author: Manning, J. Bermudez, C. J. Poci-ié, J.

text:
    No. 9253.
    L. D. Dalcour vs. C. P. McCan et al.
    Where two defendants wore jointly sued for a claim exceeding two thousand dollars and judgment was rendered as prayed, and only one appeals, the Supreme Court has jurisdiction, although the appellant is liable only for one-half and that half is less than the appealable sura.
    The holder by transfer of tickets, consisting of paste-boards bearing no date and no promise to pay, but figures calling for an amount of money, issued to plantation laborers for labor, issued by one of the partners without the knowledge or consent of his co-partner, cannot-recover against the latter, in default of proof of actual indebtedness by the partnership to such of his transferrors, and of a bona fide transfer from the original creditor to him.
    Labor tickets, thus issued, are not written evidences of indebtedness, binding on the alleged debtor, and the indebtedness of the planter must be proved by competent evidence.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      B. T. Beauregard and H. GhiapeJla for Plaintiff and Appellee.
    Assignment of an incorporeal right may be made verbally. All verbal contracts are valid, unless expressly required to be reduced to writiug. Succession of Delassize. 8 Rob. 260 ; Hughes vs. Harri-mii et- al., 2 La. 80-92; Gray vs. Trafton, 12 M. 702.
    In the transfer of credits, rights or claims to a third person, the delivery takes place between the transferrer and transferee by the giving of the tibio. R. C. 0 . 2642.
    The tradition of incorporeal rights is to be made eilber by the delivery of tbe titles and of the act of transfer, or by the use made by the purchaser, with the consent of the seller. R. O. G. 2481.
    Rotice to the debtor is only required as to third persons. 30 A. 386, Pinard vs. G eorge; R C. C. 2643.
    Where one, by bis words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter bis own previous position, tbe former is concluded from averring against The latter a different state of things as existing at the same time, hlarshvs. Smith, 5 Rob. 523, and authorities there cited; Bigelow on Estoppel, p. 473.
    When there is no agreement respecting administration in the act of partnership, the partners are supposed to give reciprocally to each other the power of administering one for the other. What one does is valid even for the share of Ms partners without receiving their approbation. " * * every partner has a right to bind his partners to contribute with him to the expenses which arenecessary forthepreservation oftlie things of the partnership. * '* + R. C. C. 2870.
    A partner cannot plead ignorance of the acts of his co partner, nor of his business manager, when acting within thé scope of his authority. 6 R. 97; 3 R. 256; 1 A. 432 ; 5 A. 532.
    In an ordinary partnership, if one partner contracts without authority from the other, and the partnership is benefited, all partners will be bound jointly. Lagan vs. Oragin, 27 A. 353; R. C- C- 2874.

      Bouse & Grant for Defendant and Appellant.
    A memorandum, such as the so-called laborer’s ticket sued on in this case, having no date, containing no promise to pay a sum certain to any particular person-, at & time certain, is not a note or hill, negotiable under the law merchant, nor is it assignable by delivery. Story on Promissory Rotes, pp. 1.16. 19.

      Proof cannot be received to create a note out of such memorandum, where the ambiguity is thus patent. Peake’s Evidence, Chap. 2, § 5 ; Turnbull vs. Cureton, 9 M. O. S. 39.
    A note or bill made by an agent, in his own name, does not hind the undisclosed principal. Daniels vs. Burnham, 2 L. 243; Cragin vs. Lovell, 111 D. S. 194.
    One joint owner of a plantation cannot hind the other by any contract made, either in his own name, or that of the agricultural partnership, unless it be made by the managing partuer pursuant to special powers conferred by the articles of partnership, which have been duly recorded, or unless it be shown that the partnership has been benefited thereby. C. C. 2872-4, 2875.
    In such cases, the burden of proof of authority: and of the consideration, rests upon tlie plaintiff. Dumatrait vs. Gay, 1 R. 62.
    Payment of one of several unauthorized contracts, does not stop a defendant from disputing the others. Ibid.
    A managing partner who has not special authority, cannot bind the firm by an agreement to pay the debt of a third person.
    Nor is parol evidence admissible to prove such an agreement. R. S. § 1443; Merz vs. Labuzan, 23 A. 747; Levy vs. Dubois, 24 A. 401.
    Delivery of a memorandum of an account does not operate as an assignment of tlie account to the holder of the memorandum.
    A creditor who has disabled himself from producing the obligations sued on, by delivering them to a third person and taking his individual receipt for them, cannoc show the amount due on them by parol evidence. Adams vs. Gaynard, 5 N, S. 249
    The superior evidence must have been lost or destroyed without the fault of the creditor, to entitle him to offer inferior. Stockdalevs. Escaut,4M. 564.
    And the defendant, if the evidence is supposed to be in his possession, must have been called upon to produce it. Erwin vs. Porter, 8 N. S. 167,388; Williams vs. Benton, 12 A. 91.
    Where tbe amount of any obligation to pay money is expressed, in figures, proof must be made that it was given for the amount so expressed. R. S. § 1458.
    Obligations issued to be used as money, for a less sum than five dollars each, are null and void under Section 887 of the Revised Statutes, which forbids any person to make or receive them under pain of a penalty of twenty-five dollars.
    The giving of a receipt for this class of prohibited paper, or creating a new obligation based upon them, does not relieve the transaction of the taint of illegality. Cotton vs. Brien, 6 R. 115; Davidson vs. Lanier. 4 Wallace, 447; Brown vs. Tarkington, 3 Wallace, 337; Boutner vs. Yarborough, 12 A. 249.
    The illegality of a part of a transaction taints the whole, and Courts of justice will not adjust the balance of profit and loss between joint adventurers in iniquity Chatter vs. Becket, 7Teun. R. 201; Bird vs. Appleton, 8 Tenn. R. 062; John DeBersti vs. Paige, 36 N. Y. 537; Pettit vs. Pettit, 32 Alabama, 288; Collins vs. Murrell, 2 Metcalf (Ky.), 163.
    It is only when the party seeking to enforce the illegal agreement, is n’ot himself a wrongdoer, that courts will separate the good from the had. Bank etal. vs. King, 44 N. Y. 87.
   On Motion to Dismiss.

The opinion, of the Court was delivered by

Manning, J.

The prayer of the plaintiff is that the two defendants be jointly condemned to pay him $2,480.85. Judgment was rendered as prayed, and a remittance of a small sum having been made, the judgment was reduced to $2,425. M’Can alone appeals.

The motion to dismiss is on the ground that the judgment being' against two defendants jointly, one of whom is content therewith, the amount in dispute quoad the appellant- is only $1,212.50.

It is true that each defendant is liable for one-half of the'demand alone but the whole is in dispute. Each item of the whole is contested in order to reduce the amount or altogether extinguish it. If the judgment had rejected the whole, the plaintiff could unquestionably have appealed. His demand was for over two thousand dollars. He must prove the whole in order to obtain a judgment for any part against the appellant.

The judgment that we should render, if we agreed with the lower Court, would be for $2,425, although the appellant could only be held to pay one half of it. Suppose one of the defendants fiad confessed judgment, the examination of the case as to the other involves the examination of the whole claim. The point"has been ruled several times adversely to the mover. Lartigue v. White, 25 Ann. 291 and 325; State ex rel. Sc. Bd. v. Cousin, 31 Ann. 297; State ex rel. St. Cyr. v. Jumel, 34 Ann. 201.

The motion is refused.

Chief Justice Bermudez and Justice Todd dissenting.

Dissenting Opinion.

Bermudez, C. J.

In order to determine the question of jurisdiction ofa Court of original jurisdiction, the rule is simply, to ascertain whether, at the’bringing and decision of the suit, the Court had authority to determine it, on its merits, for the plaintiff.

The rule is analogous to test the jurisdiction of an appellate court, namely: Whether at the date of the appeal, the court to which the appeal is returnable, had jurisdiction over the matter. The question of subsequent investiture and that of a fund to be distributed, do not arise in the case.

The matter in dispute is the thing contended for,—the bone of contention—which, on a trial of the merits, the court can allow or refuse, as the evidence and the law may authorize.

The matter in dispute, the bone of contention, between the plaintiff and the defendant appellant, is a claim for $1,212.50.

If this Court can render a judgment on a matter exceeding $2,000, it would cither affirm, reverse, or amend the judgment of the lower Court.

How could this be done in the absence of the defendant, who has not appealed and who would thereby be either condemned, or relieved in whole, or in part ?

The conclusion is irresistible that the matter in dispute, in tl> case, ab initio and to the present day, has been and is a claim of $1,21? /, against the appellant and that, under no contingency, can this co' ó render a judgment, even if to the full of plaintiff’s demand, as to a, pell ant, for more than that amount. 4 R. 319.

The authorities to which the appellant refers are in cases in which the appellate court could have rendered in favor of the plaintiff, against the appellant, judgment for an amount within its jurisdiction. They have therefore no bearing upon a case like the present one, in which no valid judgment, for an amount exceeding $2,000, can be rendered under the pleadings, unless ultra peiitum.

Justice Todd concurs in this opinion.

On the Merits.

Poci-ié, J.

Charles P. McCan, one of the defendants, has taken this appeal from a judgment rendered against him and his co-defendant, Alphonse C. Reggio, in the sum of $2425 20, on a claim of plaintiff, as a holder of labor tickets or evidences of indebtedness issued in favor of laborers of the defendants, as joint owners of the “Promised Land Plantation,” in Plaquemines parish, and as ordinary partners in the cultivation of said plantation.

Plaintiff alleges that he is a store-keeper in the neighborhood of said plantation, and that in exchange for goods sold and delivered to laborers on the defendants’ plantation, a number of labor tickets of different denominations and amounting together to the sum which he claims were transferred to him by the defendants’laborers, with the knowledge and consent of said defendants; that at the request of one of the. partners, Alphonse Reggio, lie surrendered a large number of tickets thus received and held hj" him, amounting in the aggregate to $1751 85, for which he holds the receipt of said Reggio, and’that for the balance he still holds a number of the tickets as above stated, which he annexes to his petition.

The defence is a general denial.

