author: Watkins, J.

text:
    No. 11,737.
    State of Louisiana vs. Sylvester Abshire.
    No delay is provided by law for arraignment, after an indictment, in order to enable an accused to prepare his preliminary defences.
    Such an indulgence is within the discretion of the trial judge.
    The well-establisliedrule of jurisprudence is that the affidavit of the accused for a continuance is, for the purposes of the motion, taken as true; andno counter affidavit nor evidence aliunde can be received pro or con.

    It may be that a continuance is granted, on a showingmade by the defendant, that a fair and impartial trial could not be had at that time, owing to public excitement being so great against him as to intimidate and swerve a jury that might be chosen to try the case; but such is an exceptional case, and the allowance vel non of a continuance is within the sound judicial discretion of the judge, under the circumstances of the case presented to him.
    A PPEAL from the Eleventh Judicial District Court, Parish of Acadia. Perrault, ‘J.

      M. J. Cunningham, Attorney General, E. B. DuBuisson, District Attorney (E. P. Veazie, of Counsel), for Plaintiff, Appellee.

      A. & Charles Fontelieu and Charles W. DuBoy for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

The accused appeals from a verdict of guilty of murder and sentence to death — relying on several bills of exception.

The first one to which brief of counsel challenges attention w.as retained to the refusal of the judge to grant additional time before arraignment to prepare the prisoner’s preliminary defences.

The bill of exceptions relates “that the offence with which he stands charged is alleged to have been committed on the 31st of December, 1894. That the grand jury was empaneled on the 2d day of January, 1895. That he employed counsel on the 3d day of January, 1895. That on the 4th of January, 1895, the grand jury returned a true bill against him for the crime of murder.”

That his counsel was summoned by telegram and arrived on the 4th of January, 1895. “ That no'sufficient time has been granted his said counsel in order to prepare his preliminary defences.”

For overruling defendant’s motion the trial judge assigns the following reasons, viz.:

“ There was no denial of the request for additional time. On the contrary, all the time asked for was granted by the court and the arraignment was postponed from the 4th to the 5th of January; and on the 5th of January, when called for arraignment, the defendant asked for no additional delay in which to plead, but stood mute, and the court directed the plea of 1 not guilty ’ to be entered for him. Besides the law provides no delay for arraignment after indictment or information; and the defendant is required to plead when arraigned, which is his only time of right. 33 An. 1410; Wharton Criminal Pleadings and Practice, Sec. 417; 1 Bishop Criminal Pleadings and Practice, Sec. 733.’.’

Counsel questions the accuracy of the judge’s statement, and refers to the entry on the minutes, to show that, in point of fact, no delay was granted at all, and to show further that the application for delay was made on the 5th of January and not on the 4th, and that he was called into court; and coerced to plead on the same day that the motion was made. But of what avail was that, if the accused had not the legal right to delay? This question was passed upon in State vs. Shields, 33 An. 1410, and the court say:

“ Exception taken to the ruling of the court in requiring him to plead at the time of his arraignment, and, on his refusal, in ordering the plea of not guilty to be entered in his behalf, the complaint being that he was arraigned on the same day on which the indictment was found, and had not time to determine on his plea. The law provides no delay for arraignment after indictment or information; and the defendant is required to plead when arraigned, which is his only time as of right. 1 Bishop Crim. Proc., Sec. 734. Indulgence is often granted in the discretion and leniency of the court, but there is no law controlling such discretion.” (Our italics.)

This decision seems to settle the question completely and leave no room for dispute.

And the trial judge seems to have followed its precepts; and, in so doing, committed no error.

State vs. Moultrie, 33 An. 1146, is not applicable, as it relates to the question of time to procure the services of counsel, the attendance of witnesses, and to make preparation for the defence of the accused— not one of these being an incident to the prisoner’s arraignment.

The second bill of exceptions to which our attention has been attracted is that relating to the refusal of the judge to allow the introduction of testimony in support of defendant’s motion for a continuance of the cause until the next regular term of court — it being predicated on the ground that it was impossible to obtain a fair and impartial trial at the then pending term of the court, the popular excitement against the defendant being so strong as to intimidate and swerve the jury.

The bill of exceptions relates “that the defendant moved for a continuance of this cause until the next regular term of the court, in order to allow popular prejudice and excitement to allay, so as to secure him a fair and impartial trial, as it was impossible, at this term of the court, to obtain a fair and impartial trial, due to said excitement and prejudice existing against him,” etc.

The trial judge assigned the following reasons for his ruling, viz.:

“ 1. That it was manifest to the court, from all the circumstances surrounding the motion, that the same was made for the purpose of delay.

“ 2. That the court was satisfied that a fair and impartial trial could be had at the present term of tjie court; and that there was no prejudice against the'accused in the public mind sufficient to influence his trial. It is conclusively shown by the answers of the jurors of the regular panel that they were unprejudiced and competent under the law.

“ That this motion is fatally defective in failing to show by its recitals that a fair trial could be had at the term to which it is sought to postpone the case. On the face of the motion, had it been granted, no substantial relief would have been accorded the mover, since it is not shown that the alleged prejudice existed in the public mind,” etc.

During the progress of the trial of this motion the following bill of exceptions was taken, and it makes the following relation of facts, Viz.:

‘ ‘ Which motion ” — fully setting out the grounds of his affidavit for a continuance, and appending thereto a supplemental statement of the facts the defendant proposed to prove in aid of his affidavit for a continuance — “ having been called for trial, counsel for defendant moved for a note of evidence to be opened, and proof adduced in support of said motion,” etc.

This was objected to on the part of the State, and the court sustained the objection on the grounds, viz.:

“If the motion had any merit it is amply sustained by its own allegations and affidavit thereto1; and evidence aliunde would make it no stronger. It has long been settled jurisprudence in this State that the facts stated in an affidavit in support of a motion for continuance must, for the purposes of the molion, be taken as true. 33 An. 1146; 37 An. 312.”

We have taken these two bills of exception together for the purpose of more easily examining and deciding the questions therein raised.

Taking up the proposition first stated, though last decided, we find that State vs. Moultrie, 33 An. 1146; State vs. Trevenia, 37 An. 312, support the ruling of the trial judge.

And the rule is elaborated in State vs. Simien, 30 An. 296, and announced in precise terms, thus:

“The rule is that the affidavit of the accused, upon which is grounded his motion for a continuance, is, for the purposes of the motion, to be taken as true, and no counter affidavit can be received; nor can the statements or facts it contains be contradicted by a cross-examination, or aliunde proof; and this rule is of such universal acceptance that we are not inclined to modify it. Archbold’s Crim. Prac., Vol. 1, p. 569, et seq.”

This is an ancient and well-established rule of the common law and we will not make a departure from it.

But, while the judge correctly adhered to this rule and declined to hear any extraneous proof in support of the motion, because of the fact that the recitals of the affidavit and motion must, for the purposes of the application, be taken as true, he was not inconsistent in ruling that the defendant was not entitled to a continuance on the grounds he assigned for thus ruling.

It was clearly within the judge’s sound, legal discretion, to disallow a continuance, when, from the circumstances surrounding the application, he believed it was made for the purpose of delay. It was equally within his discretion to refuse a continuance, the application for which failed to disclose that a fair and impartial trial could be had at the term of court to which it was proposed to defer it.

The existence of popular excitement against the accused is not a sufficient cause for the postponement of a trial unless it be sufficient “to intimidate and swerve the jury.”

Mr. Bishop states the rule thus:

Continuances are frequently applied for on the ground that the public mind is excited against the party, so that he can not now have a fair trial, which he may when the excitement subsides. In some circumstances this appeal to the judicial discretion is successful, etc. * * * Nor is mere excitement alone, in ordinary cases, especially in cases not of a public character, deemed adequate.” 1 Bishop Criminal Practice, Sec. 951; Thomas vs. The State, 27 Ga. 287; Thompson vs. The State, 24 Ga. 247.

And Mr. Wharton says:

“A continuance may also be granted on affidavit showing that means had been improperly taken to influence the jury, and the public at large, so as to prevent, at that time, an impartial trial; and that the public excitement was such as to intimidate and swerve the jury. (Our italics.)

Whart. Crim. Plead, and Prac., Sec. 508.

In the first place the defendant’s motion does not state that “ means had been taken improperly to influence the jury” so as to prevent, at the time, a fair and impartial trial; nor does it state that the public excitement was such as to “ intimidate and swerve the jwry ” — the statement being “that it was impossible at (the then) term of the court to obtain a fair and impartial trial, due to said excitement and prejudice existing against him,” etc.

