text:
    No. 1172.
    Allen, West & Bush vs. J. E. Nettles, Administrator.
    In ib suit against an administrator for a balance of account, unappealable in amount, the defendant reconvenes, claiming payment to succession of §7000, proceeds ot cotton sold and credited in plaintiff’s account. Held: that as any allowance made on defendant’s demand necessarily increased tlie ordinary balance duo plaintiff, this involves adjustment of entire account and the whole case is appealable.
    Where mercantile accounts have been closed by rendition and acceptance without objection, the debtor cannot thereafter object to charges of 8 per cent interest and to compounding interest by capitalization of succession balances.
    Such settlement of accounts being equivalent to payment, the debtor can only recover usurious charges less than one year old.
    Under the 3d section of Act 44 of 1882, the consignee, from the date of consignment under bill of lading, acquires a perfect pledge with right to sell and pay bis debt with the proceeds. The death of the consignor, after tlie consignment, could not affect such rights.
    Bat no consignment made after the death of the owner by an unauthorized person could operate to create a pledge in favor of the consignee. The death fixed the rights of all creditors as to the succession property and no one could acquire any new pi ivilege thereon.
    APPEAL from tlie Sixth District; Court, Parish of Morehouse. Mlis, J.

      Todd & Todd and & T.. Baird, for Plaintiffs ana Appellants.

      Newton & Gasón and Boatner & Boatner, for Defendant and Appellee.

      Bussey <& Naff, for Inter venors and Appellees :
   The opinion of the Court w7as delivered by

Fenner, J.

Plaintiffs sued defendant as administrator of Elbert Nettles for a balance of account of $749.51. The accounts from which this balance results include sales of a large amount of cotton which was received and sold by plaintiffs and credited to defendant in account. The defendant denies that the balance claimed is due, and flies a demand in reconvention, in which he claims a judgment against plaintiffs for the proceeds of said cotton, amounting, as alleged, to more than $7000, on the ground that said proceeds are property of the succession, and, as such, must be paid over to the administrator to be administered and distributed according to law.

Plaintiffs are appellants from a judgment condemning them to pay to the administrator the sum of $992.09, the value of twenty-nine bales of cotton, adjudged to have been received by plaintiffs after the death of Nettles, and giving a judgment in favor of plaintiffs to be paid in course of administration for $1062.42.

Thus, it will be seen, that plaintiffs recover judgment for several hundred dollars' more than they claimed in their petition. This results from the fact that in condemning plaintiffs to pay over to the succession the proceeds of cotton which had been credited on the account, this necessarily increased pro tanto the balance due on said account, and if the value of all the cotton claimed by defendant, say $7000, had been allowed, it would, in the same measure, have increased the amount due to the plaintiffs as ordinary creditors.

We mention these matters at the threshold of the case in order to dispose of the motion made, bj^ defendant to dismiss the appeal as to the principal demand because that is not within our jurisdiction.

Ordinarily the motion would be well taken, because it is well settled that an appealable demand in reconvention does not give us jurisdiction of an unappealable principal demand, and vice versa.

But we regard this as an exceptional case, in which the principal and reconventional demand are so interlaced that one cannot be considered without the other. The issue, as framed by the pleadings, involves the adjustment of the entire account between the parties, in which the claims on both sides must be considered, and this adjustment includes an amount in dispute exceeding two thousand dollars.

The motion to dismiss is therefore denied.

On the Merits.

We will first dispose of defendant’s objections to the account on the ground of excessive charges of interest, commissions, etc.

Plaintiffs had conducted a large business with Elbert Nettles for a number of years prior to his death.

In the course thereof accounts and statements had been frequently rendered to him, informing him fully of the nature of the charges made against him, and balances had been frequently struck and carried forward into new accounts. Fie received these accounts, a,nd never made any objections to them. The last one before his death was rendered on August 20, 1885, and the account on which the present suit is based begins with the entry: “ 1885, August 26. To balance account rendered, $2574.43.”