The undisputed facts in the case are as follows:

From June, 1882, to February, 1883, Challes P. McCan and Alphonse <J. Reggio, who were joint-owners of the “ Promised Land Plantation,” cultivated the same as ordinary partners under a verbal agreement, which stipulated in substance, that the management of the labor and cultivation of the plantation was under the control of Alphonse Reggio, and that Charles P. McCan was entrusted with the management of the financial affairs of the concern, with the obligation to advance the funds necessary to the business and with the authority to sell and dispose of the crops raised and made on the plantation,

l'n order to facilitate his settlement with the laborers employed on the plantation, the defendant, Reggio, adopted the system of issuing every night, to each laborer, a ticket or tickets representing in figures the amount of such laborer’s earnings for the day.

Those tickets, consisting of pasteboards’ of various colors, according to their denomination, contained the name of the plantation and an amount in figures, thus: 10c., or 25c., or 100c., or 500c., and contained the signature of Edward Reggio, a brother of the defendant, Alphonse Reggio, who was employed as clerk or time-keeper on the placo, and who signed the tickets under his brother’s directions; but the tickets contained no mention or statement of the quality in which lie thus signed them, and they contained no dato or no information showing that they represented a promise to pay for labor or for any other commodity.

It further appears, that at tlio end of each month, the tickets issued during the current month, were taken up and paid for, to the laborers or to the plaintiff, or to the neighboring butcher, with funds furnished by the defendant, McCan, either on the personal call of his co-partner or on the latter’s draft, and that, in the month of December, the defendant, McCan, refused the funds necessary to pay for the tickets then held by plaintiff, on the ground that he had not authorized the issue ol sucli tickets by his co-partner, or by any other person employed on or connected with the said plantation. Hence this suit.

Plaintiff’s contention is, that lie is entitled to recover as the bona fide transferee of claims held against the defendants, for valid consideration and on actual delivery of such claims.

In oral argument and in Ms brief, app ell ant urges numerous grounds of resistance to the claims in so far as he is personally concerned. We shall consider but one or two of the means of defence which he invokes and which are sufficient to defeat plaintiff, at least in his present action.

■ It is conceded on both sides and it is clearly undeniable, that the tickets by themselves, and unexplained by parol testimony, are absolutely meaningless and cannot be treated as the basis of a written contract or obligation.

Hence, it follows, that they' are and can be considered as nothing more than memoranda of amounts earned by the laborers and due by their employers, the sole value of which, as between the contracting parties, rests on a previous agreement and understanding between them, that each ticket, according to its denomination, is a certificate of the amount due to the bearer for the fractional part of a day, or of a whole day, or of two or more days. But the essence of the claim rested on the fact, that labor of the value represented by the figures found on the tickets had actually been performed by the laborer, and not on the fact of his being the holder of the ticket. It is too plain for argument that a party who would be shown by the time-book to have earned three dollars, could not legally enforce a claim as such laborer for tickets calling for thirty dollars.

We therefore conclude that plaintiff, in receiving the tickets which he sues upon, acquired no more rights against the defendants than each laborer could show lor actual labor done,—and as the record fals to show a notice,—binding on McCan, the financial manager of the firm, of the assignment of the laborer’s incorporeal rights, he could enforce no claim which McCan might in the meantime have settled with the original transferrer. O. C. Art. 2644.

The evidence on the question of McCan’s knowledge or consent as to the mode of payment adopted by his co-partner, is conflicting. The circumstances invoked by plaintiff, as proving such knowledge, are not conclusive. Among them is the payment of Reggio’s drafts, some of which were in favor of plaintiff himself in order to redeem past issued tickets. But nothing shows, and it is not even suggested, that the drafts were in any manner identified with the tickets.

It is contended that McCan, who resided in New Orleans, frequently visited the plantation, and that he must have found out that tickets were thus issued, bargained with plaintiff, and redeemed with his funds. But, it appears that neither of the Reggios, the principal factors, and who were both witnesses for plaintiff, in the whole transaction, even testify that McCan was informed of the adoption of that system by the manager of the plantation.

On the other hand, McCan solemnly swears, and he is uneoutradicted by any other witness, that he was absolutely ignorant of the existence of such tickets until the latter part of the year, when he acquired the first knowledge of the same, and that he promptly ordered that no funds of his should be used in order to redeem these tickets. He does not refuse payment of wages which may be bona fide due to any laborer on the place, but he denies any obligation to recognize and redeem such tickets as evidences of indebtedness for labor.

His general denial puts at issue any indebtedness to tbe transferrers of plaintiff on account of said tickets, as well as tbe averment that plaintiff is tbe bona fide transferee of any claims which, the transferrers may have had against the firm.

If those tickets can be construed as a valid obligation in. writing for tbe payment of money, and as tbe record fails to show any authority in Reggio to thus bind tbe firm, it was incumbent on plaintiff to prove that tbe partnership was benefited by tlie transaction. (C. C. 2872-2874.) If, as we bold, tbe tickets are not and cannot be construed, as written evidences of indebtedness, but as merely memoranda for the guidance of employer and laborer in their settlement; and that tbe proof of indebtedness results from the contract and from the labor done, to be proved aliunde, it was incumbent on plaintiff to show an indebtedness for labor from the partnership to each of tbe transferrers.

In either hypothesis plaintiff’s claim finds no support in tbe evidence.

He concedes in his brief that bis ownership of the tickets resulted from bis trade with several hundred persons, and that it would bo impossible to bring them all in court.

This is a consideration which courts of justice cannot entertain.

Under the issues presented in this cause, such proof is indispensable to bis right of recovery—and in tlie absence of it be mast fail.

It is therefore ordered adjudged and decreed that the jndgmentrendered herein against Chas. P. McCan be annulled and set aside; and that plaintiff’s claim be rejected, and his action dismissed, as in case of non-suit, at Ms cost in both courts.

Judgment reversed.


source: Caselaw Access Project

author: Eennek, J. Poche, J.

license: Public Domain

text:
    No. 9174.
    The State ex rel. A. Marchand et al. vs. The City of New Orleans
    delator’s judgment being founded on a contract entered into in 1873, at a time when the city ■possessed a power of taxation for general expenses exclusive of interest and schools, of j twelve and one-lialf mills, it is the settled doctrine of the Supreme Court of the United) States and of this Court, that, so far as necessary to the satisfaction of the contract, the same power of taxation continues to exist, irrespective of subsequent legislative or con-j/j stitutional restrictions.
    This Court has heretofore held that the writ of mandamus remained a proper and subsisting) remedy to compel tho city authorities to perform the duties imposed upon them by Act No. 5 af 1870. 30 Aim. 120.
    In the same case it was held that the said Act imposed upon the administration the absolute duty to provide in their annual budgets for the payment of registered judgments so fa1-' as not interfering with the necessary alimony of the city. The duty to provide implies and iucludes the duty to exercise the power of taxation conferred by law, to the extent necessary to furnish the means for such provision.

      The city having, for the purposes of this contract a power of taxation of two and one-half mills, not applicable to alimony, aud not oxercisecl, it is her duty to exercise it to the extent necessary to provide for payment of this judgment, unless she otherwise provides for such payment.
    Under the law in existence at the date of this contract, the city’s liability was not restrained to tho revenues of tho year in which the debt was contracted.
    Section 2786 Revised Statulos has no application to this case. If it had, its effect is foreclosed by the judgment.
    A PPEAL from the Civil District Court for the Parish of Orleans. x\. Monroe, J.

      Blanc and Butler, for the Relators and Appellees.
    1. A judgment, final and conclusive against the City of Hew Orleans, and not expressly limited to any particular fund in the judgment itself, is not to be so restricted. 98 U. S. 381, 395; 4 Wall. 435; 9 Wall. 409; 99 U. 8. 591.
    2. Such a judgment, when registered according to Act Ho. 5, Acts of 1870, Dx. Soss., must be provided for in tho budgets of the Citv of Hew Orleans until fully paid.
    3. A judgment creditor, with such a judgment duly registered, is entitled to a mandamus to compel such budget provision, and that such provision be made expressly for him. as he is not concerned if other judgment creditors sleep on their rights, or do not proceed to enforce thorn 28 Pa. St. 207 ; Dillon, Mim. Corp. p. 850, note; 17 Iowa, 1; 5 Wall. 705.
    4. A judgment based on obligations of the City of Hew Orleans arising in 1873, are not affected by the constitutional amendment of 1874, construed to contain an inhibition against incurring debt. 29 Ann. 863.
    5. Hor is such a judgment in any manner affected by the constitutional limitation of ten mills for Citv expenses, for by the Acts of 1872, Act Ho. 73, See. 15, in force when th© obligation arose, the City limit of taxation was twelve and one-half mills, and to that extent the taxing power of the City of Hew Orleans entered into and constituted a contract right with the obligee, protected by tho Constitutions of this State and of the United States. State ex rel. Do Leon vs, City, 34 Ann. 1182; State ex rol Oarrierre, 36 Ann. Ho. 9005, Sup. Ct. La.
    6. There is, then, one-quarter of one per cent, of taxing power, unused by tho City, and which it is bound to exorb in payment of this judgment of relator’s. That, unused rate, would realize over $250,000 per annum, nearly nme times the amount of the judgment.
    7. There never existed anterior to 1877, if since, any act or rule limiting or restricting a debt due by the City, to the revenue of any year. Revenues appropriated to debts may be a particular fund for them, but does not operate to prevent payment from future revenue or other sources. Helson vs. Parish of St. Martin, 111 U. S. p. 716.
    8. -Besides the revenue of 1873 is, by tlie Constitution of 1879, payable in debts of any year except judgments. See end of miscellaneous ordinances for the relief of taxpayers— Const. 1879.
    9. Were it ever true that a judgment on a debt of 1873 must only be paid from the revenue of that year, or never paid, the Constitution.now intervenes with a change, which makes it unconstitutional for such judgment to he referred to that revenue.
    10.Section 2786, R. S., does not in any manner restricta debt of a particular year, to tho revenue of that year, and certainly not the obligation on which relator’s judgment is based—for this :
    (a) It does not expressly or by implication authorize any such restriction.
    (b) It provides for the mode in which municipalities generally shall incur debt, and is a general rule inapplicable to the City of Hew Orleans,'which is governed by a special law on the subject and by a very different mode of incurring and paying debts. See City Charters and Act No. 5. of 1870, Ex. Seas.
    (c) It refers exclusively to cases of debts voluntarily incurred or created by a municipality, as upon its own motion, and such is not the description of the obligation on which relator’s judgment was rendered. Ill U. S. 716.
    11. Relator’s judgment was given for the obligation of the City of New Orleans to pay for the removal aud care of indigent cases of small-pox patients. Tho City was without volition to incur this obligation ; it arose without any motion or discretion of tbe City, and was the result of an express requirement of law, requiring the City to pay for such cases. Seethe quarautine laws and others. Acts 1870, p. 55, Sec. 6; Act 1872, No. 60, Sec. 3 ; City Charter, Acts 1877, p. 30 ; 27 Ann. 522.
    12. Though tho City Council had determined not to pay for such cases, the City would have been bound, for the Legislature left it no discretion, and no action whatever was required of it, to allow of the removal aud care of such cases and to pay therefor. The necessity of protection against contagion, as from cholera, small-pox, etc., was not left to the City to decide, but provided for by the Legislature, and the expense thereof imposed on the City.
    13. In this instance the City recognized its duty, and did engage to carry out the requirements of the law.
    14. Such cases of expense arising without necessity of any action by the City and directed, without discretion left, by the State, has always been and is clearly to be distinguished from cases of debts which are not necessarily required by law, and which are created by a municipality on its own motion and within its own discretion. 98 IT. 8. 397; 24 How. 364; 34 Pa. St. 496 ; 40 Id. 348 ; 3 Id. 400; 4 Ohio St. 472; Dillon’s Mun. Corporations, § 741, § 61; 27 Ann. 522 ; 95 TT. S. 654.
    15. From the above it must follow that the Legislature having required the City to pay, to incur the obligation on which relator’s judgment rests, it was and has always been the duty of the City to provide fully and completely for its payment. It has not been paid; it canuot he paid by reference to any back and worn-out revenue. The back and exhausted revenue no longer goes or can go to any judgment or particular debt. Nothing short of express prior legislative words excluding the City from paying, can support the position that the City is not authorized to set apart and appropriate money by taxation and from revenue, in its budgets, to pay said judgment. The more direction to pay, requires sufficient and real provision to be made, and such an “ implication cannot be “ overcome except by express words excluding it.” 98 IT. S. p. 393 ; 25 "Wis. 122 ; 111 MJass. 460; 73 Pa. 47T; 20 'Wall. 660 ; 98 1J. S. 390; Dillon, Mun. Corp. §§ 851, 854.

