author: Ludeling, C. J. Ludei.ing, C. J.

text:
    No. 352.
    Louisiana Mutual Insurance Company v. Walters & Elder.
    Where Elder, one of the defendants, had been cited as a member of the commercial firm of Walters & Elder, in a suit on certain drafts, and it was alleged and proved, in defense, that said drafts had been given out of the usual course of the partnership business, without any authority, and not on account of the partnership, but where it was also proved that Elder had signed the drafts;
    Held — That he can not deny Ms authority to make the drafts, and that he is personally responsible for the amount thereof.
    'Thefirm was sued, but evidence was received without objection which established his personal liability. He is bound by this proof.
    The objection that there was no notice of dishonor is not valid. The drawer had no funds in the hands of the drawee, and long after the drafts were due, and with the knowledge that they had not been protested, he frequently acknowledged his liability thereon and promised to pay them.
    There is no force in the position that Elder gave the drafts for a balance on the compromise of a debt due by the estate of one Pomroy. As the representative of the estate, he could not bind it by drawing drafts, but be bound himself.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Leridee, J.

      .Egan, Williamson & Wise, Race, Foster &' Merrielc, for plaintiffs and appellees. Land & Taylor, for Elder, defendant and appellant.
   Ludeling, C. J.

This is a suit on two drafts, dated thirtieth May, 1868, drawn by Walters <fe Elder to the order of the Louisiana Mutual Insurance Company, on William Cooper, who accepted them, and they were due on the first November and first December, 1868.

The defendants, after pleading a general denial, aver that, at the time the drafts were given, the succession of E. H. Pomroy was largely indebted to the plaintiff; that David J. Elder was executor of said sue-cession, which was well known to the plaintiff; that said executor gave the drafts in settlement of said indebtedness, and the acceptor-accepted the drafts as agent of said executor and at his request. They aver that D. J. Elder had no authority to sign the firm name to said drafts; that it was an act out of the usual course of the partnership business, and the plaintiff knew that said Elder acted in this transaction as executor of said succession, and in order to compromise a debt due by the succession. They aver that they never received any consideration whatever for the drafts,'and that the plaintiff knew they had no interest in the payment of the debts of the succession of Pomroy. After the testimony of the president of the Louisiana Mutual Insurance Company had been filed in the lower court, the plaintiff’s counsel caused a citation to be issued addressed to D. J, Elder, individually. This was served and a default was taken in the case against D. J. Elder. Subsequently Elder appeared and moved to set aside or annul the citation addressed to him in his individual capacity, and the default taken thereon, on the ground that this suit was against the commercial firm of Walters & Elder, and that no judgment could be rendered against him personally, except as a member of the firm.

The judgment of the court a qua sustained the motion to set aside the citation to D. J. Elder individually and the default thereon; it rejected the plaintiff’s demand against Walters & Elder, but it condemns D. J. Elder individually to pay the amounts claimed in the petition against the firm for using the firm name without authority. Erom this judgment D. J. Elder alone appealed. The firm of Walters & Elder, therefore, is not before this Court, except, perhaps, as one of the appellees — and, as between the appellees, no change can be made in the judgment.

The appellant complains that he has been condemned in a suit to which he is not a party. And we think his complaint is well founded. Without deciding whether the citation addressed to him individually, in a suit against the firm of which he was a partner, could have the effect of changing the character of the demand or not, it is sufficient to know that his exception to this mode of procedure was sustained by the judge a quo, and no appeal was taken from the judgment sustaining the exception and annulling the citation. He was not before the court in his individual capacity, and, therefore* no judgment could be rendered against him individually.

The object of pleading is notice, and the capacity in which one ie sued should be clearly stated: “ The party sued ought to be clearly instructed why he is sought to be condemned, and not left to infer it from doubtful and obscure allegations,” or from matters dehors the petition. IN. S. 204; Brown ■& Co. v. Richardson, 17 An. 176; 19 An. 186.

We are referred by the counsel for the plaintiff to the case of Derbigny v. Mondelli et al., (15 La., 496), as settling the right of- the plaintiff to recover judgment against Elder, individually, under the pleadings and evidence in this case. In the case referred to the only question was whether or not Mondelli was bound in solido, and the court htdd that by iiis answer Moudelli had admitted his liability for half the note, and had himself put “in issue the particular partnership out of which, he contends, this contract arose,” and for that reason they held that he had shifted the onus of proof to himself to show that the partners had consented to the obligation, or that the contract enured to the benefit of the partnership. It must be borne in mind that Mondelli alone had been cited to answer the demand. In the case at bar, the firm of Walters & Elder alone have been cited.

' In the Mondelli case, where lie alone was sued, the court gave judg- ' snent against him for the whole debt created by himself, in the name of an ordinary partnership. We fail to discover the analogy between the two eases. If D. J. Elder, individually, had been sued on the drafts, instead of the firm of Walters & Elder, then there would have been some analogy between the cases.

It is therefore ordered and adjudged that the judgment of the District Court be annulled, and that there be judgment rejecting the plaintiff’s ■demand, with costs of both courts.

On Rehearing.

Ludei.ing, C. J.

In our former opinion we said that" the appellant and been condemned without beiug before the court. This was an error. He had been cited as a member of the commercial firm of Walters & Elder. The defense to the drafts sued on was that they were given out of the usual course of the partnership business, without any authority, and, not on account of the partnership. And this ■defense was proved; but it was also proved that the appellant, Elder, signed the draits. He can not deny his authority to make the drafts. The judgment against him for the amount of the drafts was therefore correct. 2 Hill, 200, Hawks v. Munger; 13 Peters, 119.

The judgment may also be maintained on another principle. The firm was sued, but evidence was received, without objection, which established the liability of Elder personally. He is bound by this proof. 20 An. 241.

There is no force in the objection that there was no notice of dishonor, as it is proved that the drawer had no funds in the hands of the drawee, and that long after the drafts were due, and with the knowledge that they had not been protested, Elder frequently acknowledged his liability thereon and promised to pay them.

Neither is there any force in the position that he gave the drafts for •a balance, on a compromise of a debt due by the estate of Pomroy. Elder, the representative of the estate of Pomroy, could not bind the ■estate by drawing drafts, but he bound himself.

'It is therefore ordered that the decree of this court heretofore ren-dered in this cause be set aside, and that the judgment of the lower ■court be affirmed, witli costs of appeal.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 381.
    Rogers & Woodale v. Jasper Gibbs.
    'The omission'in the transcript of the testimony, not reduced to writing, of one of the plaintiffs counsel, in reference to an incident of the trial, is not sufficient ground to dismiss the appeal, when the substance of the testimony is brought up in the bill of exceptions taken to the ruling of the Judge on the subject.
    ''Where a oommorcial firm, the payees of two promissory notes, due respectively in 1862 and la63, instituted, in April, 1870, suit against the indorser thereof, and where, on the payment thereof being established by notarial act, plaintiffs attempted to prove that it was made in Confederate notes, and contended that said payment was in violation of the non-intercourse laws, having been made at Shreveport, within the Confederate military lines, to one of the plaintiffs, who was a resident of !New Orleans, then within the Federal lines, and whose authority, therefore, to represent the firm as its agent ceased to exist;
    ¿Held — That whatever might be said of the acts of the said party in going through the prohibited lines, and its legal effects upon any contracts of his own or Ms firm, said firm, or any one of its members, can not now invoke the illegality of the said payment, or enforce a second payment. They can not be heard to urge their own unlawful conduct to their own benefit. The payment under such circumstances must be held binding upon both plaintiffs.
    APPEAL from the Eleventh Judicial District Court, parish of Claiborne. Trimble, J.

      L. B. Watkins and T. & J. W. Young, for
    plaintiffs and appellants. J. I>. Watkins and A. B. George, for defend■ant and appellee.
   Howell, J.

This suit was instituted in April, 1870, by the payees •against an indorser of two notes made in April, 1860, and due respectively in April, 1862 and 1863, with interest from date. The answer, besides a general denial, contains a special denial of demand, protest ■and notice, and the plea of payment in July, 1863, by the first indorsers. Judgment was rendered in favor of defendant, and plaintiffs .appealed.

A motion is made to dismiss the appeal because the transcript does ■not contain all the evidence. The omission alleged is the testimony of one of plaintiffs’ counsel, taken on his motion to have the representative of plaintiff Woodale, whose death was suggested, made a party. The testimony was not reduced to writing, but its substance is brought up in the bill of exceptions taken to the ruling of the judge on the subject, which we consider sufficient, referring merely to an incident of the trial, and there is, therefore, no ground for a dismissal of the appeal.

This bill of exceptions is pressed on our attention, and was taken to the refusal of the judge to permit plaintiffs’ counsel to file a written motion suggesting the death of said Woodale, and asking to make liis legal representative a party, and the affidavit of the said counsel that he had recently heard of the said death, and believed his information to be true. Objection was made, and the affiant was examined as a witness, and his testimony made the report of the suggested death so-improbable in the opinion of the judge that he refused the application. We think the filing of the documents should have been allowed, and the subsequent action could have been had as well. But their contracts and the statements of the witness are in the bill of exceptions, and we think the judge did not err in refusing to continue the case to make parties. The report of the death was altogether too vague and indefinite to be the basis of judicial action.