But we have the contrary statement of the trial judge, to the effect that it was “ conclusively shown by the answers of the jurors of the regular panel that they were unprejudiced and competent under the law,” thus putting the defendant’s case outside of the rule announced by either Bishop or Wharton.

Again, the trial judge appears to have properly and judiciously exercised his discretion in refusing a continuance of the cause to another term.

The next and last bill of exceptions relates to the refusal of the judge to grant a change of venue.

The bill relates, that the District Attorney, following the rule that was recognized in State vs. Causey, 43 An. 897, suggested to the court that the jurors of the regular panel be put upon their voir dire, and interrogated upon the subject of undue excitement and prejudice against the accused. And the judge relates that this course “ was adopted by the court without objection from the defendant’s counsel;” and that "this test showed conclusively, and to the satisfaction of the court, that the regular jurors were competent to try the case fairly and impartially.”

In the Causey case we said:

“ The fact that a fair and impartial jury has been obtained, pending the motion for a change of venue, has been held to be an answer to the affidavit therefor ” — citing the authorities. “Indeed, ab aetu ad posse, valet eonseeutio — the actuality of a fact demonstrates the possibility of its existence.”

We observe that the brief of defendant’s counsel does not discuss this question, but we have adverted to it because it, in our opinion, confirms the correctness of the conclusions of the trial judge in reference to his discretion to grant a continuance.

We have gone over all the questions that are propounded by the defendant’s bills of exception without discovering any error in the ruling of the judge.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: McEnery, J.,

license: Public Domain

text:
    No. 11,688.
    Josephus Gilbert vs. Louis Liebman, Administrator.
    APPEAL from the First Judicial District Court, Parish of Caddo. Taylor, J.

   McEnery, J.,

delivered the opinion of the court.

No judgment can be based on testimony which is obscure and uncertain and indefinite as to amounts.

Where a commercial firm keeps no account as to credit sales, and the record is silent as to the loss or destruction of the books, in which such accounts should be kept, it will be presumed that no credit sales were made.

Judgment amended reducing judgment appealed from.


author: Breaux, J.

text:
    No. 11,686.
    Sam Wolff vs. Moses Wolff.
    Motion Seasonably Made. — The production oí' a merchant’s books may be ordered on motion after the trial has begun, if no delay in the trial is thereby occasioned.
    Question Not Ikiielbyant. — The defendant could be interrogated regarding the part taken by alleged preferred creditors for the purpose of showing that they participated in the fraudulent concealflient of his books. If true, it would not be an irrelevant circumstance in sustaining the charge that there was collusion on the p.art of those thus participating.
    APPEAL from the Fifth Judicial District Court, Parish of More-house. Potts, J.

      Bussey & Naff for Plaintiff, Appellee.

      E. T, Lampkin, Samuel T. Bairdaiad Saunders, Miller, Smith & Hirsh for Intervenors, Appellants.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff claimed an amount of three thousand dollars as due him by the defendant and sued out a writ of attachment under which the latter’s property was attached. Other creditors, a short time subsequent, also sued out attachment; of the number were Lehman, Stern & Co. and H. B. Claflin & Co. In the different petitions for attachment the usual grounds for attachment are alleged. Lehman, Stern & Co. and H. B. Claflin, intervenors, oppose plaintiff and defendant, and complain of the action of the creditors whose attachments precede their own. They charge that the plaintiff was not a creditor of the defendant, and that the amount of his claim was acknowledged by the latter to screen his property; that a collusive agreement was entered into whereby illegal preference was given to the creditors, who fraudulently obtained writs of attachment on the day preceding their own. This averment is particularly directed against plaintiff. The intervenors, Lehman, Stern & Co., have sufficiently proved up their claim; the others, Claflin & Bro., have not.

As to the grounds for attachment the facts are that the defendant was insolvent, and had given ample cause to sustain the affidavits of the attaching creditors appended to their petitions for attachment.

The question is, collusion vel non between certain creditors (particularly the plaintiff) named by the intervenors in their petition and the defendant.

On the issues presented the case was tried. The judgment was for the plaintiff and intervenors’ demand rejected. The latter appeal.

Bills of Exception.

Intervenors’ counsel offered a motion on the morning the case was taken up for trial to compel plaintiff to produce books described in the motion. They alleged that it would be shown by these books that the defendant was not indebted to plaintiff. The trial took two days of the court’s time.

The objection urged, and which was sustained by the court, was that it was offered after the trial had begun, and was too late.

It is not anywhere made evident by the pleadings or the evidence before us that the regular course of the trial would have been interfered with or delayed had the order been given by the court. The bill of exception was taken in the case at bar contradictorily between plaintiff and intervenor, as shown by the title and number.

A condensed narrative of the bill reads:

Intervenor, through counsel, offered to file a motion to produce his private and mercantile books, for the purpose of showing that the defendant was not indebted to the plaintiff.

“This motion to produce was objected to by plaintiff’s counsel upon the ground that the motion was attempted to be filed after the case had been taken up for trial, and was therefore too late; which objection was sustained by the court, and intervenors were nob allowed to file said motipn to produce.”

The only objection interposed, was that the order should have been applied for before going into the trial.

Under the Art. 475, O. P., the production of books and papers may be ordered on motion, after the trial has begun.

It follows as a conclusion that the motion was seasonably made.

The intervenors also excepted to the court’s ruling, refusing to allow them to propound questions to defendant, Moses Wolff, as their witness, regarding the commercial books he carried away and concealed.

It had be6n previously decided, in passing upon a motion to compel plaintiff to produce the book in question, that any question propounded with a view of obtaining possession of these books was inadmissible.

The defendant represented to the court that the real object of the intervenors was to force him to produce his books, showing amounts due him, so that they might attach and seize them.

The court ordered the production of the books instanter. The defendant having failed to comply with the order, the fact that the books show no mention of the notes among the bills payable was taken for confessed.

The ruling is final, no bill of exceptions having been taken.

While it is settled that the defendant can not be forced to produce his books, we do not think, although he was a witness for the intei-venors, that he can be sustained in his refusal to answer a question propounded in due form, with the view of showing that these books were delivered to an attaching creditor, or that some of his attaching creditors assisted the witness in concealing his books.

It does not seem that the object was to impeach the veracity of the witness, but to show the fact as charged against these attaching creditors.

The object was to show the true facts, not merely to discredit th ■witness.” Rapalje, p. 353. “Law of Witnesses,” on the general rule forbidding impeachment of witnesses.

We think the case should be remanded for further proof, and that plaintiff’s books, should be produced and admitted in evidence.

It is therefore ordered, adjudged and decreed that the judgment herein rendered be annulled, avoided and reversed.

And it is now ordered that the case be remanded to the District Court for the purpose of admitting plaintiff’s books in evidence, and hearing further evidence, especially as to alleged collusion and fraudulent preference given by defendant to certain creditors, who preceded by attachment, and to enable intervenors to place their claims properly before the court. All costs to abide the final determination of the suit.

Rehearing refused.


text:
    No. 11,574.
    Citizens Bank of Louisiana vs. Heirs of Edward J. Gay.
    Both parties are before the court.
    By this conclusion there remains no question to determine regarding citation or waiver of service by plaintiffs of defendants’ injunction.
    Legislative Act 100, in so far as it relates to the Citizens Bank, has not the effect of a contract, and does not secure the shareholders from future “ calls.”
    The remedy of the plaintiff bank is not limited to the seizure and sale of the bank shares.
    The mortgage stockholders of the Citizens Bank are not (in person) sureties for the bonds issued by the State of Louisiana in aid of the bank. The secwHtie& held by the bank were given in pledge by the bank as security for the debt.
    The ownership of these securities was retained by the bank.
    If an extension of time has been given to the bank or the State, or a discharge, it does not have the effect of discharging the shareholders who are indebted to the bank, and who are securities on values deposited as security.
    Whether the Legislature created two corporations or one has no bearing upon the issues so far as relates to the shareholders who have bound themselves to pay the amount of their subscription.
    Under the circumstances it will not be assumed that the cash stockholders who are not parties to the suit should also pay the call, despite the fact that they have paid their shares in full.
    The hearing as to them must be contradictory.
    The “ calls ” made on the shareholders are personal obligations, and not subject to a prescription of less than ten years.
    The plaintiffs, by their answer to the injunction, in which they did not pray for a judgment, or seek in any manner to release the seizure of the property, did not change the proceedings from the via executiva to the via ordinaria.