      G. JP. Bucle, City Attorney, contra.

    1. (a) ActNo. 5, of Acts of 1870, E. S., does not impose an absolute duty on the City Council to provide payment of judgments. The provisions of that act must bo construed with reference to other laws creating the municipal corporation of New Orleans, defining its powers and duties of its ascents or representatives.
    (b) It must be subordinated to the prime and essential requirements of tho law on which tbe existence of the corporation depends. Out of the current revenues that which is necessary for the maintenance of the government must first be set apart. The power or authority to set apart money our of such revenues to pay registered judgments is purely discretionary, and to be exercised after the necessities of municipal administration are satisfied.
    2. No special taxes, over existing limitation can be ordered, except to pay contract debts protected from impairment by tbe Constitution of the TJnüed States.

      3. When payment of a judgment against a municipal corporation is sought to be enforced, in an exceptional manner, the consideration of the judgment, or original contract, must he inquired to ascertain whether, under it, the party is entitled to the rolu-f prayed.
    4. Judgments against the City of New Orleans, founded on ordinary floating debt or ordinances of appropriation, do not confer outlie owners thereof any great or rights than they had under the original evidence of indebtedness.
    These rights,under existing laws, are tobe paid out of revenues of Hievoar in which the ordinances were passed.
    Constitutional amendment of 1874, Act 30,1877, City Charter of 1882. Ta\payers Association vs. City, 35 Ann. 067.
    Independence of express legislation, a municipal corporation is a body of limited powers. And where the rate of taxation is fixed and limited, such limitation is a prohibition against the creation of any indebtedness beyond revenues derived from the exercise of the taxing power and other prescribed sources of income.
    The power of the Council is administrative, only. It can disburse the revenue hut create no debt beyond it.
   The opinion of tlio Court was delivered by

Eennek, J.

In 1872, tbe Legislature of the State passed Act No. 60 of that year, by which it established the Luzenberg Hospital iu this city as the exclusive hospital for small-pox and further provided that “ all indigent cases of small-pox, or other diseases reported contagious, in want of or making application for hospital aid or care, shall be sent to the hospital designated in this act, at the expenso of the city of New Orleans, as usual and at the usual per diem.”

Acting under this direction, the city entered into a contract with Dr. Anfoux then in charge of said hospital by which he was to receive and treat such patients at a stipulated compensation of thirty-five dollars per case. During tlio year 1873 he received and treated a large number of cases, for xvliieli tlio amount due by the city under the contract was $19,670.

In 1878 suit was brought and judgment recovered against the city on the foregoing cause of action and for the amount above, stated, with interest and costs,

Tlio judgment thus rendered was duly registered July 5th,' 1878, pursuant to the provisions of Act No. 6, of 1870. 'Phis registration has produced no results; tlio judgment has not been paid ; and the evidence makes it manifest that under the city’s construction of its duties under the Act No. 5, and under its modes of execuliou thereof, many years must elapse before any payment will be made upon this judgment.

The reason why this debt remains, and promises to remain, unpaid, is that the city construes her power and duty of taxation to be governed and limited by the provision of the Constitution of 1879 to a tax of ten mills on the dollar, in so far as provision for such judgments is concerned, and that the requirements for her alimony leave, out of the receipts from this tax, nothing or little to bo appropriated to the satisfaction of judgments.

To this the creditor answers that he is a creditor by contract; that, at the date of his contract, the city possessed, by law, a power of taxation for “ current city expenses exclusivo of interest and schools ” only limited to one and one-quarter per cent; that quoad this contract obligation and so far as necessary for its satisfaction, this power of taxation still exists unaffected by subsequent legislative or constitutional provisions; that, under the Act No. 5 of 1870, it is the duty of the city authorities to provide for the payment of his registered judgment by setting apart in the annual budget a sum for that purpose, and that, in order to execute this duty, the correlative duty is imposed of exercising the power of taxation vested in the city by law to the extent necessary to raise the means to make such provision.

In pursuance of these views, the present suit was instituted for a mandamus directing the city authorities to execute and perform the duties imposed by the Act No. 5 of 1870; and, in accordance therewith, to set apart in the next annual budget sufficient money to pay such judgment; and further directing them to provide in said budget, by taxation for current city expenses, in excess of the amount, allowed by law for the alimony of tire city but not in excess of one and one-quarter per ceai., the means of revenue necessary to pay relator’s said judgment, and so to do, in all succeeding annual budgets, until the same be paid.

From a judgment making the mandamus peremptory, the ci£y has appealed.

We lay down the following propositions of fact and law viz:

1st. The judgment was founded on a contract entered into in 1872.

2d. At the date of the contract, the citv possessed a power of taxation for ■ general expenses exclusive of interest and schools,” of twelve and one-half mills par annum. See Act No. 73 of 1872, Sec. 15.

3d. Under the consistent jurisprudence of the Supreme Court of the United States and of this Court, the power of taxation existing at the date of the contract is read into the contract and continues to exist, so far as necessary for the enforcement of the obligations of the contract, irrespective of any subsequent, legislation or constitutional enactments restricting the power of taxation, State ex rel. Moore vs. City, 32 Ann.; State ex rel. Dillon vs. City, 34 Ann. 477; State ex rel. Carriere vs. City, 36 Ann.; Von Hoffman vs. Quincy, 4 Wall. 535; Wolff vs. New Orleans, 103 U. S. 358; Nelson vs. St. Martin, 111 U. S. 720.

4th. This Court lias long since held that the prohibitions against the issuance of the writ of mandamus against officers of the city of New Orleans contained in Act No. 5 of 1870, apply only to the cases therein specially designated and that, for the performance of the duties imposed by that act itself, the writ of mandamus was a proper remedy. State ox rel. Carondelet vs. New Orleans, 30 Ann. 129.

5th. In the same case it was held that, under Act No. 5 of 1870, it is the “ plain duty ” of the city authorities “to provide for the payment of registered judgments in the only mode in which judgment creditors of the city are permitted to collect their judgments. This requires the action of the Mayor and Administrators, in their aggregate capacity as a municipal government; the adoption of the annual budget; the levy of the necessary taxes; ■ and a setting apart of a sufficient amount to pay this and other registered judgments. * * The duty of the city to make this provision is not discretionary as to time or manner. The law imperatively requires that it shall he in the next annual budget, and by setting apart, appropriating a sufficient amount out of the aunual revenues.” State ex rel. Carondelet vs. New Orleans, 30 Ann. 129.

This duty, we have held, however, is subordinate to the higher and absolute duty of first providing, out of the revenues applicable to that purpose, for the necessary alimony or support of the city. State ex rel. Moore vs. City; Saloy vs. City.

6th. In the DeLeon case we held that the duty to appropriate and set apart money in the aunual budget for particular purposes, “ involved necessarily the duty to levy such tax (within the power of taxation possessed, at the time, by the corporation) as will render possible the performance of the duty.” State ex rel. DeLeon vs. City, 34 Ann., p. 477.

7th. The relator herein claims and is entitled to no special tax. He is simply entitled to payment out of the revenues arising from the collection of taxes provided for the general expenses of the city. Ha simply asks that the power of taxation conferred by law for that purpose shall be exercised to the extent necessary to furnish the means out of which his judgment may ho paid.

So far as relator’s contract and judgment are concerned, we have already shown that the city possesses a power of taxation for general purposes of twelve and one-half mills. Sbe has, heretofore, exercised, and proposes hereafter to exercise this power only to the extent of ion mills on the dollar, and, as the revenues arising from this tax are applicable to, and required for, the necessary alimony of the city, they leave, as we have said, little or nothing, which can be appropriated for the payment of registered judgments.

