author: McEnerv, J.

text:
    No. 11,367.
    Succession of Myra Clark Gaines.
    Casts follow the judgment, and therefore it is not necessary for parties to whom-costs are due to appeal.
    When the court orders costs to be taxed against a defendant the plaintiff has not such an interest in the matter as to be'entitled to noticed the granting of the order. If the party to whom the costs are due appeals from the order it is not necessary to make plaintiff a party thereto.
    An'attorney at law is presumed to know what transpires in the litigation in which he is employed so far as it affects his interest. If he permits his associate to claiin docket and deposition fees in the Federal courts and an order in his favor is rendered for the same, the party owing the fee will be protected in paying according to the terms of the order.
    A' PPEAL from the Civil District Court, Parish of Orleans. ■C*- King, J.

      Farrar, Jonas & Kruttschnitt Attorneys for Executor and Executrix of W. R. Mills, Appellants:
    This case is entirely one of fact. The claim of the executor and executrix of last will of Mills is based upon the proposition that Mrs. Gaines collected for his account, and for his use and benefit, the sum of three thousand five hundred doll -rs, which had been decreed to him as costs in the suits of Gaines vs. Agnelly and Gaines vs. Monseaux.
    This claim is correct as a matter of fact; the lower court so decreed by its judgment.
    Through some misapprehension that judgment failed to decree payment of interest, and that is the sole complaint which this appellant has to make against it and it is now asked that it be amended, in so far as to decree, that the amount of two thousand nine hundred and fifty-two dollars and ten cents, adjudged in favor of the executors of William Reed Mills, bears interest at five per cent, per annum, from the 10th of January, 1881, until paid, instead of from July 1, 1892, until paid, and that appellants-recover costs of both courts.

      Richard De Gray and Brown & Choate Attorneys for Appellees:
    This being a suit or claim based on an alleged judgment of another court, two defences can be made. First, did the court have jurisdiction, and' did the defendant have notice or appear. Christmas vs. Russel, 5 Wallace, 290; Thompson vs. Whitman, 18 Wall. 457.
    When a party has, or claims to have, an interest in a claim, and stands by and sees the same rejected, and takes no appeal, and and in no manner complains of said rejection, the judgment is final as to him, and the reversal of said judgment in the appellate court on an appeal taken by another party does not inure to the benefit of the party who does not appeal.
   The opinion of the court was delivered by

McEnerv, J.

This is an opposition to the account filed in the succession of Mrs. Myra Olark Gaines, and this part of the opposition relates only to an amount claimed as costs due the succession of the opponent, W. R. Mills.

W. R. Mills, deceased, was an attorney at law, and resided in the city of New Orleans. He had been employed by Mrs. Gaines to prosecute certain suits in her litigation with the city of New Orleans. In these suits Mrs. Gaines collected costs to the amount of thirty-four thousand dollars, in which were included the costs due the opponent. The amount of costs due to said Mills was ascertained and fixed in the following order rendered by the United States Circuit Court for Louisiana: “The exception of W. R. Mills, filed on 22d May, 1878, to the report of J. W. Gurley, master, herein filed on the 20th May, 1878, is sustained, and it is ordered that said opponent W. R. Mills, be, and he, as solicitor of complainant, entitled to the docket fee to be taxed as costs as against each defendant, wherein reference is made to a master to determine the question of fruits and revenues.

“It is admitted that in the cases called the Agnelly and Monseaux cases, that Mr. J. Q. A. Fellows was associated as counsel with Mr. Mills in recovering the judgments in these cases; that is to say, the law firm of Fellows & Mills, composed of said Fellows and said Mills, were the solicitors in said cases.”

The validity of this alleged judgment as against Mrs. Gaines or her succession is denied, and among others on the following grounds:

1. Because the proof fails to show she had any notice of the pro ceedings which culminated in said alleged judgment, or that she ever voluntarily appeared therein, and because the same is not final, but contemplated future action which is not shown to have been had.

2. Because the proof shows said fees were the property of the law firm of Fellows & Mills, composed of J. Q. A. Fellows and said W. R. Mills, and that said alleged judgment was rendered without any notice to said Fellows, or any appearance by him in the proceedings in which it was rendered, and there is no proof that the alleged future taxation was ever had.

We presume the Federal court in granting the order to tax costs followed the practice in said courts, and that there was no law requiring notice to be served on the complainant, or on the solicitor who was associated in the case.

We see no reason why Mrs. Gaines should have been made a party to the proceeding, or that she should have been served with notice of the same. She was without interest in the mattor, and she was equally without interest to inquire whether the taxed costs were due Mills, or Fellows & Mills. It was immaterial to her to whom the costs were to be paid. In fact she was in no way interested in the order, and it matters not whether it was final or not, so far as she was concerned. She could not have collected the costs, except in pursuance of this order. She assumed the right to collect the costs, amounting to two thousand nine hundred and fifty-two dollars and ien cents, and having collected the same under an order of court, recognizing W. R. Mills as the owner, she was bound to account to him for the amount so collected. Fellows, the associate of Mills, is asserting no claim to the costs, and in the absence of any process of any court, arresting the amount in her hands — now in the succession — the succession will be protected under the order in paying the amount to the succession of Mills. In argument it was contended that Fellows, if a payment was made to Mills’ succession, might thereafter claim his part of the costs from the succession of Gaines. This position is untenable. Fellows was an attorney of record, associated in the cases, and he must be presumed to have had knowledge of what transpired in the litigation in which he was employed. He permitted his associate and law partner to claim the costs and procure an order in his favor for the amount. After payment of the amount to Mills, Fellows would be estopped from claiming any part of the costs from the succession of Gaines.

The succession of Gaines goes further than denying the right of the succession of Mills to recover the costs, and claims the whole -amount as the property of the Gaines succession.

The following is an extract from the brief filed on behalf of said succession:

“ But there is another objection that goes to the whole of this claim, and will appear from the following:

“ Among the other things in evidence is the above ‘ Transcript of Record, Supreme Court of the United States, City of New Orleans vs. Myra Clark Gaines,’ 7 Vols. From pages 1101 and 1102, Vol. 1 of said transcript, it appears Mrs. Gaines, on the 5th day of May, 1893, recovered a judgment in the United States Circuit Court for the Eastern District of Louisiana against said city of New Orleans for one million nine hundred and twenty-five thousand six hundred and sixty-seven dollars and eighty-three cents, with interest, and said sum of thirty-four thousand dollars, amount of costs taxed against various defendants in the Agnelly and Monseaux cases, and the suit in which this judgment was rendered was brought by Wm. Reed Mills as the solicitor of Mrs. Gaines, Vol. 1, pages 1 to 13.

“From this judgment an appeal was taken by the city of New Orleans to the United States Supreme Court (page 1102), where said judgment was reversed, and the amount was reduced to five hundred and seventy-six thousand seven hundred and seven dollars and ninety-two cents, with interest, with permission to the city of New Orleans to show what credits, if any, were to be allowed on said amount, and the cause was remanded for that purpose. See 131 U. S. Reports, page 191 (in evidence herein), and especially page 220.. When the case came back to the Circuit Court the above amount of five hundred and seventy-six thousand seven hundred and seven dollars and ninety-two cents was reduced to the extent of fifteen thousand three hundred and ninety-four dollars and fifty cents, and said claim for thirty-four thousand dollars costs (in which it is claimed were Mills’ said docket and deposition fees), in said Agnelly and Monseaux cases, was rejected. Both parties appealed — the city because more deductions-were not allowed her, and the Gaines succession because said deductions of fifteen thousand three hundred and ninety-four dollars and fifty cents had been made, and because said thirty-four thousand dollars costs had been disallowed and rejected. These were the only parties to that appeal — the only ones that ever complained thereof, but Mills, although it is claimed he was interested to the extent of his alleged docket and deposition fees, and was, as solicitor, a party to the cause, never complained or joined in that appeal, notwithstanding the pretence that he was interested as above. Surely it was his right and duty to have complained and joined in that appeal from the Circuit Court, but not having done so, but, on the contrary, having acquiesced therein, his-claim for docket and deposition fees is ended, for the reversal of the judgment of the lower court did not inure to his benefit, but to the sole benefit of the appellant — the succession of Mrs. Gaines. See 138 U. S. Reports, pp. 615 and 616, also in evidence.

“ Nor is this by any means a case where the succession has collected a claim or judgment as the property of William Reed Mills. When the above judgment and costs were awarded against the city óf New Orleans and in favor of Mrs. Gaines, and were collected by her succession, they were awarded and collected, not as the property, in whole or in part, of W. R. Mills, but as the property of Mrs. Gaines. In other words they were not collected under the ex parte,. interlocutory order order of the Circuit Oourt made on the exceptions of Mills, but under the judgment of the United States Supreme Oourt rendered in her favor and reported in said 138 U. S. Reports. There is, therefore, nothing in the collection of said thirty-four thousand dollars costs which would estop the appellee from denying any interest or ownership on the part of Mills therein.”

Costs follow the judgment, and we can see no reason why Mills should have appealed from the decree, which made it necessary for complainant to appeal from the entire judgment. The costs followed as a necessary incident to the judgment.

There is nothing in the case reported (130 U. S. Reports, p. 595) that sustains the pretences of the succession of Gaines.

In that suit the costs were taxed in favor of the complainant, as in all cases where the judgment is against the party cast.

The decree in the case referred to relating to the costs is “that the decree of the court herein should be modified by adding to it the amount of said costs, to-wit: thirty-four thousand dollars, with interest, as adjudged in the original decree of said court.” ,

The decree appealed from must therefore be annulled, allowing interest on the amount of costs, two thousand nine hundred and sixty-two dollars and ten cents, from the tenth of January, 1881, until paid.

