author: Seencer, J.

text:
    No. 5502.
    William S. Peterkin vs. George Martin.
    Except in a ease when there is an express agreement in derogation of the general rule, the safe of goods, produce, or merchandise by weight, tale, or measure, is not perfect, and the goods at the risk of the buyer; until they have been weighed, counted, or measured.
    The purchaser of goods who has paid their price knowing them to be damaged when he paid for them, is not thereby estopped from suing for a diminution of price, and damages, when it appears that there was an understanding between him and the seller, at the moment of payment, that his rights of reclamation were reserved.
    A vondor who is ignorant of the vices of the things sold, is liable only for the difference, at the time and place of sale, between the actual value of the thing sold, and what it would have been worth if sound; and the expenses connected with the sale.
    PPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Thomas J. Semmes and Robert Mott for plaintiff and appellee.

      J. Ad. Bonier for defendant and appellant.
   The opinion of the court was delivered by

Seencer, J.

This case has been argued before us concurrently with that of “ Peterkin vs. Oglesby & Co., and Higby,” just decided, upon the suggestion that they involved substantially the same questions. But, as will be seen in the opinion in that case, we held that the plaintiff had failed to prove satisfactorily that the corn bought of Oglesby was, in fact, at the time of its weighing and delivery unsound.

In the present ease, however, it is shown that, at least, that part of the Martin corn which constituted the last put aboard the vessel was, at its delivery on the fourth and fifth May, in a damaged and heated condition. This lot so last put on board consisted of about 2084 bushels of yellow, and 892 bushels of mixed corn, all belonging to Martin; and this mixed corn was evidently of the same lot of mixed corn that Martin had sold to Peterkin, and of which 5764 bushels had been run aboard with the'Oglesby corn, since it is shown that all of Martin’s mixed corn was kept together in the bins of the elevator. We think the evidence justifies us in concluding that the Martin corn was not, at the, date of its weighing and- being put aboard, in good, sound, merchantable condition.

The evidence shows that the plaintiff at time of contract agreed to pay the market price of good, sound corn, and he was entitled to such an article, unless there are circumstances in this case which vary the rule that a sound price entitles the purchaser to a sound article.

This the defendant contends is the case. He says that on the tenth April he sold the plaintiff all the mixed corn he had in the elevator, being six, seven, or eight thousand bushels, at sixty-five cents per bushel, to be taken away in a few days, and he contends that at that date it is not shown that the corn was unsound. That it was a sale of a determined lot, and that it put the thing at the risk of the purchaser from that date; that the sale was complete and perfect, therefore, on the tenth April. We do not think so. Article 2458, Civil Code, provides: ■“When goods, produce, or other objects, are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect, inasmuch as the things sold are at the risk of the seller until they be weighed, counted, or measured, etc.” Article 2456,'C. C., declares the sale “to be perfect between the parties, and the property of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, or the price paid.” We apprehend that in a case like this (admitting, for the sake of the argument, it was a purchase of all the mixed corn of Martin in the elevator, though Peterkin seems to deny this),, where the quantity was stated to be between six and eight thousand bushels, at sixty-five cents per bushel, the price was not agreed upon and ascertained in the sense of article 2456. Had. the elevator taken.fire, and the corn been consumed before it was weighed, defendant could not have sued for any specific sum as the ascertained price of the corn. We think the rule of article 2458 governs this case. That by the very terms of that article a sale “ by weight, tale, or measure,” is not a sale “ in lump.” We agree with plaintiff’s counsel that there can be no sale in lump, except for a lumping price. These views, are, we think, in harmony with the jurisprudence of this State. See Goodwyn vs. Pritchard, 10 A. 250, where the precise point is decided. Also, Larue vs. Blair, 10 A. 242; 21 A. 235 and 414. Nothing short of an express agreement, in a case like this, will put the thing before it is weighed at the risk of the buyer. The argument of defendant’s counsel as to the inexpediency or improbability of selling such articles as corn, eggs, butter, etc., subject to the call of the purchaser, can not vary a rule of law, or supply the place of proof that there was an agreement to vary it. It may be that a seller would do a very foolish thing in so doing, but if he does do it, he has no one to blame but himself.

We hold, therefore, that the sale was not perfect until the weighing and delivery (which are contemporary acts at the elevator) on the third and fourth of May.

As we have stated, the evidence satisfies us that the Martin corn was not in good merchantable condition at that time, and was not such an article as the defendant should have delivered. But it was loaded on a vessel which the plaintiff had chartered at heavy cost, and was mixed with other corn before plaintiff discovered its condition. It was impracticable to cancel the sale under these circumstances; and the purchaser had the right to keep the thing, and “ content himself with resorting to ” an action for diminution of the price. C. 0. 2541, 2542. These were the rights of the plaintiff on the fifth of May.

On the eighth of May, after some ineffectual efforts at adjustment, Martin brought suit and sequestered the corn on board ship. On the ninth May Peterkin paid him the full amount demanded, and thereby release! the com from seizure. On the one hand it is contended by Martin that this payment after suit, with full knowledge of the defects of the thing, estops plaintiff from bringing this suit now before us— which was only filed June 5, nearly a month after the payment. On the other hand Peterkin contends that said payment was made under duress and circumstances which deprive it of the character of a voluntary payment. That he had chartered the ship Oaspari, at heavy cost; that she was loaded with 23,000 bushels of corn; that he had borrowed money in bank to- make payments on her cargo, and given bills on London, with the promise to procure and annex the bills of lading; that the ship was on demurrage at a cost of eight pounds sterling per day; that this seizure prevented her sailing, and prevented his getting the bills of lading, and that it would have been ruinous to have awaited the results of a lawsuit. Under these circumstances, he paid the price.

Even if it be true, as contended by defendant’s counsel, that a payment after suit, and in consequence of suit, can under no circumstances be held to have been made under duress (a proposition we are not prepared to unqualifiedly assent to), we think, under the facts of this case, the payment was made with the understanding and agreement that plaintiff’s rights of reclamation were reserved.

The defendant himself in his testimony says that after Ms seizure of the corn Mr. Chism came to him on behalf of Mr. Peterkin, and proposed to leave the matter.to arbitration; and that if he consented, Peterkin would -at once pay the money, which defendant assented to. He says in another place that the proposition he accepted was “ that the bill should be paid, and the matter left to arbitration.” Chism substantially confirms these statements of Mártin. Peterkin paid the amount of the defendant’s bill on the ninth May. Under these circumstances, and in view of the strong equities of the plaintiff’s claims, we are not disposed to enforce a doubtful and harsh rule which would cut off all right of reclamation.

The plaintiff’s right of reclamation being determined, the next question is the extent of defendant’s liability. Is he liable only for the difference between the value of the corn delivered and that of a sound article, at the time and place of sale ? Or, also, for the damages suffered by plaintiff by delay and expenses of unloading the ship and passing the corn through the elevator again and reloading it, as well as for expenses of surveys here and in Ireland, loss on resale in Ireland, shrinkage, freights, etc.

The rule is that, where there is no fraud or bad faith, failure to comply with a contract renders the party liable only for such damages as the parties must have reasonably foreseen as the direct and immediate consequences of the breach.

It results from article 2545, C. C., that a vendor ignorant of the vices of the thing sold is not responsible in damages, but only to restitution or diminution of the price and repayment of expenses connected with the sale.

Now it is not shown satisfactorily that Martin even knew that this corn was bought for shipment to Europe, or for other long voyage. Peterkin says Martin was informed it was to be shipped, but does not say where. Martin denies that he knew any thing about its destination. There is no pretense of proof that Martin knew any thing of the unsoundness of the corn, or was in any way guilty of concealment, deceit, or fraud.

“In cases of this sort, where the seller is not cognizant of the hidden defects of the thing sold, he is liable for the difference, at the time and plctce of sale, between the actual value ” of the thing sold, and what it “ would have been worth ” if it had. been a sound article. “ The actual loss incurred by plaintiff in'the foreign market where he sold the thing * * * is not the rule of damages, although it may be considered with other evidence for the purpose of estimating the per centage of’inferiority.” Fuller vs. Cowell, 8 A. 136; see, also, 1 A. 27; 2 A. 67; 7 A. 613.

We think the rule, as stated above by Eustis, C. J., in Fuller vs. Cowell, is correct, and we shall apply it to this case.

In this record there is no very satisfactory proof of what was the value of this corn delivered to plaintiff by defendant at the time and place of sale, to wit, New Orleans, May 5, 1871. In the case of Peterkin vs. Oglesby, above referred to, the evidence on this subject is more full and satisfactory; but we can not regard that evidence in this case. The testimony taken in England shows that the com was sold there at a loss of about twenty-five cents per bushel. Plaintiff in his original petition in this case alleges that it was worth about fifty cents per bushel here. That petition was filed about a month after the sale. We think that in the interest of all parties this litigation should, if possible, be now terminated ; therefore, we will adopt fifty cents per bushel as the actual •value of the com delivered on May 5, 1871, in New Orleans. This would make a difference of fifteen cents per bushel; the corn having been bought at sixty-five cents. The number of bushels sold was 8735 41-56, which, at fifteen cents, amounts to 51310 35, for which we think plaintiff should have judgment. We allow nothing to plaintiff for the unloading and re-elevating the corn to fit it for sea voyage, because the evidence does not satisfy us that defendant knew plaintiff’s purposes in buying, and could not, therefore, have foreseen this expense.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, and it is now ordered and decreed that plaintiff, William S. Peterldn, do recover of the defendant, George Martin, 51310 35, with legal interest from seventh day of June, 1871, till paid, and costs of both courts.


source: Caselaw Access Project

author: Spencer J. Egan, J.

license: Public Domain

text:
    No. 7096.
    Fritz Hackenburg vs. Mrs. C. Gartskamp, Tutrix, et al.
    A contract ol mandate for tho purchase of real estate can not be proved by parol evidence, even when fraud in the alleged agent is set up.
    Extra judicial admissions and confessions of a party can not be proved by parol, in a case where testimonial proof is inadmissible.
    APPEAL from the Second Judical District Court, parish of Orleans. Pardee, J.