      APPEAL from the Fourteenth Judicial District Oourt, Parish of Iberville. Guión, J., in place of Talbot, J., recused.

      Henry Denis for Plaintiff, Appellee.

      Walter B. Somerville and. Oarleton Hunt for Defendants, Appellants.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff seized a plantation of the defendants under executory process, in order to satisfy contributions of two dollars per share on certain shares of stock of the bank with eight per cent, interest, secured by mortgage.

The sale of the property involved was stayed by an injunction.

The District Court rendered judgment in favor of the plaintiff bank.

A suspensive appeal from the judgment was allowed the defendants.

CONTRADICTORY HEARING WITH PARTIES IN INTEREST.

The defendants allege that the Oitizens Bank is not the real party in interest; that the real parties are certain bondholders represented by the commercial house of Hope & Co., of Amsterdam, who have assumed entire control of its assets.

The evident purpose of the defendants on this point was to obtain a contradictory hearing with Hope & Co., and to urge all their de-fences, both against the Oitizens Bank and against that company.

They, Hope & Co., being parties to the suit, we will consider the different grounds as urged against both in the order in which they have been argued and thereby eliminate from further consideration questions relating to the real parties in interest — i. e., whether it is the Citizens Bank or the commercial house of Hope & Co.

In 1836 William Dodd, owner of the property in question, mortgaged it to the Citizens Bank as a subscriber for a number of shares of stock to secure his subscription.

In 1853 the widow and heirs of Dodd, having become the owners of four hundred and fifty shares, formerly belonging to William Dodd, of the capital stock of the bank, acknowledged their indebtedness to the bank, and in order to secure the amount, gave a mortgage and pledged and pawned the four hundred and fifty shares to the bank.

In all the notarial acts, including the act under which the late Edward J. Gay (from whom the defendants inherited the property involved) acquired that portion known as the Kunemann plantation, the bank’s right as a creditor is acknowledged.

During many years he paid instalments on stock notes to the Citizens Bank, secured by the mortgage on the Kunemann plantation.

The evidence does not show that the bank transferred this claim to Hope & Co., or to any one else. It remains on the books in the name of the creditor; it is in its possession and under its control. It collects these mortgages and remits the amounts collected to the firm of Hope & Co.

It would seem that the debtors to the bank are bound by their own acts and declarations contained in notarial deeds.

The subscriber promised to pay the corporation every share opposite his name, and this promise still remains and binds those who have since assumed to pay the obligation.

The late Mr. Gay assumed the payment of this indebtedness to the bank.

The defendants, his heirs, succeeded only to his rights, and can not stand in a better position than he did himself, nemo plus juris quam ipse habit.

But it is contended that legislation relative to this bank and agreements between the bondholders and the bank have had the effect of transferring the mortgages given for stock from the bank to the State and the holders of the bonds.

Sec. 3 of the act approved January 30, 1836, provided, in order to obtain capital for the bank, that for the guaranty of the bonds to be emitted by the State in favor of the Citizens Bank, and of the interest thereof, and for which the State pledged its faith, all the securities granted by the acts of incorporation of said bank to the holders of its bonds are transferred to the State and to the holders of the bonds. (Italics are ours.)

This was not a transfer without restriction or qualification. The securities were transferred only for the purpose of guaranty.

The clause can have no meaning, the court said in Citizens Bank vs. Levee Steam Cotton Press, 7 An. 287, except to transfer these securities, to the State, as a “ species of pledge.”

As property pledged, these mortgages, given for stock, remained the property of the pledgor. On payment of the debt, the Citizens-Bank would have had a right to a restoration of the property.

These securities, thus pledged, were the property of the bank and not of the stockholders.

Manifestly, under the terms of the statutory pledge, it was intended, upon payment and release of the bank, these securities would remain as its property and continue in its possession.

Having concluded that the defendants are not guarantors of stock,, we take up the next proposition.

THE REMEDY NOT EXCLUSIVELY IN REM.

Down to the time of Act No. 100 of 1847, it is urged by counsel for defendants: the only remedy available to the plaintiff bank was in rem by seizure and sale of the bank shares. That the act gave to the bank the right to make calls for contributions upon stockholders, and has the effect of a contract and secures the stockholders from future calls.

On the first point, to-wit., that the remedy to the plaintiff was in rem, we believe that lengthy discussion on our part is unnecessary.

The point was argued in Succession of Thompson, 46 An.--, and after very attentive consideration the conclusion in that case was, that the subscribers are liable personally for the amount of their subscription and thereby determined that the remedy was not limited to an action in rem.

In the cited case the court said:

“There is no question in this case of any implied promise. The-promise is absolute and express, and the right of action to collect by personal action is unquestionable. We see nothing to take this particular subscription out of the general rule, and the evidence in the record establishes that Adam Thompson, when he purchased the shares of stock referred to herein, and the property mortgaged to secure the same, assumed all the obligations of a shareholder in the bank. The personal obligation as resulting from his purchases from Bishop is equally clear.”

The defendant contended in that case that where the bank has bought at sale under its foreclosure the stock notes and mortgaged-property, the owner is relieved from all liability by the forfeiture and sale of his shares for any deficiency of proceeds of sale to pay calls.

Regarding that point, this court in case quoted from, ubi supra, decided that the bank, in purchasing the stock and the property mortgaged for its payment, occupied no worse position than any other purchaser as to the unpaid balance in defaulted calls.

A conclusion that could not have been reached if the court had for an instant thought that the only remedy available was as contended by the defendants in rein.

It was decided that the ground was not well founded.

We leave the point confirmed in the correctness of the principles announced in the Thompson case.

ACT 100 OF 1847 DOBS NOT AS TO CITIZENS BANK LIMIT AMOUNT AND NUMBER OF CALLS.

On the second point, to-wit: That Act 100 of 1847 contains a contract between the State of Louisiana and the stockholders of the Citizens Bank whereby, on payment of the contributions provided for in that act, all liabilities of the stockholders of the bank on their subscription for stock is discharged; the decision from which we have already quoted at some length is equally as clear and conclusive.

The court in stating the grounds of the defence states that one of those grounds was based by the defendant on the ruling of the court in the case of Association vs. Lord, 35 An. 425, and held, in passing upon the point urged, that the decisions in the matter of the Consolidated Association of the Planters of Louisiana rested upon the special facts connected with the affairs of that association.

We might conclude, on this point, without further comment, and rely upon the decision in which most of the issues of this case have been decided, were it not that defendants’ counsel, with great earnestness and ability, again press that issue, though previously decided.

DIFFERENT RULE PREVAILED BETWEEN CITIZENS BANK AND. PLANTERS ASSOCIATION, AS TO CALLS.

Defendants’ insistence is that the Planters Consolidated Association vs. Lord, 35 An. 425, arose under Act No. 100 of 1847. That the Act 100 laid upon the managers and directors of the Consolidated Association the duty of requiring sach annual payments as would accumulate a fund sufficient to meet the obligations of the State, just as like obligation is. laid by the same act upon the managers and directors of the Citizens Bank.

That the obligation to contribute was imposed by the act in order to accomplish a settlement, and that this could not be accomplished without the consent of the stockholders. That the consent was obtained as required by the act, and it follows that the provisions of the act and the contract thereunder resulting by the submission to the stockholders were just as binding upon the Citizens Bank as upon the Consolidated Association.

The limit imposed by the statute, within which payment of the amount required from the stockholders was to be made is not the same in the ease of the Citizens Bank as in the case of the 'Consolidated Association of Planters.

It was made the duty of the managers and directors of both corporations to require such annual or periodical payment independently ■of their stock obligations as would accumulate a sum sufficient to meet the obligations of the stock incurred by the State for account of these banks.

As to the latter only (the Consolidated Association) a division of the calls was ordered to be made in equal instalments not to exceed seventeen years.

The proviso containing that limit does not refer to the Citizens Bank.

Under the authority given by statutes the managers and directors of the Citizens Bank met and passed a resolution declaring a call of seven dollars per share, payable in seven years’ instalment, to meet the obligation incurred by the State on its account. The managers, in the resolution, gave it as their opinion that these contributions would prove sufficient to meet that obligation.'

It was a mere opinion and not binding, particularly in view of the fact that these managers reserved the right, in one of the resolutions, of increasing thereafter the amount of the contribution and of changing the time and mode of payment.

The situation of the two institutions was not the same under the ■statute, nor was it made the same by the mere opinion of the managers that the call commencing in 1851 would meet the end in view.

The relation, argue counsel for defendants,' of Act 141 of 1852 to acts preceding is to strengthen and confirm their position.