As-thus amended it is affirmed, the succession of Gaines to pay costs of appeal.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 11,391.
    State of Louisiana vs. John L. Sarradat, Louis Kuntz et als.
    City Ordinance 4155, C. S., is constitutional, legal and valid.
    The City Council oí New Orleans lias the unquestioned authority to designate a place where perishable food may be sold, such as meats, fish, fruits, vegetables, etc.; to regulate the police of the market places, to lease the same, not for the purposes of revenue solely, but in order to maintain the market buildings and the police of the same. And for this purpose to authorize the lessee to charge a reasonable sum for stalls and space.
    Because one raises his own produce gives him no right to sell it in violation of a • city ordinance.
    The city ordinance regulating the markets must give free access to the markets and afford proper facilities to persons who desire to sell goods which the ordinance requires to be exposed for sale there. The ordinance must be impartial, making no discriminations and creating no monopolies, and offering no serious impediments to trade.
    APPEAL from the Second Recorder’s Court of the City of New Orleans. Aucoin, J.

      E. A. O’Sullivan, City Attorney, Geo. W. Flynn, Assistant City Attorney, for Plaintiff and Appellee:
    The city asks no tax, but simply, under the powers granted it by the Legislature, in order to maintain, not a monopoly, but to maintain public markets, has provided that neither fish, meat nor vegetables shall be sold within prescribed limits.

      Sambola & Duoros Attorneys for Defendants and Appellants:
    Evidence tending to show the alleged unconstitutionality or illegality of any fine or penalty imposed by a municipal corporation must be admitted by the police magistrate. Const. 81.
    Amended Sec. 22 of the Market Ordinance of this city is not applicable to gardeners. R. S. 2670.
    The facts proved below are not at all the acts prohibited by Sec. 27 thereof, which does not apply thereto.
    The powers of a municipal corporation are strictly construed; possesses only such powers as are delegated specially or by necessary implication. Cooley, pp. 192, 193; 38 An. 3, 4; Act 20 of 1882, Sec. 7, p. 20.

      A municipal ordinance must be reasonable and not oppressive or vexatious, nor must it be in restraint of trade or contrary to common right. Boone, Secs. 292, 296; Cooley, 200, 202, 203 ; 39 An. 138, 139.
   The opinion of the court was delivered by

McEnery, J.

The defendants were convicted and fined for violating Secs. 22, 26 and 27 of City Ordinance 4155, C. S., amended by Ordinance 4274, C. C. They appealed, alleging the unconstitutionality and illegality of the ordinance. In detail the defence is that the provisions of said ordinance are oppressive, and contrary to the enlightened policy of the State, and “ inasmuch as Sec. 27 aforesaid prohibits the sale of their vegetables in any other part of the market or vicinity, and during more than half the business portion of the day — i. e., between the hours of 7 o’clock A. M. and 2 o’clock p. m. — in violation of the 1st and 206th articles of the State Constitution;” that the said sections of the ordinance are arbitrary and in restraint of trade, and in contravention of common as well as private rights; that the provisions of See. 22, if they apply to defendants’ calling, exclude them from the markets, in violation of their constitutional rights to sell produce; that the sale of defendants’ vegetables is not a nuisance and injury to the public health; that the police force of the city and the market lessees are convinced of the illegality of the ordinance and have not hereto attempted to enforce it, and permit the sale of vegetables from gardeners’ carts at the market on the payment of twenty-five cents per day.

Article 206 of the Constitution has no application to the ease. Art. 1 has reference tp the origin of government from the people, and defines the legitimate objects of government, its legitimate end being “to protect the citizens in the enjoyment of life, liberty and property.” Its failure to protect the public health would be as great a violation of its “legitimate end” as to actively depart from its object by the enactment of a law infringing upon the rights of the individual.

We may assume, therefore, that the proper regulation of the markets is a sanitary measure, being for the purpose of promoting the public health, and a legitimate exercise of governmental power. In the exercise of this power the Legislature has conferred ample and complete power on the city council to establish markets and to provide for the cleanliness and salubrity of the city. In carrying out this conferred power the city council has the power “to designate certain spots or places for the sale of certain articles of provisions; in doing so they facilitate the people in the purchase of provisions of first necessity by confining the sale of them to particular places and hours of the day, and they facilitate the inspection of provisions; and by the hire of stalls they raise money to defray the expenses of building market houses and pay the salaries of officers they appoint to prevent the sale of unsound provisions; and they have an undoubted right to prevent the violation of ordinances they may pass in establishing markets.” Morano vs. Mayor et als., 2 La. 217.

The doctrine enunciated in this case seems to be universal. Dillon on CJorp., Sec. 313; Parker and Worthington, Public Health and Safety, par. 305; State vs. Gisch, 31 An. 544.

The right to establish public markets is accompanied by the right to prevent the establishment of private markets within certain prescribed limits. Parker and Worthington, Public Health and Safety, par. 307; State vs. Gisch, 31 An. 544; New Orleans vs. Stafford, 31 An. 417; State vs. Schmidt, 41 An. 27; State vs. Boothe, 41 An. 46; State vs. Natal, 42 An. 612; State vs. Defees, 44 An. 164.

And also to prohibit the peddling about the streets of the city of all perishable food articles.

The city council therefore has the unquestioned authority to designate a place where perishable articles of food, such as meat, fish, fruits and vegetables, may be sold, in the market limits; to regulate the police management of the market places, to lease the same, not for the purposes of revenue alone, but in order to maintain the proper police of the markets, the building of market houses and the repairs to the same. And for this purpose to authorize the lessee to charge a reasonable sum for stalls and market room. Id., Sec. 217.

The establishment of market places is for public convenience as well as for the promotion of the cleanliness and health of the city. It is not a permit or license to sell particular articles there, and therefore no special license for selling at that particular place can be exacted. But this does not prohibit the payment for the use of stalls and market room or space, which is exacted for the purpose of keeping up the market places. The market places having for their double purpose the preservation of the public health and the general -convenience of the public, all persons who resort to them for the sale of such articles as are required to be sold there must have access to them; the market regulations must be impartial, affording the same rights to all, avoiding the creation of monopolies in one or several persons, and the prohibition of trade in any article, or an dndue restraint of trade. Parker and Worthington, Public Health and Safety, par. 308; Dillon, Municipal Corp., Sec. 380; City of Jacksonville vs. Ludwith, 26 Florida, 163; State vs. Mahner, 43 An. 497.

Section 22 of the ordinance prohibits the peddling of meats, fish, game, fowl, vegetables and fruits in any of the public markets, or within six blocks of same.

Section 26 gives the right to market wagons to back up to the banquettes along the markets to deliver goods previously sold to occupants of stalls. It prohibits the owners of the wagons from selling their produce from said wagons between the hours of 7 A. M. and 2 p. m. No fees or dues can be collected from said wagons.

Section 27 prohibits the sale of any article on the sidewalk, on the public walks in front or in the rear or around any of the markets.

The offence of defendants was selling from their wagons while they were backed to the market banquette for the purpose of delivering goods previously sold to owners of stalls.

Under the terms of the law referred to above, we are unable to see wherein any of the rights of defendants were infringed. They were dealers in vegetables, which the ordinance required should be -sold if in the market limits, within market hours. They 'were not excluded from the sale of their produce in the markets. They could have rented stalls or space and disposed of their goods within the market inelosure.

There was no monopoly created in favor of one or more persons by the prohibition of the sale of certain articles immediately on the banquettes and approaches to the markets. This regulation did not prevent their sale elsewhere, either in the market or beyond the market limits. The market ordinance is not oppressive, as it interferes with no right of the defendants. It is not partial and does not operate against them exclusively, but is applicable to the vendors of articles or goods required to be sold within certain limits and within certain hours.

' The complaint about deficiency of room for the numerous carts or wagons at the market has nothing whatever to do with the case. There is no prosecution for obstructing the approaches to the market by defendants’ carts. The testimony which was rejected also has no place in determining the question at issue. It is immaterial whether the defendants for a long time were permitted by the market lessees and the police to sell from their wagons while backed to the market sidewalks, or that they were required to pay twenty-five cents for selling from their wagons. The ordinance does not require the payment of such a fee, and the evidence was irrelevant.

Because the defendants raised the produce which they sold in violation of the ordinance gave them no special privilege of exemption from its operations.

The case of State vs. Blazer, 36 An. 363, relied upon by defendants, presents a different state of facts and different issues were involved, and it therefore is inapplicable here.

Judgment affirmed.


text:
    No. 11,528.
    State vs. Philip Clark.
    It is error for the trial judge, in a trial for murder, to refuse to charge the jury that they can, if the evidence j ustifies it, return a verdict of guilty of manslaughter.
    APPEAL from the Nineteenth Judicial District Court, Parish of Iberia. Voorhies, J.

      M. J. Cunningham, Attorney General, R. F. Broussard, District Attorney, for the State, Appellee:
    There was nothing in the ease at bar, under the statement of facts as given, upon which the court could have been called upon to charge upon the law of manslaughter, to make his failure to do so ground of reversible error. There was no evidence in. the case tending to reduce the crime below the grade of murder. State vs. Jackson, 45 An. 975.

      A. & Chas. Fontelieu Attorneys for Defendant and Appellant:
    The refusal of the judge, in a trial for murder, to charge the jury that they may find a verdict of manslaughter, in accordance with See. 785, Revised Statutes of 1870, is a fatal error which will vitiate the verdict found against the accused and entitle him to a new trial. 40 An. 725; 41 An. 410.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for murder, tried, and a qualified verdict of guilty without capital punishment returned by the jury. He appealed.

Counsel for the accused requested the court to instruct the jury in a special charge that one of the verdicts they could return was ■“ Guilty of manslaughter.” This charge was refused by the judge, •on the grounds that the evidence in the case was entirely circumstantial; that the line of defence adopted by the defendant was not in mitigation of the offence for any of the causes known to the law, which would have reduced the charge of murder to manslaughter.