      J. N. Hagins and J. Q. A. Fellows for plaintiff and appellant.

      B. G. Elliott for defendant and appellee.
   The opinion of the court was delivered by

Spencer J.

On 17th February, 1866, Mrs. Chiapella, by public act before Selim Magner, notary, executed in favor of John Gartskamp an act of sale of three lots of ground in the Sixth District of New Orleans, wherein she acknowledges to have received from him the price, as follows : $500 cash, and the note of purchaser for $500 more, payable to 'his own order, and endorsed at one year.

John Gartskamp died some years ago, and said property was inventoried as part of his estate, and is in possession of his widow and heirs, defendants in this suit, who produce and file in evidence herein the note above described.

On 10th January, 1878, plaintiff brought this suit against said widow and heirs, and alleges — ■

First — That he purchased by act .before Selim Magner, notary, on the 17th of February, 1866, these three lots and paid the price thereof, one thousand dollars, to Mrs. Chiapella.

Second — That John Gartskamp, deceased, acted as his agent and took the title in his own name.

Third — That Gartskamp repeatedly acknowledged the property to be plaintiff’s and promised to transfer it, and would have done it, but for his death.

The case came up for trial on first of February, and plaintiff amended his petition, alleging—

Fourth — That Gartskamp took the title in his own name without the knowledge or consent of xsetitioner, concealed said fact from petitioner for a long time in fraud, and that on making the second payment, nine months after the sale, petitioner was still ignorant that the title ■stood in Gartskamp.

On the trial plaintiff offered to prove these allegations by his own testimony, and that of other witnesses, which testimony being objected •to by defendants, as inadmissible, was rejected by the court, to which plaintiff excepted. There was judgment for defendants, and plaintiff appeals, and presents as the sole ground for decision the admissibility •of parol evidence to prove the allegations of his petition. He does not produce or pretend that there ever existed any written evidence whatever of the facts he alleges.

First — He i seeks to prove by parol a contract of mandate for purchase of real estate, which is prohibited by article 2992 O. O.

In Muggah vs. Greig, 2 L. 593, where the title of a slave was in Muggah, but the possession in Greig, who set up that the purchase was made for him, with his money, and that the slave had been delivered to him, this court said :

In the contract of sale or other transfer of immovables required by law to be made in writing and which the parties are not permitted to support by testimonial proof, written evidence ought to be produced, as being alone legally admissible to establish the authority by which an agency is assumed for either of the contracting parties.”

But the ease of Baden vs. Baden, 4 L. 166, is still more pointed and conclusive. That suit was brought to compel the defendant to convey and transfer to the plaintiff certain lots of ground, which plaintiff alleged were bought for her deceased husband (of whom she is heir), through the agency of defendant, who fraudulently took title and refuses to convey. The defendant in that case, as in this, offered in evidence an authentic act of sale to himself, showing that he took the title in his own name and paid the price, part in cash, and. gave his note for the balance.

Plaintiff offered to prove by parol that defendant, in making said purchase, acted as agent of her husband. The evidence was objected to. This court say, “the decision of. the case depends entirely on the legal admissibility of testimonial proof to establish a contract of agency relating to sales and purchases of real- estate.” It then states that the negative had been held in Muggah vs. Greig, 2 L. 593, and continues, “ But plaintiff’s counsel claims the right to introduce parol proof to establish the mandate against defendant, on -the ground of allegations of fraud against him in the petition. It is perhaps true, that contracts however solemnly entered into in appearance, and however completely clothed with legal formalities, may be annulled on account of simulation and fraud; and to prove such simulation and fraud, testimonial proof may be resorted to ; but this can be legally done only when necessity requires an infringement of the general rules adopted to protect the inviolability of written contracts. The provisions of our Oode render incompetent all oral testimony to prove a contract relating to the sale of real estate; and no means are left to a vendee of such things to enforce a verbal agreement to sell, except the oath of the vendor, although there is certainly a want of good faith and fraud on his part,in not'performing his promise. When third persons attack contracts for fraud, testimonial proof is of necessity admissible to establish it. But when the allegation of simulation and fraud comes from one of the parties to a contract, he is bound to establish it by some written evidence, such as counter letter, etc.” The court then says that “plaintiff’s object is virtually to make out a title in herself to real estate by oral evidence aloho,” by basing her claim on a parol contract of mandate. “To admit such proof would, in our opinion, violate the rules of evidence ordained by the articles o'f the Code and destroy the protection intended to be given by them to proprietors of the most important property (real estate) in the State.” See, also, 10 R. 35; 1 A. 73; 3 A. 333; 5 A. 132 and 201.

Second — Plaintiff seeks to.prove by parol the acknowledgments and extra judicial confessions of Gartskamp, in support of a demand, “ of which testimonial proof would be inadmissible,” which is not permitted. See 0. C.' 2290.

If plaintiff’s pretensions were admissible, the last barrier of safety for titles of real estate would be gone; for it would be then, by false swearing, possibl¿ to defeat every title.

• What the plaintiff alleges may be true; yet it is far better that he suffer the penalty of his own negligence than that the door to fraud and perjury be thrown open and titles to real estate be rendered insecure.

There is nothing in the case relied upon by plaintiff, 7 Mart. 243, “Hall vs. Sprigg,” to show that there was not written proof of the agency. See review of this case in 2 L. 593, above cited. The claim was that the defendant acting as-plaintiff’s agent, and buying with his money, had taken the title in his own name and refused to convey it to his principal. The objection was that parol evidence was inadmissible against or beyond the contents of the written title to defendant. The court said:

“ No such thing is .attempted here as contradicting the contents of the act; the plaintiff admits the whole of it; but he says that no such act ought to have been executed to the defendant in his own name, because he purchased as agent; and he says that after having caused the instrument to be so made, he is bound to transfer the property to his principal.”

But if that case (which was decided .under the Code of 1808) can be •construed as establishing the doctrine that by merely alleging parol agency in a purchase of real estate, and fraudulent- refusal to convey, one can recover real property, and maintain and establish title thereto, wholly by parol proof, we must say that it is in direct conflict with what are now fundamental principles of our law of titles, and overruled by the jurisprudence of half a century.

In the case of Caldwell vs. Hennen, 5 R. 20, cited by plaintiff, the agency was conclusively shown by written memoranda and other papers, made by A. Hennen, who actually made a formal title to his principal.

In Livingston vs. Morgan, 26 A. 646, also cited by plaintiff, the defendant had written numerous letters to plaintiff’s mother acknowledging the agency, and besides freely admitted on trial all the facts, but defended his rights on the ground that plaintiff had not provided the money to meet his (defendant’s) notes given for the price, after due notice to do so, and that,-as he had been left to pay for the land out of his own means, it was his, etc.

In conclusion, we would say that an action to enforce the contract of mandate, the trust of which it is alleged the agent has fraudulently violated, presupposes that there was such contract; and such action must fail when no legal proof of this fundamental fact is produced. In other words, one must establish by legal evidence the existence of a contract before he can show by parol its violation,

There is no error in the judgment appealed from, and it is affirmed with costs.

Dissenting Opinion.

Egan, J.