They (counsel) direct attention to the fact that in order to supply the deficiency then existing in the assets of the bank, as well as to form an additional security for the circulation, Act 141 authorized a call to be made upon the stockholders not to exceed twelve dollars per share; and further provided that the act should not take effect until it had been accepted by a majority of the stockholders in number and amount.

They contend further that the contract created under Act No. 100 of 1847 in this way express legislative recognition that it actually attached, was of force and became inviolable; that it could only be modified by the parties thereto. That when the State in Act 141 authorized a new call for a contribution of twelve dollars per share it must be taken to have said perhaps, but just as effectively as it had said so-directly to the stockholders: The right and privileges as originally-bestowed on the Citizens Bank shall be restored if you will pay one million six hundred thousand dollars as demanded and upon your waiving the exemption from all further calls for contribution upon the stock secured you by terms of Act No. 100 of 1847. The right to the exemption being vested in you, waiver thereof is indispensable to obtain the advantages proposed.

We think it sufficient answer to defendant’s insistence to call attention to the fact that there was no right of exemption vested in the stockholder by any prior act.

The only act upon the subject was Act 100 of 1847, which contains no limit as to amount of calls and time of payment in so far as relates to the Citizens Bank.

Section 6 of Act 141 of 1852 provided that the act would have effect when accepted by the stockholders. It does not appear that it was accepted by them; it was, therefore, ineffective and has no bearing upon the issues of this case.

The shareholders did not, by neglecting or declining to accept, retain any right to a limit, for no such limit had been provided, as contended, on calls for subscription.

This leads us to the proposition of defendants’ counsel, that Act 246 of 1853 had the effect of reviving the bank, and that, taken together with the compact or articles of association between the mortgage stockholders and subscribers to the cash stock, it presents the modified constitution, or present charter of the Citizens Bank, and, that Acts Nos. 106 of 1858, 7 of 1867, 45 of 1873, and 40 of 1874, are without effect, null and void.

They urge upon our attention that the bank was rehabilitated by the acceptance on the part of the stockholders of the terms of Act of July 26, 1858, No. 240; that the bank was to have two depart- , meats, the cash and the stock mortgage department; that department is significative of division, and that the term presupposes the fietive unity of the hank, but the distribution of its business into parts, in order to pyromote the efficiency of the corporation as a whole.

That the proviso of Act 246 of 1863 imposed upon the stockholders for cash the payment of the contribution originally exacted for their subscriptions, and at the same time maintained the mortgage to secure those contributions,

That the shareholders were to share in the profits and losses of the bank in the proportion of the amount of the stock paid in to the amount of the available banking assets of the bank.

That these stockholders remained joined as stockholders in one and the same bank, consolidated'for the common advantage.

The question relating to the unity of the bank, and the question of prescription, in so far as it affects the case, will be considered by us in passing upon the effect of the agreement of October 8, 1880.

The defendants complain that the acts subsequent in date to Act 246 of 1853 would release the cash stockholders and uphold partiality as a rule; that it would take from the many to give the few.

This ground of defence has no support in Act 106 of 1858, having for object, as expressed in the title, to equalize the loan to mortgage ■stockholders by an extension of the time of payment on five hundred thousand dollars of the State bonds due in 1859. A similar authority in regard to extending all bonds of the State in favor of the bank was given by Act No. 7 of 1867.

But it is urged by counsel in support of the position that payment of the bonds due Hope & Co. having been extended to 1884 without the consent of the stockholders, the bonds are prescribed, and they are discharged.

It is assumed throughout the argument that the stockholders are the debtors of Hope & Oo., and not the bank. That they, the stockholders, burdened real property by way of guaranty for the bonds, issued by the State in favor of the bank, and were the debtors.

To this proposition we can not give our assent. The bank, a corporation endowed with the capacity of acquiring legal rights and subject to legal liabilities, borrowed the amount represented by bonds. This loan was not made to the stockholders, but to the bank.

It is true that the bank transferred all the securities to the State and holders of the bonds as a “species of pledge.”

The limited transfer did not constitute the debtors on the securities, the debtors of those from whom the bank borrowed.

In every statute on the subject the bank is referred to as the debtor to those from whom it borrowed amounts secured by bonds. The acts authorizing the bank to extend the payment of the bonds -of the State made to its order are of no avail to the debtors of the bank.

CONTRIBUTIONS OF MORTGAGE STOCKHOLDERS AND CASH STOCKHOLDERS.

In support of their proposition that A.ct 45 of 1873 relieves the cash stockholders, notwithstanding that they obtained Act 246 of 1853 upon the express condition that they should remain bound with their associates, upon this mortgage stock as originally subscribed, and that it would unjustly enrich the cash stockholders, and that it would uphold partiality as a rule where impartiality was the condition precedent, they direct attention to the statute (45) which reads: “ That the directors of the Citizens Bank of Louisiana be and they are hereby authorized and instructed to call on the mortgage stockholders for such contributions on their stock as the board may deem necessary to assure the prompt payment of interest on bonds of the State issued in faver of said bank,” and have not included the cash stockholders as subject to contribution. It is contended by the defendants that, under the terms of Act 246 of 1853, the cash stockholders of the bank also owe contribution.

Should we omit consideration of the act of 1873 as being null and void, there are preceding unrepealed acts authorizing calls for contributions.

By the act of 1847, said this court in Citizens Bank vs. Levee Steam Cotton Press, 7 An. 286, it was made the duty of the managers to exact from the stockholders such an annual contribution as would form a fund sufficient to meet regularly the payments due on the bonds of the State.

It can not be reasonably denied that shareholders should be called upon to contribute in respect of their shares, at the same time and in ratable amounts, and that a call should be equal and uniform.

We do not feel at liberty to decide in this ease, without a contradictory hearing, that the call is partial.

The cash stockholder has a right to be heard.

Mr. Morawitz, Vol. 1, p. 155 (2d Ed.), in his work on Private Corporations, announces as follows:

“ But if some shareholders have already contributed more than others, it would be not only the right but the duty of the directors to make calls upon the other shareholders in such amounts as to equalize the contributions of all.”

In the ease at bar, it does not appear as exceptional and extraordinary that shareholders who have paid their shares in full are not called upon to pay contributions equal in amount to that required of stockholders who have not paid their shares.

We will not commit the court to the conclusion that shareholders who have paid can be called upon to pay other calls ” without a hearing from the alleged delinquents.

The defendants are not without a remedy. Morawitz, Vol. 1, p. 281.

ALLEGED DISCHARGE OF SHAREHOLDERS.

We pass to the next ground of defence.

The defendants contend that October 8, 1880, Hope & Co. entered into a written agreement of record wherein they discharged the Citizens Bank from liability to the bondholders on the bonds issued in aid of the bank; that the mortgage stockholders being securities for the bonds, in behalf of the bank, the discharge of the plaintiff bank as principal discharged them as securities.

We have seen that it was held in Citizens Bank vs. Levee Steam Cotton Press that the securities were transferred “as a species of pledge.”

They were transferred by the Citizens Bank.

The shareholders by whom these securities are due are the original debtors to the bank.

They can not ignore the bank, their creditor, in order to improve their defence against the creditors of the bank. If there was a discharge it was given to the State, to the Citizens Bank, and not to the debtors of the latter, who must be held bound just as if its indebtedness had never been transferred in pledge.

In James vs. Pike, Lapeyre & Bro., 23 An. 477, the distinction is drawn between a contract of suretyship and a contract of pledge— the first is where a person is given to secure a debt, and the second, the pledge, is where a thing is given to secure the debt.

The thing, the security secured by mortgage in favor of the bank, was given in pledge under the terms of the statute, and no person became bound as guarantee.

The extension complained of did not release the shareholders from their obligation and did not change their relation to their debtor.

Having reached the conclusion just expressed it disposes of the ground following:

That Hope & Co., having for themselves and other bondholders tendered, in conformity with the Funding Act No. 3 of 1874, the bonds of the State of Louisiana issued in aid of the Citizens Bank, and the State Board of Liquidation, having been ordered by a final judgment of the Supreme Court to fund the bonds, and the board having acted under the judgment, the bonds are thereby extinguished by payment and satisfaction and the mortgage stockholders in their capacities as sureties discharged.

We have determined that these defendants are debtors as holders of stock mortgages in pledge and that they are not guarantors.

That securities were pledged and no person was given as guarantor to secure a debt.

These securities were the property of the bank at the time they were pledged and when the agreement complained of was made.