Section 785 of the Revised Statutes says that on trials for murder • the jury may find the prisoner guilty of manslaughter.” It matters > not, therefore, what is the nature of the evidence or the line ' of defence adopted by the defendant — the law absolutely and with- ‘ out qualification gives the jury the right to return a verdict of manslaughter on a trial for murder. It was the duty of the judge to instruct and charge them that if the evidence justified such. a verdict they could return it. The identical question presented in • this case was passed upon by this court in case of State vs. Brown, 40 An. 725. And for the reasons assigned by the trial judge in the instant case, the trial judge in that refused toiinstruet the jury that • they could return a verdict of manslaughter..

“ The charge was refused by the judge, on the ground, substantially, that the ruling invoked by the defence was inapplicable to the state of facts developed during the trial, which admitted of no mitigated verdict, but called absolutely for a verdict of ‘ guilty, r or not guilty,’ and that to have given the charge requested would have been simply the enunciation of an abstract legal proposition which had no bearing upon the case on trial.” Id.

In commenting on the statement of the trial judge in the case re- : ferred to, we said the law’s command is that the jury must be iuformed by the court that on trial for murder the jury may find the prisoner guilty of manslaughter, and the omission or refusal to so inform them is a flagrant disobedience of the law and is a fatal error.

This case was remanded (41 An. 410), and on the second trial the same question was, without the probable intention of the judge, thrust upon the court, by the charge of the trial judge, in which he said: “ I refused to give the charge because it did not seem to me under the facts disclosed on that trial that the crime of manslaughter was involved in the case,” and then proceeded to give the jury the ruing of the court on the first appeal. In milder but equally emphatic-language in the opinion remanding the case we pointed out what we conceived to be the duty of the judge on the trial of criminal cases-in charging and informing the jury. “ The judge’s duty is very plain; to give the law and leave the jury to determine whether it is applicable to the facts, free from any opinion of his own on the facts.”

The language of Sec. 785 of the Revised Statutes, and the opinions of this court interpreting the same, are plain and unambigous, leaving no room for construction or a departure from the text of the section or the opinions of the court. It is to be regretted that the trial judge should have placed a construction on the Section 785, in direct opposition to its obvious meaning, and contrary to the rulings of this court. Such a course has served no useful purpose, but has been the occasion of unnecessary delay in the final disposition of an important criminal case.

The judges of subordinate tribunals may not always concur in the-rulings of the appellate court, but it is the jurisprudence of the State that they shall respect the rulings of the Supreme Tribunal, and obey the law as interpreted by it.

After the law in a particular case has been announced by the appellate court, the individual opinions of judges of inferior tribunals are of little consequence, except so far as they may be advanced in the obstructing of the course of justice.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that this case be remanded to be proceeded with according to law.


text:
    No. 11,506.
    Mrs. S. Durward et als. vs. Mrs. Jennie Jewett et als.
    Where the issues involved are as to the ownership o£ a certain fund, and the District Court renders a decree in favor of plaintiffs, from which a devolutive ap - peal is taken by defendants, and the court afterward orders the fund distributed among those to whom it was adjudged in their application, the fund being on deposit in the court and under its control, no suspensive appeal can be taken by defendants from the interlocutory order of distribution. Such an appeal would arrest the execution of the judgment originally rendered, which can only be done by defendants by a suspensive appeal from it.

      In such a ease, no question of distribution of the fund among those to whom it was adjudged by the decree is presented. The judgment, not haying been suspensively appealed from, must be executed.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Morris Marks, L. DePoorter and Albert Voorheis for the motion:
    This court is without jurisdiction ratione materise; the interest of all the appellants united amounts only to thirty-two dollars, as formally admitted by them.
    It is true there are two thousand three hundred dollars deposited in the registry of the court; but there are one hundred and eighty members of the Branch Lodge, so that the appellants’ respective interests are infinitesimal. They presume to champion the rights and interests of their co-members — all of them appellees; but the latter have never conferred on them such mandate. Succession Wellmeier, 34 An. 819.
    There is another fatal objection. The main judgment is under devolutive appeal, and the rule taken to enforce that judgment was made absolute upon auditor’s report. This interlocutory decree is not appealable. Murphy vs. Murphy, 45 An. 433; State vs. Judge, 45 An. 883.

      Branch K. Miller contra.

    The Supreme Court has jurisdiction where the fund to be.distributed exceeds two thousand dollars, whatever may be the amount claimed. 34 An. 1140; 39 An. 583; 40 An. 135, 136; 43 An. 423, 424, 375.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs are members of the Branch No. 1148 of the order of the Iron Hall. This branch is located in New Orleans. Fearing that defendants would dispose of the property which they held in trust for said branch for the benefit of plaintiffs and other members-of said branch, and that there was no one to whom they could turn over-the property, and fearing the same would be removed beyond the limits of Louisiana, the plaintiffs sued out an injunction commanding defendants to retain possession of all of said property, money, mortgage notes, etc., and restraining them from disposing of the saíne; ■ and 'they be Ordered to deposit said money, etc., in court for benefit of plaintiffs and all members of said branch.

The .defendant® answered that-the monéy. subject to the suit constituted the reserve fund of twenty per cent, assessments loaned in: all local branches of the parent body of the order; that said money is the property, of the order, whose headquarters are at Indianapolis, Indiana, and that the New Orleans branch held said money in trust for the order, and that a demand had been made upon' said branch for'the same.

There was judgment ordering the' defendants to deposit in court the property, money,'etc., in controversy, reserving the rights'of' any and all parties' claiming any title or interest in said fund or to said property. The injunction was perpetuated, from which judgment defendants took a devolutive appeal. The amount deposited in courtwas two thousand four hundred and seventy-seven dollars'and thirty cents.

After this judgment was reridered on motion of plaintiffs, suggesting that a distribution of the fund should be made between the parties, members or ¡former members of said Branch 1148, and that the funds could not be distributed without the appointment of an audtor, B. Dryfous was appointed to make a' full and final settlement of the amount due to each and every member of said brahch, to make a tableau of distribution, deducting costs and attorney’s fees. A report was made by the auditor, and the plaintiffs filed a rule against defendants to show cause why the tableau and report' filed by the auditor should not be homologated and approved. ■ In answer to the rule, defendants set up'.want of authority for the ’appointment of an auditor ex parte; that the funds sought to be distributed did not belong to the members of said Branch 1148, but to the Supreme Sitting of the order, by which we understand the central authority of the order, and therefore could not be distributed as proposed.

The District Court rendered a judgment on the rule homologating the auditor’s report, and ordered the fund distributed. From this, judgment the defendants took a suspensive appeal. ;

. The appellees move to dismiss the appeal on the grounds that the, appellants’ interest in the fund is less than two, thousand dollars,', and their entire interest amounts only to one hundred and forty-two> dollars-and ninety cent's;-and that this'order is an interlocutory-one, carrying into execution on original judgment. /

Act 81 of the Constitution conferring jurisdiction,on the Supreme-Court when an amount is to be distributed uses the languages •* * * the fund to'be distributed, whatever may be the amount therein claimed.” Whan vs. Irwin, 27 An. 708; State vs. Judge, 30 An. 229; Boutte vs. Ex., 30 An. 177; State ex rel. Paper Co. 45 An. 1418; Murphy vs. Murphy, 45 An. 433.

We are not required by the pleadings to make any distribution of the fund among those to whom by the decree of the lower court it was adjudged. The defence to the rule is identical with that in the original suit from which' the interlocutory order sprung. There was. no suspensive appeal.taken from that judgment, and its execution can not be arrested by defendants. ■ Code Practice,. Art. 578. •

, The interlocutory order is in execution of this judgment. - A sus - pensive appeal from this order in effect arrests its execution.

We have repeatedly held that no appeal will lie from an- interlocutor order which carries into effect a judgment which.has become-final, or from which no suspensive appeal has been taken. If, in carrying into execution the decree of the lower, court,' the judge .exceeds the bounds of his jurisdiction, or acts illegally, other-convenient and practical modes are provided by which the wrong- > done can be remedied by this court.

The original judgment appealed from by devolutive appeal in case of same plaintiffs versus same defendants, No. 11,408, having been this day annulled and reversed, the interlocutory order distributing the proceeds falls with the judgment, and no distribution of the funds can, therefore be made as ordered by the court. ¡

The appeal is dismissed.


text:
    No. 11,536.
    State of Louisiana vs. Duncan Williams.
    The mere fact of going to the place where the accused lived and seeking an ex-, planation from him does not in itself constitute such an act of hostility as would justify the taking of human life. In order-to constitute the overt act or hostile demonstration that would justify the taking of, human life there must be some demonstration made by deceased against accused as to impress upon the latter that he was in imminent, danger, of. his life, or some great bodily-harm.

      In. some instances the extent of the overt act which would induce the accused to act in his self-defence is measured by the character of the deceased for a violent, quarrelsome, dangerous and turbulent disposition, notorious in the community or known to the accused.
    APPEAL from the Eighteenth District Court, Parish of Lafourche. Caillouet, J.

      M. J. Cunningham, Attorney General, and B. F, Winchester, District Attorney, for the State, Appellee.

      John S. Billieu for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for murder, tried, convicted and sentenced to death. He appealed.

He relies upon one bill of exception reserved to the ruling of the trial judge.

It is as follows: “ The defendant offered to prove by a State witness the turbulent character of the deceased when it was stated by said witness that the deceased living on another place came and sought the accused — that the overt act was complete from that fact.”

To this bill the court appended the following statement: “By the court — There was no evidence of any overt act or hostile demonstration by the deceased toward the accused. The deceased went to the plantation where the accused was and asked an explanation about something which deceased had said to his wife about what the deceased had told him (accused) about her. Deceased and accused had some discussion about the matter when a mutual friend interposed and advised them that the matter was too trifling to have any dispute about, whereupon the accused returned into the house, from which he had come, when deceased first called him out. The deceased continued to talk on the gallery of his house with the said mutual friend, and remarked that ‘ any man who repeated what another had told him about his wife is a son of a bitch. ’ The accused, who had walked out of the house, and gone as far as the steps of the gallery, turned and asked the deceased, ‘ Do you call me a son of a bitch?’ To which accused replied, Call you a son of a bitch?’ Whereupon, without any movement or demonstration on the part of deceased, the accused fired the fatal shot. Such was the state of the case as made out by the only eye-witness, at the time the accused offered to prove the turbulent character of the deceased.”