The reports of the decisions of this court are full of cases where parol evidence has been received and considered to affect title to real estate where fraud or error are charged. Were it otherwise, the doctrines of the law and the provisions of the Code on the subject of the effect of fraud and error invalidating contracts may as weli be expunged, as those guilty of fraud seldom or never leave written evidence of the fraud behind them, and error can seldom be otherwise shown. See C. C. 1881 and 1882. The reason why the true character of a simulated or pretended conveyance of real property can not ordinarily be shown as between the parties otherwise than Joy a counter letter, is because such conveyances are usually made to effect some fraudulent purpose, such as to shield the property of a debtor from the pursuit of his creditors, and in such case another principle of law intervenes and the law leaves the parties to the fraudulent conveyance where it finds them. That this is so, is manifest, becaus’e even in the same case, without any specific provision of the law in exception of the rule requiring written evidence to affect title to real estate, the courts have always permitted creditors to avoid the fraudulent contract made to their prejudice, arid for this purpose, to introduce parol evidence. Indeed, it may be doubted if we are without positive warrant for this in the general provision of article 1848 of the C. C. as to how fraud may be proved— (i. e.) by simple or by conclusive presumptions, or by other evidence — a provision of the law which has been uniformly interpreted in all that class of cases to permit the reception of parol evidence of the fraud. So, also, in regard to the proof of error, see 15 L. 311, Robert vs. Boulat, 9 A. 29, in which case the defendant was allowed to prove by parol that he was the real and actual purchaser of real estate instead of another person, to whom the sheriff had, through mistake, made the deed, and in whose name it had stood for years on the record. I think that the doctrine is as much consecrated in our law as in any other system that “ uberrima fieles” is required -of agents acting for others, and that they can not profit by their own fraud to appropriate either the money or the property of their principals; see Newton vs. York, 13 A. 18. To permit this would be to offer a premium for fraud and dishonesty. There is no propriety in applying to such cases the provision of the C. C. requiring a power of attorney to buy real estate to be in writing. It seldom happens that the principal who signs the power retains, or has any written evidence signed by the agent, of his acceptance of the trust or agency. The requirement that the power shall be in writing, as was well said in the case of Smith vs. Kemper, 4 M. 409, is intended for the protection of the agent and not of the principal. In point of fact, the agent seldom signs or accepts the power in writing for any purpose, and it would be singular indeed if the principal should be allowed to prove the agency by a writing signed by himself alone, and which might be created by him at pleasure, and hot to do so by the testimony of witnesses and admissions and acts of the agent. On the other hand, it would be equally singular if, as is the uniform practice, the only written evidence of the agency or power should be delivered to and left in the hands of the agent, who might deny its existence at pleasure to accomplish his fraud, and thus conclude his principal from all proof of the agency, if his own acceptance and acts as agent could not be shown by the best evidence in existence as in other cases. In the case of Hall vs. Sprigg, 7 M. 244, it was held that a purchase of land in one’s own name, though with the money of another, and as his agent, may be shown by parol. In Smith vs Kemper, 4 M. 409, it was held that the defendant claiming to be plaintiff’s agent, who had bought land without the knowledge or authority of the latter in his name, can not defeat the sale till the plaintiff declare whether he accepts it or not, and that the plaintiff should recover the land. See, also, Giannoni vs. Gunny, 14 A. 632. In the case of Brice vs. Doyal, 10 A. 575, it was held that the principal might recover a slave purchased by his agent without written proof of his agent’s authority to buy, and the suit itself was held to be equivalent to an original mandate in due form. C. C. 2979. In Nolan vs. Shaw, 6 A. 40, it was held that an agent using money or property of his principal has no title. In Exchange Bank vs. Yorke, 4 A. 138, it was held that where an agent makes for himself a purchase he should make for his principal, the latter may take and the former must account for it. It is matter of every day experience that administrators, tutors, and other fiduciaries and agents, made so by law, can not use the funds of their principals to acquire property for themselves, or acquire for themselves the property under their control, and that those whose interests are sought to be thus affected have the option to claim either the property, whatever its character, or the price or damages. This is but carrying out the universally recognized principle that an agent shall not be allowed to profit by a violation of his own trust or to do any act which shall place his own interest in antagonism to those of his principal. I am aware that there are decisions of this court based solely upon the literal terms of the law requiring written evidence to affect title to real estate in direct conflict with those views. I think that those decisions, however, are based upon too narrow a view of the law and a too literal application to cases like the present of general principles not so intended, and from the operation of which there is as much reason to except cases like the present as those of any other class involving fraud, error, or violations of trust. The decisions of other States and countries, and of the United States, teem with authority in consonance with the views for which I argue and which were, I think, properly recognized in the cases quoted, and especially in the earlier decisions of this court, to which as supported by right reason, and sound morals, I think we should recur. The works of highest general authority also, without exception, inculcate the same principles and doctrine. Indisposition has prevented my enforcing and elaborating my views on this important branch of the law as I would desire and had intended. I would reserve the right still to do so but that the condition of the docket and rapid approach of the close of the term of this court forbid it. For these reasons I dissent from the views of the majority of the court in this case, and think that it is one of the cases in which that “ necessity ” for a departure from the ordinary rule referred to by this .court in 6 A. 166 exists. See, also, 5 R. 20, and 26 A. 646. It is no more attempted here than in Hall vs. Sprigg, to contradict the written title, but to claim the benefit of it. If no written title bad been made, then the principle invoked by the defense would apply, but as it was made, the inquiry is, who is the real beneficiary under it. This, in a case of violation of his trust by the agent, we think may be shown by parol, as otherwise the grossest fraud would be protected by .resort to rules of law not intended to have that effect.


author: DeBlanc, J. Manning, C. J.

text:
    No. 6894.
    The State vs. Joseph M. Johnson.
    The word " pants,” in an indictment for -larceny, sufficiently describes a thing which may be the subject of larceny.
    It is not a just ground of complaint that the court below, in charging the jury that they were judges of the law and the evidence, added the words that, “if they thought they knew more of the law than the judge, it was their privilege to so believe.”
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      H. N. Ogden, Attorney General, for the State.

      Robert Caldwell and Jno. Ii. Dinkgrave for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

The accused was indicted for the larceny of “ a pair of pants,” found guilty and sentenced to hard labor. He appealed and contends that — for two reasons — the judgment pronounced against him should be arrested or this case remanded:

1. Because the judge refused to charge the jury that the word “pants” is indefinite, has no meaning in law, and can not be the subject of larceny.

2. Because, to the charge asked of, and given by the court, “ that the jury are the judges of the law and the evidence, the court added: “ if you believe that you know more law than the judge does, you can believe so.”

1. Here and in common parlance, the word “pants ” has completely superseded the word “pantaloons,” and “the common acceptation of property is to govern its description, and the certainty must be to a common intent, by which is meant such certainty as will enable the jury to say whether the chattel proved to be stolen is the same as that upon which the indictment is founded, and will judicially show to the court that it could have been the subject matter of the offence charged.

Wharton, Criminal Law, e:l. of 1874, vol. 1, p. 357, No. 355.

Neither the prisoner, the jurors, nor the judge could have been misled by the use of the word “pants,” which sufficiently describes a thing which may be the subject of larceny.

2. The court did charge the jury that they were the judges of the law and the evidence, but defendant’s counsel contends that it destroyed the effect of that charge, by adding — in substance — that if they thought they knew more of the law than the judge, it was their privilege to so believe. That remark did not tend to restrict the privilege so broadly acknowledged, nor even to repress the physical power which the jurors had and have to disregard the instructions of one, who — after all — is their legal, safest and most reliable guide.

If the jurors are unqualifiedly the judges, the sole judges of the law, why is it made the duty of the court to charge them, and exclusively as to what law is or is not applicable to the cause submitted to them ?

The prisoner’s objections to the judge’s charges are not tenable.

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

Concurring Opinion.

Manning, C. J.

It is not correct to tell a jury that they are the judges of the law, without explaining the modified sense in which alone they are so. It is not, and never has been, within the province of a jury to decide what the law of a case is. Except in periods when revolutionary passions dominated men’s judgments, a jury has never been supposed to have the legal right to disregard the law as pronounced by the court to them. It has become so customary of late years in this State for juries to be told, that they have that power, without adding that the exercise of this physical power is of itself a moral wrong; and the practice has become so general for the counsel of an accused person to persuade the jury that they have the right to usurp the function of the judge in this particular; and that too, not only without restraint by the judge, but often with his acquiescence; that from much repetition, it has almost come to be regarded as sound law.

I think it is time for this court to suppress this legal heresy, and to bring back the lower courts, and the profession, to the true, and now generally accepted rule, that the legal duty of a jury is to receive the law from the judge; and that a jury can not rightly exercise the physical power of disregarding the instructions of the court upon the law, any more than they can rightly ñnd a verdict directly opposed to the proof of the facts.

The j ury can not determine the law, or decide what is the law, or judge of the law, in any cause, except only in so far as the question of law is a component part, as it always is, of a general verdict. For example — the question of guilt in a criminal prosecution is compounded of two ingredients, 1. did the accused commit the act, and that is matter of fact, 2. is the act thus done a criminal offence, and that is matter of law. When the jury return a general verdict, they have necessarily passed upon the question of law, as well as upon the question of fact. But that is not what juries understand a judge to mean, when he tells them they are judges of the law as well as of the facts; nor is that what juries understand a judge to mean, when he tells them they have the poioer to decide-the law in a given ease; and therefore to tell them that, and nothing else, misleads them.

“My opinion, said Mr. Justice Story, is that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case, tried upon the general issue. In each, their verdict, when general, is necessarily compounded of law and of fact, and includes both. In each they must necessarily determine the law as well as the fact. In each they hav.e the physical power to disregard the law, as laid down to them by the court, but I deny that in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure.” Battiste’s case. 2 Sumn. 243.

So also Chief Justice Shaw; — -“it is the duty of the jury to receive the law from the court, and to conform their judgment and decision to such instructions, as far as they understand them, in applying the law to the facts to be found by them; and it is not within the legitimate province of the jury to revise, reconsider, or decide contrary to such opinion or direction of the court in matter of law. To this duty jurors are bound by a strong social and moral obligation, enforced by the sanction of an oath, to the same extent, and in the same manner, as they are-conscientiously bound to decide all questions of fact according to the evidence.” Commonwealth v. Porter, 10 Metc. 263.

“ My firm conviction, said Mr. Justice Curtis, is that under the constitution of the United States, juries in criminal cases have not the right to decide any question of law, and that if they render a general verdict, their duty and their oath require them to apply to the facts, as they may find them, the law given to them by the court.” U. S. v. Morris, 1 Curtis C. C. 23.

There has been manifested so much misconception of the law on this matter of late, that I have thought it appropriate to state my views-more at length than is done in the opinion of the court, in which and in the decree, I fully concur.


author: Spencer, J.

text:
    No. 5501.
    William J. Peterkin vs. J. H. Oglesby & Co. et al.
    Before a vendee can recover for diminution of tlae price, and for damages, on account of tlie damaged condition of the merchandise bought by him, he must show with reasonable certainty, that the merchandise was in an unsound condition at the time he became its owner.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Semmes & Mott for plaintiff and appellant.

      Liennard, Ilowe & Prentiss for defendants and appellees.
   The opinion of the court was delivered by

Spencer, J.