From the foregoing statement, it appears that, to the extent necessary for the provision for payment of plaintiff’s judgment, the city possesses a residuary power of taxation of two and one half mills, not exercised and which she refuses to exercise, the revenues from -which would, under no circumstances, be applicable to the city’s alimony, or, indeed, to any other purpose than that of satisfying relator’s judgment and others standing in like case with it. It would be, indeed, an anomaly, if the city could escape from or postpone her clear duty, to provide for the satisfaction of such judgments, by simply abstaining from the exercise of lawful powers of taxation to an extent necessary to provide the means of paying them. Such an anomaly could never be sanctioned by any court of justice, since it would render the payment • of debts no louger obligatory upon municipal corporations, but dependent purely upon their will and caprice.

From the foregoing considerations it would conclusively appear that relators are entitled to the relief which they seek, unless there is something in the nature of their debt, or in the law existing at the date of their contract, which debars it. Legislation subsequent to the contract has, and can have, no effect upon the rights and obligationsarising from the contract.

The learned counsel for the city propounds two special defenses based upon the nature of plaintiff’s debt and the law in existence at the date of the contract.

1st. He contends that, from the very nature and constitution of municipal corporations, they are incapable of creating or contracting a debt for current expenses, in excess of the revenues arising from taxation, within the limitations imposed by law, for the year in which the debt was created; and that such debt, whether created by contract or not, can only demand satisfaction out of the revenues of that year.

If such had been the law of Louisiana, as applicable to the city of New Orleans, in 1873, it is passing strange that, in 1874, it should have been deemed necessary to pass a constitutional amendment establishing the very principles which, it is contended, already existed and were inherent in the very nature of the corporation.

We have rigidly enforced the constitutional amendment of 1874, as applicable to debts created after its passage. Taxpayers vs. New Orleans, 33 Ann. 568.

But when we are asked to recognize the principles established by that amendment as existing independent of it and prior to its passage, and as applicable to debts contracted prior thereto, we must pause.

The projiosition is supported bj~ no authority and by no well founded reason. It is contradicted by the entire financial administration of the city prior to 1874, by the uniform current of judicial interpretation which has constantly rendered and enforced judgments upon such obligations without restriction to the revenues of particular years, and by the terms and spirit of the Act No. 5 of 1870 itself.

For what would be the sense of requiring the city authorities to provide in coming budgets for registered judgments, without distinction, if such judgments could only seek satisfaction' out of the revenues of some antecedent year in which the debts were contracted ? We dismiss the proposition as utterly untenable.

Nor is there anything in the nature of the debt which prevents this contract from being protected from impairment under the Constitution of the United States. The protection afforded by that instrument is not restricted to bonds or any particular forms of contract. It covers all contracts. Every lawful contract of a municipal corporation is entitled to satisfaction by the exercise of the power of taxation possessed by the corporation at its date, to the extent necessary, and to invoke the continued and repeated exercise of that power until the debt is satisfied.

Such is the clear and unequivocal doctrine announced by the Supremo. Court of the United States uniformly and specially in the very recent case of Nelson vs. St. Martin, 111 U. S. 716.

2. The city next contends that relator’s claim must fall by reason of failure to comply with the requirements of Section 2786, Revised Statutes, which declares : That the constituted authorities of incorporated towns and cijies of the State, shall not, hereafter, have power to contract any debt or pecuniary liability without fully providing, in the ordinance creating the debt, the means of paying the principal and interest of the debt or contract.”

We express no opinion on the mooted point as to whether this law applies to the City of New Orleans. It is sufficient to say that the defence must fail in this case for several reasons :

1. The defence should have been interposed to the original'judgment and comes now too late, and this alone is certainly conclusive.

2. The Section 2726 is a mere legislative act, binding on corporations but not binding on the legislature itself, which might repeal. modify, or restrain its application at pleasure. In this case the legislature did not merely authorize, but imperatively required the city to pay the expenses of indigent small-pox patients. The city could not escape from its obligation to pay by failing to provide for it.

3. The debt on which this judgment is founded is for current municipal expenses; and wo have held that debts for such expenses do not fall under the restrictions imposed by the statute referred to. Laycock vs. City, 35 Ann. 479.

This disposes of this point.

We are not called upon to consider the rights of other judgment creditors whose judgments rank that of relators in order of registry. The record does not advise us whether their judgments are based on contracts or whether they rest upon causes of action arising prior to the constitutional amendment of 1874. It may be that none of them can compete with relators in the relief sought. But, at all events, the unexhausted power of taxation is ample to satisfy all; and if they are entitled to like rights with relators and have neglected to exercise them, there is no reason why relators should suffer.

Let it be well understood that the duty to levy an extra tax is not obligatory under this decree. The city may satisfy the debt out of its revenues under the existing rate of taxation. But the insufficiency of such revenues will be no excuse for not satisfying the judgment and, if necessary, and only if necessary, must provision be made by a tax for general expenses above ten mills and within twelve and one-haif mills.

Judgment affirmed.

Rehearing refused.

Bermudez, C. J., and Poclié, J., take no part in this opinion and decree.

Poche, J.

Having been prevented by illness from making a thorough -examination into the many issues presented in this case, and having no desire to retard the announcement of conclusions adopted by the majority of the Court, I prefer to take no part in the decree herein rendered.


author: Bermudez, C. J.

text:
    No. 9251.
    Martin & Shayot vs. Chs. V. Thibaut, Tax Collector.
    Property used for rice-millin'; purposes Is not exempt from taxation. 36 Ann. 347, affirmed.
    APPEAL from the Twenty-fourth District Court, Parish of Plaqnc_ mines. Limaudcás, J. ---

      F. IT. MoOaleb for Planitiffs and Appellees.

      F. G. Zaeharie for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an injunction suit to prevent the seizure and sale of property used for rice milling purposes, to satisfy a tax assessed thereon. It rests on the sole ground that the same is exempt from taxation.

The ta,x collector denies the exemption and asks judgment for the tax.

Prom a judgment in favor of plaintiffs, the defendant appeals.

The issue presented was formally determined in the Ernst case, 36 Ann. 34?, in which the legality of that tax was recognized.

It is, therefore, ordered that the judgment appealed from be reversed and that the injunction issued be dissolved, and that the defendant recover of the plaintiffs the sum of one hundred and twenty-six dollars and fifty cents ($126 50) with costs in both courts.


author: Pochb, J.

text:
    No. 9224.
    Eliza Parker vs. Richard Talbot.
    The presumption of simulation flowing from a sale of property, of which the vendor retains possession by a precarious title, must yield before proof of the good faith of the parties, and of the reality of the sale.
    /An action for the rescisión of a sale on account of lesion, will not prevail if the sale was subject to an aleatory condition, unless the advantage derived by the vendee be of an apparent or immensely disproportionate character.
    In such an action the inquiry is not so much as to the market value of the property as to its value to the vendor under the circumstances which surround him.
    It is incumbent on the party complaining of lesion to show the value within a certain range otherwise the lesion is a matter of conjecture and is not proved. 7 Ann. 667, 8 Ann. 483.
    The demands for rescisión onaccount of lesion, and on account of non-payment of the price, cannot be cumulated in the same action.
    APPEAL from tbe Civil District Court for tlie Parish of Orleans, Houston. J.

      Farrar <& Krutlschnitt for Plaintiff and Appellee.

      B. B. Forman for Defendant and Appellant.
   The opinion of the Court was delivered by

Pochb, J.

Plaintiff claims the ownership of a piece of immovable property, (now in the possession of defendant) by right of purchase by authentic sale, under date of August 7, 1878, from Miss Mary Talbot, since deceased. . ,

Defendant, who is the executor of the succession of Mary Talbot, his sister, and her universal legatee, and who claims to be a creditor, resists her demand on the following grounds :

1. That her purchase is a mere simulation.

2. That if the sale was not simulated, it is null, for lesion beyond moiety.

3. That plaintiff has failed to pay the price stipulated in the act of sale, hence the sale should be rescinded.

4. And he reconvenes for the amount collected by plaintiff on account of the insurance.on the house, which has been destroyed by fire since the death of his sister.

He has taken this appeal from a j udgment which recognized the legality of .plaintiff’s title, rejected his reconventional demand and reserved plaintiff’s right to sue for aud recover rents and revenues realized by him during his illegal possession of the property.

The act of sale of August 7, 1878, is complete in form and is translative of property.

The consideration of the sale was the sum of twelve hundred dollars, composed of the following items:

1. The assumption by the purchaser of a note of the vendor held by Mrs. Eliza Parker, the mother of plaintiff, and sister of Mary Talbot, amounting with accrued interests to $522.

2 The assumption of a mortgage note of the vendor amounting with interests to $323 87.

3. The obligation assumed by the purchaser to pay past due taxes, and premiums of insurance, for account of her vendor, estimated at $100.

4. The vendee’s note in the sum of $254 13.

And as an additional consideration, the vendor reserved the usufruct of the property during her lifetime.

First—The evidence is conclusive that the sale was not a simulation, but that it was made for a real and valid consideration.

Hence the presumption of simulation, which flows from the fact of the vendor’s retaining possession of the property, ( C. C. 2480 ) must yield under the effect of the proof that the parties. were in good faith as shown by the evidence in this case.

The reality of the sale, even if left in doubt by all other circumstances, would be conclusively proven by the acts and conduct of the vendor herself. After the disruption of the friendly relations which existed between her and her sister, Mrs. Parker, and her niece, the plaintiff herein, Mary Talbot, frequently complained to the agent of her vendee that the sale had been made for too low a price, and she' demanded more money—but never intimated that the sale was unreal.

A more complete ratification, and a more thorough acknowledgment of the sale as valid and binding could hardly be imagined in any given case. No objection was made to parol evidence.

The reality of the sale is virtually conceded by defendant’s counsel, who argues in his brief that the act was intended to secure a debt due to Mrs. Parker by her sister, Mary Talbot, the vendor.

Second—¥e will now consider the nullity alleged to grow out of lesion beyond moiety.

Prom the foregoing statement it appears that the sale in question was an aleatory contract, in which the effects as to the advantages and losses to both parties, depended on an uncertain event; the death of the vendor, Mary Talbot. C. C. 2982.

In France, whence we borrow the rules governing that kind of contract, the doctrine prevails that, unless the advantages to the vendee, under the contract, be immensely disproportionate, the sale will not be rescinded on account of lesion. Merlin Repertoire verbo Lésion, sect. 1, No. 8; Marcadé, vol. 6, pp. 313 and 314.

