, and conveyed to the courtroom of the Civil District Court in this city, where he was, without hearing, condemned by the said Court to pay a fine of fifty dollars and to be confined in the Parish Prison for ten days for an alleged contempt of Court; that he applied to said Court for permission to introduce witnesses, for time to prepare a defense, which were denied him ; that his counsel offered to read opinions and decisions of other courts, which was refused ; that he had no notice whatever of the offense with which he was charged until he was brought to court; that he was brought before the Court and condemned without being heard, and was thereupon'committed to the Parish Prison, in New Orleans, where he is now confined.

The petition further avers, that said pretended judgment is an absolute nullity, because petitioner was condemned for an act alleged to have been committed, not at a place or time when the Court was in session, without any previous notice, and without being heard, and because the judges of the said Court refused to hear petitioner, or his witnesses, before pronouncing said sentence; that the contempt charged was the commission of an act which is indictable and punishable under the criminal laws of this State, and that the judgment punishing peti-ti oner therefor is a mere nullity.

The relator prays that after due course of law, said proceedings be declared null and void.

The petition is sworn to by the relator. In answer to the rule', issued to show cause why the relief sought should not be granted Henry L. Lazarus, one of the judges of the Civil District Court fordhe parish of Orleans, says, that he tenders the record in the case of Berje vs. New Orleans, and all proceeding therein; that under the Constitution and an allotment of said case to him, he has exclusive control over the same ; that the other judges have no control over the record of said case, and have no return to make, other than the return of the respondent; that the proceedings, judgment and commitment of relator by him were based upon the facts set forth in the record, which constitute a most flagrant and unwarrantable contempt of court. Respondent prays that this return be accepted as satisfactory, and that the proceedings be dismissed.

The return does not contradict any of the averments of facts contained in the petition, which must, therefore, be taken for true, the more so as the record supports them.

It does not expressly affirm the validity of the proceedings ulti-mating with the sentence for contempt, but rather upholds the advisability and correctness of the decree made in the premises. This will not, however, prevent us from passing upon the issues as disclosed by the petition itself.

Two questions are presented for our determination in this case:

1st. Whether the proceedings by which the relator was sentenced to imprisonment and confined, and to pay fifty dollars as a fine, for contempt of court, are regular and valid.

2d. Whether, if they be so, the District Judge had the power to punish for a contempt, and whether a contempt was committed.

The right of this Court to issue and entertain the process of certi-orari and to pass upon the issues made in a case in which no appeal lies, cannot be doubted under the provisions of article 90 of the present Constitution, which vests it with control and general supervision over all inferior courts and with power to issue writs of certiorari, prohibition, mandamus, quo warranto and other remedial writs.

In 32 A. 519,553, we held that this article emancipated this Court from the restraint placed by the previous Constitutions, by the Code of Practice, and by the jurisprudence upon the exercise of such powers, which were, up to the adoption of the Constitution in force, limited to cases in aid of its appellate jurisdiction. Article 74, Const. 1868 ; C. P. 860 ; 31 A. 795 ; 15 A. 120 ; 22 A. 459, 517 ; 16 A. 164; 30 A. 457 ; 25 A. 381. We there clearly announced that, as a rule, we would exercise the powers thus to us delegated over inferior courts — in our sound discretion — in those cases in which there would exist a flagrant usurpation of authority, or where serious injury might accrue to parties to whom no other remedies are afforded, or where the intermediate courts are powerless to grant relief.

We think the case before us is one in which we are authorized to institute the inquiry and to make a determination of the matters submitted.

The Civil District Court for the parish of Orleans is a constitutional judicial organization, clothed with general civil jurisdiction. It is composed of five judges, each of whom represents the court and exercises, in the eases allotted to him, all the powers of the court. Each judge possesses the powers necessary for the administration of justice, though the same be not expressly given by law, among which is that to punish all contempts of his authority by fine not exceeding fifty dollars, and imprisonment for a period not exceeding ten days, for each offense. Const, article 130; C. P. 130,131.

It does not appear from the record, otherwise than from the petition, whether the judges representing the court sat together during the proceedings complained of, and whether the sentence pronounced was or not their act. Be that as it may, the District Judge, who has answered, •has done so in his and their name.