The plaintiff on tenth April, 1871, bought of' the defendants about “ 14,000 bushels mixed corn in elevator from same lot as went on steamship St. Louis, * * * part payment to be made down and balance as soon as on board ship * * at sixty-five cents per bushel of fifty-six pounds.” The plaintiff had on same day chartered the ship “Caspari,” and, also, bought another lot of corn in elevator from George Martin at sixty-five cents per bushel, said lot supposed to be between 6000 and 8000 bushels.

The ship came to the elevator to receive her cargo on May 1, and on the order of Peterkin to that effect the elevator commenced, on the evening of that day, to run' the Oglesby corn aboard. The process of weighing is effected as the corn passes from the bins to the vessel. The-evidence shows that the loading and delivery of all of the Oglesby corn,, and the greater part of the Martin corn, was completed early on the evening- of the third May. Thereafter the corn put in was of the lots bought from Martin, the delivery of which into the vessel was continued for some time on the fourth May, when the plaintiff visited the ship, and on inspection found the corn at the hatches fore and aft to be in a heated and damaged condition. He immediately protested to the foreman of the elevator, who, he says, had handed him the samples from the hatches with the remark that “ this” (from the front hatch) “is the Oglesby corn,” and this” (from the rear hatch) “ is the Martin corn.” On the fifth of May the plaintiff returned with a friend to the ship, and •again took samples from the two hatches, and found the corn heated •and-deteriorated. The plaintiff took the samples to Higby and to Martin, and protested against receiving or paying for the corn. No satisfactory arrangement having been effected, the defendants, Oglesby & Co. •and Higby, sued out a sequestration on eighth May against the corn, for the price thereof, less $5000 which had been paid, and the corn was ■sequestered on board ship. Peterkin had borrowed money from one of the banks to pay for the corn, on the promise to furnish therefor ■exchange on London, with the bills of lading of this corn annexed; which he could not do in consequence of this seizure. He had the vessel under charter, and she was on demurrage, at a heavy cost to him. On the ninth May he paid in full to Oglesby and Higby the amount demanded by them in said suit, and the costs thereof ; thereby releasing the sequestration. A similar suit was brought by Martin for the com sold by him, which was also dismissed in consequence of payment of his demands.

The plaintiff having thus released the cargo, the corn was, after being again passed through the elevator to dry it, shipped to Ireland and sold at heavy loss. ■ '

Plaintiff, on fifth June, 1871, brought against Oglesby & Co. and Higby this action guanti ■ minor Is, and for damages and expenses incurred by him, in-so unloading and passing it through the elevator, •and in paying for detention of the vessel, etc.

Many-interesting legal questions have been raised and discussed by •counsel at great length, but, under the view we take, it will not be necessary to pass upon them in this case.

. Before a plaintiff can recover in a case like this he must prove with reasonable certainty .that at the time he became owner the merchandise bought was in an unsound condition. For if the deterioration took place after his acquisition the loss is his, and he has no action for diminution of the price. We have read attentively the whole evidence in this case, and the more important parts of it several times, and we think that plaintiff has not only failed to prove this indispensable fact, but that if there is any faith to be given to witnesses apparently without interest, and with the best means of knowledge, the defendants have proved the contrary to be true.

Bernine, the foreman of elevator, who had charge of this work of loading and delivering this corn from the elevator on the ship, swears that the Oglesby corn was the first put aboard; that it was at the bottom; that when put aboard it was cool and sound; that the heated corn taken as samples from the hatches after the loading was nearly done, on the fourth and fifth May, was the Martin corn. In these statements he is fully confirmed by L. J. Higby, one of the defendants, and president of the elevator company. As to the soundness of the Oglesby corn at the time it was put on board, he is also confirmed by Thuron Higby, secretary of the company, who swears that on the twelfth, and about twenty-sixth April, Peterkin examined the Oglesby corn in the bins of the elevator, and pronounced it good. Peterkin himself admits such examination about twelfth April, but denies it at the later date. It is shown that this Oglesby corn was the balance of a lot out of which plaintiff bought his shipment on the steamship St. Louis a short time before, and it is admitted this St. Louis shipment was good sound corn.

Now the only evidence which we find of the unsoundness of the Oglesby corn at the time of its delivery consists:

1. In Peterkin’s statement that Bernine, the foreman, on the fourth May took a sample out of the forward hatch and one out of the aft hatch, and on handing him the former said ; “ This is the Oglesby corn,” and of the latter, “this is the. Martin corn,” and that both samples were heated and damaged. Bernine positively denies making these declarations, and says he could not havo said “ This is the Oglesby corn,” because it was not.

2. On the fifth May samples were taken from same hatches, the ship’s bins being full, and these samples were found heated. About eleventh or twelfth May samples were taken by Belknap, a corn broker, by me.ans of a “tryer” piercing the cargo to depth of about five feet below surface, and were found heated and discolored. Bernine, who loaded the vessel, gives it as his opinion that the Oglesby corn was not reached by this test.

8. When the vessel was unloaded, about fifteenth May, the whole cargo was found heated and damaged. It is shown, we think, satisfactorily, that if, at that season, damaged and heated corn were piled upon and mixed with sound corn, the whole would likely become infected in the course of a week or ten days ; so that the fact of the Oglesby corn being heated at the time of unloading does not prove it to have been so when loaded.

Now can we accept these circumstances as establishing with reasonable certainty the bad condition of the Oglesby corn at the date of its delivery, when its good condition is absolutely and positively sworn by one of the defendants, and by two other witnesses, who have no interest, and who had of necessity the best means of knowing its condition, especially when these positive statements are elsewise corroborated, as stated heretofore, and contradicted by no one speaking of his own knowledge ?

We think the plaintiff has failed to prove the essential facts of his ■case, and can not, therefore, recover.

The judgment below was in favor of defendants, and is, we think, ■correct, and it is therefore affirmed with costs.


author: Spencer, J. DeBlanc, J. Egan, J.

text:
    No. 6071.
    City of New Orleans vs. F. P. Fourchy.
    One who claims exemption from an income tax on the ground that his income consists of property not liable to taxation, must affirmatively show that his income does so consist.
    The exemptions from taxation of $500 worth of household furniture, and $1000 of income, do not violate article No. 118 of the constitution of this State reouiring taxation to be ecjual, and uniform. It does not appear that unlawful exemptions of property, Or omissions to tax certain property, will affect the validity of an. entire assessment.
    Oral evidence is not admissible to prove the written demand made by a property owner in Now Orleans on the Administrator of Assessments, asking for a reduction of the assessment on his property. The written demand itsolf is the best evidenco.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Samuel P. Plane for plaintiff and appellee.

      P. P. Forman, J. D. Hill, and A. & W. Voorhies for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

One of the questions most elaborately discussed in this case is dehors the record, to wit: That the tax on defendant’s income is unconstitutional, for the reason that the city had exempted $1000 of income in violation of article 118 of the Constitution. We do not find in defendant’s answer any allegation, nor in the record any proof of the fact that such an exemption was in reality made. True, there was a law of the State authorizing and directing such exemption, but non constat that the city did so, especially if the doing so would have been unconstitutional, as argued by defendant.

There is also assigned as error apparent on the face of the record, and by way of peremptory exception filed in this court, that the tax on defendant’s income is in violation of the act of Congress and the public policy of the United States exempting legal tender, and national bank notes from State and municipal taxation. The argument is that the income is assessed at $8000, and that we must presume these dollars to have been “ legal tender” or “ national bank ” dollars, and, therefore, not taxable. There are, perhaps, many satisfactory answers which might be made to this proposition. It suffices to say that a court can not presume that one falls within an exception to a general rule.' It must be proved. As there is no proof on the subject, and as the general rule is that incomes are taxable, we must hold that defendant falls within the rule and not within the exception.

In all other respects this case presents the same legal and constitutional questions as were presented in that of the “ City of New Orleans vs. J. Davidson and J. D. Hill, et al.,” lately decided. We have been pressed in earnest and able arguments to reconsider the grounds of our decision in that case. The questions are grave, and not free from difficulty; but, after much reflection, we are unable to reach any different conclusion from that already announced.

The question is, does article 118 of the Constitution of this State forbid the Legislature’s exempting from taxation $500 worth of household furniture? and what effects are produced on the assessment in general by illegal exemptions or omissions ? Article 118 reads as follows:

“Taxation shall be equal and uniform throughout the State. All property shall be taxed in proportion to its value, to be ascertained as directed by law. The General Assembly shall have power to exempt from taxation property actually used for church, school, or charitable purposes,” etc.

The defendant resists the payment of the taxes claimed of him by the city for the year 1875, for the reasons:

1. That the effect of the exemption of $500 worth of household furniture is to destroy the “ equal and uniform” character of the tax.

2. That the Constitution requires “ all property ” to be taxed, and that it must be taxed “in proportion to its value.” •

3. That the only property susceptible of being exempted is that “actually used for church, school, or charitable purposes,” and that household furniture does not fall within these exceptions.