Defendant now seeks to overhaul these accounts from 1881, and claims, and was allowed a deduction of $407.01 for overcharges of interest resulting from the charge of 8 per cent, interest, and from the compounding thereof by capitalizing, in the succeeding accounts, the balances from those preceding. ’ We think this was error.

So far as these matters are concerned, the defendant cannot go beyond the accounts which have been rendered to and accepted by him without objection. Parol evidence cannot be received to prove a convention to pay 8 per cent interest, but when such charges have been made, and an account containing- them has been rendered and accepted, the account becomes an account stated; the balance represents a settlement between the parties to pay which a promise is implied, and such settlement can no more be impeached on the ground that such charges are included therein, than if the account had been paid and the action were to recover them.

See on this general subject: Lallande vs. Breaux, 5 Ann. 505; Millaudon vs. Sylvestre, 8 La. 267; White vs. Henderson, 2 Ann. 241; Compton vs. Compton, 5 Ann. 618; Thompson vs. MyIne, 4 Ann. 206; Pickersgill vs. Brown, 7 Ann. 298; Sentell vs. Kennedy, 29 Ann. 679.

Defendant can only claim the reduction to 5 per cent of the interest charged in the last accounts of February 11 and August 29, 1886. This, according to our calculation, reduces the balance of tlie last-mentioned account by $100.

Another deduction was claimed of two usurious charges of 2{ per cent for advances in addition to 8 per cent interest. Both these charges, amounting to $87.17, were contained in accounts which had been rendered to deceased, and being more than a year old, they cannot he recovered. C. C. 2924. The allowance of these by the judge was error.

Tiie deduction allowed to defendant of $95, charged under the contract, for commissions on cotton not shipped, was correct. Nettles was to ship a bale of cotton for every ten dollars advanced, and was to pay a commission of $1.25 for each bale deficient. We can discover no deficiency. The contract was made for the Girard account, and it appears that defendant shipped 24 bales on that account, and did not receive advances exceeding $240.

Another deduction of $100 was allowed in correction of a supposed error in extending on the account, as the proceeds of three bales of cotton, $14.14, inste.ad of $114.14. An examination will show, that although the extension of only $14.14 does appear in the copy of the account, yet this is a mere mistake in copying, and that in the addition of credits the correct amount of $114.14 is included.

Thus, it appears that the deductions of $689.18, allowed by the judge in favor of defendants on the foregoing matters, should be reduced to $195.

At the death of Nettles plaintiffs had on hand, unsold, a number of bales of cotton shipped for his account, and more were received shortly after his death.

The defendant administrator contends that plaintiffs are bound to pay over to the administrator the whole proceeds of all the cotton sold after the death of Nettles, and to assert their privilege (if any they have), on those proceeds contradictorily with other creditors.

So far as any cotton is concerned which had been consigned prior to ,the death of Nettles, although not sold, and not even received till after his death, this contention is absolutely without force.

The third section of act No. 44 of 1882 provides: “That all merchants, factors and others who may have a general balance of accounts or any sum of money due them by any consignor or other person sending them cotton, sugar, etc., for sale, for the purpose of paying such balance of account or sum of money due, shall have a pledge upon all such property consigned or sent to them * * from the time the bill of lading or receipt thereof by the carrier is deposited in the mail or given to the carrier for transmission, which pledge shall be perfect, with the right of sale of said property, which shall be fully vested in said consignee, with the right to appropriate the proceeds of sale to the payment of the amount due such consignee; provided, that nothing herein shall be so construed as to defeat or lessen the privilege of the laborers and landlords in this State for wages and rents as now existing by law, nor as defeating or lessening any other valid existing privileges or liens.”

Here we have an explicit provision that the mere fact of consignment evidenced by bill of lading, shall operate a perfect and instantaneous pledge, with the absolute right in the consignee to sell and pay his debt with the proceeds, subject to ,no limitation except in favor of existing privileges, which means privileges existing prior to the consignment. It is impossible to conceive how the death of the consignor after the consignment could defeat such clear and perfect vested rights conferred by the law itself. The proposition is really not worthy of further consideration. See Jacquet vs. His Creditors, 38 Ann. 863; Rasch vs. Creditors, 1 Ann. 31; Jerome vs. McCarter, 94 U. S. 73.