We do not see how the process of this Court was sought and leveled at all the judges of the Civil District Court, who have, as a rule, no authority collectively, but only separately, to represent that court. They may in given instances act together; but we are at a loss to know what theirpower could have been to sit en banc, as it is represented they have done in this case, on a proceeding to punish for a contempt not alleged to have been offered to all but to one only.

It is clear that each judge representing the court had power to punish for contempt. The respondent, Henry L. Lazarus, as one of the judges of that court, possessed that power to the full extent provided by law, as a necessary incident of the creation, existence and operation of a tribunal organized as a court of justice. Bac. Abr. Courts and their Jurisdiction, E; Rolls’s Ab. 219 ; Bouvier L. D. p. 302, No. 5. Having that power, he had authority to exerciseit, but he could do so only in the manner and form and in the cases provided by law, and in whioh'such power is authorized to be exercised.

C. P. 131.

It is written in the paramount law of the land-that “no person SHALL BE DEPRIVED OE LIEE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OE law,” U. S. Const. Amend. 5 ; and this solemn prohibition, in order that it may be better known and respected, is reiterated in the organic law of this State. Const. 1879, Art. 6.

That great constitutional provision which guarantees to every •citizen life, liberty, and property, derives from “ Magna Oharta,” which declares :

Nullus liber homo capiatur vet imprisonetur, aut disaisietur, aut relegatur, aut exulatur, aut alieno modo destructur, nec super eum ibimus, nec super eurnmittemus, nisi per legale judicium, parium suorum, vel PER LEGEM TERR2G.

No better 'definition of what the law of the land is can be found, than that found in Mr. Webster’s argument in the celebrated Dartmouth •College case.

“ By the law o£ the land is most clearly intended, the general law which hears, before it condemns, which proceeds from inquiry, and renders judgment only, after trial. The meaning is, that every citizen shall hold life, liberty, property and immunities under the protection of general rules which govern society. Everything which may pass under the form of an enactment is not the law of the land.”

See Sedgwick on Construction of St. and Const. Law, p. 476, et seq. and notes ; Cooley on Const. Lim. 361, and authorities in notes. 4 Blackstone, 424.

“ It cannot mean less than a prosecution or a suit instituted and conducted according to the prescribed forms and solemnities for asserting guilt, or determining the title to property. The same measure of protection against legislative encroachment is extended to life, 'liberty and property.”

There exists in this State a body of laws defining and punishing crimes and offenses, defining and enforcing rights and obligations, prescribing the forms to be followed in the prosecution of criminal and civil matters.

Two of the laws which govern in this State on the subject of contempt of court, read as follows :

1st. “ The parties to any suit pending before any court of this State, shall have the right to appear and plead in. person, or by their attorney at law or in fact.” R. S. 122.

2d. “ No fine shall be imposed without a rule on the party, to show cause, unless the circumstances of the case should, in the discretion of the court, require no delay.” C. P. 132, l 2.

“The jurisdiction to punish for contempt of authority is a very delicate one, and requires to be exercised with great care and caution. The reason has been hinted at: The judge occupies the position of accuser also, and when he punishes, is dealing with conduct which is contemptuous of his own authority, and, perhaps, insulting to himself.” Cooley on Torts, p. 422.

Blackstone iv. art, 131,132: “ To specify in detail the conduct that might constitute contempt of court, would be to enumerate the ways in which misbehavior might obstruct the courts of justice. Assaults in the presence of the court, disorders of any description, which interrupt the proceedings, abuse of the court, refusal of one called as a witness to testify, neglect of official duty, or other misbehavior, by any officer of the court; neglect to obey the orders or process of the court, etc., may all be punished as contempts. So might be any acts of violence to prevent the court convening.”

“It has been held in many cases that the publication of an article in a newspaper, commenting on proceedings in court, then pending and undetermined, or upon the court, in its relation thereto, made at a time and under circumstances calculated to affect the course of justice in such proceedings, and obviously intended for that purpose, may be punished as a contempt, even though the court was not in session when the publication was made. Cooley on Torts, p. 214, 1 M. 102; 48 N. H. 428 ; 3 Yeates, 438 ; 1 Dall. 319 ; L. R. 7 Eq. Cas. 49 ; L. R. Eq. Cas. 580 ; 64 Ill. 195.