First. As regards the equality and uniformity of taxation: It is manifest that the exemption of $500 worth of household'furniture operates equally and uniformly, since all persons, including the defendant, enjoy its benefits. But it is said that under the operation of this rule a man possessing as his only property $500 of household furniture pays no tax at all; while his neighbor, possessing $1000 worth, pays a tax on the excess over §500. That the per centum of tax increases, therefore, as the amount of assessable property •increases, and, therefore, the tax is not equal and uniform. This is undoubtedly mathematically true. The effect of every exemption, if we resort to abstract figuring, is, of course, to increase the per centum of tax on what is not exempted. But if we look at the question in the light of public policy, and of political economy, we can readily see that, perhaps, the exact sciences do not furnish absolutely the best rules for its solution. Judge Cooley, in his work on “Constitutional Limitations,” says: “As a matter of State policy it might, also, be deemed proper -to make general exemption of sufficient of the tools of trade, or other means of support, to enable the poor man, not yet a pauper, to escape becoming1 a public burden.” In other words, that by a judicious system of exemptions the per centum of taxation might, in fact, be reduced on the property subjected to taxation by preventing the public burdens from being increased. He says again: “ There is still ample room for apportionment after all such exemptions have been made. The constitutional requirement of equality and uniformity only extends to such objects of taxation as the Legislature shall determine to be properly, subject to the burden. The power to determine the persons and objects to be taxed is trusted exclusively to the legislative department,” etc. Burroughs, on Taxation, p. 62, says the rule of uniformity must extend to all property subject to taxation, so that all property may be taxed alike, equally, which is taxing by a uniform rule.” Again he says, p. 65: “ The provision of uniformity does not prevent the State from exempting from taxation objects of charity, etc.; and tools of mechanics to a limited extent.” Judge Cooley says taxes on incomes “ may be on all incomes, or on all with such exemption as will enable the taxpayer in a frugal manner to support himself and family.” Taxation, p. 20.

These views are in accord with those expressed by this court in “State vs. Poydras,” 9 A. 165, where it was said : “ To be uniform, taxation need not be universal.. Certain objects may be made its subjects, and others .may be exempted from its operation; certain occupations may be taxed and others not; but as between the subjects of taxation in the same class there must be equality.” See, also, 26 A. 493. When we turn to the legislation of the State we find it continually proceeding upon these as the recognized rules of taxation. We find it exempting always “ all lands, buildings, etc., and all other property belonging to the United States, to this State, or to any parish, city, or incorporated town in this State.” “Colleges, and the lots of land appurtenant thereto, and their apparatus, etc.” “ Capital stock of literary institutions, and library associations, and public lyceums.” “Cemeteries and graveyards,” whether public or private. “ Household goods, and mechanics’ and laborers’ tools, to • the amount of $500,” and so on, in endless variety.

Second. But if defendant’s argument is good, all these' exemptions, except those for churches, schools, and charitable purposes, are unconstitutional, for he maintains that by the Constitution of 1868, “ All property” or none must be taxed; and he cites article 118, which, as seen, declares that “ all property shall be taxed in proportion to its value, to be ascertained as directed by law.” We do not construe that clause as does the defendant It simply means that the taxation of all property subject to tax shall be ad valorem. That specific taxes shall not be levied on property.

Third. We have seen that the uniform practice of the Legislature in this State has been to exempt many classes of property not embraced within the exception of “ church, school, and charitable purposes.” We have seen that that practice is sanctioned by the highest authority at home and abroad, as legitimate under similar constitutional provisions. We will only add that the question as to what property falls or shall be embraced within the class designated as for “ church, school, or charitable purposes” is, of necessity, largely one of legislative discretion, and that this court would with reluctance interpose its opinions to thwart this legislative discretion, unless there was a manifest and flagrant abuse of it. We are not prepared to say that in any of the exemptions complained of the Legislature has transcended its authority. On the contrary, we think it a wise and beneficent exercise of it to exempt enough of the indispensables of life to save the poor from pauperism, and thus protect property and society from increased burdens.

Holding, therefore, as we do, that none of the exemptions complained of transcend the legislative discretion, it is unnecessary to consider the defendant’s bills of exception to the refusal of the court below to allow him. to prove the aggregate amount of these exemptions.

Nor is it necessary, perhaps, to express any opinion as to the effect of unlawful exemptions or omissions upon the validity of the entire assessment. But it seems proper to say 'that in our opinion such exemptions or omissions, whether willful or not, can not have the effect of avoiding the entire assessment. To so hold would be to put it in the power of one man, or of a few men, by misconduct or ignorance, to stop the operations of the State Government itself. For if the principle contended for is correct, it does not admit of degrees, and hence the willful omission or exemption of property to the value of $10,000 from the rolls would as effectually invalidate the whole assessment as that of $1,000,-000. Besides, the weight of authority is greatly against the defendant’s views. See Cooley on Taxation, p. 155; People vs. McCreevy, 34 Cal. 432; 1 Dill. 536, 542; 17 Penn. 339; see, also, 26 A. p. 702.

The only remaining question is that presented by defendant in his bill of exceptions to the rejection by the court a qua of the testimony of sundry witnesses to prove that his property was assessed too high, and that he had made a written demand on the administrator of assessments for its reduction. Defendant’s allegation is that “ one piece of his property had been assessed at $23,600, when it was not worth over $6000, and that he had in due season made a written demand for its reduction.” The defendant seems to have been in error in this, for the tax list sued on enumerates four pieces of property, the highest value of any one piece being only $8000, and their aggregate value only $14,800.

The plaintiff, however, objected to the testimony of the witnesses offered, as not being the best evidence, as irrelevant, etc., and the court sustained the objection. We think the court did not err, as the proper and best evidence would have been the written demand, which the law required as a prerequisite to be made, and which defendant alleged he had made.

The judgment appealed from is affirmed with costs.

Dissenting Opinions.

DeBlanc, J.

The Constitution provides — not that all the property which the Legislature shall think proper to tax — but that all properly, nothing less — and not excluding even property used for church, school and charitable purposes — shall be taxed in proportion to its value. As to property actually used for such purposes — and none other — the Constitution empowers the Legislature to exempt it from taxation. To that exception, no exception can be added without violating the letter, and— I believe — the spirit of the constitutional enactment.

For two reasons, the exemption complained of is unconstitutional:

1. It withdraws, from the list of property subject to taxation, a considerable portion of the property, every fraction of which should be taxed.

2. It extends to property not used for church, school and charitable purposes, and — it is evident — not embraced in the constitutional exception.

The exemption — as to the income — is more clearly unconstitutional than that already referred to. The Constitution commands that an income tax shall be levied — not on any restricted class of persons — but upon all persons pursuing any occupation, trade or calling — not on any excess of their income over one thousand dollars, but pro rata on the amount of the income. Can we qualify and restrict that unqualified and unrestricted clause, and hold — though the Constitution orders the levy of that tax on all persons, and on the amount — whatever it may be —of the income, that the Legislature had or has the power to ordain, an exemption repugnant to that clause, and to eDaet that said tax shall be levied but on one class of persons — those whose income exceed one thousand dollars, and on only the excess of the amount fixed by its •enactment? This — I apprehend — can not be done without violating the Article of the Constitution, relied upon by the defendants — 0. art. 118.

Were taxes imposed, levied and paid in strict accordance with the provisions of that article, they would cease to be a discouraging burden, And would — light and multiplied tributes, almost unfelt by the people, ■come from every class and every direction.

Eor these reasons, I respectfully dissent from the opinion and •decree read.

Egan, J.

I concur in the views expressed in the dissenting opinion ■of Mr. Justice DeBlanc ; and the more readily because by a comparison •of the terms of article 118 of the Constitution of 1868, and those of •article 124 of the Constitution of 1864, with those of article 123 of the ■Constitution of 1852, and article 127 of 1845, it will be perceived that there is a very marked and significant change which could not have been unintentional or without meaning. The Constitution of 1812 was entirely silent in regard to the power, mode, and objects of taxation, so that it furnishes no guide in this inquiry. Article 127 of the Constitution of 1845 reads: “ Taxation shall be equal and uniform throughout the State (after the year 1848); all property on which taxes may he levied ■in this State shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property shall be taxed higher than another species of property of equal value on which taxes shaft he ■levied. The Legislature shall have the power to levy an income tax, and to tax all persons pursuing any occupation, trade, or profession.” The language of article 123 of the Constitution of 1852 is identically the same, leaving out the words “after the year 1848,” while, for the first time in the history of the State, article 124 of the Constitution of 1864 altogether omitted the important qualifying words “on which taxes may be levied,” and the words “on which taxes shall be levied,” and simply provided that “taxation shall be equal and uniform throughout the State. All property shall he taxed in proportion •to its value, to be ascertained as directed by law; ” followed immediately by the provision: “ The General Assembly shall have power to exempt from taxation property actually used for church, school, or charitable purposes; ” and by the positive, mandatory words: “ The General Assembly shall levy an income tax upon all persons pursuing 'any occupation, trade, or calling, and “ all tax on income shall be pro rata on the Amount of income or business done.” The provisions of article 118 of the Constitution .of 1868 are the same, except that the word “ may ”■ instead of “ shall ” is used in regard to the levy of a tax upon income.

It thus appears that in the two later Constitutions, including the present, all property except that specially exempted is required to be taxed, as well as to be taxed ad valorem; and that all incomes, if any tax on income is imposed, are required to be taxed, as well as to be taxed pro rata on their amount. I think that the Constitution contemplates that all property not embraced within the exemptions stated in it shall be taxed, and that the burdens of taxation on the defendants have been increased without warrant of law, and that they have a right to redress through the courts, their only resort. The evidence is more full on all the points in the case of Davidson & Hill. In City vs. Davidson & Hill it is admitted that the exemptions complained of amount to millions of dollars, but it is sufficient in all. I think the rule, and reason of the rule, as announced by Cooley and Burroughs, can not operate in the teeth of the provisions of the Constitution of this State to the contrary. I base my conclusions wholly upon those provisions which are unlike in important particulars those invoked as similar. Were it otherwise, the general principle invoked by the plaintiff might apply.