A different question, however, is presented with reference to the cotton consigned after Nettles’ death. At the moment of death plaintiffs had no kind of privilege or pledge on this cotton, which passed immediately into the succession of Nettles, and became subject, insta nter, to all the rights and privileges of creditors, which were absolutely fixed by the death, and could not be thereafter changed or affected by any act of the administrator or any other person.

This court has said: Privileges and mortgages rightfully acquired before the death are respected ; but with that exception the property of a succession is a common fund, the equal pledge of all the creditors; and one is not permitted, by superior diligence, or by dealing witli the executor, to get an advantage over others.” Boyce vs. Escoffie, 2 Ann. 872.

So we have held that “ a privilege recorded after the death of the debtor cannot affect creditors, whose rights become fixed at the date of the death.” Suc. Rhoton (syllabus), 34 Ann. 893.

Neither the administrator nor any unauthorized person could do any act after the death of Nettles the effect of which- would be to confer upon plaintiffs a privilege or right of pledge on the property of his succession which did not exist at the moment of his death.

In this case, the cotton consigned after his death seems to have been consigned before the administrator was appointed, by some one who had no authority whatever.

It follows that plaintiffs must account to the succession for the proceeds of cotton consigned after the death.

It does not, however, follow that cotton received shortly after his death may not have been consigned before; and we agree with the judge a quo that defendant has supported his reconventional demand by no evidence establishing that more than 29 bales were consigned after the death ; but as to that amount of cotton the proof is certain by production of the bills of lading which are dated after the death.

We shall adopt the judgment rendered below with an amendment, correcting his excessive allowance of deductions claimed by defendant.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by increasing the principal of the judgment against defendant from “$1,062.42” to $1,556.60, and that, as thus amended, the same be now affirmed, defendant and appellee to pay costs of this appeal.

Mr. Justice Todd takes no-part.


source: Caselaw Access Project

author: Waticins, J.

license: Public Domain

text:
    No. 1168.
    The State ex rel. John T. Ludeling vs. William T. Millsops, Judge ad hoc.
    A district judge who has recu.sed himself and appointed a lawyer or judge ad hoc to try the recused case, is the only one who has the jurisdiction or authority to appoint some one to fill a vacancy caused "by the removal, death, or resignation of the latter.
    ^PPLICATION for Prohibition.
    The relator in pro per.

      Stubbs & Bussell, for the Respondent.
   The opinion of the Court was delivered by

Waticins, J.

The relator, alleging himself to be the plaintiff in the suit entitled John T. Ludeling vs. J. C. Chaffe et al., now pending for trial in the parish of Ouachita, Fifth Judicial District, of which Hon. R. W. Richardson is the presiding judge, represents that said presiding judge recused himself therein, and caused the order of recusation to be entered on the minutes of his court. He further represents that the judge, after thus recusing himself, first appointed Thomas A. Garrett, a lawyer having the necessary qualifications, and he qualified ns such, but resigned. Judge Richardson then appointed John Boatner as judge ad hoc, and he qualified and subsequently resigned. The same judge then appointed T. A. Garrett the second time, and he again qualified and resigned subsequently. Thereupon the said Judge R. W. Richardson selected and appointed the respondent as judge ad hoc, and he has qualified and assumed the exercise of the duties imposed upon him by law in that case.

Relator’s contention is that Judge Richardson was without capacity to appoint the respondent, and that he is without jurisdiction or lawful authority to exercise the duties appertaining to the appointment; and that upon the resignation of the judge, or judges ad hoc, he, or some one of them, should have made the appointment of a judge ad hoc, to act in his place and stead.

This proposition is denied by the respondent, who asserts the legality of his appointment, and his jurisdiction over and lawful authority to try the recused case.