The use of abusive language to the court, or any judge thereof, in a petition for a rehearing signed by a party through a licensed attorney and filed with the clerk, is a contempt of court. 11 L. 601; 8 R. 500 ; 1 A. 183. Punishment for contempt need not always be fine or imprisonment, particularly as concerns members of the bar, 10 M. 123, 158; 11 A. 449, but may extend to same. R. S. 1257 ; 1 A. 183 ; 8 R. 500 ; 25 A. 532 ; C. P. 132.

A judge who obstructs the mandates of the Supreme Court is in contempt of its authority, and can be fined and imprisoned. 24 A. 621.

Contempts are of two sorts. They may be committed in facie curice, and are then termed direct; they may be committed out of the view and hearing of the court, and are then termed constructive contempts. Blackstone IV, Art. 286 ; Hurd on Habeas Corpus, 7 ; Cooley on Torts, p. 424; 36 Ind. 196 ; 1 Salk. 84; Strange 185, 564; 1 Yeates Penn. R. 1; 11 La. 596 ; 8 R. 500 ; 36 Miss. 33 ; 37 N. H. 451.

A court is an incorporeal political being, which requires for its.existence the presence of the judges, or of a competent number of them, and a clerk or prothonotary, at the time during which and at the place where it is by law authorized to be held, and the performance of some public act indicative of a design to perform the functions of a court. According to Lord Coke, a court is a place where justice is judicially administered. Co. Litt. 58, a.

The judges, when duly convened, are also called the court. 6 Vin. Ab. 484 ; Wheat. Dig. 127 ; Merlin Rep. 3 Com. Dig. 300 ; 8 lb. 386 ; Danes Ab. Index h. t.; Bouv. Inst. Index h. t.

“ A contempt of court is considered, in some degree, a criminal act, as much so as an assault and battery, a libel, or other offense of that kind. Blackstone and other writers treat of it under the head of public wrongs, and say that the trial must be summary so that the punishment-may be prompt and the character of the tribunal vindicated.” State vs. Soulé, 8 R. 505 ; 24 A. 121; Hurd on Habeas Corpus, p. 7.

Where the offense is committed in presence of the court, while the court is in session, within its view or hearing, it would seem that contra- ( dictory proceeding is not necessary ; but the rule is quite different when the offense is committed otherwise.

Generally,a warrant should not issue except upon affidavit; but these requirements would not be necessary where the judge himself was offended ; and the charge of contempt should not, in, any case, be followed by sentence and imprisonment, unless after a rule to show cause has been granted and the party defendant therein heard and permitted to offer evidence and argument. A party in such case may have defenses which the offended authority may not conceive of. Such party would have a right, as any accused in a criminal case, as, for instance, to prove an alibi or a want of identity. It is only after such party has been heard that the court has authority to determine whether the act charged as constructive contempt is so, and if such, to punish by fine or imprisonment, or both, or otherwise, the defendant in the process for contempt.

We ñnd no case in this State, in which a rule to show cause was not taken to punish for a constructive contempt.

The authorities on this point, which is of vital importance in this case, are quite numerous. R. S. 122 ; C. P. 132; 1 M. 102 ; 1 M. 297 ; 1 A. 183 ; 8 R. 500.

“ The right to a hearing is absolute, and cannot be denied in a court of any grade.

“ A warrant issued to carry into execution a conviction for contempt by an inferior court, should show that opportunity was given the party to be heard in his defense.” High on Ex. Rem. secs. 565, 576 ; Cooley on Torts, p. 425; 3 Texas ex parte Kilgore 247, C. App. Rep.; 7 Wall, 364 ; 90 N. S. 337 ; Ex parte Pollard, L. R. 2 Pr. C. Cas. 106 ; 42 Cal. 412 ; 2 Met. Ky. 619 ; 1 Cal. 181; 7 Cal. 181; 38 Texas, 351; 37 Barb. 37 ; 1 Hill, 154 ; 24 Texas, 12 ; 9 Paige, 374; 10 Boser, 589 ; 27 How. Pr. 14 ; 36 Ind. 196 ; 38 Tex. 314 ; 3 Blatchford, 4, 6 ; 14 How. 103 ; 6 Op. Att. Gen. 93 ; 2 Paige, 103 ; 4 Paige, 284; 30 How. Pr. 131; 2 Daly, N. Y. 530 ; 9 R. I. 248 ; 5 Hun. N. Y. 428 ; 49 How. Pr. 370 ; Wall. C. C. 141, 134; 3 Bl. C. C. 148.

When the forms of law in such respect have not been observed, the proper remedy is by certiorari.