I therefore conclude that this case, and the others of the same character, are with the defendants, and dissent from the views of a majority of the court, and from its decrees in all of them.


author: Egan, J.

text:
    No. 7056.
    The State vs. George Sales et al.
    Where the jury in a criminal ease bring in a verdict not resnonsive to any charge in the indictment, it is proper for the court to direct them to retire, and bring in a proper verdict.
    An indictment which states that one of the accused did “ assist and abet” the killing and murdering, and then charges that he was “ accessory before the fact to the killing and murdering,” is fatally inconsistent.
    APPEAL from the Fifth Judicial District Court, parish of St. Tammany. Kemp, J.

      H. N. Ogden, Attorney General, for the State.

      J. M. Thompson and E. F. Bussell for defendant.
   The opinion of the court was delivered by

Egan, J.

George Sales was indicted for the murder of one Taylor. In the same indictment it was also charged “ that one Dan Proffit, one William Sales, and one Edward Ryan, with force and arms did feloniously, willfully, and of their malice aforethought (did) assist and abet the said George Sales in the killing and murdering the said William Taylor aforesaid, etc.” “ Therefore (the grand jury) do find and present the said Dan Proffit, William Sales, and Edward Ryan, as aforesaid, being accessory before the fact of the killing and murdering the aforesaid William Taylor.” Under this anomalous indictment the accused were jointly tried, and as appears from the agreed statement of facts in the record the jury after deliberating returned into court with a verdict of guilty without capital punishment as to George Sales, and found the •other defendants guilty as accessories after the fact, a crime with which it is not pretended that they were charged, and which both in its nature and punishment is distinct from either the crime of murder or of being accessory before the fact to murder. R. S. 1870, sections 784, 972, and 973. The judge refused to receive the verdict after it had been read by the clerk, and ordered the jurors back to their room. They finally returned a verdict of guilty without capital punishment as to George Sales, acquitted William Sales and Edward Ryan, and found Dan Proffit “guilty as accessory before the fact, without capital punishment,” a qualification unnecessary, as under the law one convicted as accessory before the fact can only suffer the same kind and extent of punishment as the principal offender. R. S. 972. After an ineffectual motion for new trial and in arrest of judgment the parties, found guilty were sentenced to the Penitentiary for life. Dan Proffit alone has appealed.

The motion in arrest of judgment is based, first, on the jury having first returned a verdict of guilty of the lesser offense of being accessory after the fact, and it being therefore illegal and incompetent for them to reconsider their verdict and convict the defendant Proffit of a greater offense, and on the inconsistency and illegality of the indictment in first charging that the accused Proffit did “ assist and ábet ” George Sales in the killing and murdering charged, and afterward that he was “ accessory before the fact to the killing and murdering.”

As to the first ground, it is only necessary to say that the verdict first brought in by the jury was not responsive to any charge contained in the indictment as to the defendant Proffit, and the judge therefore did not err in directing them to retire and bring in a proper verdict.

As to the second ground of the motion in arrest, we think the objection to the indictment fatal. The accused Proffit was evidently intended to be indicted as' accessory before the fact, but the statement in the indictment that he did with force and arms willfully and feloniously and with malice aforethought “ assist and abet ” the killing and murdering is wholly inconsistent with the charge of being accessory either before or after the fact, and one so charged can not be indicted as accessory. State vs. White, 7 A. 531; Chitty’s Grim. Law, 262, 269; State vs. Maxent, 10 A. 743. An accessory before the fact is one toho being absent at the time of the commission of the crime (and of course being unable to “ assist and abet” in its commission) doth yet procure, counsel,, or command its commission. 1st Hale’s Pleas of the Crown, p. 616. The indictment is therefore bad for this reason, and as it attempts to charge the accused as accessory before the fact in terms it is also bad as an indictment against Proffit as a principal offender, as he could not be both absent and present at the same time, and without being present could not be a principal in the murder. Besides, the indictment contains but one count, and even if both crimes were consistent and otherwise properly charged, it would be bad for that reason also.

The motion in arrest of judgment must prevail.

It is therefore ordered, adjudged, and decreed that the verdict and sentence appealed from be and they are avoided and reversed ; that the judgment be arrested, and the appellant Dan Proffit be discharged from custody and further prosecution.


author: DeBlanc, J.

text:
    No. 6899.
    The State vs. David Sies.
    Where the legality of a lax is in dispute this court has jurisdiction irrespective of the amount involved.
    Retail grocers who have paid their licenses are not entitled, as such, to sell liquor by the glass, but are entitled to sell it in quantities less than a gallon, to be consumed out of their stores,
    j^PPEAL from the Parish Court of Avoyelles. Normand, J.

      H. N. Ogden, Attorney General, for the State.

      A. & W. Voorhies for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

This suit was brought in the parish Court of Avoyelles, to recover from defendant the sum of three hundred and twelve dollars —for this:

I. That — from the 1st of January 1877, until the institution of this suit — -in July last — defendant sold or gave away — as a retail grocer or dealer — distilled liquors in less quantity than a gallon, and — as such— owes the State a license of eighty-five dollars.

2. That — for having failed to procure and exhibit said license, he is subject to a fine which — including the fees of the district attorney— amounts to one hundred and fifty-two dollars.

This action was brought in the name of the State, and defendant enjoined from carrying on his business as a retail grocer until payment of the license, fine and penalties claimed from him.

He excepted to the jurisdiction of the parish Court, on the ground that the amount involved in this suit exceeds five hundred dollars, and —here—plaintiff moves that the appeal be dismissed, because the matter in dispute is less than that amount.

We have — before us — a case in which the legality of a tax is contested by the party from whom it is claimed, and the Constitution provides' — in express terms, that — whatever may be the amount of the disputed tax — the jurisdiction of this Court extends to such a case.

Const, art. 74

Is defendant liable for a license of $85, as keeper of a coffeehouse, in addition to that of $15, which he has paid as a retail grocer ?

He did not sell by the glass, but sold in quantity less than a gallon, and this he had the right to do under the license which he paid.

The law — on this point — is not as clear as it might have been — but it contains a provision which — of itself is sufficient to defeat plaintiff’s action. That provision is in these words: “ All retail grocers selling Inj the glass shall pay — in addition to the grocery license, that required to keep a coffeehouse.”

These expressions leave no doubt that the only grocers from whom that license could have been exacted under the law relied upon by the district attorney, were those alone who sold by the glass, and not those who — as defendant — sold by fractions of a gallon, to be consumed out of their store.

It is — therefore—ordered, adjudged and decreed that the judgment appealed from is avoided and reversed, and plaintiff’s demand rejected with costs in both Courts.


text:
    No. 6955.
    The State vs. Ben Weasel et al.
    The confession made by one of two persons jointly indicted for the same offense, and tried together by the same jury, is not admissible in evidence against any one but himself, no matter whether that confession be made in the course of his address to the judge, or in the form of a plea of guilty.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      H. N. Ogclen, Attorney General, for the State.

      John H. Dinkgrave for defendant.
   The opinion of the court was delivered by

Egan, J.

The defendants were jointly indicted, tried, and found guilty of larceny of a hog and sentenced each to two years imprisonment in the Penitentiary. Williams alone has appealed. He assigns as error in this court that the record does not disclose that a grand jury was ever impaneled at the term at which the indictment appears to have been found, nor that the person whose name appears as foreman of the grand jury was ever appointed as such, or that he had any authority as such to indorse the indictment a true bill and sign the same. Our attention is also called to a bill of exceptions to the ruling of the court in permitting the other defendant, Weasel, to state upon the trial, and after the evidence liad closed and the opening argument of the District Attorney had been made, “ that he had been persuaded into the offense by (his co-defendant) Robert Williams, and that he had struck the first lick, and Williams finished the killing.” The bill states that this statement was made in obedience to the instruction of Weasel’s counsel, who was not the same who represented the defendant, Williams. The court states that permission to make this statement was asked for by the counsel for Weasel and not granted; but the court stated that the accused had the constitutional right to be heard by himself or by counsel, and that if he desired to do so he might address the jury in his own behalf, which he proceeded to do, and in this address the statement complained of was made. The defendants were being tried together at the time under a joint indictment for the same offense, and before the same jury which subsequently found them both guilty. The confession was not admissible in evidence against any one but the person making it. GreeDleaf’s Ev., volume one, third edition, sec. 233; State vs. Fontaine, 26 A. 513. It does not appear to have been so restricted by any instructions from the court, and was no more admissible when made in the form of an address to the jury than if made in the form of a plea of guilty, or an admission of guilt. Indeed, there is good authority for the position that if the accused be represented by counsel on his trial he has not the right to bo heard himself, and as a rule it is quite unusua-l to permit both. We think the judge erred as to this constitutional right where, as in this instance, he was so defended by counsel. At all events, neither under this nor any other pretext, could any statement or confession made by Weasel be heard to affect his co-defendant, Williams. That it was well calculated to do so, and to influence the verdict of the jury subsequently rendered, .can not be questioned. The State could not exclude his sworn testimony on the ground of his being “particeps criminis,” and yet avail itself of this unsworn statement against the other defendant, Williams. As to the errors assigned, the trial being in the same court where the bill was found, they might be corrected by certiorari if the facts were otherwise. State vs. Gates, 9 A. 94. But as we have concluded to remand the case on the other ground it is unnecessary to pass directly upon them.