The mere fact of going to where the accused lived by the deceased to seek an explanation from the accused did not in-itself constitute such an overt act of hostility as would justify the slaying of the deceased. In order to constitute the overt act that would justify the taking of human life there must be some demonstration made by the deceased against the accused of such character as to impress upon him that he was in imminent danger of his life or some great bodily harm. In some instances, the extent of the overt act which would induce the accused to act in his self-defence is measured by the character of the deceased for a violent, quarrelsome, dangerous and turbulent disposition, notorious in the community, or known to the accused.

In the instant case there was no demonstration whatever, according to the trial judge’s statement, of the deceased against the accused. Words of abuse alone are not demonstrations against the accused, but they may be important to show the character of the overt act. No overt act accompanied the offensive words addressed by the deceased to the accused.

The learned counsel for the accused urges that had the testimony as to the turbulent character of the deceased been admitted it would have had the effect of lessening the punishment. The jury had before them all the facts in the ease, and without the overt act the turbulent disposition of the deceased could have no bearing upon the case. The accused seems to have acted from provocation, but not of such strength as to justify the taking of the life of the deceased.

It was within the province of the jury to return a qualified verdict. But as they did not do so we are powerless to afford the defendant relief.

Judgment affirmed.


author: Miller, J.

text:
    No. 11,389.
    George B. Rice vs. Mrs. Mary E. Rice.
    The alleged promise of a mother to a son to lend him money is not supported by the consideration alleged to consist in the acknowledgment that he received certain advances from his father’s succession, least of all, if the acknowledgment is charged by the son to have been untrue.

      Under our. law damages and not specific performance, at least in ordinary cases, is the relief for breach of a contract for the payment of money. C. C.„ Arts. 1927-1934; Story’s Equity, Sec. 714.
    APPEAL from the Oivil District Court, Parish of Orleans. . Theard, J.

      Dinhelspiel & Hart.Attorneys for Plaintiff and Appellant:
    The right to a specific performance of a contract rests in the option of the obligee. C. C. 1926, 1927.
    An advantage stipulated for a third person is a sufficient considera-tion for a contract. 1 An. 280; 0. C. of 1884; 0. P. 85.

      Henry P. Dart Attorney for Defendant and Appellee:
    An action does not lie to enforce a specific performance of an agree-ment to lend money, or to make a gift.
    An objection may be made to evidence that it is inadmissible, because it could not afford the relief asked if admitted, and if proving to its full extent the plaintiff’s allegations.
   The opinion of the court was delivered by

Miller, J.

- This is an appeal by plaintiff from the judgment. of the lower court dismissing the suit against the defendant, his mother.

The basis for the demand is supposed to be furnished by a paper-executed by the plaintiff before a notary, acknowledging the receipt by plaintiff of three thousand five hundred dollars from the succession of his father, and the promise of the defendant, in consideration of that paper, to lend plaintiff twenty-five hundred dollars for two years without interest. The cause of action is, however, amplified by the allegations in the petition, that plaintiff’s claim against his father’s succession was disputed by the mother and his co-heirs; that to settle the dispute he was induced to acknowledge he had received three thousand five hundred dollars, when, in fact, but one thousand dollars had been received by him from the succession, and. that he was “enticed” to make the false acknowledgment by the-promise of his mother to lend him twenty-five hundred dollars. The relief demanded is a judgment against defendant for the amount. stipulated to be paid in the asserted contract, or the annulling of the entire acknowledgment. The defendant filed, among others, the exception of no cause óf action. The appeal is'by plaintiff from the lower court ’sustaining the exception.

■ ■ The brief for plaintiff treats the, suit as one for.specific performance. ‘ The relief usually accorded for the breach of contract is damages. Specific performance is decreed only in exceptional cases. It is difficult to conceive, of any,, injury arising from the breach of a pontract to pay or lend money that can not be repaired by damages. Our code declares, when the object of the contract is anything but the payment of money the damages are the loss sustained, or profits of which the party has been deprived; and as to money obligations damages for delay in- performance,, are limited to interest. Again, the Code declares in ordinary cases the breach of .the,contract to do, entitles the party aggrieved only to damages,but where this would be inadequate compensation specific performance will be constrained, if performance is in the power of the party who has contracted the obligation. We think that if plaintiff had any cause of action he has no basis to demand specific performance of his supposed contract; 0. 0., Arts. 1934; 1935, 1927; 1 Story’s Equity, p. 714, as to specific performance.

But beyond the, question as to the relief to be awarded for the breach of the contract of loan, there is, in our opinion, no contract in this case. The supposed consideration- is the plaintiff’s acknowledgment of the advances made him- by his 'father. That acknowledgment is manifestly, no basis whatever to support the asserted promise of his mother to lend hiih twenty-five hundred dollars. If there was any benefit or advantage of any kind accruing from that -acknowledgment, that benefit or advantage was not derived by the mother. It might be his co-heirs could avail of the acknowledgment, 'but not his mother, whom he sues. If, as the plaintiff states in his petition, the acknowledgment is untrue, it is not easy to perceive it would serve any purpose. Our conclusion is there is no cause of action stated in plaintiff’s petition, either in respect to the asserted contract or the demand for a decree annulling his acknowledgment'. Oivil Code, Arts. 1779, 1893.

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


text:
    No. 11,401.
    A. L. Johnson vs. The City of New Orleans.
    Holders o£ claims against the city of "New Orleans by .the laws and ordinances under which the claims were created, entitled to payment only, from and out. of the;funds appropriated to payment of such claims, are not entitled to an absolute judgment against the city. City Charter, Acts of 1882, Sec. 64, Session ■Acts,p. 35; Aet.No. -38 of 1879, Session .Acts, p. 57. Nor to interest on such claims, at least,- unless there are funds in the treasury applicable to payment of such claims. 39-An. 981; -42 '.An. pp. .3, -164.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Jno. Q. Flynn Attorney for‘Plaintiff and Appellant.

      E. A. O’Sullivan>, City Attorney, L. O’Donnell, Assistant City Attorney, for Defendant and Appellee.
   The opinion of-the court was delivered’by

Miller, J.

The iplaintiff sues as the holder by transfer of certain claims against the city of New Orleans created under various ordinances appropriating the funds to be derived from taxes to various objects of municipal expenditure. The relief sought is an absolute judgment against the city, bearing interest. The answer of the city is the general issue. The judgment of the lower Court recognized the plaintiff as owner of the claims and denied the relief claimed in the petition. From that judgment plaintiff appeals.

The city of New Orleans is provided with a limited power of taxation. It is required at the beginning of the fiscal year to adopt a budget of the anticipated revenues and expenses of the coming year, and as the revenues are collected they are credited to the accounts conforming to the appropriations in the budget. The creditors of the city, 4. e., those who become creditors from the fact that the money is not on hand derived from the revenues to pay them when the debtjis created, are apprised by the law and by the ordinances of^the City that they are to be paid from and only, out of the revenues appropriated for the payment of the claims and necessarily there is to be no payment until there are revenues realized and placed to the credit of the account against which the claims are to be charged. In no sense, is the holder of such claims a general creditor of the. city. He is 'a creditor with the payment confined to a particular fund, when collected. Every ordinance produced in the ease to fortify plaintiff’s demand, announces that the appropriations to pay the claims on which he sues, are not payable until there is money in the city treasury derived from the collection of the public revenues to the credit of the appropriate fund, i. e., that from which the creditor is entitled to be paid. Whatever the character of the obligation, whether warrant, certificate or claim, original or transferred, has impressed upon it this specific and limited right of payment, and subject to that limitation the plaintiff acquired the claims on which he sues. 1 Dillon on Mun. Corporations, verbo Municipal Warrants; 39 An. 981; 19 Wallace, 477.

It has occurred and perhaps, is the case now; that there is a large amount of unpaid claims against the City payable out of appropriations of past years. This is due to shortages in the collection of taxes and perhaps other causes. The plaintiff, doubtless, is the sufferer, with others, from the absence of funds in the treasury to pay him. Hence, his appeal to the Court to change the character of his debt, and give him an absolute judgment against the City with interest. It is manifest, he is entitled to no such relief.

Holders of claims against the city of the character of those held by plaintiff, payable as they are only when the funds applicable to their payment are in the treasury, are entitled to no interest, at least not unless there are such funds on hand. The question of interest can not be deemed open. 39 An. 981; 42 An. 3. We are not called on to determine whether there is any right of action on such claims unless there are funds to pay them; the appeal being.by plaintiff only.

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


author: “Miller; J.'

text:
    No. 11,380.
    Mary Ann Witlow vs. Mrs. Louisa Suarez.
    An agreement of settlement or compromise of claims against a succession, pleaded and maintained as a bar against a suit on such claims, can not be afterward used as a defence against the suit on the agreement itself.
    PPEAL from the Civil District Court, Parish of Orleans. . Monroe, J.

      <.W.' S. Benedict and H. G. Gage for Plaintiff and Appellee:
    ■‘'After' pleading a compromise in bar of a suit one can not be per- ’ '' 'mitted to repudiate the compromise because the- suit was 1' ‘ ' brought.

      QUi sentlt cominodum, sentire debet et onus.

      A. L. Tissot Attorney,for Defendant and Appellant:
    . 'An agreement relating to certain lawsuits can not be repudiated and - • violated by-its- intended beneficiary, .and thereafter recovered • ■ ' upon. i.......'
   The opinion of the court was delivered by

“Miller; J.'