Article 857, C. P., declares :

“This mandate (certiorari) is only granted in cases where the suit is to be decided in the last resort, and where there lies no appeal, by means of which proceedings, absolutely void, might be set aside, or when the inferior judge has refused to hear the party or his witnesses, or has pronounced sentence without having cited them to appear.”

34 How., Pr. 259; 2 Cr. C. C. 612; Ex parte Bennett, Martin C. C. N. Y., 16th February, 1866; State ex rel. Carcass, 32 A. 719.

We find that the proceedings complained of, by which the relator was sentenced, is irregular and void, and that they should be set aside. His confinement and detention thereunder should last no longer.

This view of the case dispenses us from considering the questions next presented, whether a contempt was actually committed. It is enough, for the purpose of this case, that we find that the proceeding was not in accordance with the requirements of the Constitution, of the law, and of the jurisprudence on the subject.

We do not think it necessary to elaborate, to apply the principles and authorities alluded to in this opinion, to the case before us, as the mere statement of the law and the facts conduce to our conclusion.

We have no doubt that our learned, brethren of the District Court will readily concur in our views, as to the general necessity of hearing before condemnation, in cases of contempt committed extra faciera curiae. They were, no doubt, in this ease, misled by the fact that inasmuch as the offense here charged took place in the personal presence and hearing of the judge, it was assimilated to a contempt in faciera curiae, in which hearing would be unnecessary. The only reason for the dispensation of. contradictory proceeding in the latter case, lies, as already indicated, in the necessity of immediate action in vindication of the police and good order of the Court, and that reason does not apply.

It is, therefore, ordered, adjudged and decreed that the proceeding by which the relator was sentenced to an imprisonment of ten days, and to a fine of fifty dollars, and which is the object of the complaint herein, be annulled and avoided, at respondent’s costs.

Mr. Justice Poohis having been prevented by illness from hearing the argument of the case, takes no part in this decision.

Bermudez, C. J.

The motion for a certified copy of the opinion and decree herein rendered, is not resisted by the respondent, who answers verbally that he has no cause to show why the motion should not be granted.

The article of the Code of Practice 911, having reference to applications for a rehearing, cannot be construed as intended to embrace cases like the instant one, which was not in existence at the adoption of that Code, as it originates under Article 90 of the Constitution now in force.

The effect of the remedy granted in this case is the same as in habeas corpus cases, in which, under Article 824 C. P., if it appear to the judge that there is no cause of arrest and confinement, or if he think that such arrest and confinement cannot legally continue, he shall immediately set the prisoner at liberty.

Were it otherwise, the remedy granted would be destructive of the relief sought and obtained, as the relator would have to remain in confinement until after the expiration of the ten days for which he was committed.

Note of the Reporter. — The following Decisions were omitted by error from their proper place in this volume, and are reported here for that reason. The first case, viz: Widow Y. M. Benavis vs. Jose Barba and Sheriff, was decided in New Orleans, in May, 1880. The others were all decided at Opelou-sas, in July, 1880.

The difference, if any exist, between the two cases, is difficult to perceive. We have been shown, and we discover none.

Ubi eadern ratio, eadem lex.

We think, under the exceptional circumstances of this case, the copy asked can be issued, as the judgment is executory.

It is therefore ordered that the motion for such copy be granted, and that the copy asked be issued, duly certified by the clerk of this Court.


author: Poché, J.

text:
    No. 7587.
    Widow V. M. Benavis vs. Jose Barba and Civil Sheriff.
    The presumption of marriage, -which results from reputation and long cohabitation, must yield to positive evidence to the contrary.

      Semble that such presumption only exists in favor of either party to the supposed marriage and of their children, but not of creditors, especially when both said parties deny ever having been married and having lived as husband and wife.
    APPEAL from the Fourth District Court, parish of Orleans. Houston J.
    E. North Cullom and F. Michinard for Plaintiff and Appellant.
    E. Howard MeCaleb and Albert Voorhies for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

This case involves mainly a question of fact. Plaintiff enjoined the sale by the sheriff of a house and lot on Esplanade street, in this city, of one of three luggers, three horses, a barouche, a wagon, and a lot of household furniture, seized by him under a writ of fi. fa. issued in the suit of Jose Barba vs. Hillario Francisco. Plaintiff, alleging that she is a widow, claims to be the owner of the real estate thus seized, of one of the three luggers, and of the movable property ; all of which property she alleges has been wrongfully and illegally seized. Defendant filed an exception and an answer and a plea in reconvention ; he alleges that plaintiff is estopped from claiming the property seized and from pretending that she is a single woman, having by her conduct, admissions and representations for the past twelve years acquired the status of a married woman, as the wife of Hillario Francisco, and that the property acquired by her pending her coverture, and seized in the suit of Barba vs. Francisco, fell into the community of acquets between berself and Francisco, and as such became liable to seizure for the payment of the debts contracted by him as head and master of the community.