On the merits, we think the judge decided correctly. The payment, as alleged, was proven by a notarial act. But the counsel of plaintiffs attempted to prove that it was made in Confederate notes, and they contend that it was so made in violation of the non-intercourse laws, having been made in Shreveport, within the Confederate military lines, to the said plaintiff, who was a resident of New Orleans, then within the Federal lines, and whose authority, therefore, to represent the firm as its agent ceased to exist. Whatever may be said of the act of the said party in going through the prohibited lines, and its legal effects upon any contracts of his own or his firm, we do not think the firm or its members can now invoke the illegality of the said payment and enforce a second payment. They can not be heard to urge their own unlawful conduct to their own benefit. The payment under the circumstances must be held binding upon both plaintiffs.

Judgment affirmed.


text:
    No. 401.
    William Sandel v. D. B. Douglas, Sheriff, et als.
    It has often been held that the signature of the appellant is not necessary to the appeal bond,, his obligation to discharge any judgment rendered against him on the appeal resulting from the judgment itself. Hence if the counsel in this case was without special authority, as alleged, to sign for the appellant, it is no ground to dismiss the appeal.
    An intervenor is entitled to the delay necessary for service of citation and putting the intervention at issue.
    APPEAL from the Fourteenth Judicial District Court, parish of •; Morehouse. Bay, J.

      B. G. Coll), 8. D. McEnery, for plaintiff and appellee. Todd á Brigham, B. W. Bichardson, for defendants and warrantors. JD. O. Morgan, for intervenors.
   Howell, J.

The plaintiff sues the sheriff and the plaintiffs in two writs of execution, issued in their suits against Mrs. S. A. Bell, separate in property, for twenty-seven bales of cotton or their value, which he alleges are a part of the crop raised by him on the plantation of said Mrs. Bell, rented to him for the year 1869, and which the said ■sheriff illegally seized and carried away. He also claims damages for injury to the cotton, and attorney’s fees. The defendants plead the general denial, with a special denial of the alleged lease, and the averments, that if an act of lease was executed, it was made by the husband of Mrs. Bell, without authority, and was a mere simulation, intended to screen the crop grown on the plantation from the creditors of Mrs. Bell, who was insolvent to the knowledge of this plaintiff; that Bell, the husband, was intoxicated and incapable of contracting when he signed said act; that the cotton was a part of the crop growing on the mortgaged land at the time of the seizure, and was a part of the same, and the mortgagee’s right to seize and sell it could not be impaired or affected by the mortgageor or other person without their consent.

On the day on which the case was fixed for trial, Mrs. Bell, with the leave of court, filed an intervention, claiming to be the owner of the cotton in controversy, denying that plaintiff leased her plantation, as alleged, averring that the lease set up was unauthorized by her, and that the seizure of the cotton was not authorized by the writs in the bands of the sheriff, and praying that the plaintiffs and defendants be •cited, and that she be decreed the owner of the said cotton, and obtain ■delivery thereof or its value. She then moved a continuance for service of citations and forming issues between the parties, stating that the opposite parties refused to accept service and put the intervention at issue, and that if they would do so, she was ready to proveed with the trial; but the court refused, on the ground that the intervenor should not be allowed to delay the trial of the principal cause, the trial of which was immediately proceeded with, the intervenor taking her bill of exceptions. Judgment was rendered in favor of ■plaintiff for a greater part of his claim, and the defendants and intervenor have prosecuted this appeal.

The plaintiff and appellee moves to dismiss the appeal of the intervenor, on the ground that the appeal bond was not signed by her, but by her counsel, who was without authority to do so, it appearing that «he was not absent from the parish.

It has often been held that the signature of the appellant is not ■necessary to the appeal bond, his obligation to discharge any judgment (rendered against him on the appeal resulting from the judgment ■itself. Hence if the counsel in this case was without special authority, ■as alleged, to sign for the appellant, it is no ground to dismiss the appeal.

The motion is, therefore, overruled. According to the construction which has long been given to articles 391 and. 393 of the Code of Practice, an intervenor is entitled to the delay necessary for service of citation and putting the intervention at issue. See 16 L. 265; 3 An. 331; 20 An. 258. The court a qua, therefore, erred in not granting the delay asked tor in this case by the intervenor, as shown by the bill of exceptions, and the cause must be remanded on this account.

It is therefore ordered that the judgment rendered herein (being No. 4880 of the District Court) be reversed, and that this case be remanded, to be proceeded in according to law, plaintiff and defendants paying, costs of appeal.


text:
    No. -
    William Sandel, v. D. B. Douglas, Sheriff, et als.
   Howell, J.

This case is embraced in the record with the one of the same title just decided, the evidence by agreement in each being used in both, although the defendants are not all the same.

In this case the plaintiff sues the sheriff and the sureties on his official bond for five bales of cotton or their value, which he says belong to him, by having raised two and purchased the others, and which he charges were illegally and fraudulently seized by the sheriff, under writs of execution, in the suits of Francke & Danneel v. S. A.. Bell, and B. Selbornagh & Co. v. S. A. Bell, in the district court, and a writ of attachment in the suit of S. J. Putch v. William Henry, in the parish court. He also claims damages for attorney’s fees, trouble, expenses, etc., growing out of the taking of said cotton, and a further damage from a decline of two cents per pound in the value of the cotton. He made R. A. Phelps, the present sheriff, a party, on the allegation that two of said bales had been turned over to him by his predecessor, Douglas.

Douglas and his sureties excepted to the jurisdiction of the district, court, on the ground that by the allegations two bales of the cotton claimed had been delivered to the acting sheriff, and the value of the remainder is less than five hundred dollars, and the claim for damages is purely fictitious. This exception was properly overruled. The prayer is for the five bales, alleged to be worth over five hundred dollars, and the demand against Phelps is in the alternative. Douglas, and his sureties answered by a general denial, and averred that Douglas was acting in his official capacity under the writs described in the petition, and had seized the plantation of Mrs. Bell with the growing crop thereon, as he was expressly commanded in the writs, and therefore incurred no liability; that all the cotton seized and afterward baled was turned over to his successor in office; that if any part thereof was ever in the possession of plaintiff, his possession was illegal; that under the writ of attachment, in suit of S. J. Futch v. William Henry, one bale was seized and stored in courthouse, and burned, with said building; but it is denied that said bale belonged to or wasr in the possession of plaintiff; that plaintiff never rented the plantation-of Mrs. Bell for the year 1869; that the pretended lease, if it existed in writing, was without the authority of Mrs. Bell, and was a fraudulent simulation to screen the property of Mrs. Bell from her creditors; that it was signed by her husband when from intoxication he was incapacitated to contract, and the lease was repudiated by the wife; that if the sheriff and his sureties incurred any responsibility, the-plaintiffs in the said writs are their warrantors. Their prayer was in accordance with their obligations. Phelps filed an answer, but as no-judgment was rendered against him, and none is asked from us, it is unnecessary to notice it. The alleged warrantors seem not to have been made parties. After trying the issues thus presented, the judge ad hoc gave judgment in favor of plaintiff against Douglas and his-sureties, ordering them to deliver to him three bales of cotton marked W. S., and in default thereof pay him $312, and to pay eight per cent, thereon f¡;om February, 1870, as damages, with all costs, rejecting the demand against Phelps, and the demand of plaintiff for attorney’s fees and other damages. In this court he has asked an amendment oí" the judgment in this last respect, and as to the two other bales.

The evidence is satisfactory, that the three bales of cotton for which he obtained judgment were purchased by him from the laborers on tho plantation, and were a part of their compensation for their labor. The plaintiff was in possession when they were taken by Douglas, who was informed of the facts, but refused to return the said cotton. Under these circumstances the plaintiff is entitled to his cotton or its value at the time it was illegally taken from him, even though he may nob have been the lessee of the plantation on which it was raised. As to the two bales marked "Zone,” claimed as a part of plaiutiff’s crop, and the damages for attorney’s fees, trouble, etc., we think the record and tlie law sustain the judgment of the lower court. The evidence does not include the three recovered within the alleged agreement of counsel and parties to sell, the proceeds to abide the result of the litigation. But eight per cent, was erroneously allowed.

It is therefore ordered that the judgment appealed from herein (being suit No. 4927 in the lower court) be amended so as to reduce the interest from eight to five percent., and that as thus amended said judgment be affirmed, plaintiff to pay costs of appeal.

Rehearing refused.


text:
    No. 409.
    Samuel Whited, Tax Collector, v. Mrs. M. J. Lewis and Husband.
    The fact whether or not a law has been duly promulgated may be within the province of the judiciary, but whether or not it went regularly through all the stages necessary for its passage as a law up to the promulgation, is a subject confined to other departments of the constitution.
    ‘Che eleventh section of act 81 of the regular session of 1872, promulgated on the thirteenth Ai>ril, 1873, amending the charter of the town of Monroe, was not passed in violation of tho formalities required by the constitution. The objects embraced in said section of said act are embraced in the title.
    in 6 An., 605, it is said: “When portions of a law come within the reasonable intendment of its title, and others do not, the latter alone are unconstitutional, provided they can stand alone.” This properly applies to the aforesaid section.
    The right of a party to raise the question of the constitutionality of a law is limited to the provisions thereof which affect bis interest in the litigation.
    Section 11 does not violate, as alleged, the uniformity and equality of taxation, because it exempts some property and persons in the town of Monroe, within the limits of the parish of Ouachita, from taxation to which other inhabitants of the parish are subject, and because the Legislature can only exempt “property actually used for church, school and charitable purposes.”
    The power to tax inoperty within the parish of Ouachita and require licenses from the inhabitants thereof, was conferred by the Legislature on the police jury, and the exercise of that power is only curtailed by the section of the law which exempts the town of Monroe.
    The Legislature conferred the powor-of taxation on each subdivision of the local government —the police jury of‘the parish and the municipal authorities of the town of Monroe — and had tho right to withdraw or modify that delegation as to each or both.
    The act was not retroactive. It merely withdrew a delegated power which had not yet been exhausted, and destroyed no vested right in tho police jury.
    ■ Where it was contended that section 3493, R. S., did not authorize the Secretary of State to promulgate an act of the Legislature that had not received the Executive sanction, as was tlio case in this suit;
    Held — That this is too restricted an interpretation of the functions of the Secretary of State when connected with article 66 of tho constitution.
    ‘"lie act in question was necessarily presented to the Governor, but was published without his signature. Although not drawn up with such precision and fullness as might be done, a fair construction of section 3493, R. S., in the light of tho various articles of the constitution having any reference to the subject, will afford authority in the Secretary of State to deliver to the State Printer for publication all bills in the category of this one, with the statement that they became laws without the signature of the Governor.