The plaintiff sues to enforce-an agreement by which •defendant, universal legatee of 'Joseph Llula, agreed, as soon as -th'e litigation! then pending in the succession .of the deceased was -ended, to convey to plaintiff certain real estate.- The-defence was 1 res -judicata, based -on the judgment ’in; the suit between the same - parties,- decided, by this court in 44 An. 61, an estoppel arising, i the answer alleges, from plaintiff’s repudiation of the agreement sued on, and the repudiation is charged to. consist in plaintiff’s in- . stitution of the suit.reported in 44 An. On these exceptions the suit i was tried, and defendant appeals from the judgment in favor of . -plaintiff. .......

It appears that the plaintiff asserted the right to one-half of the property left by Llula; that with the. view . of preventing litigation, and for other causes as we gather from defendant’s brief-, plaintiff and defendant entered into the agreement on which plaintiff sues, for the conveyance to plaintiff of certain property. It is stated in defendant’s brief this was not an agreement but a compromise : whether one or the other is, in our view, immaterial. Subsequent to the agreement the plaintiff brought the suit for one-half the property of the succession of Llula. The agreement now sued on, was urged by defendant in the previous suit as an estoppel against plaintiff. The decision in 44 An. 61 maintained that estoppel. Plaintiff’s present suit on the agreement is the sequel of her previous controversy.

The decision in the 44th An. determined that plaintiff had no right to one-half the property of Llula. But as to the agreement the decisions upheld it as an estoppel of plaintiff’s demand in that suit. The ! expression of the court in that decision, it is said in defendant’s brief was obiter. But the agreement was part of the defence. It was therefore properly passed upon. If an estoppel in the previous ease, it was because of the obligation of defendant to convey the property for which the plaintiff now sues. Therefore,'the.previous:dó-v cisión instead of forming res judicata against plaintiff supports,her present demand. ■ , ■

• As to:the exception that plaintiff is estopped from now suing on ' the agreement because she repudiated it by bringing the previous suit, we think' the decision in that suit in effect, secures her right under the agreement. The defendant affirmed the validity of .-the agreement, when she pleaded it in that suit. If valid to conclude plaintiff asserting a demand for half the property, it certainly ought. to avail plaintiff to secure that which it stipulates she shall have. The defendant in our opinion, can not, after successfully using the agreement as a shield against the demand of a different character in the previous suit, now deny the plaintiff’s right to the property stipulated to be conveyed to her by the agreement.

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


author: Breaux, J.

text:
    No. 11,388.
    Grand Lodge of Louisiana F. and A. Masons vs. City of New Orleans.
    The questions involved in this case were decided and the case was remanded in order to hear evidence as to the relative value o£ the property occupied by plaintiff to that leased and yielding a revenue.
    The District Court has complied with the judgment and fixed the value of the , property. The value is not disputed.
    Though the previous decision remanding the case was final, the principles enunciated were re-examined.
    Our conviction remains unchanged.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.

      J. Q. A. Fellows and Chas. F. Buck Attorneys for Plaintiff and Ajppellant:
    In a question’of law not argued, the decision is not stare decisis as to another, not a party to the case decided.

      If the Constitution of 1868 and the legislation thereunder did not repeal the special acts of exemption from taxation, of certain charitable institutions, Art. 207 of the Constitution of 1879, being less broad in its terms of non-exemption, did not repeal such special acts of exemption.
    “ Charitable institutions,” strictly such, have always and everywhere been held in the highest favor, and acts in their favor are to be construed most liberally.
    The revenues and income of all charitable institutions are not private or corporate profit or income, but constitute a fund for the relief of the poor of the community and State, and relieve the State and municipality to its full amount in its duty to the poor and indigent.
    It is the duty of the State to provide for the wants of the indigent within its bounds, and the taking from the revenues of a charitable institution by the way of taxation is the diminishing of the ability of such institutions to relieve the poor, and adds the same amount to the burden of the State, with the additional cost of collection.
    The Article 207 of the Constitution of 1879 absolutely exempts “ alj charitable institutions,” and the clause at the end applies only to the property of colleges, schools, etc.
    Chartered charitable institutions are agents of the State in carrying out the objects of their foundation, and are subject to the control of the courts in case of any misfeasance or breach of trust. These are only the trustees of the charitable funds placed under their administration and as agents of the State, and can not, strictly speaking, derive any private or corporate profit or income.
    The exemption from taxation of “ all charitable institutions ” is universal and exclusive, as much so as places of religious worship or burial; the question of property does not become a question. Charitable institutions can have no property, except as a. trust, in the interest of the State and as trustees of the State.
    Donations made to charitable uses are in effect made to the State, the entire - revenues of which are devoted by the donors to the-purposes designated and to relieve the State from a burden which it is bound to bear, and the taking of a portion of the revenues of such donations, in the form of taxation or otherwise, would be a diversion of the funds from'their-proper destination, and, if by the trustees of such- fund, would constitute a breach of trust,

      E¡ A. O’Sullivan, Oity- Attorney, L. O’Donnell-, Assistant Oity Attorney, for Defendant and’ Appellant:
    This'cause was presented to this Honorable Court in 1892, and appears in the 44'An., p. 659: The decision-referred to covered all points presented to this court-with-the exception-of one, and that was “ what was the value of the property leased by the plaintiffs, and from which an income or profit enured to them?”
    The judgment of the court - is based on the evidence adduced — to which nothing contrary was offered-by the plaintiffs; in fact, plaintiffs’ own witnesses were the only witnesses'examined — this evidence reads, that the city tax for the year 1888 should be on1 an assessment of twenty thousand dollars; for the year 1889 on-an assessment of ten thousand1 dollars, and’for the year 1890 on an assessment of sixty-two hundred dollars.
   The opinion of the court was delivered by

Breaux, J.

This case received careful consideration, and the principles of exemption enunciated in the decision remanding the case to decide the relative value of the property occupied by the plaintiff to that leased (or not in use, of the Grand Lodge) received the court’s endorsement after mature deliberation.

The case was remanded to carry out the purpose just stated.

The extent of the exemption is defined.

The court a qua has correctly interpreted our decree, and the appellant has no objection to urge against the amount allowed in the judgment-appealed from, if the court’s views regarding the exemption itself remain unchanged.

The plaintiff appeals from the judgment fixing the respective amounts and settling the value of the property upon which taxes are due,-in order to reiterate defences heretofore decided.

On appeal a reconsideration is asked by appellant of the identical questions heretofore decided.

In the previous suits the plaintiff claimed that its exemption from taxes, under legislative grant, had the force of a legisliative contract which could not be repealed or impaired by subsequent constitutional provisions or statutory enactments.

On the part of defendant, it was pleaded, that the exemption claimed conferred a mere gratuity, subject to repeal, and that this exemption was repealed by Art. 207 of the State Constitutioh exempting property of charitable institutions,' not used or leased for-', purposes of private or corporate profit or income, inasmuch as part ■. of plaintiff’s property is leased for corporate revenue. ■

These issues were argued orally and by brief.

The effect of the article of the Constitution (207) upon the exemption was the prominent issue.

This court’s previous .decision includes that point.

In answer to the proposition again argued, that charitable institutions, strictly speaking, can realize no private or corporate profit or income, we can only reiterate in different language that this court many years since established a difference in the matter of taxation between the property of a charitable institution yielding a revenue and that property which the institution occupies for the purposes of its charities. It was held that the former was subject to taxation, and that the latter was exempt from taxation. City of New Orleans vs. Congregation Dispersed of Judah, 15 An. 389.

A similar qüé’stion' was considered in the case of City of New Orleans vs. The New Orleans Mechanics Society, 27 An. 437. Ther court held that'ás á charitable society the property actually used by • itself for'purposes Of charity would be exempt, but that the property not being used for the specific purpose expressed in the act of in-‘ corporationlwas not exempt from taxation.

The permissive article of the Constitution of 1868 to the Legislature to exempt property in the actual use of charitable institutions lias received judicial interpretation, in a number of cases.

In two cases, however, 33 An. 850 and 37 An. 70, a different veiw was expressed, and the. conclusions of the majority of the court were vigorously opposed. In one of these cases, thePoydras Asylum, Judge Fenner, iff his dissenting opinion, says: “I think that, under the term’s of the Constitution, and under the jurisprudence of the courts established thereunder,' the exempting statute was unquestionably repealed, so far as inconsistent with the rule of taxation) provided by Article 118. ” '■ (Italics ours.)

The organ of the e'ourt, Chief Justice Bermudez, in the Poydras' Asylum case gave his concurrence to the principles enunciated in the case at bar.

Judge Manning Was equally as emphatic in expressing his dissent in Orphan Asylum vs. Tax Collector, 37 An. 70.

As maintaining uniform interpretation upon the subject of repeal by Art. 118, he cited New Orleans vs. St. Patrick Hall, 28 An. 512, and others to the same effect.

The uniformity of interpretation was absolutely unbroken in 1879, ■and the limitation, of exemption from taxation of property actually occupied by charitable institutions clearly announced.

In the face of the article of the Constitution (118 of 1868), and of the decisions limiting the exemptions as before stated, the article of the present Constitution was adopted containing the following: “Provided, the property so exempted be not used or leased.for purposes -of private or corporate profit or income.”

This proviso is as broad and comprehensive as was the Article 118, 'Of the Constitution of 1868.

The plaintiff in the case at bar seeks to reopen the question of the effect of the proviso of Art. 207 of the Constitution of 1879.

The repealing effect of the article was pleaded when the case was tried.

It was controverted from different points of view, and the repealing effect of the proviso was argued and reargued.

But waiving, arguments gratia, the final disposition heretofore made of the case and reconsidering the proposition argued we do not discover that too great a scope was given to the proviso.

The property of charitable institutions leased and yielding a xevenue had never been construed, prior to the Constitution of 1879, as part of the institution not subject to taxation.

It was property not free from taxation.

The present Constitution has not materially changed the exemption in this respect from what it was under the preceding Constitution.

Under both, charitable institutions have not, in themselves, elements of property as understood in commerce, unless they choose to iuvest in property and collect revenues.