The judgment of the lower court was against plaintiff; and she has appealed.

We have carefully examined and weighed the evidence contained in the voluminous record in this case, and after considering the authorities quoted by counsel in their briefs, we reach the conclusion that the decision of this cause turns upon the nature of the relationship existing between plaintiff and Francisco, and whether these relations show a presumption of marriage from which a legal community of property can be deduced.

The evidence shows that both of these parties are persons of low 'birth, very ignorant, and of no culture or refinement.

Francisco has been for twenty-two years a head or boss fisherman at San Mallo, on Lake Borgne, where he controls several companies of fishermen, whose fish he sells on the market, and for whom he purchases provisions, fishing tackle, seines and other necessary supplies.

For twelve or fifteen years plaintiff, who was the widow of one Yin-cente Benavis, who perished on the high seas on his voyage to America, has been living with the fishermen at San Mallo, where she was employed to wash, sew, cook and keep house for them, on wages paid by the week and by the month. Her constant presence at the fishermen’s hut or shanty threw her in contact with Francisco, who cultivated relations of immoral intimacy with her, and has since lived with her in open and bold concubinage.

The evidence fails to satisfy us that they lived, or pretended to live, ■as married people, or by word or act justified the presumption that they •claimed to_be man and wife. The presumption of marriage, which results from reputation and long cohabitation, must yield to positive evidence to the contrary.

In all the cases quoted by defendant, the two spouses, or at least one of them, recognized or urged the validity of the presumed marriage ; ■and, in most of the cases, the civil status of children born of the union was the question involved.

In this case, we are asked to attach to the alleged connubial relations consequences affecting the title to property or the existence of the legal community. And in this case, both parties positively and emphati•cally deny that they were ever married, or ever intended to be married, or that they lived as man and wife. In the case of Holmes vs. Holmes, *6 L. 463, relied upon by defendant, this Court held that “ marriage is regarded by our law in no other light than as a civil contract, highly favored, and depending essentially on the free consent of the parties capa-blé by law of contracting.”

In the case at bar, the alleged marriage is thus shorn of the very essence of its existence and validity for want of consent of the parties. Of the nineteen witnesses examined, only one answered in the affirmative to the direct question, whether either Francisco or Mrs. Vincente Benavis-have.both, or severally, ever acknowledged to be married, by stating that Francisco had called her “ my wife,” and that answer was given by the-defendant himself.

The substance of the testimony is, that Francisco and plaintiff lived together in open concubinage, cohabiting together, traveling together,, and visitiDg together, as such, but nothing more. If defendant and other persons concluded from those circumstances that they were married,, and dealt with them as such, under the belief that property purchased or otherwise acquired by plaintiff belonged to the legal community between Francisco and herself, they are simply mistaken, as is manifestly shown by the evidence in the cause.

There is also error in the pretension of defendant, that his motive-in dealing with Francisco sprung from his belief in the marriage, coupled with the hope of reaching plaintiff’s property in enforcing his claim against Francisco. It appears from the record, that his dealings with Francisco covered every year from 1872 to 1879, and that plaintiff purchased her immovable property only in March, 1878; and'under the-weight of that fact his pretension is fatally contradicted.

We, therefore, conclude that plaintiff was, and is now, a single woman, and that as such she owns the real estate, the lugger, Neura, Philipino, the three horses, the barouche, the wagon and the other movable property, and household furniture claimed by her, and wrongfully seized by the sheriff in the suit of Barba vs. Francisco.

As the evidence fails to show that these parties have ever pretended,, declared, or wittingly led any one to believe, that they were married, the doctrine of estoppel, invoked by defendant, has no foundation to rest upon, and all the authorities quoted by him on that point have no application to this case.