      A bill becoming a law without the Governor’s signature must be promulgated as well as one with his signature, and all bills must be promulgated through the oll'.ce of the Secretary of State.
    ft may not be sacramental, under existing legislation, that he shall state, or add in a note, that it became a law without the signature of the Governor, and how it so happened; but the court can not say that, under all the provisions of the constitution and tho laws on the subject, his doing so will destroy tho law, or prevent a bill in such a contingency from becoming a law.
    APPEAL from the Parish Court, parish of Ouachita. Baker, J.

      Garrett & Garrett, A. L. Slack, District Attorney pro tem., for plaintiff and appellee. JR. G. Cobb, for defendants and appellants.
   Howell, J.

Plaintiff, as collector of parish taxes, sues defendant for $100, as the license, fixed by an ordinance passed by the Police Jury of Ouachita, on the business of keeper of a hotel in the city of Monroe. The defense is that by the eleventh sectiou of act 81, of the regular session of 1872, promulgated on the thirteenth of April, 1873, amending the charter of Monroe, all property situated in Monroe, and persons following trades, occupations and professions therein, are •exempted from paying taxes or licenses to the parish.

In reply the plaintiff says that said act was not passed in conformity with the formalities required by the constitution, and is in violation of articles 114, 115, 118 and 110 of said instrument.

First — In the case of the Louisiana State Lottery Company v. Richoux et als., 23 An. 743, it was held that courts will presume that the con■stitutional rules laid down for the passage of laws have been complied with by the lawmaker, and when duly promulgated will accept them •without inquiry as to the observance or non-observance of such rules. Assuming the regularity of the promulgation of the law under consideration, we must, under this rule of jurisprudence, accept it as having been passed, as promulgated, upon the observance of all the rules prescribed for the enactment of laws. Any alleged discrepancy, therefore, in the title as adopted by one house and that as adopted by the other, is not a subject of judicial inquiry. The fact whether or not a law has been duly promulgated, may be within the province of the judiciary; but whether or not it has regularly passed through all the stages necessary lor its passage as a law up to the promulgation, it seems now settled in this State, is a subject confined to other departments of government.

Second — Does the title express the objects of the law? Article 114. As the eleventh section only of said act is involved in this controversy, we have simply to ascertain if the object or objects embraced in it are expressed in the title. In 6 An. 605 it was said, when portions of a law come within the reasonable intendment of its title, and others do not, the latter alone are unconstitutional, provided they can stand alone.” This properly applies to the section under revision, it containing independent matter. See, also, 21 An. 309, 448. In these ■cases the right of a party to raise the question of the constitutionality of a law was limited to the provisions thereof which affected his interest in the litigation.

Referring to the title and section of the law attacked herein, we con-sider the objects of the latter embraced in the former. The act is professedly amendatory. Its title reads, “ An act to amend and ■re-enact sections one, two, three, seven, and the ninth paragraph of section nine, to add a twenty-first paragraph to section nine, and to amend and re-enact sections nineteen, twenty, twenty-one and twenty-eight of the act entitled an act to incorporate the city of Monroe, to fix its boundaries, to provide for the government, and create a recorder’s ■office for the same, approved May 4, 1871, and after the first day of January, 1873, to exempt all property, real and personal, and all persons, firms or corporations within the corporate limits of the city of Monroe from the payment of parish taxes and licenses, and to provide for the payment of costs and fees in criminal cases, originating within-said corporate limits.”

The eleventh section reads: “That all real and personal property within the corporation of the city of Monroe, and all persons, firms- and corporations within the said corporation, be and the same are hereby exempted from all taxes and licenses levied by the parish of Ouachita from and after the first day of January, 1873; provided, that the city of Monroe shall be liable for the expenses in a.11 criminal cases-originating within its corporate limits; and the clerk of the district court and the sheriff of the parish of Ouachita shall collect their fees in such cases from the corporate authorities of the city of Monroe, and-not from those of the parish of Ouachita.”

It is objected that the whole object, announced in the title, as to* costs and fees in criminal cases, is not effected or carried out in the eleventh section. This implies that the object of the law in this-respect is expressed in the title, and whether any costs and fees besides-those of the clerk or sheriff can be collected irom the city of Monroe- or not is a question to be settled in a litigation on that particular point, and can not affect the constitutionality of the law.

Third — It is next objected that the act under discussion violated article 115 of the constitution, because the attempt is made to amend and re-enact the ninth paragraph of the ninth section of a previous act,, and to add a new (21) paragraph thereto, without re-enacting the amended section at length.

Conceding this to be a well-founded objection in a proper case, it cannot, under the rule above announced, be raised here, because plaintiff has no interest in having it settled.

Fourth — It is further contended that section eleven violates the uniformity and equality of taxation, because it exempts some property and* persons within the limits of the parish from taxation to which others-are subject, and because the Legislature can only exempt “property actually used for church, school and charitable purposes.”'

Municipal or political corporations withm this State can exercise the power of taxation only so far as conferred by its Legislature. (8 An. 341; 9 An. 562; 13 An. 56.) “ Our statute books and those of our sister States are filled with acts creating those political corporations whose-powers are emanations from the legislative will, and subject to be-enlarged or curtailed by that will from time to time,, as the wisdom of the legislation may dictate.”

The power to tax the property within and require licenses from the inhabitants of the parish of Ouachita was conferred by the Legislature, and the exercise of that power is only curtailed by the section of the law under discussion. This law does not exempt these subjects or-objects from taxation; but simply limits or restricts them to the taxing power of one of the two corporations. The exempting of persons and property within the corporation of Monroe from taxation in any form by the police jury of the parish, only withdraws to that extent' from the police jury a power which had been delegated to it. The-police jury still must exercise the delegated power on this subject in-conformity with the constitution and laws within the limits of the parish, yet subject to its legislative control; while the municipal' authorities of Monroe must do the same within its limits. The Legislature conferred the power on each sub-division of the local government, and had the right to withdraw or modify that delegation as to-each or both.

Fifth — Is the law retroactive in the meaning of article 110 of the-Constitution ?

It proposes to exempt the property and person's from parish tax and license from and after the first day of January, 1873; it was not promulgated, as admitted by the defendant, until April 13,1873, after the the passage of the ordinance by the police jury (February 17, 1873) imposing the license claimed; and it may be admitted, for the purposes of this question, that promulgation is essential to the passage of the act. But if the doctrine above stated be correct, b simply withdrew (as the Legislature could do) a delegated authority or power, which had not yet been exhausted. The language is *■' * * hereby

exempted from all taxes and licenses levied by the parish of Ouachita, from and after the first day of January, 1873.” The license claimed herein was levied after the first day of January, 1873, and not having' been collected, came within the purview of this act when it became-a law.

The doctrine is well settled that a delegated power may be withdrawn at any time, provided the rights of third persons are not thereby affected. In this case there is no third person affected; the Police Jury being the party receiving the power to be exercised under the condition or contingency of being curtailed or withdrawn. Had the law authorized the Police Jury to levy a taxor license for a period that had passed, when it became a law, it would have been retroactive and unconstitutional. But its operation, as invoked in this case, was prospective, and therefore not unconstitutional. There was no vested right in the Police Jury to the said license as to the power of the Legislature.

Sixth — It is contended, finally, that the Secretary of State transcended his functions by promulgating the act as he did.

Const., art. 68. “ * * * The records of the State shall be kept and preserved in the office of the Secretary of State; he shall keep a fair register of the official acts and proceedings of the Governor, and when necessary shall attest them; * * * and shall perform such other duties as may be injoined on him by law.”

The constitution, in article 109, contemplates the promulgation of all laws, the mode of doing which, however, is regulated by statute. Sec. 3493, R. S. “The Secretary of State shall number all acts or resolutions of the General Assembly and keep a register thereof, and shall indorse thereon the day on which they may be filed in his office, after receiving the sanction of the Executive. Copies of all acts and resolutions shall be delivered by the Secretary of State to the State Printer in the order in which they may be filed in his office.” * * *

These, it is contended, are all the provisions of the law on this subject, and that they do not authorize the Secretary of State to promulgate an act that has not received the Executive sanction, as was the case in this instance.

We think this a too restrictive interpretation of the functions of the Secretary of State; particularly when considered in connection with article 66 of the constitution, which in one clause declares that “if a bill shall not be returned by the Governor within five days after it shall have been presented to him, it shall be a law in like manner as if he had signed it; unless the General Assembly by adjournment prevent its return; in which case the said bilL shall be returned on the first day of the meeting of the General Assembly after the expiration of said five days, or be a law.”