Relator cites in support of his claim, our recent opinions in State ex rel. Fontelieu vs. Judge, 37 Ann. 394, and State ex rel. Fontelieu vs. DeBaillon, 38 Ann. 727.

In the former case we said, in keeping with prior authority therein cited, that the judge appointed to try that case became vested with jurisdiction over the case absolutely and as exclusively as would have been the case with a suit originating in his own court.”

Sec. 6 of act 210 of 1880 declares that the lawyer or judge appointed under sections 2 and 3 of this act, shall have and exercise the same powers as the judge (recused) may exercise in cases before his court, in which no causes of recusation exist, etc.” The case above referred to not having been tried by the judge appointed to try it within nine mouths, an application was made to have the cause transferred to some parish In an adjoining district, and we held that the judge ad hoe at the time presiding, was the proper officer to make the transfer of said cause.

In Halphin vs. Guilbeau & Broussard, 38 Ann. 727, we held that “in case of the transfer of a suit, the judge of the court to which the transfer is made has as full and complete authority and jurisdiction over the same as if it had originated in that jurisdiction.” State ex rel. Gates vs. Judge, 38 Ann. 452.

While it is perfectly true that the judge or lawyer appointed to try a recused case has exclusive jurisdiction over it, and can exercise as perfect control over it as the judge who has recused himself, can exercise over other causes in which he is not recused; and such judge ad hoe is the only competent and proper authority to transfer the suit to another jurisdiction, under the law, it does not follow that he has the power, or can exercise the authority of appointing another judge or lawyer to fill the vacancy to be produced by his contemplated resignation.

That power must of necessity reside in the judge who is recused, as is fitly illustrated by this case. The several lawyers selected and appointed by Judge Richardson, have already resigned, and the respondent was thereafter appointed and qualified, and entered upon the discharge of the duties of that office. It is perfectly clear that a judge ad hoe, who has actually resigned, could make no appointment thereafter. . Such being- the case, there could be no other judge ad hoc appointed, if none could be appointed by the judge recused.

Take the case of a judge ad hoe who should die, or remove from the State, at a time when there was a vacation of the court. If thereafter the judge recused eould not appoint a judge ad hoe to fill his place, the trial of the case would remain at a standstill until the said judge should cease to be the judge of the court in which the recused case might be pending. We are unwilling to place such a construction upon the jilain and unambiguous words of the statute as would prodnce such a state of tilings. There is no such a cams omissus in the law under consideration.

So long as the judge ad hoc is acting he has exclusive control of the case, but he cannot select and appoint his successor.

The relator has not presented a case entitling him to relief.

It is therefore ordered, adjudged and decreed that his demands be rejected, and the alternative writ of prohibition be set aside, at his cost.


author: PocHií, J.

text:
    No. 1167.
    The State of Louisiana vs. Sampson Paul.
    Tn criminal cases the Supreme Court cannot consider an appeal the record of which contains no plea or matter presenting an issue of law involved in the trial.
    The course of attorneys who take appeals in criminal cases to which they pay no further attention is deserving of judicial censure.
    A PPEAL from the Twelfth District Court, Parish of Grant. ¿X. Blackman, J.

      John O. Wickliffe, District Attorney, for the State, Appellee.

      M. T. Machín, for Defendant and Appellant.
   The opinion of the Court was delivered by

PocHií, J.

The defendant appeals from a conviction of larceny and a sentence to bard labor for one year, but the record which his counsel has brought up contains no bill of exceptions, no motion or plea or complaint on which this court can exercise its limited jurisdiction in criminal cases.

In the name of the State and in furtherance of a proper administration of justice, as well as in the interest of the parishes on which the burden of unnecessary costs is thus imposed, we take another occasion to discountenance tlie habit of some attorneys who take appeals in criminal cases, to which they pay no further attention. Such a course can hardly be in the interest of the accused, is unjust to the parish, and hardly respectful to this Court. State vs. Williams, 37 Ann. 311.