It is, therefore, ordered, adjudged and decreed that the judgment, of the lower court be annulled, avoided and reversed, and that our-judgment be in favor of plaintiff, recognizing her as the lawful owner of' the property hereinabove described, and perpetuating the injunction in the premises, and that defendant pay the costs in both courts.

Rehearing refused.


text:
    No. 1101.
    Estate of John Speyrer ex rel. A. Ortego et al., Tutors etc., vs. Clara Thantan, Administratrix.
    The surviving widow in community, holding the share of her deceased consort in usufruct, under sect. 629, Kev. Sta., cannot he compelled to give security as usufructuary. Affirming decisions in Succession of Costa, 19 An., 14, and Boisse vs. Dickson, 31 An. 752.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.
    Henry L. Garland for Appellant.
    The surviving spouse in community, who claims the usufruct of the share of the community which would belong to the heirs of the deceased spouse, is bound to give security under the provisions of the article 558 C. 0., in all cases, except when said surviving spouse has the legal usufruct in virtue of the article 223 C. C., or is the natural tutor or tutrix of the said heirs.
    Lewis & Bro. for Administratrix, Appellee.
   The opinion of the Court was delivered by

Fenner, J.

L. Speyrer died leaving an estate belonging to the community between himself and his surviving spouse, Clara Thantan, and leaving issue of said marriage. The minors, represented by petitioners, as their tutors, are grandchildren of L. Speyrer and Clara Thantan and, as such, heirs by representation of the deceased.

Clara Thantan, the surviving widow in community, has qualified as administratrix of her deceased husband and holds possession of the entire community estate, the half of which belonging to the succession of her husband, she holds as usufructuary duriDg her natural life or until her second marriage, under the' provisions of section 629 Bev. Statutes.

Petitioners demand that she should give security as such usufruc-tuary.

The question is no longer an open one. It has been twice decided that the usufruct of surviving husband or wife, under section 629 of the Bev. Statutes (embodying Act of March 25 of 1844), of the share inherited by their descendants, is a legal usufruct and not subject to the requirement of security, under article 560 Bev. Civil Code.

See Succession of Costa, 19 A. 14 ; Boisse vs. Dickson, 31 A. 752.

We have reviewed the reasoning of those decisions and see no reason to disturb them.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed, at appellant’s costs.


text:
    No. 1107.
    State of Louisiana vs. Elijah Hornsby.
    In criminal cases, tlie jury cannot leave a sealed verdict -with, tlie clerk during tlie adjournment of tlie court and thereupon be permitted to separate. The verdict rendered under such circumstances, Trill be set aside. The provisions of the Code of Practice relative - " to jury trials have no application to criminal cases.
    APPEAL from. the Twenty-first Judicial District Court, parish of Iberia. Fontelieu, J.
    P. Perodin, District Attorney, for the State, Appellee.
    Gates & Poster for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Defendant was indicted for murder, found guilty without capital punishment, and sentenced to imprisonment for life at hard labor in the State penitentiary.

The record informs us, from the minutes of the court, that the case was given to the jury, and the jury retired to their room at about 11 •o’clock P. M., on Saturday, September 28th ; that aft^r waiting until about 1¿ o’clock Sunday morning, there being no prospect of agreement, the court was ordered adjourned until Monday, the 29th, at 10 o’clock A. M.; that on Sunday morning at six o’clock, the jury handed to the clerk of the court a sealed verdict; that thereupon the jury separated and dispersed ; that on Monday morning, on the opening of the court, the jury reassembled in the court room and were duly polled; that the clerk then handed to the judge the sealed verdict which he had received from the jury, on the back of which was written the following certificate signed by all the members of the jury, viz:

“New Ibekia, September 28, 1879.
¥e certify that this envelope contains the true bill and verdict in the case of the State of Louisiana vs. E. Hornsby;” that the jury was asked if this was their verdict, and each and everyone answered in the affirmative ; that the verdict was then ordered to be read and was read, as follows : “Guilty without capital punishment.
(Signed) J. A. Pagot, Poreman.”

Upon the grounds that the proceedings of the jury, as above detailed, were irregular and unlawful, and vitiated the verdict, defendant moved for a new trial, and afterwards in arrest of judgment, both of which were overruled.

It is thoroughly settled, in this State, that, in capital cases, the jury cannot be permitted to separate, at any time during the trial, even with the consent of the prisoner. 8 Rob. 654; 4 An. 434 ; 6 An. 398 ; 11 An. 283 ; 12 An. 710 ; 21 An. 321; 23 An. 213.