The bill in question was necessarily presented to the Governor, but was published without his signature. Although not drawn up with such precision and fullness as might be done, a fair construction of .section 3493, R. S.,'in the light of the various articles of the constitution having any reference to the subject, will afford authority in the Secretary of State to deliver to the State Printer lor publication all bills in the category of this, with the statement that they became laws without the signature of the Governor. He is required to deliver all .acts and resolutions to the State Printer, and the authority to indorse .on them the day of the filing in his office alter receiving the Executive .sanction, does not necessarily exclude the authority to do the same with those which become law by virtue of the constitution without his •signature. There is not in this such a casus omissus as implies nullity. .A bill becoming a law without the Governor’s signature must be promulgated as well as one with his signature, and all bills must be promulgated through the office of the Secretary of State. It may not be sacramental, under existing legislation, that he shall state, or add a ■note, thab.it became a law without the signature of the Governor, and how it so happened ; but we can not say that under all the provisions •of the constitution and laws on the subject, that his doing so will •destroy the law or prevent a bill in such a contingency from becoming .a law.

We conclude, therefore, that section 11 of act 81, in the acts of 1873,. is constitutional, and applies to this case.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant, with costs in both, courts.

Rehearing refused.


author: Morgan, J.

text:
    No. 389.
    The State of Louisiana v. John Turner and Albert Reid.
    The fact that a juror wag for a moment out of the presence of the officer under whose charge he was, when it does not appear that he had any communication with any other person,, does not necessarily establish the presumption of misconduct, and make it obligatory upon this court to set aside the verdict of the jury.
    In the copy of the indictment served upon the prisoners in this case, the name of one of the jurors, which is “Philip Darden,” appeared as “Dauden.” The objection on this point was correctly overruled. It is not shown how this trifling error has prejudiced the pri. soners, and this court does not see how it could have had this effect.
    "Where, on the prosecutrix being offered as a witness by the State, she was interrogated in chief, cross-examined by the defense, re-examined by the State, and then sought tobe recross-examined by the defense;
    Held — That the court properly refused this to to done, if the re-examination on the part of the State was confined to such matters as the cross-examination drew out.
    A motion in arrest of judgment will not prevail, on the ground that the judge excused two persons from serving on the jury, who had been summoned as jurors, and who were not exempt under the law. This objection should have been made when the jury were being impanneled.
    The erasure of the name “ Albert ” and the interlineation of that of “John ” in the indictment is not a good ground in arrest of judgment. The accused was identified as the party who committed the crime, and whether he committed it in the name of Albert or John, matters nothing to justice. The District Attorney swears that the chango in the name was made on the day the prisoner was arraigned. The court was then authorized at any time to have its records corrected, so as to make them conform to the facts.
    There is nothing in the objection that some of the jurors who served on the jury do not appear on the venire, or list of the j urors drawn to sorvo for that term of the court. It should have been made before the trial was entered upon and while the jury was being impanneled. The prisoners took the chance of the jury; they must take the verdict.
    The proposition urged, on the motion for a new trial, that the court refused to charge the jury, as requested, that it is necessary to prove both penetration and emission to make out the crime of rape, is monstrous.
    It is the penetrat on which destroys the victim and constitutes the crime, and not the consummation of the violator’s lust.
    Technicalities which have the tendency to make the criminal laws of tho country a shield, instead of a terror, to evil doors, can not be countenanced by this court.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J. Criminal case.

      Eugene MoFee and O. Newton, for defendants and appellants. Dunn, District Attorney, for the State, appellee.
   Morgan, J.

The defendants having been found guilty by a jury of having committed a rape upon the person of one Mary Gray, and having been sentenced, in conformity with the verdict, to imprisonment at hard labor for the remainder of their natural lives, have-appealed from the sentence which deprives them of their liberty, and. have assigned several errors in the rulings of the district judge when their case was being tried, which errors they contend entitle them to be remanded to another jury for a new trial.

They assign as error in the proceedings that the jurors who. tried them were allowed to separate after they had been sworn and impanneled. It is shown that during the trial several of the jurors, one at a time, were out of the presence of their fellow jurors. But it is also shown that they were only so absent by reason of the imperative calls of nature, and that, when thus absent, they were always' under the charge of the deputy sheriff. It is true that, on one of these occasions, after the jury had retired to consider their verdict, one of the jurors, accompanied by a deputy sheriff, came down stairs and went outside of the courtroom, and that the officer was called back by the judge, the juror being thus for a moment separated from the officer. We are •called upon to say that this separation forces the presumption of misconduct, which entitles the defendants to a new trial. To do this we would have to impute complicity on the part of the judge, the sheriff’s officer, and the juror, all combining to do some act by which the prisoners, if found guilty, would beeutitled to a new trial, and thus, perhaps, escape the penalty which the law attaches to their crime, and which had been fully proved to the jury who first tried them. This we have no warrant in law for doing. We will not say that because a juror was for a moment out of the presence of the officer under whose charge he was, when it is not shown or alleged that he had any communication with any other person, and it does not appear that he had an opportunity to have had any, it necessarily establishes the presumption of misconduct, and makes it obligatory upon us to set aside the verdict. We may be willing to take the law upon this subject to be as it is la^d down in Hornsby’s case, but we can not carry it any further. We would be carrying it very much further if we set aside the verdict of this jury on this ground.

It is contended that the district judge erred in overruling the objection which was made to Philip Darden serving as a juror. In the copy of the indictment served upon the prisoners, his name, it is alleged, appeared as Dauden, but they do not show how this trifling ■error has prejudiced them, and we do not see how it could have done so.

Another exception was taken to the refusal of the judge to allow defendants to reeross-examine the prosecutrix. She was offered as a witness on behalf of the State. She was interrogated in chief, cross-examined by the defense, and re-examined by the State. The defense then sought to recross-examine her. The court refused to allow this to he done. If the re-examination on the part of the State was confined to such matters as the cross-examination drew out, the ruling was ■correct. This is a matter of fact which does not appear in the bill of •exceptions or in the record, and we can not therefore notice it. We must presume, in the absence of contrary proof or allegation, that the .judgment restricted the. examination of the witness within the limits 1 prescribed by the law.

Arrest of judgment was moved for on the ground that the judge had -excused two persons from serving on the jury who had been summoned a3 jurors, and who were not exempt under the law. This objection should have been made when the jury were being impanneled. The prisoners had been served with a'copy of the venire, and .knew that these persons had been summoned. If they wished for their presence they should have called upon the court to have them (produced. They did not do so. They can not, alter letting their iright, if it was a right, go by, claim the benefit of it.

They moved for arrest of judgment on the further ground that there •are erasures and interlineations upon the indictments without any .authority of court permitting the same.

The erasures and interlineations consist, as is alleged, in this: The indictment, as presented to the grand jury, was against Albert Turner; the warrant was made out against Albert Turner, and it was under ¡this warrant that he was arrested. He was arraigned as Albert Turner; he was tried and condemned as John Turner. It is alleged that this ■change of name was discovered on the trial, and that after the motion for a new trial had been overruled, it was found that this erasure of “Albert” and the interlineation of “John” had been made, and this without any authority apparent on the face of the papers. In so far as Reid is concerned, he can not complain of this, as it does not concern him, and no arrest of judgment could be asked for him on the grounds stated. Neither can it avail Turner. He was identified as the party who committed the crime, and whether he committed it in the name of Albert or John matters nothing to justice. But the district attorney swears that the change in the name was made on the day the prisoner was arraigned. The court was then authorized at any time to have its records corrected so as to make them conform to the facts.

Again, arrest of judgment was asked, because, it is alleged, the jury impanneled to try ¡hem were not drawn from the regu.ar panel. It is averred that Petit, Morris, Williams and Brown, who served on the jury, do not appear upon the venire or list of jurors drawn to serve for that term of the court. There is nothing iu this objection. If it existed it should have been made before the trial was entered upon, and while the jury were being impanneled. They can not take advantage of such an error, if it be an error, to get jurors not on the panel who might be favorable to them, and then cake advantage of the error after the verdict has been given against them. They took the chance of the jury; they must take the verdict.

They urge that they are entitled to a new trial because the court erred in refusing to charge the jury, as requested, that it is necessary to prove both penetration and emission “to work out the crime off rape.” The proposition is monstrous. It is the penetration which destroys the victim and constitutes the crime, and not the consummation of the violator’s lust.

The prisoners, after a fair trial, have been found guilty of an offense-which, of all others, is most shocking to the sensibilities of every man born of woman. It is not to this court that they must look for immunity from the punishment due to their crime, or for giving countenance to such technicalities as those upon which they rely for a new trial or arrest of judgment — technicalities which have the tendency to make-file criminal laws of the country a shield instead of a terror to evil doers.

Judgment affirmed.


text:
    No. 394.
    J. L. Kaliski, Agent, v. M. M. Grady, Collector.
    The tenth clause of section 1 of act 2To. 14 oí the acts of 1872 is not unconstitutional, because it levies a tax of eighty-five dollars on persons dealing in.dis'illed liquor, or retailing spirituous liquors on land, while a tax of only fifty dollars is levied on persons* following a like occupation on steamboats, although they may only ply within the limits-of a single parish of the State.
    APPEAL from the Parish Court, parish of Ouachita. Caldwell, J.