It is therefore ordered, adjudged, and decreed that the verdict and sentence appealed from be avoided and set aside, and the case remanded for a new trial as to the defendant, Williams.


author: Egan, J. Manning, C. J.

text:
    No. 6976.
    The State vs. John Johnson.
    The verdict of a jury in a criminal case will not be set aside on the ground that while the jury were deliberating on the case, two of the jurors separated from the others, on a call of nature, when it appears that they were attended by a deputy sheriff and spoke to no one while they were out.
    It is not within the province of the judge presiding at a criminal trial to give such instructions to the jury, after they have returned a valid verdict in the ease, as shall lead to a change, or modification of the verdict.
    When in a prosecution for murder based entirely on circumstantial evidence, the State finds it necessary, as a link in the chain of that evidence, to trace to the accused a motive for the homicide in his previous Quarrel with the deceased, it is competent for the defense to prove facts showing similar, or stronger motives in others to do the same act.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupée. Toist, J.

      H. N. OgcLen, Attorney General, for the State.
    •No counsel for the defendant.
   The opinion of the court was delivered by

Egan, J.

The defendant was indicted for murder, and found guilty without capital punishment, and sentenced accordingly to the Penitentiary for life. He has appealed, and is unrepresented by counsel in this court. The errors complained of aré presented in bills of exceptions, accompanied by a motion for new trial, referred to in them.

The first objection was to an alleged separation 'of the jury while deliberating on the case. This separation consisted in two of the jurors-being permitted by the court to leave the jury room to attend to a call of nature, under the charge of a deputy sheriff, who testified that they spoke to no one, not even to him, while they were out. It would have been more regular and better had they not been permitted to separate from the other jurors, who should all have retired together. Too much caution can not be exercised in the trial of capital cases, especially to guard against the separation of the jury, and the consequent avoidance of verdict and trial. The court a qua refused a new trial, not considering the separation proved to be such as might be supposed to affect the verdict. In the State vs. Truber, 10 A. 501, this court said : “ The rule can not be extended to such temporary or necessary separations as may be necessarily anticipated, or must necessarily occur in the course of a protracted trial; ” and that, assuming the truth of the statements of the witnesses as to the facts of which the court below was the exclusive judge, it was not prepared to differ with its decision upon these facts as stated in the record, language which we may adopt in the present case.

Second. The jury, after deliberating, brought into court a verdict -of guilty, with a recommendation of the accused to the mercy of the court, whereupon, at the suggestion of the district attorney, the judge told the jury: “If by that verdict they intended to say, “ guilty without capital punishment, they should retire again to their room, and bring in a verdict in accordance therewith which was objected to by defendant as “illegal, and a dictation to the jury of the guilt of the prisoner.” The recommendation to the mercy of the court did not vitiate the verdict of guilty as first brought in by the jury, and the court should have received the verdict, and had it recorded. It is difficult to perceive in what the accused was injured by the qualification of the verdict, without-capital punishment, as subsequently made by the jury; nevertheless, it-is possible that the change from the original verdict, which was in legal intendment a simple, unqualified verdict of guilty, to guilty without-capital punishment, may not have been wholly without moral effect, at-least in the subsequent stages of the case, and we think that in so grave a matter if he desired it, even because he preferred death to imprisonment for life, the accused was entitled to have the verdict entered as originally returned into court. Under that verdict the law gave-the judge no discretion as to the character of his sentence. The recommendation to mercy could not affect the sentence in a case in which the court had no discretion. Had the jury asked instructions as to the legal effect of the recommendation to the mercy of the court before announcing their verdict, it would have been proper for the judge to. give them, but not afterward to permit and invite a change in a legal verdict once, rendered. It was the province of the jury, and not of the court, to qualify the verdict, and we must presume that the judge a quo had so instructed them in his charge, as it was his duty to do. The power to-dictate or cause a change of verdict in a capital case is too dangerous to be sanctioned.

Third. It appears that the case of the prosecution rested at least largely on circumstantial evidence, there being no witnesses to the homicide, and that the State offered evidence of the quarrelsome character of the deceased, and of a quarrel a day or two before his death with the accused, who had. while in liquor, uttered threats against the deceased. 'Whereupon, on cross-examination of the State’s witness, the counsel for the accused offered to prove in rebuttal that the deceased had quarrels with other persons a few days previous to the murder, and that the persons with ■whom those quarrels were had had “ more reason for committing the murder than the accused; ” and asked the witness on the stand “ what other quarrels the deceased had besides that with the accused a short time previously with other persons;” whereupon, the State objecting that the evidence was irrelevant and inadmissible, the court refused to permit the question asked, or to hear the evidence, and the defendant excepted. It is not our province to consider what was or what was not proven in the court below, or whether the conviction was justified by the evidence.

From the character of the evidence already offered by the State, as set forth in the bill, and in the absence of direct evidence of the commission of the homicide by the accused, we can very well see how the evidence offered might have had an important bearing upon the question at issue, and while neither the quarrelsome temper of the deceased; nor the fact of his having quarrels with other persons than the accused at other times, would under ordinary circumstances be receivable, or afford ground of defense when it became necessary for the State, as a link in the chain of circumstantial evidence, to trace to the accused a motive for the homicide in this previous quarrel with the deceased, we are not prepared to say how far the evidence rejected might have influenced the verdict, and we think it was competent for the defense to show the fact of the existence of similar or stronger motive in others to do the same act which, when coupled with other facts and circumstances, might point in another direction. At all events, in the absence of any counsel for the accused in this court and by reason of the other rulings already considered, we are disposed to give the accused the benefit of a new trial, and the opportunity to produce his evidence.

It is therefore ordered, adjudged, and decreed that the verdict and sentence appealed from be and they are avoided and reversed, and the case remanded for new trial, according to law and the principles of this opinion.

Concurring Opinions.

Manning, C. J.

I think the two verdicts mean the same thing. "When the jury found the prisoner guilty, and recommended him to the mercy of the court, they expressed in their own natural way what the law expresses in the statutory words, ‘guilty without capital punishment/ If the first verdict can, or should, be construed as an unqualified one. the recommendation to mercy is senseless and unmeaning, because the court could pass but one sentence on the convicted person. There was no option with the court then. It could show no mercy.

The law, in reverence of the sanctity of human life, and in tender compassion for the frailty of man, has given to a jury a part of the function of a judge, when sitting upon a ease involving life. The proper, and generally the sole, function of a jury is to find the fact of guilt or innocence. To the judge is confided the power and the discretion to impose a greater or less punishment, within the range which the law has established as meet for the offense of which the prisoner is convicted. But in a capital case, the jury can assume pro hac vice this power of a judge, and pronounce that the convict shall not suffer the extreme penalty of the law. The statute has provided the jury with a phrase, or form of words, to express their meaning, when they exercise this faculty, but those words are not sacramental, and the use of others, such as those of the first verdict, will serve the same legal purpose.

The judge must have desired only that the jury should put their verdict in the usual and unmistakable language of the statute, and for that purpose sent them back. This has not to me the appearance of a dictation, or even a suggestion, of a verdict.

There was error in the rejection of the testimony, as is shown in the opinion just read by my brother Egan, which compels the remanding of the case, and for that reason, I concur in the decree.

DeBlano, J. I concur in the opinion of Chief Justice Manning.

Mare, J. I concur in the decree remanding this case, and in the opinion of Chief Justice Manning.


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    No. 6945.
    Succession of François Lacroix.
    In a rule to compel the purchaser oE property at a succession sale to comply with his bid, he can not put at issue the rightfulness of the recusation of the judge of the court from which the order for the sale issued.
    When the father of this probate judge is a creditor of a succession, and joins the administrator in the petition for a sale of the succession property, the judge may properly recuse himself from passing on the application for an order of sale. In such a ease the judge ad hoc should sign the order of sale.
    The probate court has jurisdiction to order the sale of the property of an insolvent succession without convoking a meeting of its creditors.
    The fact that the succession property was sold by order of court, one half cash and the balance on a credit of twelve months, will not, of itself, vitiate the title passed by the sale.
    APPEAL from the Second District Court, parish of Orleans. Tally, Judge acl hoc.

      W O. Denegre for the succession and appellee. ’

      Frank Michinarcl for J. Anglade, adjudica,tee.
   The opinion of the court was delivered by

Egan, J.