The record shows that at the date of the sale the vendor was quite sick, but not in immediate danger of death. The attending physician testifies in the case, and he states that he then saw no danger of an approaching dissolution, and that he had expressed that opinion to Mary Talbot and to the members of her family. She recovered from tiie attack which had then prostrated her, and died one year after the execution of the sale.

The testimony of the witnesses as to the actual value of the property, is naturally very conflicting, and varies from $2000 to $3000. That testimony has exclusive reference to the market value of the property. But in an action for the rescisión of a sale on account of lesion, the value of the property must be tested under the additional consideration of what the property is worth to the vendor at the time of the sale and under the circumstances by which he is surrounded. 16 La. 380, Copley vs. Flint and Cox.

The case in hand is a fair illustration of the rule. The vendor, Mary Talbot, a single woman, owning no other property, stricken with a disease from which she expected no recovery, but with which she could yet have lingered several years, had no other income but the rental of one-lialf of the house which she owned and in which she lived. The property was mortgaged to secure a past due note, for which payment could be exacted at any time. A sale of her property by the operation of which she was screened from annoyance of debts amounting to nearly $1000, and by which she secured a permanent home for her lifetime, without losing the small rental of twenty dollars a month for one-lialf of the house, was a transaction which would commend itself as very wise and prudent to any reasonable mind, and justifies the conclusion that the property was not worth more to her than the price stipulated at the date of the sale.

Again, conceding for the sake of argument, that the market value of the property ivas as high as $3000, it appears from the evidence that its use and enjoyment for one year was equal in value to $480, which, added to the $1200, the purchase price, would foot up at least $1600, more than one-half of the value of the property, and hence, in either hypothesis, there was no lesiou. But in point of fact, the evidence does not fix the real market value of the property at the date of the sale. As stated, the valuation varies from $2000 to $3000; and it is incumbent on the defendant, praying in reconvention for the rescisión of the sale, to make out his case with legal certainty. It has been held, and we reiterate the ruling that, “if the value of property is not fixed within a certain range by the evidence, the lesion is a matter of conjecture and must be considered as not proved.” 7 Ann. 667, Beale vs. Ricker; 8 Ann. 483, Demaret vs. Hawkins.

Third—As to the prayer for rescisión of the sale on account of non - payment of the price, we are of opinion that such a demand cannot be cumulated with the demand for rescisión on account of lesiou beyond moiety.

On the last mentioned ground the theory is that the sale is null ab initio; on the former the complaint is that the price of a valid and real sale has not been paid.

Hence it is clear that one demand precludes the other, and that botli cannot be pressed in the same action.

“A vendor cannot demand, at the same time, the rescisión of the sale he liad made and the price for which it was made.” C. P. art. 159; 16 La. 380, Copley vs. Flint and Cox.

Under these views of the case, the discussion of many other points submitted by counsel becomes unnecessary. Plaintiff’s title must, therefore, be recognized.

Judgment affirmed.


author: Todd, J.

text:
    No. 9296.
    The State of Louisiana vs. Marshall alias Buddy Green.
    Where the defendant-formally pleads to an indictment and is tried and convicted and subsequently obtains a new trial, and at this second trial, moves to withdraw his plea in order to file a demurrer, the granting or refusal of the motion is largely within the discretion of the trial judge and his refusal of the motion at this stage of the cause, in the absence of any averment that the plea was entered through error or inadverfance, will not be disturbed.
    An indictment for shooting with intent to murder is sufficient in law, which charges, in substance, that the accused did, with a pistol, feloniously, wilfully and maliciously shoot one S, B * * * with the felonious intent the said S. B. with malice aforethought to Mil and murder. It is not necessary that the word wilful should precede or characterize the intent

    A PPEAL from tlie Twenty-sixth District Court, Parish of St. A Charles. Malm, J.

      G. Leche, District Attorney, Ohas. A. Baquié and M. J. Ommingham Attorney General, for the State, Appellee.

      A. E. Billings, for Defendant and Appellant.'
   The opinion of the Court was delivered by

Todd, J.

The defendant appeals from a sentence of eight years imprisonment at hard labor under a conviction for shooting with intent to murder.

The case was twice tried in the c'ourt below.

1. On the second trial his counsel moved to withdraw his plea of not guilty and file a demurrer to the information. This was refused by the trial judge, and this refusal is the first error charged in the assignment filed in this Court.

There was no pretense or allegation that the plea had been entered through inadvertance or mistake. The accused had once been tried before on this plea and convicted, but owing to the misconduct of a juror who sat upon the case, lie had been granted a new trial. It was upon this second trial that the motion was made to withdraw the plea and file the demurrer. It was not a legal right that the accused demanded, but it was a matter that rested largely within the discretion of the trial judge. So much so that it is laid down by elementary writers on criminal law, that the judge’s ruling on such a motion is not reviewable by an appellate court. Bishop Crim. Pro., vol. I, sec. 782; see also Wharton Cr. P. and P., sec. 407, b.

Considering the stage of the case and the circumstances existing when the motion was made, and the absence of any averment of inadvertance or mistake in entering the plea, we think the judge properly refused the motion.

2. The information charges that the accused “did with a dangerous weapon, to-wit, a revolving pistol, feloniously, wilfully and maliciously then and there shoot one Sylvester Bar fchelepiy, in the peace of the State, then and there being, with the felonious intent, then and there, him, the said Sylvester Barthelemy, with malice aforethought, then and there, to kill and murder.”

It is urged by the defendant’s counsel and made the second error assigned, that the information was fatally defective in .not setting out the intent as “wilful.”

We think there is no force in this contention. The act is charged in positive terms to have been feloniouslj-, wilfully and maliciously done, which really necessarily embraces tbe intent tliat prompted the act, independent of the words that follow, which farther mention and characterize the “ intent ” as felonious and as being “with malice aforethought to kill and murder.”

With regard to the crime of murder itself, section 1048, R. S., provides that, “it shall be sufficient in every indictment for murder, to charge that the defendant did feloniously, wilfully and of his malice aforethought kill and murder the deceased.”

This information directly charges that the accused shot one Sylvester Barthelemy, feloniously, wilfully and with intent of Ms malice aforethought to kill and murder—language that is sufficiently expressive and broad enough to cover the offense of which the accused was convicted. State vs. Harris et al., 27 Ann. 572; State vs. Finney, 24 Ann. 191.

Judgment affirmed.


author: Manning, J.

text:
    No. 9201.
    Widow Alice McCloughry vs. John C. Finney.
    "Where a city ordinance has been received in evidence without objection, none will be beard in the appellate court.
    No one can rightfully obstruct a side-walk under a plea either of convenience or necessity except for such time as is actually needful to get his goods in and out of his store. The public is entitled to free passage over every part of the side-walk, and whoever obstructs this passage is responsible, not alone for the penalties imposed by the city ordinances but for ulterior consequences as well.
    It is neither legal excuse nor palliation that others obstruct tbe side-walks in like manner, nor that the general [habit of shop-keepers is to do likewise.

      A PPEAL from, the Civil District Court fór the Parish of Orleans. XJL Monroe, J.

      J¡¡. H. MeCaleb and B. Shackelford for Plaintiff and Appellee.
    1. No presumption arises against a/plaintiff, from failing to callas a witness a little boy aged eight years ylio was present at the accident for which damages aro claimed, when all the facts have been proven by other competent witnesses. 32 A. 1130. A child of such tender age is presumed incompetent and must be shown to have sufficient natural intelligence to comprehend the nature and effect of an oath. Greenleaf, Yol. 1, § 367. Where the witness is neither a party to the suit nor an employee, plaintiff is under no more obligation to call Mm than defendant, and the rule enunciated in 35 A. 418 and 694 and 6 A. 164, does not apply.
    2. Whoever obstructs a common highway commits a nuisance. Wood on Nuisances, Sec. 235. The term highway includes streets, sidewalks and banquettes. 6'Mod. 255.
    3. Streets are public things (R. C. C. 4541 and belong in common to everybody. Ib. 458* The municipal authorities administer the streets for the benefit of the public, 14 A. 842.
    4. Every front proprietor is under an obligation not to obstruct the free use of the streets. 12 A. 747; 14 A. 287. When a passer-by is injured by the falling of an object- the owner will be liable 12 A. 481; 14 A. 806.
    5. Any unreasonable obstruction of a highway is a nuisance. Wood on Nuisances, Secs. 250 and 251. A merchant has no right to keep his goods on the street for purposes of sale, Ib. 258. No one can continuously occupy a part of the street—Ib. 261—forthe publicare entitled to a free passage over any portion of it they may choose to take. Wood on Nuisances. Secs. 262? 263, 264, 265.
    6. A person erecting or maintaining a dangerous obstruction in a public street, is liable for all resulting injury. Wood on Nuisances, Secs 271, 276, 277, 281, 282 and 291. No question of negligence can arise, the act being wrongful. 18 N. Y. 79; 2 Black, 418.
    7. Where defendant had his corn stored on the sidewalk in the City of New Orleans, in viola tion of a penal, prohibitory ordinance, and as a clild eleven years of age was passing by, the top sack fell upon him, crushing and breaking his leg, the defendant is liable for all the damages suffered. 54111. 482; 121 Mass, 294 ; § 996, Wharton’s Law of Negligence.
    8. Where a municipal ordinance referred to in plaintiff’s petition is offered in evidence, and received without objection in the Court a qua, the authenticity and factum of the ordinance is thereby admitted (IN, S. 614; 3 A. 627), and defendant’s objections after-wards made for the first time in the Supreme Court, will not be listened to. 15A. 389.
    9. Where a defendant actuated lucrum captando does an unlawful act he is subject to every consequence which fiows from it. Thompson on Negligence § 6, Yol, 1, p. 344 ; 9 Md. 108. The act being inherently unlawful, the actor is answerable at all events. 106 Mass. 458; 53111. 212.
    10. Where a boy is injured by a sack of corn falling on him from the top of pile stored on the banquette, the owner of the corn is liable in damages. Bev. C. C. Arts. 2315, 2316. A person is answerable for the things in his custody. B. C. C. Art. 2317. Though the cause of the corn falling down be unknown, the mere happening of the accident is prima facie evidence of defendant’s negligence, res ipsa loquitur. Thompson on Negligence, Yol. II., pp. 1220, 1227, 1228, 1229, 1230, 1231. “ Gravitation is constantly exerting itself to bring such an object down upon travelers.” Thompson on Negligence, Yol. 1. p. 346, §9.
    11. It is negligence to leave a dangerous agency exposed on a public highway, where chil* dren are accustomed to pass and'repass; and though a child be injured while playing upon such dangerous object, this will not prevent his recovering damages. Railroad Company vs. Stout, 17 Wal, 657.