      It. J. Cobb, for plaintiff and appellee. A. L. Sl'aeJc, parish attorney and district attorney pro tem., for defendant and appellant.
   Morgan, J.

It is contended in this case that the tenth clause of section 1 of act No. 14 of the session acts of 1872. is unconstitutional because it levies a tax of eighty-five dollars on persons dealing in distilled liquor or retailing spirituous liquors on land, while a tax of only fifty dollars is levied on persons following a like occupation on steamboats, although they may only ply within- the limits of a single parish of the State.

We fail to see the force of this proposition. The same amount of tax is levied upon all persons pursuing a certain traffic in a certain way, and we do not see how there can be any unjust discrimination in this.

The other objections to the tax are governed by the decision in the case of Jones v. Grady, just decided.

It is therefore ordered, adjudged and decreed that the judgment of the parish court be avoided, annulled and reversed; and it is further-ordered that the injunction herein issued be dissolved with twenty per cent, damages and thirty dollars attorney’s fees, appellees to pay costs in both courts.


author: Howe, J.

text:
    No. 317.
    M. A. Copley, Administratrix and Tutrix, v. Mrs. Dorcas Dinkgrave.
    It is not for this court, or any other, to interfere with the discretion of the land officers of the United States in their transfer to whomsoever they may choose of the title of the United States*to land. But if the United. States, at the moment of the adjudication, had no title to the land in question, this action of the officers of the Land Department gave ■the plaintiff none; and the question whether the United States had any title at the time •of the adjudication, is clearly a question for the courts of justice, and not for the officers of the Land Department, to decide.
    The plea ot res judicata- in this case is overruled.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Say, J.

      Morrison & Farmer, for plaintiff and appellee.

      Isaiah Garrett, for defendant and appellant.
   Howe, J.

This is a petitory action to recover a tract of about fifteen acres of land in possession of defendant. The plaintiffs claim under a patent issued to them by the United States on the twelfth of October, 1858.

The defendant pleaded the general issue and averred a title in herself. The parties, it seems, own adjoining plantations, and their •entries lap to the extent of the land in dispute. Iu her answer the defendant says:

“She avers that, in the year 1851, she acquired by purchase, for a valuable consideration, an improvement on what was then considered, And what was in fact, public lands of the United States of America, and that slip moved upon said land in the year 1851, with the intent to make it her home, hoping to complete her title to the same by acquiring a pre-emption, or by purchase or otherwise, from the United States; that, in 1852 or 1853, she bought from the State of Louisiana internal improvement warrant No. 773 for three hundred and twenty acres, and on or about the fifth of September, 1853, she applied to locate said warrant on said described land, at the Land Office of the United States ■of America at Monroe, La. She avers that this application in writing was filed in said Laud Office, and that she tendered the said warrant at the same time, and deposited it in the Land Office aforesaid, to pay for said lands. She avers that the said Register of the Land Office •erroneously rejected her application at the time on technical grounds, but that shortly afterwards the said Register, on her application on the twenty-ninth of November, 1854, permitted the location to be made. She avers that there were various opinions as to the period when these lands were or became subject to location with internal improvement warrants, and that out of caution and by the advice of counsel she Applied to relocate said warrant on the same lands in the month of December, 1854, and on the twenty-first of January, 1856. That in 1854 and 1856 the Register stated that the location made before by said defendant was good and valid, and that a relocation was. unnecessary. She avers that the lands, were public lands of the’ United States, and that they had been surveyed and were subject to entry or purchase at said Laud Office by internal improvement warrants at the periods when she applied to locate her warrants, to wit: on the fifth September, 1853, the twenty-ninth November, 1854, in December, 1854, and in January, 1856; that the legal and equitable right to said land dated from her first application on the fifth of September, 1853. She avers that she has been in the peaceable, lawful and actual possession of the lands claimed by plaintiffs in their petition, under a legal and just title translative of property and legal in form since the twenty-ninth of November, 1854, and in the actual'possession and occupancy of said land and as a possessor in good faith since 1851. She pleads the prescription of ten years against the plaintiff’s pretensions to the land, and the prescription of one and three years against plaintiff’s pretended claim for rent and damages. She further avers that the pretended claims of the plaintiff are fraudulent, without equity, and unfounded in law. She alleges that true it is that a patent for said lots eleven, twelve and thirteen has been issued to the heirs and legal representatives of George W. Copley, deceased, but she alleges that the same was illegally and erroneously issued by the United States, and that it was procured and obtained by fraud and ill practices. She avers that the pretended right of plaintiff is based on the claims or pretensions of George W. Copley to a pre-emption right to enter the land in question under an act of Congress passed on the twenty-seventh of January, 1851, entitled ‘an act to grant the right of pre-emption to certain settlers on the Maison Rouge grant in the event of the final adjudication of the title in favor of the United States,’ the said Copley pretending to claim by mesne conveyance from Daniel W. Coxe. She avers that George W. Copley did not purchase the land in good faith; that he did not pay a valuable consideration for said land prior to the first of March, 1849, or at any other time;: that he did not improve and cultivate the land claimed. She further alleges that even if he had bought the land in good faith,, and paid a valuable consideration for the same, he would not have acquired any right, title or claim thereto, and the said purchase was absolutely null and void, because said purchaser was a purchaser of a litigious right pending in a court of the State of Louisiana, in which said Copley practiced law as an attorney at the time of his purchase.”

There are other averments and demands in the answer which it is-not necessary to notice at this stage of the case.

The plaintiff filed to this defense a plea of res judicata “ alleging that all the matters set up in defense (as copied above,) after the word property, in the nineteenth line, had been set up and examined by the-Land Office Department of the United States; that the officers of said department are by law constituted the judges, and are authorized to-hear and determine all contests and claims to and about the public lands of the United States ; that all the matters urged by the defendants iu this case were urged before the proper land officers and finally adjudicated upon and determined in favor of plaintiff, and a patent ■ issued to the heirs and legal representatives of George W. Copley, deceased, for the land in question. The objections and defenses now made were made before the local Register and Receiver of the United States Land Office, and decided in plaintiff’s favor. The defendant appealed to the Commissioner of the General Land Office, who decided-in favor of plaintiff. The defendant then appealed and took her case-to the Secretary of the Interior, who finally determined the controversy in favor of the plaintiff, and adjudicated the title of the United-States to the laud in question to the plaintiff, and caused the patent declared on to issue ¡ that the officers aforesaid were authorized to-hear and determine the matters set up in the answer after the word property,’ aforesaid; that they did decide and determine these-matters. Wherefore, she interposes the plea of res judicata as to all-these matters.”

The plea of res judicata was sustained by the court a qua, and judgment having been given in favor of plaintiff, the defendant appealed.

A phrase correctly used by plaintiffs in their plea may throw some light on the question before us : “ The defendant then appealed, and-took her ease to the Secretary of the Interior, who finally determined the controversy in favor of the plaintiffs and adjudicated the title of the United States to the land in question to the plaintiffs, and caused-the patent declared on to issue.’’ It was the title of the United States-that was adjudicated, and to that extent the adjudication was final.

It is not for this court or any other to interfere with the discretion of' the land officers of the United States in their transfer to whomsoever they may choose of the title of the United States to land. But if the-United States at the moment of the adjudication had no title to-the-land in question, this action of the officers of the Land Department'gave the plaintiffs none. And the question whether the United States' had any title at the time of the adjudication is a question for the courts of justice clearly, and nob for the officers of the Land Department to decide. Taking the averments of fact in the answer of the defendant and in the plea of res jtidicata to be true, we should find that the defendant had a legal right to the land prior to that of plaintiff’s and superior (9 Howard 333), and that the patent illegally and erroneously issued by the United States” to the plaintiff, “ procured by fraud and ill-practices,” enured to the benefit of defendant, 13 An. 356. We can not distinguish this case from that of Garland v. Wynn, 20 Howard, p. 6, except that the latter was tried on the merits, and in the case at bar we are merely assuming certain facts for the purpose of trying a peremptory exception. Wynn, in 1842, proved lie had a preference of entry to the land in dispute, according to the act of 1838, and his enti'y was allowed. In 1813 Hemphill made proof that he had a right of pre-emption to the same land under the act of May 26, 1830. The two claims coming in conflict it was decided by the Register and Receiver at the local land office that Hemphill had the better and ■earlier right to enter the land, and in this decision the Commissioner of the Genex-al Land Office concurred. Wynn’s entry being the oldest it was set aside, his purchase money refunded, and a patent certificate was awai'ded to Hemphill, who assigned it to Garland, the plaintiff in error, to whom the patent issued. Wynn filed his bill to compel Garland to convey the land to him. Garland pleaded, among other things, that the court had no authority to set aside or correct the decision of the Register and Receiver, concurred in by the Commissioner, and that their decision was final. The Supreme Court of Arkansas thought differently, and decreed that Garland should convey the land to Wynn, and the Supreme Court of the United States affirmed the decree, giving the reasons why the courts could examine and overrule the decision of the land officers in such a case, announcing this to be the •settled doctrine of the court, and citing 1 Peters 212; 9 Howard 328; 14 Howard 377, and 18 Howard 44. And see also Ludeling v. Tester, 20 An. 433, and decisions there cited, and Kittredge v. Breaud, 4 Rob. .7.9. If there are any decisions of State courts prior to Garland v. Wynn which seem to announce a diffei'cnt doctrine they must be held ■to have been thei'eby overruled.