The trial is not closed until the delivery and reading of the verdict in open court and the discharge of the jury.

The provisions of the Code of Practice relative to jury trials have no application to criminal cases. Even in civil cases, however, it does not appear that the jury may deliver a sealed verdict during the adjournment of the court, without special antecedent authority to that effect from the judge. C. P. 629.

What constitutes a separation invalidating a verdict may be a question for judicial determination ; but there can be no doubt on that point in a case like this, where the jury has actually dispersed.

The presumption of abuse and misconduct from such separation are conclusive and are not required to be supported by evidence. 21 A. 321; 8 Bob. 54

It is not difficult to conceive how separation, as in this case, even after agreement on a verdict, might operate to the disadvantage of the prisoner. The agreement might have been reached through anxiety of jurors to go to their homes. If they had been kept together, it does not certainly follow that they would have agreed. Although they might have agreed at .6 o’clock on Sunday morning, any juror might have withdrawn his assent at any time before the rendition of the verdict. Non constat, that such change might not have taken place, had the jury remained together and in consultation until Monday morning, as the law required.

We are of opinion that the verdict is vitiated and that the sentence cannot be sustained.

This is sufficient to dispose of the case; but, for the guidance of the lower court in future proceedings in the case, we will .briefly notice some other points presented by the bills of exception.

1st. The objection of the accused to the question to Yeazey “state whether or not Hornsby resisted arrest,” was well taken; resistance to arrest being a distinct offense not charged in the indictment.

2d. The exception by accused to the testimony of C. 0. Delahous-saye, we think was not well taken.

3d. The exception by accused to the statement of Dejoux that a proposition had been made to him to bribe him not to testify, by the brother of accused and by Captain Green, was well taken — the proposition not being shown to have been made in presence of accused or by his authority.

áth. The exception of accused to the charge of the judge directing the jury to give no weight or consideration to the written testimony of Dejoux on the preliminary examination, after the same had been received in evidence, and under the circumstances stated in the bill of exceptions, was well thken and the charge was erroneous.

5th. Exceptions are presented to the refusal of the judge to give the following charges, viz :

(1) “ That it was incumbent on the State to prove the deceased died of a wound, that the wound was inflicted by the deceased at the time charged, and, that the presumption of death resulting from said wound must be so strong as to preclude all reasonable presumption of a death from any other cause.”

The judge gave the first part of the charge but refused the part as to the presumption. We see no- error, because the first part substantially includes the last.

(2) That if the position of the parties, deceased and Hornsby, at the time of the alleged shooting, as shown by the testimony of Dejoux, was such as to preclude the possibility of Hornsby’s inflicting the wound described by the attending physician at the post mortem examination, then such fact must be taken, in so far as it goes, as impeaching the testimony of Dejoux.”

We think the charge, as asked, is too broad. It substantially directs that the fact “ must be taken as impeaching the testimony of Dejoux.”. Whether it should be so taken as having such effect was for the jury to decide.

(3) “That if the jury find, from the evidence given by Dejoux on the preliminary examination and the testimony given by him on the trial of this case, that the said Dejoux contradicts himself upon salient and prominent facts connected with the alleged affidavit and the alleged shooting, then they (the jury) are the proper judges of whether or not these contradictions impeached the testimony of Dejoux; and if the said Dejoux does on this trial contradict his evidence taken on the preliminary examinatiori, then it will be for the, jury to determine whether or not the testimony of Dejoux has been impeached.”

This charge was properly asked. The jury are the judges of the effect of evidence ; and the refusal to give the charge was error.

6th. We are at a loss here to pass upon the exception taken by the District Attorney to the admission of Dejoux’s deposition, taken on the preliminary examination, on the ground, among others, that is was not signed by him, with the further statement in the bill, that though the name of Dejoux is appended to the bill, the signature is not proved; because in other bills signed by the judge, the statement does appear distinctly that the deposition was signed by Dejoux.

The other exceptions of the District Attorney presented in the record^ seem to us not well taken.

We think it unnecessary to say what effect the various errors here stated might have had on the proceeding, since we base our decree on the sufficient ground first stated by us.

It is, therefore, ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment rendered thereon be annulled and reversed, and that this case be remanded to the lower court for a new trial of the prisoner, and to be proceeded with according to law, and that the prisoner be held in custody to await the same.