      12. It is no excuse (1) that there was a convenient passage beyond the space occupied by the corn on the sidewalk (Thompson on Neg., p, 345, § 7), or (2) that other merchants violated the ordinance prohibiting such obstructions (6 A. 760; Thompson on Neg,, p. 345,), or (3) that the City Surveyor gave defendant permission to violate the ordinance Wood on Nuisances, pp. 253, 261, 269, 271, 272.
    13. Defendant cannot be heard to complain of errors in the Judge’s charge to the jury, to which he failed fo except in the Court below. C. P. 517 : 10 M. 66; 17 L. 541; 5 R. 213.

      JS. JS. Moise for Defendant and Appelant.
    A. (1) The burden of proving the allegations of the petition is on plaintiff.
    (2) There must be not merely an equality but a preponderance of proof in his favor. Yol. No. 2 Evans Pothier, p. 123 app. XYI Sec. 2. Plaintiff has failed to prove her case

    B. (1) Evidence is to he weighed according to the power of one side to have produced, and the power of the other to contradict. Lord Mansfield inBlatch. vs. Archer, Cowp. p. 63. Plaintiff could have made her case certain.

    C. (1) Plaintiff must make his case certain—and when he could and does not, the presumption that he could not holds.
    (2) Where there, cam be a fair inference drawn from the record and plaintiff has it in his power to prove the inference as a fact untrue, and fails to put the witness on the stand present in court, the presumption is the inference is true. 35 A. 694. Thompson Neg.Yol. 1. p, 514, sec. 6 ; 73 III., 58; 2 McG., p. 34; 2 A., 288 ; 6 A., 166.
    (3) Where one party to an action knowing the truth of a fact in controversy, and hav - ing evidence omits to speak; “ every inference warranted by the evidence will bo indulged in against him. 53 N. Y., 156. It was not defendant's corn which did the injury. r,
    D. (1) Where parties to an action are charged by witnesses with committing offense which, if true, defeat their action, and they fail to take the stand to deny the charges, (a) if the testimony be doubtfulit will be immensely augmented. 35 A., 425. (i>) the presumption holds that they are guilty of the offence charged. 35 A., 694; 2 McG., 34; 53 N. Y., 156, and authorities cited in brief. The two boys cut the corn and made it fall.

    E. (L) In an action sounding in damages for negligence it must appear plaintiff was not negligent. 11. A., 292; 22 Ohio Sfc. 17, and authorities in brief.
    (2) The burden to show no contributory negligence is on plaintiff 40 Bart. 193; 16 111., 300, and authorities cited in brief.
    (3) (a) Plaintiff must show defendant’s negligence, (b) No contributory negligence on his part. 1. A., 372; 35 A., 499 : 18 L., 339, and cases in brief,
    E. (1) If evidence as to plaintiff’s use of ordinary care be uncertain, he cannot recover. 15 Penn, Sfc. 463 ; Walker vs. Hern, 22 Tex., 55.
    (2) If it be conflicting it must preponderate in his favor. 18 N. Y., 248.
    (3) Defendant need not prove contributory negligence on plaintiff’s part beyond a reasonable doubt 48 Wis., 513; 33 .Am Rep., 821. No negligence on defendant's pevrL

    G. (1) Tresspasser cannot maintain an action for negligence, when his tresspass was the proximate cause of the injury. 58 Bart, 438. Contributory negligence on plaintiff’s part.

    II. (1) A twelve-year-old boy, with a companion bringing an injury by their conduct upon themselves, cannot recover. Hughs vs. McEie. 2 Hurlst & Colton 744, see also four-year-old child. Law Rep, 1 Exch, 239 ; 4 Hurlst & Colton. 388.
    (2) A child eleven years old, active and intelligent, is not incapable of taking care of himself, 33 N. Y, 643 afc p. 647,

      (3) A. twelve-year-olcl boy can be guilty of contributory negligence, Glover vs. Gray, 9 111., app 329. The boys knew they were wrong in cutting the corn.

    I. (1) Municipal ordinances, when tlie lawrcquiros it, must be published, that requirement is essential to give them the force of law. 38 IN'. J. Law 110, and cases in brief.
    (2)Courts do no not take judicial notice of ordinances.
    K. (1) A party pleading must prove the ordinance asa valid existing law of the municipality (that is that the essentials to its validity have been complied with) by competen evidence. 56 111. 317.
    (2) Only custodians of records can certify to what those records show.
    (3) The presumption that what city records show to have been done when certified to was done, only applies when the certificate of the custodian of those records certifies to the facts.
    (4) Facts not certified to can neither be presumed to have been nor be the basis of ai presumption. No proof of any kind which would justify the court in noticing the ordinance.

    L. (1) A penal law has not been broken till the act done which is claimed to be its breach warrants the infliction of its penalty.
    (2) Penal laws are strictly construed.
    (3) The ordinance in question wisely vests a discretionary power in the city officials. • ‘ Tfone, necessity and locality are important elements in determining the character of amy pa/rticular use of a highway. 35 17. H., 257.
    (4) This court will not inquire into or interfere with the exercise of that discretionary power. Defendant did not disobey the ordinance.

    M (1) Municipal ordinances cannot make negligence what was not negligence before. 8 Daly 317; 80 Mass,, 249, and cases in brief,
    (2) City ordinances cannot create civil liabilities. 45 Mich., 74j 40 Am. Pep., 457, and cases oited in brief.
    17. (1) The disobedience of the city ordinance is not negligence; it is evidence to be considered like any other evidence submitted for consideration. 89 Pa. St. 71; 129, Mass,, 310; 64 17. Y., 524 ; 63 17. Y., 522; 8 Daly 17. Y.,231; 84 17. Y., 488 reviews all the authorities.
   The opinion of the Court was delivered by

Manning, J.

The suit is for the recovery of five thousand dollars as damages for injuries to the son of the plaintiff caused by a sack of corn falling on him which broke his leg. The defendant keeps a grain or feed store on Poydras street, and the sack fell from the top rtf a pile of coin that had been placed on the banquette in front of his store. The lad, a boj1- of eleven years, was going by with two companions between seven and eight o’clock in the evening of the 11th of September 1883 when the casualty befell him. The case went before a jury who found for the plaintiff and assessed the damages at fifteen hundred dollars.'

An ordinance of this city prohibits any one from encumbering or obstructing the side-walks by depositing thereon any goods or other article except so long as may be necessary for loading or unloading. Sundry objections are made to our considering this ordinance, but they are made for the first time here. None were made on the trial below. The ordinance was received in evidence without objection, and the uniform rule is that when so received, objections come too late on appeal. Pannell v. Coe, 1 Mart. N. S. 614; Pickett v. Bates, 3 Ann. 628; New Orleans v. Congregation, 15 Ann. 389.

We do not think the testimony of the injured boy or of his companion of same age is fairly open to the criticisms made by the defendant. The story of both is substantially the same. They may be street gamins as he says and as vicious as those pests usually are, but there is no proof whatever that either of them contributed to the disaster by negligence or by action. We cannot follow ihe defendant’s counsel into the realm of conjecture, and assume that the injured boy cut one of the lower sacks and loosened the foundation of the pile, and thus precipitated the sack from the top. The proof does not establish such solution.

Nor was the failure of the plaintiff to call the third lad as a witness a circumstance of any moment. He was a child of only eight years and could scarcely “have cleared the obscurity and doubt” of his companions’ testimony.

The defendant was in fault at the outset. Ho had not only violated a city ordinance but a general law as well. No one can rightfully obstruct a side-walk under any plea, whether of convenience or necessity, except for such time as is actually needful to get his goods in and out l\is store. The public is entitled to free passage over any and every part of the side-walk, and this cannot be impaired with impunity’. Wood on Nuisances, secs. 261-5. Whoever unlawfully obstructs the passage over the side-walk is responsible for the consequences—not alone for the penalty the city authorities may have attached to the infraction of their ordinances—but for ulterior consequences as well. By placing himself in the wrong he shuts himself out from defences that might otherwise avail him, because when the act is inherently unlawful the question of negligence of the party injured by it does not arise. Salisbury v. Herchenroder, 106 Mass. 458. He is in a different position from one who occasions an injury by the imperfect doing of a legal act, in which case there is a carelessness that may be culpable though not wilfull, but in his case there is a positive defiance of the law and a resulting injury from the very act that constitutes that defiance. 1 Thompson on Negligence, 344-5.

Tlic fact that the defendant’s neighbors obstructed the side-walk in the same manner, and that many others habitually do it, is no legal excuse or palliation of his act when that act has occasioned injury to another. Months or jrears may elapse before a serious injury results from blocking the side-walks, and many score oí' shopkeepers may be equally culpable, but when injury has been done, the party who occasions it must bear the brunt of it.

We have carefully scanned the testimony of the extent of the injury. The trial was iu February last and the doctor was still attending the boy, who had been confined to his bed between six and eight weeks. He does not think the injury will be lasting except in so far as changes in weather will produce pain. The boy is not a cripple. We are not disposed to interfere with the verdict.

Judgment affirmed.

Rehearing refused.

On Application iron Rehearing.

Objection is made to that sentence of the opinion wherein it is said that the wrong-doer shuts himself out from defences which might otherwise avail him, because when the act is inherently unlawful the question of the negligence of the party injured by it does not arise. The sentence of Thompson intended to be paraphrased is;—“the act being inherently unlawful, the actor is answerable at all events for the injurious consequences and the question of negligence does not arise.” The author means negligence on the part of the.1 actor, i. e., if the act is unlawful it matters not whether it was carefully or negligently done, it is sufficient to shew the illegality and not necessary to shew negligence.