For the reasons given it is ordered and adjudged that the jxxdgment appealed from be reversed, and the plea of res judicata overruled, and the cause x'emanded for further proceedings according to law, appellees to pay costs of appeal.

Rehearing refused.

.Chief Justice Ludeling recused.


author: Wxlt, J.

text:
    No. 382.
    Succession of J. D. and E. C. Bailey.
    Nothing oan be assigned as an error of law which could have been cured by evidence legally given at the trial.

      A n assignment of errors in this Court can not cure the omission of the appellants to make opposition and present regularly the issues of fact which they desire adjudicated.
    APPEAL from the Parish Court, parish or Franklin. Dunccm Bml, J.

      Morrison & Farmer, for appellees. 8. I). McEnery and P. H. Toser, for appellants.
   Wxlt, J.

On the twelfth August, 1870, Allen W. Eddins, administrator of this succession, filed his final account, and prayed that it boadvertised according to law, and, after due proceedings, that it behomologated; that his bond be canceled, and that he be discharged, from further administration of the estate.

After this account had been duly advertised and proved (as the judge states in his judgment), and no opposition having been made, it washomologated. This was on the eighth April, 1871, eight months after-it had been filed. ■ .

On the twentieth of March, 1872, nearly one year after this judgment was rendered and after F.ddins, the administrator, had died, the heirs-at law of the said Baileys took a devolutive appeal, alleging in their petition merely that they are aggrieved by the judgment homologatingthe final account.

At the last term of this Court, the death of two of the heirs was-alleged, and the heirship was disputed. The case was remanded to-try these questions. It is now before the Court, and the right of the-appellants to contest, as heirs, is not disputed.

The appellants place their entire case upon an assignment of errors apparent on the face of the record.

The first error assigned is : that the administrator credits himself in his account, with the appraised value of the slaves — “Richard, Eliza, Bob, -Henry, Ben and Elizabeth, purchased by X. Bailey, and were not paid for, but returned to the administrator and were emancipated in his hands — $4425.”

The defendant contends that this statement in the account is not true, because, in the record, there is the proces verbal of the third March, 1860, showing that these slaves were sold to X. Bailey for said amount, cash, and that the administrator can not contradict said proces verbal. But it appears from the note of evidence that thisproces verbal (although now in the transcript) was not received in evidence. We can not revise the judgment on proof neither offered nor received in evidence in the court below.

The only question under this assignment which we can consider, is,, whether or not it was the duty of the administrator to have resold the slaves as soon as Bailey refused to pay the price and returned them to him. The statement that there had been a sale and the slaves had been returned are questions of fact which can not be disputed on an assignment of errors.

The legal consequence of these facts is, however, a question of law which is properly before the Court.

There is nothing in the record to show that the heirs at law ever demanded the resale of the slaves, or that it was necessary. On the contrary, as there seems to have been ample funds to pay all the debts,, the administrator had no cause to sell the slaves. It was his duty to-keep them for the heirs.

Even though they had been sold and returned to him, because of the .inability of the purchaser to pay the price, or for any other reason, the ¡administrator was not bound again to provoke the sale of them if he had, in the meantime, obtained from other sources funds of the estate •to pay its debts. The fact that the slaves were emancipated in his ■hands is no reason why he should sustain the loss. There is, therefore, no force in this objection.

Tlie next error assigned is: the administrator credits himself with $1622 80, and adduces voucher eighteen as evidence of said credit; that said voucher does not make the required proof. This is a question of fact, a question whether this item of the account is duly proved.

If the appellants had opposed the account during the eight months it was pending before the parish court, perhaps ample proof would •have been adduced to remove all objection on this point.

Each of the other errors assigned involve merely questions of facts, whether the items of the account are duly proved.

These objections should have been regularly presented by an opposition filed in the lower court. They can not be considered, under the settled jurisprudence of this State, as an assignment of errors. Nothing can be assigned as an error of law which could have been cured •by evidence legally given at the trial.” Flower v. Hagan, 2 L. 225. “ No judgment can be reversed on the mere assignment of errors which might have been cured by evidence legally introduced.” Butler v. Despatir, 12 M. 304; 1 N. S. 59; 2 N. S. 265, 537; 2 L. 70, 225; 3 L. R. 481; 11 R. 90; 14 L. 368, 383; 1 R. 30; 12 R. 454. “ Appellant can ■noc assign anything as an error, apparent on the record, which might ■have been cured by legal evidence.” Hill v. Suzzine, 1 N. S. 599; 12 .M. 304.

Suppose the appellants had filed an opposition in the lower court •only as to one item of the account, and being dissatisfied with the ■decision below, had brought the case to this Court, could they have iraised objections here as to the correctness of items they had not ■opposed or disputed in the lower court ? Surely not. The litigation -would have been confined to the issue presented in the opposition. They could not have gone beyond it. In this case, they raised no controversy in the court below; they made up no issue, although duly notified of the filing of the account, and called upon to make opposition thereto, or else, after legal delays, the account would be duly 'homologated. They failed to raise the issues of fact at the time and in the manner provided by law and the rules of practice, and they now -seek to raise them in this Court. They propose, by filing an assignment of errors, to gain all the advantages they would have had had -they filed an opposition to the account.

An assignment of errors in this court can not cure the omission of the appellants to make opposition and present regularly the issues of faet which they desire adjudicated. Besides, if the appellants could succeed in presenting the issues they desire in this irregular manner, .it would be greatly to the disadvantage of their adversary, because, had they objected at the proper time, while the account was pending ■in the parish court, ample proof might readily have been adduced by the administrator to satisfy all their complaints, and to remove all objections. The administrator is now dead, important witnesses may also be dead, and the heirs of the administrator may find it difficult, not knowing the witnesses, or where to find the proof, to contest with the appellants upon issues which the administrator himself at the time of the homologation of his account could, perhaps, have met successfully and without much difficulty.

On the whole, we see no reason, either in law or equity, to entertain the objections raised by the appellants in this court, and we can not do .so under the settled jurisprudence of this State.

It is therefore ordered that the judgment homologating the final account of the administrator, Allen W. Eddins, canceling his bond, and discharging him from further duty, be affirmed, and that appellants pay costs of appeal.


author: .Howell, J.

text:
    No. 375.
    Succession of E. C. Hart.—Opposition to Account.
    ' The grounds for opposing the judgment plaoed on the tableau, are such as should have been presonfced before its rendition, and cannot be urged in this proceeding. If the heirs are injured by the failure of the administrators to set up those grounds, there is a remedy at the proper time and before the proper tribunal. Their prayer to amend the judgment can not be heard, because they are appellees.
    The order to the administrators to pay the said judgment out of the first funds, may not be strictly regular, but it is of little importance in this instance, as the question of privilege can not arise, and no other creditor seems to be contesting.
    APPEAL from the Parish Court, parish of Caddo. Smith, J.

      Nutt & Leonard, for opponeut and appellee. Egan é Wise, for admin.istrators and appellants.
   .Howell, J.

A motion is made to dismiss this appeal on the grounds:

First — Because all parties interested in maintaining the judgment appealed from have neither been made parties to the appeal nor cited to answer. It is urged that appellants caused a curator ad hoc to be appointed and cited to represent several absentees, who are interested to maintain the judgment. As the succession is admitted to be entirely solvent, those parties can not be affected by any change in the judgment appealed from, and hence they are not necessary parties. There is no distribution of funds made in these proceedings.

Second — Because the record was not filed in this court within the legal delay.

It is within the recollection of the Court that an order was granted extending the time to bring up the appeal, and we cannot make the appellants suffer for the omission of the clerk of this Court to do his-duty and make an entry of the order. The authority cited does not apply.

Third — Because the judgment in case of Spyker v. Hart was rendered contradictorily with the administrators and appellants, has the effect of res judieata, and has been acquiesced in by them, placed on the tableau and partly paid.

The alleged payments were made prior to the appeal herein, and do not debar appellants from complaining of the terms of the judgment on the oppositions. They do not deny the verity of the judgment, but complain that they have been ordered to pay it in an illegal manner. They have not acquiesced in or partially paid the judgment from which they have appealed.

Fourth — Because neither in the court a qua nor in this Court is said judgment in favor of Spyker, so allowed, opposed by any person or persons, who have proved themselves to be either heirs or creditors of E. C. Hart, deceased; and because no parties but the administrators have appealed.

This refers to Cornelia Hart, who opposed the said judgment, as-allowed on the account, as widow and tutrix. The objection might avail to dismiss her opposition, but not the appeal taken by the administrators.

The motion to dismiss is overruled.

On the Merits.

Mrs. Spyker, as widow and administratrix, ruled the administrators-of this succession to file an account and show cause why they should not pay the judgment in the case of Spyker v. Hart.

An account was filed, in which the said judgment, subject to certain credits, was placed among other debts unpaid. Oppositions to the account were filed by Cornelia Hart-, and the administratrix of Spyker, from the judgment on which the administrators of this succession appealed.

We deem it unnecessary to notice the questions of practice and pleading which have been presented, as we see no reason for making any material change in the judgment, and the ultimate rights of the parties will not be affected, the succession being solvent and the remedies of such parties obvious.

The grounds for opposing the Spyker judgment are such as should have been urged before its rendition (13 An. 416; 14 An. 575),, and can not be urged in this proceeding. If the heirs are injured by the failure of the administrator to set them up, there is a remedy at the . proper time and before the proper tribunal. Their prayer to amend the judgment can not be heard, because they are appellees.