Judgment affirmed.


author: Todd, J.

text:
    No. 1164.
    John R. Houston vs. Vicksburg, Shreveport and Pacific Railroad Company.
    Suits against lailroad companies for damages may be brought in tbe parish where the dam - age was (lone or the injury received.
    Where the speed of railway trains is not regulated, by statute, unless in exceptional cases, tbe existence of a high rate of speed does not argue a fault on the part of the company
    Tbe reasonable rule is that the highest rate of speed is proper and legitimate consistent with the safety of the passengers.
    A person cannot recover for an injury to which he lias contributed by his own want of ordinary care.
    PPEAL from the Third District Court for the Parish of Lincoln. Young, J.

      Barksdale & Van Hook and Graham & Gaskins for Plaintiff and Appellee.

      Stubbs & Bussell for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

This is a suit of the plaintiff in his own light and as tutor of his minor children for $22,500 damages, resulting from the death of Ms wife, Mrs. Georgia Houston, and infant child, run over and hilled hy the train of the defendant company on the 13th of January, 1885.

It is charged in the petition that “ the killing was wantonly and recklessly done, and might have been avoided by ordinary care and prudence on tlie part of the employees of the railway company.”

The answer is a general denial and an averment that the deatli was caused by contributory negligence on tbe part of tbe decased.

The case was tried by a jury, who, by a majority, returned a verdict in favor of the plaintiff for $13,970 individually and as tutor, one-half in each capacity, and from the judgment on this verdict the defendant company has appealed.

There was a jilea to the juiisdiction raiione personen filed, which was overruled. This ruling was proper under the provisions of paragraph 9, C. P. 168, authorizing ail action of this kind to he brought in the parish where the. damage was doDe. This article was not repealed by tbe charter of tbe company. 30 Ann. 607. Besides, from the silence of the defendant’s counsel, we infer that the correctness of the ruling on this point is not questioned.

The facts of the case are substantially and briefly these:

The deceased, carrying her infant child and accompanied by her sister, was walking on the railroad track, returning from a visit to a neighbor and going eastward to their home, which was on a public road running parallel with the track of the railroad, and about 150 yards distant therefrom. The train, bound in the same direction that the deceased and her sister were going, approached them. The latter stepped fiom the track and the train passed by her; the former was, however, overtaken at or near a crossing of the road to which she was hurrying; was run over and killed, together with her infant child.

The fault charged against the company, from which this deplorable calamity is alleged to have resulted, was the unusual and extraordinary speed at which the train was then and there being propelled, and the failure to give a timely warning, by the required signals, of the rapid approach of the train, and the failure to stop the train in time to avoid the casualty.

The contributory negligence charged was alleged to be that, notwithstanding the train was seen aud heard by the deceased at a sufficient distance and in sufficient time to have afforded her ample opportunity to get off the track aud thus avoid all danger, she persisted iu remaining on the track after the train had been heard aud seen, and after the signals had been timely given by the ringing of the bell and the blowing of the whistle, and when there existed no impediment to her getting off the track in a moment. And it was charged that her death was caused, not by the fault of the company, but. by her own negligence in failing to take ordinary care to avoid the threatened danger.

Theie is a conflict in the testimony respecting the rate of speed at which the cars were running at the time of the disaster. The plaintiff contends that the train was moving at a speed of nearly sixty miles per hour, and the defendant that it was a speed of twenty-five to thirty miles only. We cannot see that this is a material inquiry.

There is in this State no statutory regulation of the speed on railways. Of course, it would evince criminal negligence to move a train at a high rate of speed through cities, towns or villages, or other places where people are accustomed to throng; but, considering that railroad companies are entitled to the exclusive use of their track or road-bed, there is no reason why, in an open country not thickly populated, the mere probability that a person or persons might occasionally walk on the railroad track should be made a factor in this question of speed on railroads. A high rate of speed has always been a great desideratum, aud engineering skill' has been taxed to the utmost to attain it; and we conceive the reasonable and established rule on this subject.to be that no conceivable rate of speed consistent with the safety of passengers is per se negligence. Pierce, 354; Rorer, 1066.