A reexamination of the record confirms us in the opinion expressed before that there is no proof of contributory negligence, and therefore there is uo need to say what effect proof of contributory negligence would have. It is proper however to correct the sentence touching it as above, aud since we find nothing else to correct,

The rehearing is refused.


author: Fenner, J. Roché, J. Manning, J.

text:
    No. 9203.
    Metairie Cemetery Association vs. Board of Assessors.
    A cemetery set apart and used for burying the dead, is a ‘“place of burial” within tlie intendment of Art. 207 of the Constitution, and, as such, exempt from taxation unless leased or used for purposes of private or corporate profit or income,

      The cemetery of plaintiff is not leased, nor is it used for any purpose of profit or income. Thofact that lots in tlie same are sold to persons for purposes of interment, does not constitute a use of the property within the moauing oí the law. The property here assessed, is the unsold portion of the cemetery. It has neither heen used nor sold for profit, and, evou if the latter were a use the condition of its exemption has not heen broken.
    Under the law of the State, shares of stock of corporations are only taxed on the surplus of tlioir value above the value of the real estate belonging to the corporation. As the proof is perfect that the stock represents absolutely nothing but the value of the ex. empted real estate, it is clear that there can be no surplus value of the stock for taxation.
    A PPEAL from the Civil District Court for the Parish of Orleans. AJl. Lamrus, J.

      Brecmx cmd Hall for Plaintiff and Appellee.

      Walter H. Rogers, City Attorney, Wynne Rogers and L. O'Donnell, Assistant City Attorneys for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The owners of a certain tract of land formerly known as the Metairie Eace Course, with certain other individuals, iormed themselves into a corporation under the general law of the State, for the purpose declared in their charter, to be the establishment and maintenance of a cemetery and graveyard” on the property above mentioned.

In 1873, the legislature, by Act No. 60, of that year took cognizance of the act of incorporation, and made it a penal offense to wilfully destroy any tomb in said cemetery, remove auy body therefrom or cut or break any tree or plant therein, and further exempted the property of the association from all taxation, State as well as municipal or parochial, so long as it remained dedicated to the purposes of a cemetery.”

The general revenue acts of the State, at and prior to that time, exempted from taxation, cemeteries and graveyards set apart and actually used for the purpose of interring the dead.” Article 207 of the Constitution of 1879, expressly exempts from taxation “ all places of burial—provided such exempted property be not used or leased for purposes of private or corporate profit or income.”

The uncontradicted evidence fully shows, that the property has been established and maintained as and remains exclusively dedicated to the purposes of a cemetery; that large expenditures have been made to fit it for this sole purpose; that it has been enclosed with appropriate walls and fences j that buildings proper for the temporary reception of the dead have been constructed; that avenues, drives and walks have been built; that trees and flowers have been planted, and that all the resources of landscape gardening have been employed to beautify and ornament the grounds; that they are divided into plots appropriate for use for tombs and burial places; that many interments have taken place and expensive tombs have been erected; that persons are employed to supervise and .care for the cemetery; that the property is not, and has never been used for any other purpose.

At the formation of the corporation a capital stock was formed, fixed at $120,000, divided into 1200 shares of $100 each. Of this stock, eight hundred shares were assigned to the owners of the property in.consideration for its transfer to the corporation, while the remaining four hundred shares wore taken by other subscribers who paid for the same and the funds arising therefrom wore to be, and were employed in “ the embellishment, improvement and ornamentation of the cemetery.” Large additional sums have been expended for the same purpose'1.

No attempt was ever made to tax this property until the year 1883 when the defendant Board of Assessors, for the first time, placed it upon the assessment rolls of 1883. In so doing, they valued the stock of the corporation at $118,000. They valued the cemetery at $50,000. They deduct the latter from the former sum to ascertain .the taxable value of the stock; and they return the company for taxation on real estate, $50,000, and on surplus stock, 08,000, making total of $118,000.

After timely and formal application to the Board for the cancellation of this assessment, and after refusal by the Board, the plaintiff brings the present action to compel such cancellation.

Amongst the several grounds of exemption urged by plaintiff, we find it necessary to notice only one, viz: That based on Art. 207 of the present Constitution, which, as we have seen, exempts “all places of burial—provided such exempted property be not used or leased for purposes of private or corporate profit or income.”

We will consider:

1. The taxability of the property.

2. That of the stock.

I.

That this property is, as a whole and in all its part, a cemetery, no ono can dispute. It is used for that purpose and for no other. To that purpose it is dedicated in the charter of the corporation. No suggestion is made that it is excessive in extent or that any fraud upon the law is contemplated by seeking under that name, to cover from taxation property not really intended or expected to be used for that purpose. On the contrary, the apin-opriateness of the dedication has been expressly recognized by the law-making power in Act No. 60 of 1873, above referred to.

Now, what is a cemetery"? Lexicographers define it to be “ an area or place where the dead are buried.” Worcester’s Dictionary.

In other words, it is, in the very language of the Constitution a place of burial,” by which is meant undoubtedly a place dedicated and set apart for the burial of the dead. The attempt to restrict the meaning of the words of the Constitution to the narrower import of tenanted graves, spots of ground actually occupied by buried corpses, is utterly vain. The words are to be interpreted according to the known habits and usages of the people, which are to congregate their dead in places set apart for that sacred purpose, encircled by holy influences and subject to regulations for preserving the decency, peace and sanctity of all their surroundings.

What would be the security of those who venerate their dead, if the tax-gatherer might enter such sacred precincts and sell, at public outcry, the land adjoining their tombs to some publican who might build thereon a bar-room or a brothel ?

The words are to be interpreted also with reference to existing and prior legislation on the same subject,' which had exempted from taxation cemeteries and grave yards set apart and actually used for the purpose of burying the dead.” Rev. Statutes, Sec. 3233.

The obvious intention was to give a constitutional sanction and guarantee to such ancient and habitual exemptions. Wo have not a doubt that this cemetery, as a whole, is a place of burial” within the intendment of the Constitution. Then it is exempt from taxation, unless, under the proviso of the Constitution, it is leased or used for purposes of private or corporate income or profit.

That it is not leased for any purpose is fully proved.

The evidence is equally perfect that it is not used for any other purpose than that of a cemetery, or for any purpose which yields any private or corporate profit or income. The sole fact, upon which is predicated the charge of use for corporate profit, is that the corporation sells plots of the ground to persons desiring to build tombs and bury their dead therein, at prices which, if all were sold, would yield a profit on the investment.

But, it is to be observed that such sales do not, in any manner, change the use of the property but rather preserves and confirms its use and dedication as a place of burial.

In establishing this exemption, the law concerns itself exclusively with the quality and use of the property, and not at all with its ownership or disposition. So long as it retains the character of a “place of burial,” it matters not who owns it, how often it may change hands nor at what prices—as a place of burial,” it remains exempt. The sale of property is not an use of it within any signification, technical o.r general, of that word.

Every cemetery belongs to some owner; and the lots therein are not usually given away, but are sold to persons desiring to acquire them for purposes of interment. If the law had intended to exempt such “places of burial,” only on condition that they should not be sold, it would have said so. Under such construction, the unoccupied lots of perhaps every cemetery in New Orleans, would be 'equally liable to taxation -with those of plaintiff. Indeed, churches, hospitals, orphan asylums and other exempt property are equally subject to be sold at the will of the owners, and on the same theory might lose their exemption. Possible profits on such sales are not matters of judicial concern.

But, such construction would be absurd; because, then until sold, the condition of the law would not have been violated; and, when sold, how could the property be taxed to the seller ? Thus, in the instant case, the property assessed is admitted to be the unsold portion of the cemetery. As we have held, it is “ a place of burial,” within the intendment of the law. It is clear from the evidence that it is not used for any purpose of profit or income; and it has not been sold. Then in what way has any breach of the condition which excludes exemption been committed ?

The question answers itself. This property is exempt from taxation and was improperly listed on the assessment roll.

II.

The question as to the taxability of the stock is equally free from difficulty.

The proof is perfect that this corporation has no source of revenue or income. It conducts no business except that of administering and caring for the cemetery, which is simply productive of expenditure. It has no accumulated funds. Its stock originally represented its rqal estate and the improvements thereon. As lots have been sold, the proceeds, not consumed in improvements, have been returned to the stockholders in reimbursement of their investments, and have passed into the domain of taxable private values. The sold lots are a diminution pro tanto of the property of the corporation. The stock now represents nothing but the value of the real estate remaining unsold.

Whatever bo the power of the legislature to subject to taxation, shares of stock, independently of any consideration of the elements which give them value, the law in force in this State only taxes the surplus of their value, over and above the value of the real estate owned by the corporation. The fact that this real estate is exempt from taxation, does not impair, but increases its value, and that value must still be deducted from the market value of the stock in order to ascertain the surplus liable to taxation.

In this case, as the stock represents absolutely nothing but the real estate, it is clear that it can have no surplus value. The attempt of the assessors to create an apparent surplus by assessing the real estate at less than one-half the value of the stock cannot succeed. They have themselves elicited evidence found in the record, tending to show that the property is really worth more than the market value of the stock. But, in truth and in fact, the market value of the stock is simply and necessarily the market value of the real estate, and there is, and can be, no surplus for taxation.

Judgment affirmed.

Rehearing refused.

Concurring- Opinion.

Roché, J.

In my opinion the exemption claimed by plaintiffs could not have been sanctioned under the act of 1873, or any other legislation conforming to the Constitution of 1868. The property of plaintiff corporation is not used for either church, school or charitable purposes,” the three enumerated objects which that Constitution contemplated as warranting an exemption from taxation of any property.

But it is equally clear to my mind, that, independently of any legislative action, the property of that corporation is exempt from taxation under the provisions of article 207 of the present Constitution, which are self-operative; and are beyond the reach of adverse action of the legislative, as well as of the judiciary, departments of the government.

I see no reason or evidence in the record sufficient to render this corporation amenable to the proviso contained in the article of the present Constitution to which I have referred.

The whole ground owned by the corporation is dedicated exclusively to the burial of the dead. The lots which are actually occupied by human bodies, have ceased to be the property of the corporation, and the remaining lots, which are the only property of the Association, are neither leased nor used for any purpose whatever.