If there was a discharge it did not enure to the benefit of the original and principal debtor.

PLEA OE PRESCRIPTION.

With reference to defendants’ plea of prescription of the bonds held by one of the plaintiffs, it can not be sustained consistently with our views previously expressed. If all these bonds were prescribed it would not discharge the defendants from liability to their creditor, the bank.

On the plea of prescription of the calls for contribution, the defendants argue that the prescription of five years apply.

That issue effects them directly, and if prescribed, they would have the right to a decree sustaining the plea.

We therefore must pass upon it as being an issue of the case.

This court in Citizens Bank vs. Hyams, 42 An. 733, decided that calls for contribution are subject to the prescription of ten years from the date of the call, and cited Art. 3544 of the Civil Code applying, it being a personal action not excepted by the Code from that prescription — that is, not being included in the number of personal actions as not subject to that prescription.

We can conceive of no good reason that would justify us in overruling that decision.

IMPROVEMENTS MADE ON THE PROPERTY MORTGAGED.

The ground is argued by defendants that the late Edward J. Gay, from whom his heirs derive their interest, never was a stockholder; that the defendants are entitled to be reimbursed the value of improvements placed on the plantation in good faith by him.

He was not a stockholder holding directly from the bank, but when he bought the property under seizure, and the bank stock attached, he thereby assumed the responsibility and obligations of a stockholder, and is not entitled to improvements. The mortgage affects the movable attached to the plantation.

PROCEEDINGS VIA EXECUTIVA NOT CHANGED TO VIA ORDINARIA.

Finally, the defendants contend that the plaintiff bank, having, by their acts and pleadings, converted their proceeding from via exeoutiva into via ordinaria, that their petition for order of seizure and sale must be dismissed with costs.

The plaintiff filed an answer -to the petition of injunction setting forth its defence, but did not pray that it have judgment for the amount claimed in the petition for the order of seizure.

A creditor who has sued out an order of seizure does not change the proceedings from the via exeoutiva to the ordinaria when he does not pray for a judgment against his debtor, who has enjoined his order of seizure.

The petition for the injuuction should be considered an answer to the original suit, and there is no necessity of filing- an answer. Rowlett vs. Shepherd, 4 La. 90; Cox vs. Rees, 16 La. 109; Conrad vs. LeBlanc, 29 An. 124.

It does not follow, if an answer is filed setting forth the grounds of defence to the injunction without prayer for judgment, that the proceedings are changed to the via ordinaria.

This ends our examination of the many points involved.

It is evident that counsel have closely studied their case; the

ingenuity of the argument has not convinced us that those who have assumed the obligation of stockholders do not, on the grounds argued, owe the amount of their subscription.

Judgment affirmed at appellant’s costs.

Rehearing refused.


author: Beeaux, J.

text:
    No. 11,717.
    Gilbert Hebert vs. Grorge L. Mayer and Sheriff.
    ON Motion to Dismiss. — Tbe missing evidence would not have shown the fact of the seizure and circumstances connected therewith more cone usively than the judicial admissions made. When the missing evidence would be cumulative and does not affect the decision, the appeal will not be dismissed on the suggestion of the diminution of the record.
    Tjie Substance of the Plea — Plaintiff averred in his petition the essentials which lie claimed exempted his property from seizure under the homestead law of 1865, without naming the act in terms.
    Plaintiff also averred, in his petition, that he had registered his declaration of homestead as required by the Constitution of 1879, and the homestead enactment of 1880.
    The statement of the demand under the latter, in definite and precise terms, did not have the effect of relinquishing or waiving any right of exemption he may have under the exemption law of 1865.
    Ground of Exemption. — Under the allegation based on his recorded homestead declaration that he was the head of a family and dependent children, the plaintiff could prove that after his children were no longer dependents, and their mother dead, his dependent family consisted of a wife of a second marriage and other dependents.
    Cause Sufficient to Remand. — By agreement, a vendor’s mortgage was abandoned by the creditor, but not the claim itself, which dates from some time prior to 1880.
    The condition for exemption, to be effective, must date from a time prior to the date of the claim.
    The plaintiff’s evidence does not prove the continuous support of defendants alleged.
    The facts, in another decision, between the same parties, of which this court takes notice only in matter of remanding, lead to the conclusion that possibly plaintiff has a right to homestead.
    The case is therefore remanded for another trial, in accordance with the views expressed.
    APPEAL from the Tenth Judicial District Court, Parish of Avoyelles. Coco, J.

      William Hall and E. J. Joffrion for Plaintiff and Appellee.

      A. J. Lafargue and H. O. Edwards for Defendant and Appellant.
   The opinion of the court'was delivered by

Beeaux, J.

The plaintiff enjoined the sale of his property on the ground that it is exempt from seizure, it being, he alleges, his homestead, consisting of one hundred acres of land, one horse, and about five acres of cotton in the field.

He alleges, substantially, that all the conditions existed entitling him to a homestead privilege, from a date anterior to his indebtedness to defendant. In his registered act of declaration, as required after 1879, he declared that he had three children dependent upon him, and that he was the head of a family..

In a portion of his petition the plaintiff alleges that his property is exempt, as it is covered by his homestead, duly recorded in 1880. In another, he alleges that the condition entitling him to a homestead existed prior. He is a farmer and resides on the land seized since about 1870, of which, in that year, he became the owner.

He lost his first wife and contracted a second marriage.

The defendant controverts the allegations of plaintiff and alleges that the judgment enjoined, obtained in 1880, was for the purchase price of the property seized. That his judgment has been kept alive by proper revival and reinscription. That it was antecedent in date to plaintiff’s homestead, and can not, in consequence, prejudice his claim.

The evidence shows that on the 19th of August, 1880, an agreement was entered into between, plaintiff and defendant whereby the mortgage was made to bear on sixty arpents of land.

On the next day a judgment was rendered for the amount due, secured as to its payment on the sixty arpents of land in question.

The claim upon which this judgment was obtained was anterior in date to the homestead declaration of plaintiff recorded in 1880, but not anterior in date to the homestead law of 1865.

The judgment of the lower court recognizes plaintiff’s right of homestead and sets aside the seizure.

From this judgment the defendant, Mayer, the seizing creditor, appeals.

ON Motion to Dismiss.

The plaintiff and appellee in his motion to dismiss the appeal suggests that he offered a writ of fieri facias in evidence and the return thereon of the sheriff.

Subsequently, this writ and return were also offered in evidence by the defendant.

As there is no evidence in the record showing that any return under the writ of fieri facias was ever made, he moves to dismiss the appeal.

The defendant and appellant opposing this motion obtained an order from this court to the clerk of the District Court directing him to forward a copy of the sheriff’s return to complete the record.

The clerk in answer to the order annexes the original writ of fieri facias, which was copied in the transcript filed, and states that he could not do more than copy the writ in the transcript, upon which it appears no return was made by the sheriff. He further states that he made demand upon plaintiff’s counsel to produce the writ offered and return thereon. They not having complied, the only writ found by him in the record was copied in the transcript of appeal.

It is evident that a writ of fieri facias was issued and that under it the property involved in this suit was seized. •

The failure of the sheriff to make his return is not only not at issue, but both the plaintiff and the defendant admit, judicially, that a seizure of the property was made.

The record contains all that is necessary to enable us to decide the case. The return, if copied in the transcript, would not affect the decision, for all that it can prove is of record.

The motion to dismiss is therefore denied.

ON THE MERITS.

1. Defendant’s first contention against plaintiff’s claim for a homestead is that plaintiff, having enjoined the seizure of his property on the ground that it is protected by the registry of his homestead act of 1880, he must now rely exclusively, for exemption from seizure, upon the Constitution of 1879; that plaintiff waived and abandoned all rights under prior laws. The right claimed by the plaintiff in a paragraph of the petition is not exclusive of all other rights to the homestead. It is true that in the paragraph in question he sets up rights under the present laws. But in another portion of his petition he specially alleges a condition, if true, which protects him under the act of 1865. There is, in substance, a definite statement that the petitioner has had members of his family dependent upon him for support.

The courts look to the substance of pleas.

2. The defendant next argues that plaintiff, having alleged that he had children dependent upon him, he can not contradict his allegations by his evidence and show that he had a wife.

The declaration of homestead, made the basis of the cause, sets forth that he was the head of a family. Though the allegation was not as definite as it should have been, yet it was sufficient to prove plaintiff’s marriage and his continuous responsibility as head and support of a family. If he had children dependent upon him when his declaration of homestead was made, and subsequently others succeeded, entitled to his support and protection, the proof may be made of these facts, under the averments of the petition and the declarations contained in the act of homestead.