The defendant, the purchaser of succession property at succession sale, was regularly put in default on refusing to comply with his bid and the terms of sale, whereupon this rule was taken to compel compliance. But two questions are presented for our consideration: First, the rightfulness of the recusation of the judge of the Second District Court of Orleans, from which the order of sale emanated, through a judge acl hoc called to the bench in consequence of the judge’s recusation. Of this it may be remarked that the order of recusation having been entered, it can not be treated as an absolute nullity, and set up by the defendant in this collateral way. The principle “omnia prcesumimtur rite acta sunt” would come in aid of the title acquired by the defendant at the probate sale, and we can not see what right he who was no party „to. the succession proceedings or order can have to contest its validity. The recusation was, however, properly entered ; the father of the presiding judge was a creditor of the succession, and joined in the petition of the administrator for the sale. There is no force in the position that, although recused, the judge of the court should have signed the order of sale, instead of the judge act hoc. The books are full of cases to the contrary, and the practice has been universally otherwise in this State. Indeed, it often happened that while the system of interchange for the trial of recused cases prevailed the interchanging judges were holding court at the same time in different and distant parishes. The signature of the judge act hoc is the only proper one to be affixed to the orders granted by him. lie is pro hac vice as much the judge of the court as the regularly elected and presiding judge, and .his acts as such are entitled to as full recognition, and afford as full evidence of what is done. Any party in interest may appeal from the order of recusation, but unless it is done suspensively the order will be executed notwithstanding, and any rights acquired by third persons under it will be protected accordingly. The other objection to the validity of the sale is that the succession is insolvent, and that a sale of property could not be legally ordered without the convocation, first, of a meeting of creditors, that they might fix the terms of sale. Of this it may be remarked that the court which issued the order had jurisdiction, beyond question, and that it is too well settled to be now questioned that the purchaser was not required to look beyond that. Besides, the same presumption arises as to this just invoked as to the order of recusation. The fact that the sale was ordered one half for cash, and the remainder on twelve months credit, did not of itself vitiate the title. It is true that the law contemplates an offering first for cash, of succession property sold to pay debts, and then on twelve months credit, if it fails to bring its-appraised value, and that such is the usual and regular mode of sale. If the administrator departs from it, and injury is likely to accrue, or is apprehended by the creditors, they may stay his hands by injunction before sale, or may hold him responsible after, upon proof that loss has actually resulted. It by no means follows, however, that titles acquired fairly, in good faith, and in open market under such sale, are to be set aside for that reason only. In the present case the petition of the administrator was joined in by at least a dozen creditors, than whom there is no proof that there are any others. It represents that the sale is necessary, and that it is to the interest of creditors that it should be made on the terms asked for, and is supported by the affidavit of the ■attorney that the property would sell for twenty-five per cent more on a •credit than for cash. There is no allegation or evidence that the property brought less than its appraised or real value, nor does any one appear to complain of the sale, except the purchaser, a third person as to all of these proceedings, except the sale itself, and this rule to enforce it. We think the defenses set up untenable. The interests of the creditors and of the succession seem to have been well guarded in the order of sale, and no one who has any interest or right to complain is before us for that purpose.

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


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    No. 6136.
    Hillary Edwards vs. Wm. Ricks et al.
    Neither the heirs of a deceased wrongdoer nor his widow in community, can be hold liable in vindictive damages for any wrong committed by him, when no suit for damages has been instituted before his death. The measure of their liability, in such cases, is the actual damage done to the person or property of the sufferer.
    The heirs of age of a deceased person are presumed to accept the succession, and his widow to accept the community, unless the heirs renounce the succession, and the widow the community, expressly, and by public act.
    When one is sued as heir, or widow in community, or in any other representative capacity, the plea of general denial admits that capacity.
    The widow in community is liable for one half, and the heirs of the deceased, each for his virile portion of the other half of the debt due by the deceased on account of a trespass committed by him.
    PPEAL from the Sixth Juclioial District Court, parish of Tangipahoa. Trial by jury. Kemp, J.

      James II. Muse and E. F. Bussell for plaintiff and appellee.

      McEnery, Ellis & Ellis for defendants and appellants.
   The opinion of the court was delivered by

Spencer, J.

The plaintiff alleges that Wade H. Yarnado and William Eicks, in March, 1875, with force and arms, drove his family out of his dwelling, and away from his premises, and lawlessly threw his furniture out of said dwelling, thus dispossessing petitioner of his home, and then nailed the doors and windows, and prevented petitioner’s return to his said home ; and that, by their violent, lawless, and criminal con-■duet,” they damaged him in the sum of §5000.

That since said wrong Wade H. Varnado has departed this life, leavIng his widow, Dicey Yarnado, and Oelia Yarnado, wife of William Ricks, and R. Scott Yarnado, children of age; and that said widow and two heirs, Oelia and R.' Scott Yarnado, have taken possession of his property without inventory, and are, therefore, liable for the debts of said deceased wrongdoer and trespasser aforesaid.

He prays for judgment against Ricks for $5000, and against the widow and two heirs of Wade H. Yarnado, jointly, for $5000, according to their respective interests in the estate of said Wade H. Yarnado.

The defendants pleaded the general denial. The case was tried by a jury, who found a verdict for $5000 damages for plaintiff.- The court thereupon rendered judgment against the defendants for that sum, as follows : against Ricks for $5000 ; against the widow in community for $2500; and against each of the two heirs for $1250, the judgment being in solido. Defendants appeal.

1. They urge in this court on behalf of the widow and heirs of Wade H. Yarnado, that the action against an offender is personal, and dies with him.

2. That there is no proof that Dicey Yarnado is the widow, nor that Celia and R. Scott Yarnado are the heirs of Wade H. Yarnado, nor that they are possessed of his estate.

3. That the judgment is not in conformity to tlie verdict.

4. That the damages are excessive.

We will consider these objections in their order.

1. As to the liability of heirs and legal representatives of the wrongdoer for damages resulting from his torts, crimes, and offenses. Under the Roman civil law, except when instituted and put at issue before death, actions for damages resulting from crimes and offenses perished by the death of the wrongdoer, or of the sufferer; with this qualification, however, that the heir of the wrongdoer was not permitted to profit by the wrong, or retain the fruits of it. Inst. Lib. iv. tit. 12, sec. 1; Dig. 50, tit. 17,1. 38.

Both principles have been modified by express provision of our law.

Article 25, C. P., provides: Heirs and universal legatees may be sued for civil reparation of the injury caused by the crimes or misdemeanors of the deceased whose succession they have accepted, although no action wTas instituted for that purpose against the deceased during his life, and although neither he nor his heirs have been benefited by such offense.” The act of 1855, now part of article 2315, C. C., provides that “the right of this action shall survive in case of death, in favor of the minor children and widow of the deceased, or either of them, and in default of these, in favor of the surviving father and mother, or either of them, for. the space of one year from the death.”

By our law, as by the Roman law, actions for torts do not abate by the death of either of the parties after issue joined. C. P. 21, Vincent vs. Sharp, 9 A. 463.

It will be seen that by article 25, O. P., the liability of the heirs and representatives of the wrongdoer, who has not been sued before his death, is limited to the civil reparation of the injury done by him. This language, we think, clearly excludes their liability for exemplary or punitory damages. The measure of their liability consists in repairing the actual damage done to the person or property of the sufferer. Any thing more is in the nature of punishment, and neither reason nor law would sanction its infliction upon any other than the wrongdoer. The same principle should apply to the liability of the surviving widow who accepts the community. Her liability is for one half the community debts, and should cease when civil reparation ends. Any more would be punitory.

These views are those held by us in the case of “Jones vs. Succession of Hoss,” 29 A. 564, where we held in substance that actions for injury done to the feelings and reputation, not affecting person or property, did not survive against the heirs of the wrongdoer. We adhere to that view.

2. The plaintiff sues Dicey Varnado as widow in community, and Celia and R. Scott Varnado as unconditional heirs of Wade H. Varnado. Their answer is a general denial.

It appears from the evidence and pleadings that Dicey is the widow, and R. Scott an heir of the deceased, Wade H. Varnado, but there is no proof as to Celia.

Article 1000, C. C., declares that “ the person called to the succession does an act which makes him liable as heir, if when cited before a court of justice as heir, for a debt of the deceased, he suffer judgment to be given against him in that capacity, without claiming the benefit of inventory, or renouncing the succession.”

Civil Code, article 1017, provides: “The renunciation of a succession is not presumed; it must be made expressly by public act, etc.” The same rules are applicable to the wife’s acceptance or renunciation of the community, when terminated by death of the husband, except that she can not accept under benefit of inventory. She is presumed to accept if she does not expressly renounce. Ludeling vs. Felton, 29 A. 719.

When a party sues or is sued in a representative capacity conferred by law, such as curator, tutor, heir, etc., a general denial does not put at issue the existence of that capacity. 1 A. 336 ; 3 M. 378 ; 2 N. S. 389 ; 4 N. S. 615; 5 N. S. 343; 1 L. 113, 283; 4 L. 328; 19. L. 429.

We think it clearly results from these principles that the general denial filed by 'the heirs and widow in community (being capacities ereated by law) did not put plaintiff on proof of such capacities, which, not being specially denied, were admitted.

3. Ricks, and the estate of Yarnado, represented by the widow and heirs, are sued as co-trespassers and solidary obligors. To the extent that the estate of Yarnado is liable, the judgment against it would be solidary with that against Ricks, but would divide itself as follows : one half against the widow, and one half against the two heirs jointly.

4. It is said the damages awarded are excessive. The evidence discloses a most cruel, unmanly, and wanton outrage, perpetrated by the deceased, Yarnado, and Ricks, upon the defenseless wife and children of plaintiff, who were ejected at night from their home, and their household goods thrown out of doors, during plaintiff’s absence from home. It is unnecessary to go into particulars. So far as Ricks is concerned, we shall not disturb the verdict of the jury, who awarded $5000 damages against him. But we have seen that the widow and heirs of Yarnado are not liable to the infliction of these exemplary and punitive damages, but oniy for civil reparation. The evidence as to the actual damages done is not very satisfactory or definite, but we think it better that we now decide the whole case. We think that three hundred dollars would cover the actual loss, of plaintiff resulting from the wrongful acts complained of, and will give judgment against the widow and heirs of Yarnado for that amount.

It is therefore ordered, adjudged, and decreed that the judgment appealed from, as relates to the defendant, Ricks, be affirmed, with costs of both courts. That said judgment, as against the widow and heirs of Yarnado, be amended, and reduced to three hundred dollars (in solido with the judgment against Ricks). Said three hundred dollars to be paid, one half by Dicey Yarnado, and one half by Celia and R. Scott Yarnado, jointly. That the costs of the court below be paid by the defendants, and the costs of appeal as to said widow and heirs be paid by plaintiff. That said judgment as thus amended be affirmed.