Hence I fail to see how it can be conceived that the property of the corporation, which is, in every sense of the term, a place of burial, is either “leased or used for private or corporate profit or income.” The funds realized from the sale of lots are applied first to the payment of expenses necessary to maintain and embellish the grounds, preparatory to sales of lots, and the surplus is used in reimbursing the stockholders for the respective amounts contributed by them towards the purchase of the grounds and the laying out of the cemetery.

If it should happen in the remote future, that an entire sale into burial lots of the whole ground, would realize an amount in excess of the original cost price, and of the disbursements made for the administration and maintenance of the cemetery, the distribution of that surplus fund among the stockholders, could not in my opinion be considered as a private or corporate income or profit. It would not be more significant in that sense than the enhancement in value of any property owned and used for religious, charitable or school purposes, and for those reasons exempt from taxation under the present Constitution .

The property of many churches, charitable and otherlike institutions, situated in the central portion of a growing city, have doubled and trebled in value, and are sometimes sold for the purpose of removing such institutions from business centers. I imagine that no one would dream of qualifying the capital thus increased as either a corporate income or profit.

It is plain to my mind that the term “ places of burial ” as used in the Constitution is synonymous with “ grave yards ” and “ cemeteries ” and that plaintiff’s cemetery is as justly entitled to exemption, as any of the numerous “graveyards ” and “ cemeteries ” in this State, which are all owned by corporations, either church or private.

I find a striking analogy between the grounds which justify an exemption in this case, and those which were presented in the case of the State ex. rel Administrator Tulane Education Fund vs. Board of Assessors, 35 Ann. p. 668, and I refer to my dissenting opinion in that case for additional reasons in support of my concurrence with the opinion prepared by Mr. Justice Fenner in this case.

Dissenting Opinion.

Manning, J.

Exemptions from taxation are rigidly construed, and the rule holds good in the interpretation of orgánicas well as statutory law.

The Constitution of 1868 empoweied the legislature to exenqpt from taxation property actually used for church, school, or charitable purposes, art. 118. A cemetery is not used for either of these purposes, and therefore when the legislature in 1873 exempted from taxation the property of the plaintiff, Sess. Acts, p. 117, its action was null because beyond the power conferred upon it.

The ingenious argument of the plaintiff’s counsel that a cemetery used by a Christian community who inter their dead with the ecclesiastical ceremonies, is used for church purposes will not apply to the plaintiff association. Its property is for sale to all the world, restricted only to the use of it for burial. A Pagan or Mahomedan or Chinaman or Jew may buy a lot for the burial of the dead of Ms faith therein, and the non-Christian might be laid there without any ecclesiastical ceremony at all.

The constitution of 1879 exempts from taxation places of religious worship or burial provided they are not used or leased for private or corporate profit or income. Art. 207. The lots in this cemetery that are already sold are places of burial not used for income either private or corporate and are exempt, but the land not yet used and still held for corporate profit is not protected by the Constitutional exemption.

Tho self-imposed restriction of the ground to burial purposes alone is in the Association’s own interest. No one would buy a lot for a burial-place if other parts of the grounds were or could be sold for purposes that wound the sensibilities or invade the sanctity that envelops the last resting-place, of our friends. And that the property is a good commercial investment is made plain by the evidence that the stock is quoted on ’Change and was worth 112 in January 1883 and has been as high as 120, the par value being 100. Only a little more than one-tenth of the land has been sold and realized $100,000. while the original purchase with the subsequent cost of converting it into a cemetery and beautifying it somewhat exceeds that sum. The same prices for the unsold land will realize to the plaintiff three quarters of a million dollars on an investment of $120,000. Such return is enough to satiate the cupidity of the most ardent speculator without trading on reverence for the dead.

Bermudez, C. J., concurs in this opinion.


author: Poché, J.

text:
    No. 9295.
    The State of Louisiana vs. Tony Taylor.
    An alleged defect in an indictment cannot be reviewed on appeal if urged in a motion for new trial. Such a grouud must be presented by means of a motion to quash or a motion in arrest of judgment. f

    A complaint, in a trial for burglary, that the evidence failed to show that the deed was com * mittod during the night time, and that the evidence which was circumstantial was notu suflicient to convict, embodied as a ground for a new trial, cannot be considered by this Court, whose jurisdiction in criminal cases extends to questions of law alone. The Supreme Court cannot review the verdict of the jury on questions of fact. The jury are the sole judges of the guilt or innocence of the accused under the evidence.
    APPEAL from the Twenty-fourth District Court, Parish of Plaque-mines. Idvaudais, J.

      M. J. Cimningham, Attorney G-eneral, and James Willdnson, District Attorney, for the State, Appellee.

      J. (?. MaeMahon for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Defendant appeals from a conviction of burglary under section 852 of the Revised Statutes.

His complaint, embodied in a bill of exceptions, is levelled at the judge’s refusal of a new trial.

The grounds of his motion were in substance:

1. That the indictment was defective for the reason that it failed to set forth the hour of the night at which the alleged crime was committed.

2. That the evidence failed to show that the deed was committed in the night-time, that the building which had been broken was appurtenant to a dwelling house, and that the circumstances making up the only evidence in the case, were not sufficiently strong to justify a conviction.

1. His first ground, which is an objection to the indictment, even- if correct, cannot be presented in the shape of a motion for new trial-. If it be an error of form, it should have been met by a motion to quash the indictment; if an error of substance, it should have been urged by means of a motion in arrest of judgment. Under elementary rules of criminal practice, both in this and in our sister States of the Union, a new trial cannot be granted on such a ground.

2. Counsel for the defense has not been more fortunate in the selection of his mode of presenting the second ground of his complaint.

In urging that ground in the shape in which he presents it, counsel has entirely lost sight of the restricted character of our jurisdiction in criminal cases. The Constitution has interposed an impassable barrier to any attempt on our part to review tlie verdict of the jury on ques" tions of fact, Art. 81, and has limited our jurisdiction in such cases to questions of law alone.

The substantive meaning of the complaint is, that the jury convicted the accused on insufficient evidence. The jury were the sole judges of the question; whether the prooi shows that the deed was committed in the night-time, or whether the building was appurtenant to a dwelling house under the meaning of the statute, or whether the circumstantial evidence introduced and relied on by the State was sufficient to convict.

Had the accused asked the judge to charge the jury that the elements which he sots forth were essential to a conviction of burglary under the section which was the legal basis of the prosecution, and had the judge declined to give such au instruction, a bill taken from the judge’s refusal would have presented a question of law subject to our review. But, an attempt on out part to judicially entertain the merits of the motion for a new trial made by the defendant, on the grounds therein set forth, would involve us in a flagrant usurpation of jurisdiction. Such a power is not conferred, but is industriously withheld by the Constitution.

Conceding, for the sake of argument, that the jury made erroneous findings on all the points suggested by the accused, we are powerless to review their conclusions, because such a course would be “trying the case over again as to the facts.” State vs. Polite, 83 Ann. 1016. The record presents no error subject to our review.

Judgment affirmed.


text:
    No. 9260.
    Moses Schwartz vs. W. B. Schmidt et als.
    In a revocatory action tlie jurisdiction of this Court is determined not by tlie value o f the property, tlie sale of which is sought to be annulled, but by the amount of the creditor’s . demand, exclusive of interest.
    A PPEAL from the Civil District Court for the Parish of Orleans. r\ Houstcm, J.

      Brcmglm, Bucle & Binlcelsjpiel for Plaintiff and Appellee.

      W. 8. Benedict for Defendant and Appellant.
   Tlie opinion of the Court was delivered by

Todd, J.

This is a revocatory action instituted against the defendant to set aside a sale made by one Frank E. Poacher to W. B. Schmidt, one of the defendants.

From an examination of the record we find the case is not within our jurisdiction ratíone materice.'

The action is based on a judgment in favor of Schwartz, plaintiff herein, against Frank E. Foucher for $1838 exclusive of interest.

We have repeatedly held in actions of this character, that the jurisdiction of bilis Court is determined by the amount of the creditor’s claim resorting to such suit against the defaulting debtor, and not by the value of the property of which the sale is sought to be annulled, Loeb & Bloom vs. Avantiba 33 A. 1086; and Zuberbier & Behan vs. R. S. Morse, recently decided and not yet reported; see also Schmidt & Ziegler vs. Brown & Strass, 33 Ann. 416, and Buffington vs. Blouin, 36 A. 326.

And in considering the amount of the debt upon which the creditor bases his action, we cannot include the interest, but must be governed by the principal of the demand. The action, in other words, is but the means to collect a debt, the capital of which is $1838.

The question of jurisdiction has not been discussed by counsel of either party, but this Court of its own motion must notice and act upon it.

The appeal is, therefore, dismissed at the cost of the appellants.


text:
    No. 9286.
    The State of Louisiana vs. O. H. Schonhausen et als.
    The license for keeping a fix:ed place for concert, dancing, and variety performances is one thousand dollars. The Act of 1882 imposing that license is constitutional, State v. O’Hara, 36 Ann. 93 affirmed.
    When an appeal is taken from a judgment for the amount of the license manifestly for delay, ten per centum upon the amount of the license will be adjudged as damages for a frivolous appeal,
    APPEAL from the Civil District Court for the Parish of Orleans. BigMor, J.

      John McBnery and W. B. Sommerville for Plaintiff and Appellee.

      F. Kernan for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

This ai>peal is from a judgment condemning the defendant Schonhausen to pay a license of one thousand dollars for keeping a fixed place for concert, dancing, and variety performances in this city.

The defence is the same as that urged in State v. O’Hara, 36 Ann 93 and is untenable for the reasons given in that case.

The judgment was rendered in June 1884 and a suspensive appeal was taken. The State prays for ten per centum upon the license as damages for a frivolous appeal. We shall inflict it.

The decision in the O’Hara case had been rendered several months when the judgment in this case was pronounced and the appeal taken, and the same O’Hara is a co-defendant with Schonhausen here, although the latter avows himself sole proprietor.

It is therefore ordered and decreed that the judgment of the lower court is affirmed, and that iu addition thereto the State do now have and recover of the defendant Schonhausen ten per centum upon the judgment below as damages for a frivolous appeal and the costs of both courts.