The original debt was contracted prior to 1880. The defendant, it is true, retained by agreement, entered into a mortgage and privilege on another portion of land than that involved in this case; he nevertheless did not abandon any of his right as holder of an ordinary debt.

This being our conclusion, it devolved upon the plaintiff to prove that he had, since the date he became indebted to plaintiff, been the head and support of a family.

It is settled by a number of decisions that homesteads, under the homestead law of 1865, are unaffected by the provisions of the present Constitution; the rights are unimpaired save as to the necessity of recording the claim. If he was within the law of 1865 he is entitled to date his homestead claim from that year.

The plaintiff has not shown by evidence in this case the continued support of dependents required under the terms of the law, to enable him to obtain a judgment recognizing his homestead.

A certified copy of the marriage license and return thereon, showing the marriage of plaintiff to his first wife, Esther Juge, was offered in evidence; it is not of record on appeal, and the verbal testimony does not fix the day, year, or even the decade of years, in which the marriage was contracted. As unimportant as this may be, we can not overlook the fact that plaintiff has failed to prove when his first wife died the number of children that survived her, and the length of time he continued to give them support. In reference to his grandson, who also resided with him, it seems, the testimony is unsatisfactory and does not show the length of time he gave him support; it only proves the fact that on a particular occasion, the date of a marriage, he was giving him support.

Under the plain letter of the law to obtain exemption the debtor must have a family or person or persons dependent upon him for support. The dependency must be necessary.

After many years the condition which gave rise to the exemption may cease. The intention was not, evidently, to compel the recipient of this boon provided for the protection of the family, in order to maintain their right, to be prepared ht all times to prove their strict compliance; that each day and month support was given for which vouchers were held.

It is only needful to exercise the privilege in good faith, within reasonable limits and without the intention of evading the responsibility devolving upon the head of the family who successively accepts the responsibility of protecting those who have a claim to his support.

In a case before this court between the plaintiff and the defendant including other issues, testimony was introduced in support of plaintiff’s claim to a homestead. After reading the testimony we conclude that possibly plaintiff can prove conclusively that he has given the support to members of his family the law contemplates shall be given by the debtor who claims the benefit of exemption on that ground.

We have determined to remand this case for further proof in regard to the dependence of plaintiff’s family and the support he has given them since the date he became indebted to the defendant. We find ample precedent for this action on our part. Mrs. Mina Paland vs. Railroad Company, 42 An. 290, 295, and authorities cited.

It is therefore ordered, adjudged and decreed that the judgment herein rendered be annulled, avoided and reversed. It is now ordered that the case be remanded to the District Court for the purpose of taking evidence on the point stated and determining whether or not, after having heard further evidence, the plaintiff is entitled to the homestead he claims.

All costs to^abide the final determination of the ease.


text:
    No. 11,716.
    State ex rel. James L. Goodloe vs. John S. Lanier, Register of the Land Office.
    The repealing effect of Act 95 of 1ÍÍ90 has withdrawn from the Register of the Land Office the ministerial duty of selling the land claimed by relator.
    The act is not void; if voidable, it can not be annulled in mandamus proceedings not conducted contradictorily with all parties concerned.
    It does seem that the Legislature had the authority to vest title to land in the Rontehartrain Levee District to avoid to some extent the burdensome taxation required to defray the expenses in malting needful improvements.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      John L. Kennedy and Kernan & Wall for Relator, Appellant.

      M. J. Cunningham, Attorney General (Thomas J. Kernan of Counsel) , for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

James L. Goodloe, applied to the Register of the Land Office to buy certain State lands. He made a tender of the price.

The Register refused the application on the grounds that the lands are in the Pontchartrain Levee District, and that by Sec. 12 of Act 95 of 1890, they are vested in the Board of Commissioners of that district, and that he has no power to sell them. The writ of mandamus to compel the respondent to sell the land, and issue patent to the relator, issued at the instance of the latter, and was decided against him. He prosecutes this appeal.

By statute it is declared that in order to provide additional means to carry out the purposes of' that act, the State lands, subject to overflow, embraced in grants by Congress for levee and drainage improvements in the district became vested in the Board of Commissioners after having furnished and recorded a list of the lands as required by the terms of the act. The proceeds of the sale of these lands are deposited in the State Treasury to the credit of that levee district, subject to the warrants of the president of the board.

The lands claim d have passed out of the State, and under a statute of the State are now held by the Pontehartrain Levee District.

It is not the duty of the Register of the Land Office to issue patents to lands thus transferred. The ministerial functions of the defendant ceased, after the lands had been listed, in accordance with the ^erms of the Act 95 of 1890.

Mandamus does not lie unless the character of the act is ministerial and imposed by law. The legislative will has withdrawn from him the authority to sell the property; he can not treat the statute as an absolute nullity. There is, at least, a collateral issue. The lands are held by a corporation organized to carry into effect public improvements. The questions involved áre disputed and require legal controversy for their settlement contradictorily with parties in interest. Courts will not, in a mandamus proceeding, undertake to decide collateral disputed questions without giving interested parties opportunity to be heard.

The next question we are called upon to consider is, can a party raise objection to the constitutionality of an act whose right it does not affect, and who is without interese?

The relator, it is true, has offered to become a purchaser and has made a tender of the price. As the lands were not in the market, this could not have the effect of vesting him with title. Whatever effect, as between parties who desire to become purchasers of lands from the State, such a tender may have, the formality observed would have no effect against the Land Register, whose ministerial functions have been withdrawn by statute. The statute is assumed to be valid until some one complains whose right is invaded.”

Says Mr. Cooley in his work on Oonstitutional Limitations, p. 199, and further: Nothing will generally appear to show that the act is not valid: and it is only when some person attempts to resist its operation and calls in aid of the judicial power to pronounce it void, as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained. Respect for the Legislature, therefore, concurs with well-established principles of law, ini the conclusion that such an act is not void, but voidable only; and it follows, as a necessary legal inference, from this position, that, this ground of avoidance can be taken advantage of by those only who. have the right to question the validity of the act” (italics ours), not third persons, who have no right preceding the declaration of tmcon-sfcitutionality.

The relator, through counsel, argues that under the Constitution, the lands of the State can not be granted to any corporation, public or private. The respondent, in answer, argues that he has no further control or power over the lands.

He, it is manifest, must be reinvested with authority before mandamus can issue against him.

To the extent that the statute withdrew his power, it must be held not violative of any principle of the Constitution.

No ministerial duty rests on the Register of the Land Office to issue patents under a law surely repealed in so far as relates to his functions.

x We rest our conclusion on the foregoing propositions. Nevertheless we assert that we have not, after having considered the argument of unconstitutionality, reached the conclusion that Act 95 of 1890 is unconstitutional. The lands were vested in a board for public improvement, and to avoid, to some extent, taxing the public. The corporation is not vested with any right to carry out purposes of its own.

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


text:
    No. 11,671.
    Pauline Knoop vs. C. E. Alter.
    Tlie plaintiff was injured by the fall of defendant’s wall.
    The defendant denies negligence and alleges if the plaintiff suffered damages, the property was in possession of an insurance company for repairs.

      Held: That there was negligence, and that whatever may have been the responsibility of the company during the time that repairs were made to a portion of the wall, the owner, aware of the defect and danger, who takes no part to prevent the accident, is liable for the damage occasioned by the fall.
    The safety of wads in a populous city is a public interest, and the interest of plaintiff is blended with the public right that can not be subordinated to indefinite agreements between the insured and insurer. It is not shown that the pro iertythat caused the accident was included within the terms of the election to repair.
    On Application vor Rehearing. — The settlement made and the loss adjusted on the p diey of insurance harmonize with the views heretofore expressed.

      Unexplained, there is difference between estimate of repairs and the amount of settlement, giving rise to tlie positive infereiee that the repairs tvere to be limited, as heretofore decided.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Joseph N. Wolfson, Lieven DePoorter, Lloyd B. Posey and Horace E. Upton for Plaintiff and Appellant.

      H. H. Price and Branch K. Miller for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

This suit was brought by the plaintiff against C. E. Alter and E. O’Rourke to recover damages occasioned her by the falling of a wall.

Owing to error in matter of citation the latter, O’Rourke, was not a party to the trial.

The plaintiff was employed as an operative by the “ Gulf Bay Company ” in its factory operated in the premises owned by Edward O’Rourke, Nos. 82, 84 and 86 South Peters street.