Such property, when they choose to thus invest, is not exempt from taxation.

Counsel for the plaintiff argues that the proviso in question can not, in the construction of the article, relate back to the word “ property” in the third line before the word used.

As to public property and other property which can not be within the scope of the proviso, we think it sufficient answer to state that the proviso may apply to part of the property exempt in the body of the article, and that it may be that it can not in the nature of things be made a limitation in exempting other prop - erty.

Public property and its revenues are not subject to taxation, and therefore not within the intendment of the proviso.

The State for obvious reasons does not impose taxes upon her property and upon its revenues.

This property would be exempt without any law on the subject.

It does not follow that the other institutions referred to are not within the scope of the article wheu they own property yielding a revenue. Utile per inutile non vitiatur.

Questions of the great good accomplished by charitable and other similar institutions, however much they appeal to our sympathies, should have no weight in determining the meaning of an article of the Constitution.

A rigid adherence to the fundamental law recommends itself as highly proper in enforcing any of its provisions.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed at appellants’ costs.


text:
    No. 11,354.
    C. S. Burt Company vs. Widow B. Laplace.
    ■The plaintiffs agreed with the defendant to furnish boilers and other machinery for the amount of seven thousand three hundred and thirty dollars.
    The bagasse burner, part of the machinery, constituted nine hundred and seventy-five dollars of the amount.
    If the bagasse burner, it was stipulated, did not prove of advantage to the defendant, the plaintiffs bound themselves to pay the grinding season’s plantation fuel bill.
    The plaintiffs claim the unpaid balance of two thirds of the whole amount, and contend that they have complied with the contract.
    The defendant in her reconventional demand alleges that there was failure of compliance ou the part of plaintiff. The evidence shows that the bagasse burner was the only defective portion of the machinery furnished.

      She aslrs irom the seller the one-third paid by her; to be relieved from the payment of any balance on the seven thousand three hundred and thirty dollars and that he be condemned to remove the machinery and pay her damages.
    Rightor, J. PPEAL from the Civil District Court, Parish of Orleans.

      Harry H. Hall Attorney for Plaintiffs and Appellants:
    Plaintiffs agreed to furnish defendant with certain machinery for seven thousand three hundred and thirty dollars, of which amount nine hundred and seventy-five dollars was to be paid for a bagasse burner.
    It was agreed in the contract that if it should be shown that the “ bagasse burner did not properly consume bagasse so as to prove of advantage ” to the purchaser, the seller would pay the plantation fuel bill for the season.
    The seller sued for the unpaid two-thirds of entire purchase price, alleging his compl anee with all his obligations under the contract. The purchaser reconvened, alleging that the bagasse burner was defective, and asked that he be relieved from paying the balance of purchase price; that he recover from the seller the one-third of seven thousand three hundred and thirty dollars paid; that the seller be ordered to take back the machinery and burner, and that he be condemned to pay the penalty stipulated in the contract, to-wit: the plantation fuel bill for the season.
    The evidence shows that all the machinery, except the bagasse burner, costing nine hundred and seventy-five dollars, gave complete satisfaction.
    The judgment of the lower court annulled and avoided the contract, ordered the seller to refund the one-third of purchase price, seven thousand three hundred and thirty dollars, which had been paid to him, relieved the purchaser from paying the remaining two-thirds, and then enforced the penalty of the annulled contract and condemned the seller to pay the purchaser's coal bill of seven Ivuñdred and fifty dollars.

    Nullity and rescission imply the total avoidance of the covenant for some inherent defect therein. The dissolution of a commutative contract for non-compliance is really carrying into effect a part ' of the convention, either express or implied. It excludes the idea of nullity or rescission. 11 An. 655, Rogron, Cap. 5, Sec. 7; Troplong, Vente, No. 689; 4 Marcadé, No. 570.

      Hence there was error in annulling the contract; and yet, in enforcing the penalty, if there was violation of the obligation, the penalty could be enforced, but only by the maintenance of the' contract and the payment of the stipulated price.
    The record shows conclusively, moreover, as matter of fact, that the bagasse burner was not defective, but thatitmet all the requirements of the contract.

      Chas. J. Theard Attorney for Defendant and Appellee:
    The plaintiffs sold to defendant, and erected on her plantation, a complete plant or apparatus for the burning and utilizing of bagasse, including boilers, pump, burning outfit, and all other necessary machinery.
    By the contract it was expressly stipulated that the burner should consume the bagasse from four hundred and fifty tons of cane daily, and with it make the full steam capacity of the boilers.
    The contract price was seven thousand three hundred and thirty dollars, of which two thousand four hundred and forty-three dollars were paid by defendant to the plaintiffs before the machinery was erected.
    The machinery proved to be very defective and entirely insufficient for the object for which it was intended.
    The plaintiffs sue defendant for the balance due on the contract. She denies any indebtedness, and claims in reconvention the return of the money paid by her and the damages suffered by her.
    There is nothing inconsistent in the demand that the contract be rescinded and that damages be allowed in addition where the contract has not been performed or has been defectively executed. And in' such a case no putting in mora is required.
    Lobdell vs. Parker, 3 La. 328; Morton vs. Pollard, 9 La. 174; Conery vs. Noyes, 17 An. 201, 203; Nicholson vs. Desobry, 14 An. 81; Goodloe vs. Rogers, 9 An. 273, and authorities there cited.
    'The fact that the contract itself stipulates what damages may be recovered does not affect the right to demand the rescission of the sale and damages in addition. It fixes the measure of damages ; that is all.
    Nor is the compulsory use of the defective machinery, during defendant’s grinding season, a waiver of her claim for damages. Levi vs. Schwartz & Golding, 34 An. 209.
   The opinion of the court was delivered by

Breaux, J.

The defendant having determined to change the sugar mill and engine, and to erect other evaporating pans for the purpose of economizing steam in her sugar house, resolved also to buy steam tubular boilers, drums, feeders, spouts and pumps, together with a Gordon Patent Hollow Blast Bagasse Burner.

She contracted with the plaintiffs to furnish part of these improvements.

The plaintiffs bound themselves to furnish the boilers to measure seventy-two inches in diameter and twenty feet long, and erect them on the plantation, and to furnish expert labor for that work — that is, to place them in position to put on the bricks. The defendant agreed to do the brickwork and furnish the material and labor to incase the boilers.

When delivered and ready for the brickwork the price of the four' boilers and attachments was five thousand eight hundred and twenty-five dollars.

She also contracted for two batteries with three automatic feeders, to feed and properly distribute bagasse for the price of five hundred and thirty dollars.

For the Gordon Bagasse Burner she was to pay nine hundred and seventy-five dollars.

The vendors, in order to fully impress upon the ■ defendant the efficiency of the burner, agreed to pay all coal or other fuel for the crop, if the burner did not consume the bagasse, as agreed it should, and prove an advantage to the purchaser.

The guaranteed stipulátion in the contract was limited to the bagasse burner.

The terms of payment of the total amount stipulated in the contract were: one-third upon delivery of the materials and apparatus at the plantation; one-third after the erection of the burner, and the remainder after the test and use, on the 5th of January, 1893.

The plaintiffs collected one-third of the amount.

The defendant having refused to pay the remainder, the plaintiff brought suit for the amount claimed as due.

The defendant interposed a general denial, save certain admissions substantially, that the plant sold by plaintiffs was sold for one price in three equal instalments, and that all the machinery sold was dependent upon the satisfactory working of the burner.

That the tests made proved that the plaintiffs failed to comply with the contract.

She avers that she is not bound to pay the amount stipulated in the contract and that she is entitled to demand the nullity of the contract.

In her reconventional demand she claims damages aggregating twenty thousand nine hundred and fifty dollars. The prayer of the answer is that plaintiffs’ demand be rejected and that upon her re-conventional demand there be judgment in her favor in one sum of two thousand four hundred and forty-three dollars, in another sum of ten thousand nine hundred and fifty dollars, and in a sum of ten thousand dollars, with legal interest on each.

The judgment of the District Court annuls the contract; orders the return to the defendant of the first instalment of two thousand four hundred and forty-three dollars paid by her and condemns plaintiff on the reconventional demand to pay the defendant six thou and seven hundred and fifty dollars damages, with interest. A remittitur for the interest was subsequently entered.

Prom this judgment the plaintiff appeals.

Though the Gordon Patent Hollow Blast Bagasse Burner proved satisfactory in a number of sugar houses and sugar mills, for causes not clearly demonstrated it is a failure in defendant’s sugar house.

Witnesses testify as to the value of the apparatus as a bagasse burner in other localities.

The combustion is spoken of by these witnesses as being rapid, and that it makes sufficient steam. This, however, is not the case on defendant’s place, where it only makes a black smoky fire and at times is clogged with bagasse.

The plaintiff was notified of the defect.

He and others connected with plaintiff’s firm repaired to the place but it seems did not succeed in obtaining satisfactory results in the working of the burner.

Finally it was agreed to make a test of the apparatus on the 29th of December while the sugar house was in operation.

At the appointed time the interested parties and a number of witnesses were present and the test was made.

The contract contains the stipulation, requiring a burner to each battery with blast bars, intermediate bars, blower, piping gates complete to burn bagasse and with it to generate the full steam capacity of the boilers, supplied with bagasse, at the rate of four hundred and fifty tons daily, or if less number of tons were supplied the steam pressure to be proportionately less.

The test was made in accordance with the conditions of the contract. No objection was urged to the method adopted for the experiment. It is proved that the bagasse was not different from the bagasse made by other mills.

The steam from othey boilers than those sold by the plaintiffs was cut off and the burners fed with bagasse were the only steam-producing power.

The burners became clogged with bagasse and the steam pressure declined and most of the time the mill was stopped.

In seventeen and a half minutes’ time the pressure was reduced from seventy-five pounds to about thirty-seven pounds.