In the case before ns, for instance, what mattered it at what rate of speed the train was moving, if the deceased could, if she chose, have stepped off the track, and was not prevented from doing so ky the speed at which the train was running ?

Under this view of the subject we cannot discover any fault of the company in connection with this question of the rate of speed at which the train was then moving.

Was the company in fault in failing to give a timely warning or in stopping or attempting to stop the train in time?

This is what the engineer says on. this point:

I was between three hundred and four hundred yards from them when I first discovered them. I rang the hell and blew the whistle to call their attention to the coming train. Both looked back, saw the train, and they turned around and both walked on a few steps, when one of them stepped off on the north side of the track. I expected the other one to get off any moment, as one does that is walking on the track that way. She never showed by her actions that she was frightened, was out of her mind or deaf. She commenced running down the track ahead of the engine. In the meantime I was getting very close to her. I thought she would not have time to make the crossing before T got to her, so I reversed my engine. (Then he describes the effect of reversing an engine.) The reason I reversed the engine on this occasion was to try to .save the woman. There was no other means that I could have used to avert the accident; I used all the means I had. It is no unusual thing to see persons on the track ahead of an engine; 1 never before saw an occasion in which they did not step off to the side of the track. I don’t think 1 can recall a trip that I ever made over the road in the day time where I did not see persons ahead of -the engine on the track. I was engineer in charge of the locomotive ; there was nothing undone by me that could have been done to avoid the accident.”

There is some conflict between this statement and that of other witnesses, especially as to the distance between (lie train and- the deceased-.when the warning signals were given, it being stated by one or more witnesses that the space between them was not more than fifty-yards when the whistle sounded. Be that as it may, however, considering that the deceased was in hearing of the cars and in view of them from four to six hundred yards, that she was in the full possession of her faculties, mental and physical, and the engineer liad the legal right so to presume, and that ordinary care for her own safety and the instinct of self-preservation even would warn her to step off the track, which her sister had already done, the engineer was not in fault in not sooner realizing and appreciating the imminence of the peril, and in not sooner taking steps to avoid it.

It is equally clear from the facts stated that the death of the deceased was really caused by the want of ordinary care on her part. It was entirely in her power to save herself by the exercise of such care. There was not the slightest difficulty in the way, as was apparent from the easy escape made by the sister of the deceased, who was shown to be of defective eye-sight, and therefore not as capable of taking in the situation or discovering its peril as the deceased.

The doctrine of contributory negligence, in brief, is that a person cannot recover for an injury to which he has contributed by his own want of ordinary care. Thompson, Neg., 1148 et seq.

In the case of Railroad Company vs. Jones, 95 U. S. 442, Mr. Justice Swayue, as the organ of the court, states the following legal propositions, which we quote here as peculiarly applicable: “ One who, by his negligence, has brought an injury upon himself, cannot recover damages for it. Such is the rule of the civil and of the common law; a plaintiff in such cases.is entitled to no relief. But when the defendant has been guilty of-negligence also, in the same connection, the result depends upon the facts. The question in such cases is: 3. Whether the damages were occasioned entirely by the negligence or improper conduct of the defendant; or, 2, whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened. In the former case plaintiff is entitled to recover ; in the latter he is not.” See also 95 U. S. 697.

It is suggested by the plaintiff’s counsel that the deceased was evidently confused and bewildered by the appalling situation in which she found herself, and that therefore the principle of contributory negligence could not be imputed or applied to her acts and conduct.

We think it highly probable that her mental condition was such at the time as stated, so extraordinary was her conduct, but unless that condition was brought about by some fault of the defendant company, the deceased cannot be relieved from the imputation or effect of contributory negiigcuce, and such fault we have failed to find, as already stated.

With respect to the death of the infant child, and the effect of the neglect of the mother as bearing thereon, the doctrine is correctly stated thus:

“If the parent is personally present, controlling the movements of the child, the parent’s negligence will defeat an action for an injury to the child in like manner as if he suffered the injury himself.” Pierce 388; Rorer 1031-7 and 1070-1.