The order to the administrators to pay the said judgment out of the-first funds may not be strictly regular, but it is of little importance in this instance, as the question of privilege can not arise, and no other-creditor seems to be contesting.

Judgment affirmed.


author: Wyly, J.

text:
    No. 384.
    Jesse T. Matthews v. James H. Williams.
    Where t-hero is a discrepancy between the allegation and the document made part of the petition, the latter controla.
    "Where promissory notes, prescribed on their face, represented the legal obligations of the defendant’s father for borrowed money, and the defendant gave his own notes therefor,, it was not a nudum pactum; there was a valid consideration. The son had the right, by natural mandate, to pay his father’s debt, or to promise to pay it, and bind himself unconditionally, as he did. Let him be bound as he saw fit to bind himself.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J.

      Todd and Brigham, for plaintiff and appellee. D. O. Morgan, for defendant and appellant.
   Wyly, J.

The defendant appeals from the judgment condemning him to pay the plaintiff the amount of a promissory note for $1003.

Our attention is called to the bill of exceptions taken by the defendant to the introduction of the note in evidence on the ground that it contradicted the allegation of the petition, saying that the note was-made payable to and owned by the plaintiff, whereas on its face it showed that it was payable to J. A. Matthews.- A like objection was made to the testimony of J. A. Matthews, showing that he was the payee of the note.

There is no force in this exception. These objections were frivolous. It is true there was an averment in the petition that the note was made payable to and owned by the petitioner, but the note was made part of the petition, and it showed that it was payable to J. A. Matthews or bearer. Where there is a discrepancy between the allegation and the document made part of the petition, the latter controls. Besides, this mistake in the pleading was corrected by a supplemental petition.

The defendant contends that he gave the note sued on in lieu of two-notes made by his father; that this was an attempt at a novation of the two old notes by the substitution of a new debtor, without the knowledge of the former debtor, who was absent at the time; that this was a nvdum ‘paoUom, there being no consideration, the old notes being prescribed, The old notes represented the legal obligations of. .the father of the defendant for borrowed money ; no plea of prescription had been opposed to them, although on their face they appeared •to be five years past due. We think they were a valid consideration for the note given by the defendant. He had the right, by natural ■mandate, to pay his father’s debt; he had the right to promise to pay it; ho had the right to bind himself, as he did, unconditionally to do so. No fraud was practiced upon him; the face of the note showed that it was five years past due. Tet he was willing, and promised unconditionally, to pay it. As he saw fit to bind himself let him be ■bound.

Judgment affirmed.


text:
    No. 394.
    J. M. Jones v. M. M. Grady, Tax Collector. B. L. Sims v. the same. (Consolidated.)
    When the ordinance of the police jury which is complained, of in this case was passed, the revenue law of 1871 was in force, even if such authorization was necessary. The tax imposed by the ordinance was authorized by that law, and having been levied under it, it can not be held that the action of the police jury was illegal.
    Police juries are not restricted in their action in regard to licenses exacted by 'them for the right of selling liquor and retailing spirituous liquors to the amount exacted by the State for the same.
    • Section 2778 Revised Statutes, moans that whenever the police jury deems it necessary that the sense of the people should be taken as to the propriety of permitting grog shops to be licensed, a vote may be ordered. But when this shall be deemed necessary, is a matter entirely within the discretion of the police jury.
    APPEAL from the Parish Court, parish of Ouachita. Oaldwell, J.

      W. J. Q. Baker and B. G. Gobi), for plaintiffs and appellees. A. S. ■Slack, parish attorney and district attorney pro tempore, for defendant and appellant.
   Morgan, J.

These cases are consolidated. They present the same questions for determination. Plaintiffs injoined the tax collector from selling their property which had been seized in order to compel the ..payment of two hundred dollars license exacted from them by a parish ordinance for the right of selling liquor and retailing spirituous liquors. They contend that the tax which is sought to be collected from them is illegal, unconstitutional, oppressive and void, because—

First — That the police jury had no authority to levy any tax or license when they attempted so to do, and that their action was illegal.

Second — That the police juries are restricted in their action to the . amount exacted by the State.

Third — That the State had not acted at all when the ordinance in •question was passed.

Foivrth — That the amount levied by the police jury exceeds the amount exacted by the State.

Fifth — That no license can be levied by the police jury or State •until the vote of the people is taken on the subject and their consent ■ obtained, and that the vote of the people has never been taken.

Sixth — That the tax is unconstitutional in not being equal and ■uniform on all the occupations taxed, and especially is it not uniform in relation to retailers of spirituous liquors, keepers of grog shops, bar rooms, etc.

I. When the ordinance of the police jury, which is complained of, was passed the revenue act of'1871 was in force. The tax was authorized, even if such authorization was necessary, by that law, and having been levied under it, it can not be held that the action of the jury was illegal.

II. Police juries have the right to regulate the police of shops where liquors are retailed, and to impose such tax as they may see fit on grog shops, etc. (R. S. 2745, § 6.) Their power is exclusive to make such laws and regulations for the sale, or for prohibiting the sale, of intoxicating liquors as they may deem advisable. (R. S. 2778.) And it is made the duty of the police jury to adopt such regulations as may be necessary for the purpose of carrying out this law. (R. S. 2780.) It follows, therefore, that the police jury was not restricted in their action to the amount of that exacted by the State.

III. This objection is answered by what we have said in relation to the.first.

IV. Section 2778, Revised Statutes, provides that police juries shall have the right to grant or withhold licenses from drinking houses and shops within the limits of any city, ward of a parish, or towu, as the •majority of the legal voters of any city or ward may determine by 'ballot, and the said ballot shall be taken whenever deemed necessary

by-the poiice juries. But we do not understand that this means, as ■seems to be contended by the appellees, that before a license is issued by a police jury to a person to keep a grog shop, a vote of the citizens of the ward in which a shop is proposed to be opened, should be taken. W4 understand it simply to mean that whenever the police j ury deems ¡it necessary that the sense of the people should be taken as to the propriety of permitting grog shops to be licensed, a vote may be ordered. But when this shall be deemed necessary is a matter •entirely within the discretion of the police jury.

V. We fail to discover where the inequality in the amounts required for the licenses to carry on the particular business in which plaintiffs -aN engaged lies. Every person carrying on the same business is charged the! same sum for the privilege of doing so, and this places ¡them all upoji an equality.

■In conclusion we fail to see any good reason why these injunctions .should bave^ssued, and we think they should be dissolved, with the •damages claimed.

It is therefore ordered, adjudged and decreed that the judgments in both these consolidated cases be avoided, annulled and reversed, and it is further ordered, adjudged and decreed that the injunctions issued in both cases be dissolved with twenty per cent, damages and thirty dollars counsel fees in each ease. Appelle es to pay the costs in both courts.


text:
    No. 402.
    John W. Willis v. John W. Wansley.
    A party has no right to demand the nullity of a judgment rendered against him, because the' attorney who acted on his behalf was without authority, after permitting that attorney to-continue tlio litigation, and after taking the chances of a favorable judgment in this court.
    APPEAL from the Twelfth Judicial District Court, parish of Franklin. Crawford, J.

      Drake <& Garrett, for plaintiff and appellant. JET. P. Wells, for defendant and appellee.
   Wyly, J.

The plaintiff sues to annul a judgment which the defendant obtained against him in September, 1870, on the ground of fraudl and ill-practices by said defendant and his attorney, H. P. Wells.

The allegations, in substance, are: That Wansley sued Willis on a> promissory note for $880 and interest: that Wansley allowed the suit to rest from term to term, his counsel (Wells) assuring Willis that the-claim was extinguished by prescription, and that it was entirely unnecessary for Willis to employ counsel to defend the suit; that after he-had thus lulled Willis into a feeling of perfect security that his case would either be abandoned or not prosecuted, he waited patiently until a judicial day of the district court should arrive, when Willis would be absent; that at last this auspicious moment arrived, in September, 1870, when this counsel of Wansley induced Colonel C. H.. Morrison, upon the specious assurance that it was for Willis’ benefit, to' appear without any lawful authority as an attorney, and file for him. the plea of prescription, which he declared to Morrison would dismiss-the case; that Morrison fell into the trap so ingeniously set for him,, filed the plea of prescription, when Wansley (whose presence or proximity was unknown to Morrison) suddenly made his appearance on the-stand as a witness, and falsely swore that the claim had been taken, out of prescription by the acknowledgment of Willis in 1863.

The answer is a general denial.

The court gave judgment for the defendant, and the plaintiff' appealed.

In the suit which resulted in the judgment sought to be annulled,, there was an answer filed for Willis, by his counsel, Farrar & Reeves, in which the general issue and the plea of usury were set uj). These> attorneys, however, were not present at the trial.

■C. H. Morrison testifies that “when the case was called for trial, "Captain Wells appeared for the plaintiff. No one appeared for the defendant. Captain Wells turned to me and asked me if I was not going to ■represent the defendant Willis. I told him no; that I had nothing to ■do with the case, had never been spoken to by Willis in relation to it. He then urged me to take up the case and attend to it for Willis, saying that I was attorney for Willis in most of his cases; that the counsel who were defending his suit were absent, and that he, Wells, was tired •of the case and wished to have it disposed of; that there was nothing ■in it, and that Willis’ defense was prescription, and that defense was good. I requested him to let the case stand over, that Mr. Willis was absent, but would be at home in a few days and before the court would adjourn, expressing at the same time a disinclination to do anything with the case, unauthorized as I was. * * * Captain Wells assured me there was nothing to be done in the case but to file the plea of prescription, which was good and must prevail, saying that he was tired •of the case and wished to dispose of it. * * * Wells also told me ■that Willis told him he intended to plead prescription; and not doubting from what Wells told me that the plea was good and must prevail, I asked the court for time to prepare the plea, which I did, and filed ■it. The case was taken up immediately, when Captain Wells introduced the plaintiff, Wansley, as a witness, who testified, as will be •seen by the evidence in the case. When I consented to file the plea of prescription, as above stated, I was not aware that the plaintiff, Wansley, was present, and did not believe from what Captain Wells bad told me that an attempt would be made to make any proof to take the note out of prescription. The defendant, Willis, was not present.”