There were planters present of experience, disinterested witnesses, who testified that the bagasse was poorly consumed; that there was but little heat in the burner and the operations were not those of an efficient burner. There were a number of machinists present who testified that it burnt the bagasse incompletely, and that it was altogether an absolutely defective burner.

The plaintiff testified that he made a test a short time preceding. It was the evaporation test on scientific principles.

It is not shown that this test was made contradictorily with the defendant or that any disinterested witnesses were called to witness the experiment. The result is that the correctness of that test is not sustained by the weight of the testimony.

There was no objection offered to the practical manner followed in testing the power of the steam produced, though it is.not as accurate as the evaporation test, it is that generally followed in testing steam power; it proved for all practical purposes that the burner was not the burner plaintiffs agreed to furnish and deliver to the defendant.

If it was possible to show error it should have been established contradictorily, or in view of a number of witnesses sufficient to prove its correctness.

The contract shows that plaintiffs engaged themselves by the declaration that coal or wood can be burned better than with the ordinary furnace if no bagasse is at hand, but in any event they guarantee to give more steam than any other furnace with the same amount of like fuel.”

The experiments prove that this guarantee failed.

The unverified evaporation tests of plaintiff do not suggest that in any respect the burner was efficient and not a failure.

The reconven!ional demand is more particularly directed against the unsatisfactory and defective burner.

The proof shows that all the difficulties in operating the machinery were caused by the insufficiency of heat from the burner. It did not develop the capacity of the boilers.

It is not proved that th e boilers are defective in material. The workmanship was not objectionable in any particular. They were of the quality and make required by the contract.

The defendant’s contention on this point is that it is an entire contract and that a partial failure is equal to a total failure.

There was error doubtless, but the vendors acted in good faith. There is no fraud charged and the record does not disclose that they knew of the defect of the burner.

The defect of the burner caused a partial failure of consideration.

The fact remains that the defendant has received and used boilers that are not defective.

There was a partial performance, severable from the partial failure.

The dividing line between the two is clearly marked.

The failure is not in so material a point as to affect the entire contract.

These boilers were used during the grinding season without the discovery of any defect.

They have value, and all the qualities and power guaranteed in the contract.

They were sold for a special price. It is distinct from the price of the remainder of the machinery, though included in the same contract, and forming part of the total for the whole machinery.

The difference between these prices is great, and suggests that the defective part is not an essential.

The purchase price of the burner is of insignificant amount compared with that of the boilers. '

The former, the boilers, are complete in themselves and are a consideration without reference to the burners. They are fit for the use intended. The defective apparatus does not in the least detract from their value. The particular burner is not essential to their use. The burner is an accessory.

Upon that subject Troplong (Vente 579) clearly says:

“With reference to the accessories of the thing sold they follow the principal. If a horse with saddle and bridle has been sold, in setting aside the sale of the former that of the latter follows.

' But if the principal thing was not defective and the accessory was, the cause to set aside the sale is limited to the latter.

“Metis si la chose prineipale etait sainé et entiere, et quele vicerédhibitoire tombd seulement sur Vaccessoire, la rédhibition- aura. lieu que pour Vaccessoire seulement.'1

From Duranton (Vol. 16, Sec. 318) we quote: “ D’aprés ce principe si je vous vends mon domaine avee les six chevaux de labour qui y sont, je suis garantie des vices dont seraient infeatés ces chevaux ou quelques uns d’entre eux, quand bien méme la vente ne serait faite que pour un seule et méme prix. Toutefois il n’y aurait pas lieu, dans ce cas, a Vaction redhibitoire mais seulement a Vaetion quanti minoris ou en diminution du prix.

Cette distinction est parfaitement établie dans la loi 33 des Aedil. edicto, et Pothier Va adoptée dans son traite du contrat de vente.

From Laurent, Vol. 24, Sec. 292:

P, ne faudrait pas conclure de Id que le contrat doit nécessairement étre résolu pour le tout. Cela dépend de l’objet de la vente.

The question of partial consideration has been discussed in a num - ber of decisions of the courts of this State.

It is announced as correct principle that the right to set aside the contract arises only when the things sold are dependent upon each other, so that the defect of one renders the other useless and without value.

It must appear that the interdependence was the principal motive of the contract. Hale vs. New Orleans, 13 An. 501; Mouton & Bro. vs. Whitely, 12 An. 175; Bertrand vs. Arcueil, 4 An. 430.

The following also applies:

“ From this provision the inference is clear that if the several things sold together are independent of each other, and do not form a whole, and if the value of each thing is not increased by its union with the rest, a redhibitory action can be maintained only for those things which are found de£detive, and that the contract must stand and be carried into effect in relation to the others.” Citing 6 Mart. 396; 3 N. S. 100; Pothier de la Vente, Nos. 226, 227, 228.

“ The rule is that the redhibitory vice of one of several things sold applies to a limited class of cases.” 3 An. 378.

We realize that the question is not free from difficulty.

Our determination in this case was reached after having considered that the boilers and attachments not defective remained and were used, though the defendant had other steam power within her control easily disconnected from the four boilers in question. No offer was ever made to return them and it does not appear that they ever gave cause for objection.

Moreover, though alleged in the body of plaintiff’s petition, the prayer is silent in so far as relates to the boilers and their attachments.

The contract contains a stipulation guai’anteeing the defendant from loss by defect of the burner.

In express terms, it was made the law of the contract. Oonventio facit legem,. The testimony on this branch of the ease is not contradicted.

The number of barrels of coal and the price paid by defendant are proven.

The damages can not amount to less, under the evidence, than the amount allowed by the learned judge of the District Court.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended and that plaintiffs recover of the defendr ant the balance due on the apparatus (after deducting the price of the burner) and rejecting and striking from the judgment that portion ordering the return of the two thousand four hundred and forty-three dollars to the defendant by the plaintiffs (amount received on account).

It is further ordered, adjudged and decreed that upon the reconventional demand the judgment of the District Court be and the same is hereby affirmed and the defendant on that demand is allowed judgment against plaintiff for six thousand seven hundred and fifty dollars.

The amount of the original contract was seven thousand three hundred and thirty dollars.

Prom it is deducted the price of the burner and outfit .................................... $975
Amount heretofore paid...................................................................................... 2,448
$3,912

With five per cent, interest per annum from October 25, 1892, on half of said amount, viz.: one thousand nine hundred and fifty-six dollars, and a similar rate of interest on a like amount from*5th Jan-nary, 1893. The three thousand nine hundred'and twelve dollars, plus interest as just stated, must be deducted from the six thousand seven hundred and fifty dollars; the remainder is the amount the plaintiffs are condemned to pay to the defendant.

It is further ordered, adjudged and decreed that plaintiffs are the owners of the bagasse burner and outfit covered by the sum of nine hundred and seventy-five dollars.

That the bagasse burner and outfit be delivered to the plaintiffs, and that they remove it at their expense.

It is further ordered that defendant pay costs of appeal.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 11,407.
    Arthur S. Wheeler vs. Board of Fire Commissioners et al.
    1. The “ veterinary surgeon ” mentioned in See. 6 oí the ordinance creating a paid fire department for the city of New Orleans is an officer of the department and holds his office during good behavior.
    2. The Board of Commissioners was absolutely without power or authority to displace a veterinary surgeon who had been elected and qualified and was in the discharge of his duties as such by the election of another person, the officer having not resigned or been impeached. Such election was absolutely null, carrying with it no legal effects.
    3. The officer attempted to be displaced through such an election by the board was authorized to ash and the court justified in granting an injunction in his favor restraining the newly elected surgeon, the Board of Commissioners and the chief of the department from interfering with him in the performance of his duties.
    APPEAL from the Civil District Court, Parish of Orleans. Ellis, J.

      E. G. Zacharie for Plaintiff and Appellee:
    A de facto officer is entitled to an injunction to prevent interference with him in the discharge of the duties of his office, by a rival claimant, until such time as the title de jure to the office shall have been judicially determined in a proper proceeding. High on Injunctions, Sec. 1315, 2d Ed.; 41 An. 333; 43 An. 83; the Callan case, 45 An., 673, does not contravene the principle; Callan was not a de facto officer.

      “ Two persons can not be defacto officers for the same office, at the same time.” 15 Oregon, 456; 3 Am. St. Rep. 176; 19 Nev. 312; 8 Kan. 442; 1Ó Paige (N. Y.) 432; 22 Barb. (N. Y.) 80; 15 How. Pr. (N. Y.) 1470.
    A defacto officer must be publicly and generally acknowledged and accepted as such; it requires general reputation as such to constitute the de facto quality and status. Am. and Eng. Ene. of Law, Yol. 19, p. 394; 16., Yol. 5, p. 92.

      E. A. O’Sullivan, Oity Attorney, Henry Renshaw, Assistant Oity Attorney, and Lawrence O’Donnell for Defendant and Appellant:
    Proceedings by injunction can not be used to determine disputed title to office. 41 An. 333; 43 An. 83; 45 An. 673.
    Injunction will be denied when the acts to be enjoined have been committed, the purpose of an injunction, in the matter of the discharge of functions in a public position, being to prevent and not to correct wrongs. 45 An. 673.

      Qui tacet consentiré videtur.

   The opinion of the court was delivered by

Nicholls, C. J.

What is known as the fire department of the city of New Orleans owes its origin to the ordinance of the city of New Orleans which bears the number 5614.

The general control and administration of the affairs of the department is entrusted to a board designated as the Board of Fire Commissioners of the Oity of New Orleans.”

The powers, rights, duties and obligations of the board are set forth in the ordinance creating it.

Section 5 of the ordinance declares that the commissioners shall appoint all the officers and employés of the department, and Sec. 6 that the said board shall appoint as many assistant engineers, firemen * * * and other employés as may be requisite, also one veterinary surgeon. The 28th section of the ordinance is that upon which both parties to this litigation rely. It is as follows: “ All officers and men of the department shall hold office during good behavior up to the age limits of sixty-five years, and shall only be deprived of office and position after impeachment and conviction by the commissioners.”