The defendant owned building numbered 80, separated from No. 82 by a dividing wall.

On the 23d of April, 1892, a fire occurred in buildings 74, 76 and 78, on South Peters street, adjacent to the property of the defendant. The fire damaged defendant’s building No. 80. Subsequent to the fire the front portion, about forty feet of the party wall, between 78 and 80 South Peters street, fell.

The portion of that wall which was still standing on the 20th of June, 1892, fell, and caused the fall of the wall dividing 80 and 82, and injured plaintiff, who was at work in the building 82.

She was knocked down by the falling bricks, and buried in the debris of the fallen wall. She was extricated from the ruins by other operatives at the factory, and received a number of painful bruises. She was confined to her bed more than two months and continued an indefinite time under medical treatment. At the date of the trial her health was tolerably good, although she was subject to nervous attacks. She was, it seems, prior to the accident, disposed to hysteria, and one of her witnesses, a highly respectable physician, who has devoted special attention to nervous diseases, testified :

“ Whatever she may have suffered from personal injuries I know nothing of, hut those injuries had nothing to do with her nervous condition except as aggravated by the shock.”

There is testimony that the party wall which fell was in a defective condition, even prior to the fire. A witness who was familiar with the property testified:

Q. You say you called Mr. Alter’s attention to the defects in that wall? . ,

A. Yes, and he said it was a good strong wall.

Q. Did you tell him why you thought it was in a bad condition?

A. It was easily seen, it was badly cracked.

Q. Was it burned?

A. No.

Q. Was it an old wall?

A. It was an'old wall.

Q. You say that even before the fire it was in bad condition?

A. Yes; it was necessary to shore up the joists — that is stanchions had to be placed under them.

In reference to the damage caused to the wall by the fire the testimony is conflicting. :

The witness also states “that shortly after the fire, Mr. Alter and I went into the building. I called his attention to a crack in the wall. The wall was so badly cracked that the firm of which I was secretary had the joists shored up, which was done by their carpenter. Mr. Alter then made the remark that it did not amount to anything. I differed from him and told him that it was in a bad condition. Then he made the remark that I remember very well. ‘That the wall was as strong as the works of Gibraltar.’ ” The defendant as a witness, on cross-examination, says that the witness only pointed out a blister on the wall a few feet from the front door.

That this portion of the wall fell, and that it did not occur to him that if that portion of the wall could fall, that it would be well to investigate and examine the other portions of the wall with the view of ascertaining whether or not it would stand.

The evidence shows that the defendant saw the wall a few hours previous to the accident; a witness testifies that he informed him of the danger of its fall, and called his attention to a crack in the wall; another witness, a bricklayer, who had charge of the work of putting up that portion of the wall that had fallen, says: That the portion standing was in a dangerous condition and that the defendant urged him to hasten the work of putting up the fallen portion. A short time subsequent it fell and caused the accident. The defendant was insured with the Home Insurance Company of New Orleans. By the terms of his policy that company agreed in the event the building insured should be destroyed or damaged by fire to pay to the insured the amount of the loss or repair, or rebuild the building.

After the fire the insurance company elected to repair the loss caused by fire.

The builder employed by the insurance company to make repairs, and who examined the property after the fire, was not called as a witness by the defendant, and did not testify.

The bricklayer in charge and the principal carpenter were examined as plaintiff’s witnesses, and testified as to the' unsafe condition of the wall.

The defendant denied any liability, and averred further that if the plaintiff suffered damages the buildings were not in his possession or control.

The president of the insurance company and the defendant testify that they were in possession of the company which had taken charge of the repairs.

The cause was tried in the lower court without the intervention of a jury.

Judgment was rendered for defendant, from which the plaintiff appeals.

That there was negligence in not guarding against the danger of the wall falling is amply sustained by the facts. None of the witnesses, except the defendant, testify that it was a safe wall.

The fact that the insurance company in which the building was insured had commenced, a few days previous to the accident, to rebuild the forty feet of party wall which had fallen a short time after the fire, and to that end had taken possession of the building, presents the only question left for our determination.

Primarily, every one should keep his building in repair, so that damage may not be occasioned by its ruin. 0. 0. 670.

It is not shown by the evidence that the insurance company had undertaken to repair the wall which caused the damage.

On the contrary, the repairs were limited to the front portion, the forty feet that had previously fallen. The contract between the insurance company and the builder was to rebuild from the front to the rear, a distance which did not include the standing wall, from which contract it does not appear that the defendant withheld his assent. If it extended to other repairs, we have not found the testimony of record. But he, at the time, urged the briekmason, who was working under the terms of the contract, to hasten with the work of closing the wall; and on another occasion he declared in emphatic terms that the standing portion was solid.

The defendant sets up in defence that an owner who has contracted with a capable undertaker to repair, has done all that he could do.

This applies to the repairs proper.

The contractor must answer for his own repairs and not for the work of others.

As to the latter, it is not part of his obligation. We are not led by the testimony to infer that the insurance company owed other repairs than those it is shown it had undertaken to make.

But assuming that the relation was that of contractor, the owner as well as the contractor would be responsible to a third person for any injury by his negligence in a matter not clearly included in the contract. This principle was followed in a case presenting similar points to the case under consideration. Gorham vs. Gross, 125 Mass. 232.

In Walker vs. McMillan, 6 Can. S. C. R. 241, it was decided “if a damage is caused by the fall of a wall in putting up a building forbidden by ordinance, both owner and contractor are liable.”

In the case of Insurance Company vs. Werlein, 42 An. 1047, 1053, this court gave its sanction to the principle that the owner whose property is in the hands of the assurers must reasonably exert himself to prevent damages.

The dual responsibility of the employer and the contractor is recognized in Davie vs. Levy & Sons, 39 An. 555, in which the cases of Robins vs. Chicago City, 4 Wallace, 679; 23 Pickering, 24; 17 N. Y. 104, and 16 Wallace, 567, are approvingly cited.

In France, on this point, the laws are more favorable to the proprietor and greater responsibility is imposed upon the architect and the contractor.

Nevertheless, there, as it is here, the proprietor of a building is responsible for the damages caused by its ruin when due to defective construction.

The owner of the damaged property has a right of action against the proprietor and the latter has the right to sue the architect or contractor.

The proprietor selects the architect and contractor he wishes to employ, and can make such stipulations as he deems proper to protect his interest; whereas the neighbors are strangers to the agreement between the architect and the employer; the law is alive to their interest, it being blended with the public interest. Laurent, Vol. 26, p. 76; Aubry et Rau, t. 4, p. 534, and note 32, par. 374; Dalloz, 1866, Sec. 294.

The question being general, the safety of persons can not be made subordinate to verbal and indefinite agreements between the insurer and the insured. With reference to the amount of damages, we are confronted by the usual difficulties in such cases.

There is no positive evidence on which to base an estimate.

The evidence shows that plaintiff’s ailment is not incurable; the accident aggravated the illness to which she was disposed.

Her daily earnings were small.

After considering the decisions of the court regarding amounts allowed as damages for injuries received, we think that fifteen hundred dollars should be allowed.

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

It is now ordered, adjudged and decreed that plaintiff have judgment against and recover of the defendant the sum of fifteen hundred dollars, with legal interest from the date of this judgment, and that defendant pay costs of both courts.

On Application for a Rehearing.

With more than ordinary care we have re-examined the facts of this ease.

We have not found any reason to change our previously expressed opinion.

Our attention was arrested by the following:

(We extract from the policy of insurance, which the appellee makes the basis or his defence.)

“ Against loss or damage by fire to the amount of five thousand dollars on the three-story brick slated building, with iron shutters front and rear; situate * * * . July 1, 1892. Canceled, loss paid, three thousand dollars.” While the estimate of the work was less than one thousand five hundred dollars.

This settlement has heretofore received but little, if any, attention.

We leave the subject with the stacement that, without explanation, it seems to bear against the contention of the appellee.


author: Miller, J.

text:
    No. 11,719.
    Philip Dave vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    The passenger on the railroad train is entitled to-be carried to his destination; if carried beyond and made to leave the train, under the compulsion o£ the orders ot the train officials, he is entitled to damages.
    A PPEAL from the Eighteenth Judicial District Oourt, Parish of Lafourche. Caillouet, J.

      Beattie & Beattie for Plaintiff.