This witness also testifies that he was not employed by Willis, and in explanation of his course he says: “After I found that judgment was rendered against the defendant I made an effort to obtain a new •trial, but was disappointed. I then asked for and obtained an order •for an appeal, and subsequently attended to the case in the Supreme ■Court.”

Willis and Wells both gave evidence in the case, and their testimony ■conflicts as to the conversations which they had previous to the trial, and which Willis contends misled him and lulled him into security.

The judgment complained of was rendered in September, 1870, and the suit had been pending since August, 1866, four years.

On the seventeenth September, 1870, the day the judgment was signed, Willis arrived and was informed by Colonel Morrison that judgment had been rendered against him and the case was pending on an application for a new trial, which he hoped to get.

Willis, who knew all the facts of the case, as he testifies, in a short time after the judgment was rendered, does not appear to have repudiated the acts of Morrison, who, as we have seen, appeared as counsel for him without beiDg employed; on the contrary, he permitted Morrison to continue the litigation of the ease until it was finally decided in the Supreme Court in July, 1871, nearly one year thereafter.

It was the duty of the plaintiff, for whom Morrison appeared as-counsel without authority, to have repudiated his acts as soon as informed thereof. The fact that he permitted him knowingly to continue the litigation for nearly a year thereafter, until the final disposition of the case in this court, satisfies us of his ratification of the acts-of Morrison in his behalf.

He had no right to demand the nullity of the judgment because the attorney who acted for him was without authority, alter permitting-that attorney to continue the litigation, and after taking the chances-of a favorable judgment in this court. If the judgment of this court had been in his favor, it is quite evident that no objection would have-been made, because if he did not rely on the defense made for him by Morrison, he would not have permitted him to take the appeal and-continue the litigation. If dissatisfied, he would not have permitted the unauthorized defense to continue; he would have demanded the-nullity of the judgment on the ground that the attorney had no-authority to represent him.

We are constrained, however, to say that the conduct of IT. P: Wells, attorney at law, in this matter is not approved by the court.

Judgment affirmed.


author: ITowell, J.

text:
    No. 426.
    C. B. Connell v. Allen Meddock.
    The formalities required by law in attachment suits must be strictly observed — the posting • of copies of the attachment and citation so as to give notice to the public, and the door • of the courtroom is mentioned as the place.
    But the construction of a courthouse may be such as to make the posting at the entrance leading to the door of the courtroom a legal posting. The objection raised in this case is ■ too technical.
    APPEAL from the Tenth Judicial District Court, parish of De Soto.S Levisee, J.

      Slam & Wemple, for plaintiff. S. <?. Sail, for defendant and appellant.
   ITowell, J.

This is an attachment suit, which was instituted .in November, 1871, and on appeal to this court in July, 1872, the judgment in favor of plaintiff was reversed on the ground that the writ of attachment was not posted as required bylaw, and-the cause remanded' “to make service of citation according to law and for new trial.” 24. An. 512.

Upon the new trial the sheriff was permitted to-amend liis-return on. the writ of attachment so as to read: “Served the same by affixing- a copy of the within writ of attachment on the door of the room where-the court in which this suit is pending is held.”

Evidence was introduced to show that the posting was on a movable-bulletin board standing at one of the main entrances to the stairs-leading from the hall or passage on the ground floor of the courthouse to the courtroom on the second floor, where all such notices are posted,, and was not posted on the door of said room.

It is contended that this is not in compliance with the law. The formalities required by law in such proceedings must be strictly-observed; The formality in this respect is the posting of copies of the attachment and citation so as to give notice to the public, and the door of the courtroom is mentioned as the place. But we think the construction of a courthouse may be such as to make the posting at the entrance leading to the door of the courtroom, as was done in this instance, a legal posting. It is shown that this bulletin board was provided some time before this suit, and has always since been used for the posting of all notices by the sheriff. We must consider the objection in this case too technical.

Judgment affirmed.

Rehearing refused.


text:
    No. 398.
    Flournoy & Millsaps v. M. M. Grady, Tax Collector.
    lietail dealers are those who keep an open shop and who sell provisions and liquors in small' quantities. C. C. 3208.
    A wholesale dealer is a person who sells by packages. A man may be both a wholesale and retail dealer.
    He is a wholesale dealer when he sells parcels of goods in packages, as, for instance, ten barrels of flour or whisky, or whisky and flour by the barrel, or one or more sacks of coffee, or bolts of goods, at the same time, and to the same party.
    He is a retail dealer when he sells flour by the pound, whisky by the gallon or bottle, dry goods by the yard.
    He is both a wholesale and retail dealer when he sells all such articles by the package or by the pound indifferently.
    from the Parish Court, parish of Ouachita. Oalckuell, J.

      B. G. Oobb, for plaintiffs and appellants. A. L. SlaoJc, for defendant and appellee.
   Morgan, J.

It is admitted that plaintiffs are commercial partners, and that each of them is responsible for his own license; that they have only one place of business, and only one store where their business is carried on ; that they sell goods, merchandise and groceries, in all quantities, from a parcel or a package up to any quantity to suit purchasers; that they sell one pound of flour or ten barrels of the same, one yard of calico or ten bolts of the same, as occasion offers that they break packages received by them and sell the same at retail; that they do the ordinary business in the country, and are not importers or jobbers, and that they do not sell by sample.

Under this admitted state of facts, the legal question to be determined is: Are they to pay for the license of wholesale dealers? Or .are they to pay the license of retail dealers? If the former, they will have to pay one hundred dollars each. If the latter, they are to pay • only fifteen.

Retail dealers are those who keep an open shop, and who sell provisions and liquors in small quantities. C. C. 3208.

A wholesale dealer we understand to be a person who sells by packages.

In our opinion, a man may be both a wholesale aud retail dealer. .He is a wholesale dealer when he sells parcels of goods in packages ; as, for instance, ten barrels of flour or whisky, or whisky and flour by the barrel, or one or more sacks of coffee, or bolts of goods, at the same time, and to the same party. He is a retail dealer when he sells flour by the pound, whisky by the gallon or bottle, dry goods by the yard. He is both a wholesale and retail dealer when he sells all such articles by the package or by the pound indifferently. And as this is what these plaintiffs do, as they confessedly sell by wholesale as well .as retail, they must pay for a wholesale license.

. Judgment affirmed.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 380.
    John C. Morton v. James G. Copeland.
    Where the plaintiff brought suit in his own name- on a promissory note drawn payable to his wife or bearer, and which was executed by defendant tor the price of certain lands purchased by him from the wife, the same being her paraphernal property, and where it was contended on the part of the defendant that the facts in the case showed that the plaintiff did not have the administration of the wife’s property; and it was contended, on the other part, that this was not a real action, and that by article 107 of the Code of Practice the plaintiff in tlds case had the right to sue ior the debt due his wife;
    Held — That the ground assumed by plaintiff is correct, and that the fact that the husband brought the suit would seem to imply that he was administering the wife’s paraphernal property.
    The defense set up that there is defect in the title to the land forming the consideration of the note sued upon oan not be admitted, inasmuch as defendant does not allege in his answer, or show by testimony, that he has ever been threatened with eviction, or that he has ever been disturbed in Ms possession.
    APPEAL from the Eleventh Judicial District Court, parish of Claiborne. Trwible, J.

      JSgcm & Hayes, for plaintiff and appellee. .J. & J. W. Young, for defendant and appellant.
   Taliaferro, J.

The plaintiff brings this suit in his own name on a .promissory n.ote drawn payable to his wife or bearer, and which was executed by defendant for the price of certain lands purchased by him from the wife, the same being her paraphernal property. The plaintiff’s right to institute this action was excepted to on the ground that the law does not confer upon the husband the personal actions of the wife growing out of her paraphernal property, unless he has the sole administration of her property, and article 107 of the Code of Practice is referred to, and in connection with it the case of Dugat v. Markham, 2 La. 29, and that of Cowand v. Pully, 9 An. p. 12. It is contended on the part of the defendant that the facts in this case show that the plaintiff did not have the administration of the wife’s paraphernal property.

On the other hand, it is held that this is not a real action, and that by article 107 of the Code of Practice the plaintiff in this case has the right to sue for the debt due the wife.

We think the ground assumed by the plaintiff correct. Tlie fact that the husband brought tbe suit would seem to imply that he was administering the wife’s paraphernal property.

The defendant sets up defect in the title to the land forming the consideration of the note sued upon, yet he does not allege in his answer, or show by testimony, that he has ever been threatened with eviction or that he has ever been disturbed in his possession. He states in his own testimony, on cross-examination, that no one has brought suit against Mm for the property.

The judgment of the lower court was in favor of the plaintiff, and we see no reason to alter it.

It is therefore ordered that the judgment of the district court be affirmed with costs.