The plaintiff herein was duly elected “ veterinary surgeon ” of the fire department on November 18, 1891, and qualified and entered upon the discharge of his duties as such. It is not pretended that he has resigned or been either removed or impeached. On the 12th of January, 1898, the Board of Oommissioners elected John J. Morice to the position of veterinary surgeon. On the 14th of January, 1898, upon the petition of the plaintiff, an injunction issued enjoining and restraining the Board of Commissioners and Morice from any action interfering with or infringing on the plaintiff’s rights of discharging the duties and receiving the emoluments of the said office until such time as the disputed right to said office should be judicially determined. Plaintiff in the petition upon which this injunction issued set forth his election and qualification as veterinary surgeon, his continued possession and incumbency of the office, the terms and tenure of the office and the powers and duties of the board. He also set forth the action of the board in attempting to replace him by the •election of Morice, and declared this action illegal and unwarranted.

He averred that the Board of Fire Commissioners and Morice (the latter claiming title to the office by virtue of the election mentioned) and Thomas O’Connor, chief of the fire department, were seeking to impede, interfere and obstruct him in the discharge of the duties and functions of his office and receiving the emoluments thereof, and that he feared that Morice would seek and obtain recognition as veterinary surgeon unless all parties should be restrained by injunction. He prayed that an injunction issue, and after citation and hearing that it be ultimately perpetuated, restraining the Board, Morice and O’Connor from any action interfering with or infringing upon his right of discharging the duties and receiving the emoluments of the said office until such time as the disputed right to said office shall be judicially determined.

A motion to dissolve the injunction, as having been illegally issued (as the averments of the petition did not warrant it), and an •exception dismissing the suit as disclosing no cause of action, were •successively filed by the defendants and overruled by the court. They then answered, first pleading the general issue, and further answering averred that Morice was duly elected under the ordinance; that he had immediately thereafter entered upon the discharge of the duties of the office and was in the performance of the same at the date the injunction was taken out; that he was prevented by the injunction from continuing to perform said duties, and that from the date of his election he had been and was still the sole and actual incumbent and de jure and de facto holder of the office. The District Oourt rendered judgment in favor of the plaintiff as prayed for by him, and defendants have appealed.

Only two questions are really before us:

1. Is the veterinary surgeon of the fire department of the city of New Orleans to be classed as one of the officers and men of the department?

2. If he is, did his displacement by the board in manner and form and under the circumstances as shown by the record authorize him to take and justify him in taking out the injunction which he did and when he did?

Defendants do not allude at all in their brief to the first point, and their contention in respect to it in argument was so clearly without foundation as to require no special or extended discussion. The veterinary surgeon is unquestionably an officer of the department. There is no basis whatever upon which to attempt to draw a distinction between him and the assistant engineers, the foremen and the other persons mentioned together in the sixth section.

The effect of our so holding is to bring the court at once to• the consideration of the second question, for it is not claimed that the plaintiff has resigned, or been either removed or impeached, or that (assuming him to be an officer) the board had any power or authority to elect a person in his place.

The whole case of the defendants rests upon the incorrect premise that the plaintiff was connected with the defendant by a mere “assignment to duty ” from which he could at any time be “relieved,'1 v by the board.

The board was absolutely without power or authority to so relieve him at will, he holding his office by a fixed tenure during good behavior, and as resulting from this fact its action in electing Dr. Morice in his place was an absolute nullity, carrying with it no legal effect whatever. It is claimed that the plaintiff was present when that action took place, that his name was placed in nomination as a candidate in opposition to Morice, that he made no protest, but acquiesced in the situation until his defeat. There is nothing going to show that plaintiff’s name as a candidate was presented by his authorization. He was not called on to interfere with the proceedings of the board even had he been at liberty to have done so. He could safely rest on his legal rights.

The situation and position of no one was injuriously affected by his course. There is no estoppel in the premises.

The case of Callan vs. Board of Fire Commissioners, 45 An. 673, relied on by the defendant, bears no resemblance to the present. The plaintiff in that case did not pretend in his pleadings to have been at any time an elected officer; his utmost claim was that he was “acting” as an officer, which is something other and very different from “being” an officer.

Finding that plaintiff was elected and qualified as an officer in an office the tenure of which is during good behavior; that he was actually in the discharge of his duties as such officer; that he had not resigned nor been impeached; that any attempt by the board to displace him by the election of another person was done absolutely without power or authority, and that his attempted displacement was an absolute nullity; finding that in the petition presented in this case plaintiff, by pleadings containing not merely conclusions of law but recitals of fact,' supported by documents annexed, shows, affirmatively to the court both the absolute character of his own rights and the absolute want of power and authority of the Board of Oommissioners in the premises; finding also that this litigation is limited to the ascertainment of the conflicting claims of the two veterinary surgeons themselves and that no question arises as to the effect upon third parties of any act done by Dr. Morice as being the act of a de facto officer, we are of the opinion that the plaintiff was justified in asking and the court warranted in granting the injunction which issued in this case.

We recognize that injunctions of this character1 should be granted only after the most careful examination by the judge to whom application for the same is made, inasmuch as there is danger of the judiciary being made to temporarily trench unintentionally upon powers legally committed to other departments of the government, or to special persons or tribunals, and inasmuch as public as well as private interests are almost necessarily more or less concerned in such proceedings.

If district judges would refrain from action until applicants should so frame their pleadings by recital of the facts on both sides, and until they should so support them by documents annexed as to clearly satisfy them that the injunction if issued, would be well taken, and if they would bring to bear before action their judicial knowledge (if such they have) of certain facts bearing on the particular case instead of granting injunctions as a matter of course upon pleadings reciting mere conclusions of law (skilfully prepared to suppress such portions of the facts of the case as if known would bar the remedy), instead of acting as a matter of course upon the assumption (false in most instances) that the injunction bond would fully and thoroughly protect and secure all interests at stake, the remedy by injunction in cases like the present would be conservative in its effects. The danger rests not in the remedy but in the carelessness or indifference of judges.

We are of opinion that the judgment appealed from is correct, and it is therefore affirmed.


author: Nicholls, O. J.

text:
    No. 11,510.
    State of Louisiana vs. Baptiste Hill.
    1. Whether neither the crime charged nor its punishment is dependent upon values — values need not be declared in the indictment.
    2. Mere matters of; evidence not necessary for the validity of an indictment are not necessary to. bo alleged in it in order to introduce under the indictment evidence pertinent and relevant to tlie charge.
    3. If before the trial commences it is discovered that one of the jury is incompetent by reason of relationship to the accused, he may be legally set aside and the panel completed in the ordinary course.
    APPEAL from the Eleventh District Oourt, Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, and E. B. Dubuissson, District Attorney, for the State, Appellee:
    Value need not be alleged in an indictment for horse stealing. Although not alleged, it may be proved when it tends to show guilty knowledge.
    A juror may be set aside after being sworn when it is discovered that he is incompetent.

      John IV. Ogden Attorney for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, O. J.

Defendant was convicted of horse stealing and sentenced to one year at hard labor in the penitentiary. He has appealed.

We will pass upon his grounds of -complaint in the inverse order in which they were raised.

1. A motion in arrest was made on the ground that the indictment upon which he was tried did not allege any value in the property chargéd to have been stolen.

Neither the crime charged nor the punishment for the same was dependent upon the value of the thing stolen. The crime charged was a substantive one — independent of the value of the animal taken. There was therefore no reason for making reference to value in the indictment. State vs. Wells, 25 An. 372; State vs. Thomas, 28 An. 828; Bishop Cr. Pr., 3d Ed., Vol. 2, Sec. 713; Waterman’s Arehbold, Vol. 2, p. 384.

2. The court permitted the State to offer evidence to prove the value of the horse stolen over the objection made by the defendant that there was no declaration of value in the indictment.

The object of the testimony was to show that the horse, being in the possession of the defendant, was sold for an amount totally disproportionate to its value, and from this fact to infer that it had been stolen. No objection was made to the testimony itself as being irrelevant or improper. We have just said that there was no necessity for the validity of the indictment that it contain a recital of value The matter of value was purely one of evidence on the trial. If the question asked was a proper and relevant one it was admissible, without reference to any statement in the indictment on the subject, the indictment itself being sufficient. Statements not necessary to the validity of the indictment are no more necessary to be alleged in it than in' a petition in order to introduce in evidence testimony pertinent and relevant to the issues.

3. When the case was called for trial, the first juror presented was sworn, he being accepted by both the State and the accused.

Eight others had been subsequently similarly accepted an'd sworn when the district attorney suggested to the court that the first juror sworn was an uncle of the accused and should be made to stand aside. The juror having admitted, when questioned, that the fact stated was true, the court, over the objection of the accused that the objection to the juror should have been urged- on the voir dire, and that if incompetent the juror’s incompetency was not absolute but relative, ordered the juror to stand aside.

■The judge states, in the bill of exceptions reserved to this action, that under the acts of 1877 and 1880 the juror, being related to the defendant within the fourth degree, was incompetent; that this incompetency was unknown to the State at the time of calling, examining and accepting the juror; that it had the right under its discretion to purge the jury of an incompetent juror at any time before evidence was offered, and that no injury could result to defendant by ordering him to stand aside.

There is no complaint that the accused had exhausted any peremptory challenges, or that an objectionable juror had been forced upon him.

We are of the opinion that if, before the trial commences, it is discovered that one of the jurors is incompetent, by reason of relationship to the accused, he may be set aside and the panel completed in the ordinary course. Lord Hale’s Pleas of the Crown, Vol. 2, p. 296; Bishop Cr. Pr., 3d Ed., Vol. 1, Sec. 947; Thomp. and Mer. on Juries, Sec. 273; Wharton Cr. Pl. and Pr., Sec. 672; 2 An. 307; State vs. Disken, 34 An. 919; State vs. Nash & Barnett, 46 An. 194.

Judgment affirmed.