      Clay Knobloeh & Son, Leovy & Blair and Viator Leovy for Defendant, Appellant.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, a passenger on defendants’ railroad, sues for damages, alleging he was forcibly ejected from defendants’ train at a point not his destination, but some distance beyond, thus imposing on him the necessity of walking on a rainy night, as he alleges, for a mile or more. The defendants concede the train passed the plaintiff’s station, going a short distance further, due to the darkness of the night, but deny the alleged expulsion of the defendant from the train. The judgment of the lower court was in plaintiff’s favor for fifty dollars, from which the defendants appeal.

The previous decision in this court maintained this suit brought in the parish of Lafourche against the defendants domiciled in New Orleans on the theory that the expulsion of plaintiff from the train was a trespass and gave plaintiff the right to sue in Lafourche where the wrong was done. See defendants’ charter, See. 12; Payne vs. R. R., 43 An. 981; Dave vs. R. R., 46 An. 273. The proof is the train was stopped a short distance beyond plaintiff’s destination. The stoppage of the train and the announcement of the station may be accepted as a direction to leave. There is testimony that was enforced by emphatic language by the porter and conductor. On this point the evidence is conflicting. The District Judge reached the conclusion the plaintiff left the train under the compulsion of a peremptory order from the train officials, and in this sense the compulsion must be accepted as established.

The question then in this case is the damages the defendant must pay for putting the plaintiff off beyond the station. The distance from the station is the subject of some variance in the testimony, but we conclude eight hundred feet would be a reasonable estimate based on all the testimony. The night was rainy. The plaintiff intended a visit to a neighboring plantation, and if put out at his station, he would have encountered the rain on his contemplated visit. His action for damages is not to be depreciated because he is a field hand, but the circumstance naturally suggests that exposure to the rain as an element of his discomfort was not to him a novel experience He complains, too, of the harsh expressions of the conductor and porter, denied by thenj in their testimony. There is, of course, in this case, no proof of actual damage. We have given attention to the argument that if plaintiff is entitled to any amount he should recover counsel fees. If this is recognized in many cases, the recovery would be greater than any amount given if fees were not included. We do not think the compensation to counsel should be admitted as part of the damages. We are asked by plaintiff to increase the judgment of the lower court and by defendants to reduce; we think the verdict has done justice to che parties.

It is therefore ordered, adjudged and decreed thatthe judgment of the lower court be affirmed, with costs.


text:
    No. 11,690.
    The State vs. Boles Collins.
    The charge o£ the court on a trial for murder that the killing is proved; that there is but little question of manslaughter and none of justifiable homicide, and implying that the prisoner was present; whose actions and conduct the jury are instructed they may consider, clearly express conclusions of the court on the facts, in violation of the law, prohibiting such expression. The departure from the law is made more distinct, when it appears from the bill the defence claimed the prisoner was not present when the crime was committed. Rev. Statutes, See. 991; Constitution, Art. 168,
    APPEAL from the Seventh Judicial District Court, Parish of Tensas. Montgomery, J.

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

      R. H. Snyder, Jr., for Defendant, Appellant.
   The opinion of the court was delivered by

Miller, J.

Prom the sentence for murder defendant appeals, and relies onthemoiion to quash, assailing the constitutionality of Act No. 69 of 1890, organizing the courts, and on exceptions to the charge of the court. The first ground is disposed of by our decision in State vs. Harris, Ante, p. 386.

The charge of the court, the subject of the exceptions, is embraced in these propositions:

1. u There is very little question of manslaughter in this case, and none of justifiable homicide.”

2. “ The chief difficulty in this case will be whether the accused did the killing; you will have little difficulty with, anything else in the case.”

3. “ You may take the actions, conduct and words of the prisoner at the time (of the killing), or after, into consideration.”

It is true that in other portions of the charge the issues of fact were fairly submitted to the jury under the appropriate instructions as to the law. But the portions of this charge the subject of the exceptions, in our view, clearly trench upon the functions of the jury, and exceed the power of the court. Our law limits the judge in charging the jury in criminal cases to the instruction of the law applicable to the case. He is forbidden from stating the evidence SO' as to influence the jury, and from expressing any opinion as to the facts proved or disproved. R. S., Sec. 991; Constitution, Art. 168. The instructions in effect announce conclusions on important issues of fact. The jury are instructed substantially that the killing is proved; that there is no justification, and but little question as to whether the act admits of mitigation by reducing it to manslaughter. The implication is clearly conveyed the prisoner was present, and that his actions and conduct at the time of the killing may be taken into consideration. The only element of the offence left untouched by the instructions is whether the prisoner committed the crime. The charge implying his presence is the more objectionable, in view of the fact that the defence relied on establishing the prisoner was not present. It is, we think, plain the verdict must be set aside.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be reversed and set aside, and it is further adjudged and decreed that the case be remanded, and the defendant held for another trial in accordance with law.


text:
    No. 11,649.
    Mary E. Perkins, Wife, et als. vs. Ursin Vincent et als.
    Lands subject to equitable claims within the territory acquired by the United’ States from Spain under the treaty of 1819, requiring survey and confirmation by the United States, are, until the approved survey, confirmation or patent issued, part of the public domain. R S. IT. S., Secs. 2323, 2317; 8 Martin, 637; 5 N. S. 32; 3 An. 59; 1 An. 90; 12 An. 151.
    Hence until surveyed and confirmed to the claimant by act of Congress referring to the survey or patent issued, no prescription runs against him.
    A PPEAL from the Twelfth Judicial District Court, Parish of Oalca-sieu. Fournet, J.

      A. B. Mitchell and Leon Sugar for Plaintiffs, Appellants.

      E. D. Miller and A. P. Pujol for Defendant, Appellee.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs bring the petitory action. The defences are the general issue, prescription, and exceptions to the capacity of plaintiffs to sne. The judgment of the lower court maintained the plea of prescription of some of the defendants, and the exceptions to the capacity of two of the plaintiffs, and as to other defendants overruled their pleas of prescription. The plaintiffs appeal, and ask that the judgment be amended so as to decree plaintiffs owners of the land for which they sue.

The exceptions, other than those of prescription, have been waived.

The plaintiffs sue as the heirs of James Goings. The lands claimed lie within the once disputed territory between the western boundary of the State and the Rio Hondo, the claims to lands within which territory were protected by our treaty with Spain in 1819. Going’s claim, based on habitation only, never surveyed, was merely equitable. The Boards of Land Commissioners.of the United States recommended the claim for confirmation, stating the land to be three hundred and twenty acres on the west side of “the Quelque shue,” east bank of Bayou “ Shou Pique,” opposite the claim of James Ashworth. The confirmation was by act of Congress in 1828. While thus confirmed, the land, though subject to the equitable claim, must be deemed to have formed part of the public domain until at least it was ascertained by a public survey, and the issue of a patent or its equivalent confirmation of the claimant’s title by act of Congress referring to the survey. Until such survey the land was impre-scriptible, and hence no prescription ip respect to such land could run against the claimant or his heirs. It is claimed the field notes of the survey were furnished in 1874, but the survey itself, by the authority of the United States, was not approved by the Surveyor General, nor was any patent issued to doings’ heirs till 1890. It is in our opinion clear that the pleas of prescription must fail. Revised Statutes United States, Secs. 2223, 2447; Lafayette et al. vs. Blanc, 3 An. 59; Hooter vs. Tippett, 8 Martin, 637; Gonsoulin’s Heirs vs. Brashear, 5 N. S. 33; Pontalba vs. Copland, 3 An. 86; Laidlaw vs. Landry, 12 An. 151.

A portion of the defendants exhibit!no title. That relied on by the other defendants will not avail. Lailds part of the public domain are not prescriptible till the patent issues. It follows that one claiming to have become owner of such lands before any official survey or patent issued can not hold against plaintiffs having the patent.

We think the patent made part of the petition controls the aver-ments in the petition as to the title and fixes its character.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed so far as it maintains the plea of prescription of some of the defendants, and dismisses the demand of two of the plaintiffs, and it is now ordered, adjudged and decreed that plaintiffs be and they are hereby decreed to be the owners of the land sued for and put in possession, and that defendants pay costs.

On Application por Rehearing.

The re-examination of this controversy has not changed our conclusion with respect to the title. In the original briefs we were not apprised, as we appreciated the discussion, of any determination required as to rents and revenues and improvements. We are asked in the brief for rehearing to pass on those issues, or remand the cause. We think it sufficient to reserve those issues for further adjudication.

It is therefore ordered, adjudged and decreed, that the rehearing be refused, reserving the rights of the plaintiff, in further judicial proceedings, to claim the rents and revenues, and of the defendant to claim for improvements of the property or urge other claims incident to eviction; the parties conceive they are entitled to urge.