Reaching these conclusions, we are compelled to reverse the judgment appealed from.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and leversed, and that the demand of plaintiff be rejected at bis cost in both courts.


author: Fenner, J.

text:
    No. 1165.
    E. A. Sullivan vs. Vicksburg, Shreveport and Pacific Railroad Company.
    Plaintiff, walking on an elevated plank-walk. constructed alongside of its tiack at a station by defendant for tlie use of passengers and tbe public, heaid a train approaching bo0 Hind him, and moved to the middle of the walk, whore lie would have been safe from being struck by any passing car of tbe ordinary width, f'lio approaching train, however, was a construction train of peculiar build, having its brakes attached to the side of the oars instead of at the ends, and thus causing the brake-wheels to project some fourteen inches beyond tbe edge of the oar. This wheel being of the height of plaintiff’s head, struck him as the train passed and knocked him senseless, inflicting severo injuries.
    Held, that plaintiff had the right to be on the walk, and to suppose himself in safety while occupying it at a point beyond the projection of all ordinary trains, and that he was guilty of no negligence.
    Held, that defendant’s employee seeing him there, and knowing the extraoi dinary projection of his brakes, was bound to recognize bis danger, and guard against it; and hence, was guilty of negligence.
    The court is averse to increasing the verdicts of juries, wlio rarely underestimate damages ; but when the jury has failed to do justice, the court, in the exercise of its jurisdiction, must do it.
    The verdict in this case is manifestly insufficient, and is increased from §100 to §600.
    PPEAL from the Fiftli Distiiot Court, Parish of Ouachita. Meharclson, J.

      G. J. t& J. 8. JBoatner, for Plaintiff and Appellant.
    “ A railroad company which grants tlie use of its road to another company, is responsible for accidents caused to passengers which itself carries, by tbo negligence of the other company thus running by its permission.” Railroad Co. vs. Barrow, 5 Wall., p. 90; A and E railroad cases, vol 17, p. 649 ; 56 Ind. 511.
    It is the duty of companies to keep in a safe and secure condition their premises, depots and approaches from thence to their passenger oars. Pierce ou Railroads, pp. 275-6.
    It is the duty of a railroad company to construct safe platforms for its passengers. Reynold vs. R. R. Co.. 37 Ann. 698; Townes vs. R. R. Co., 37 Ann. 632; Ponington vs. R.. R. Co., 34 Ann. 777; Lehman vs. R, R. Co , 37 Ann. —; Wharton on Negligence, p. 654.

      Where injury is partly due to negligence of the injured and partly by failure of the company to provide proper and suitable apparatus, the negligence of the injured will not exonorate the company from the consequences of its own default. Townes vs. R. R. Co,, 37 Ann. 632; Grand Trunk R. R, Co. vs. Cummings, 106 IT. S. 700; Ellis vs. R. R, Co.. 95 RT. Y. 546.
    Malice will he presumed in ail cases where there is a want of probable cause, and a wanton disregard of probable consequences that will follow the act of negligence or carelessness. 4 Ann. 377; 12 Ann. 53; 9 Ann 219; 6 Ann. 577; 15 Ann. 421 ; 29 Ann. 494; 33 Ann. 397; 9 R, 438, 387; 4 Cush. 217, 238; 5 Bing. N. C. 722.
    The law blends together the interest of society and of the aggrieved individual and gives damages not only to compensate the sufferer but to punish the offender. Sedgwick on Measure of Damages, p. 36; 13 L. 110 ; 26 Ann. 313; 33 Ann. 393 ; 34 Ann. 1108.
    The Supreme Court has the power, and it is its duty to disregard the verdict of a jury where it is palpably erroneous in allowing only nominal damages, and to give judgment for tlie amount it may think meets the ends of justice. Sedgwick on Damages, 2 vol., p. 661; 5 Bing. IT. C. 424; 22 Conn. 74; 19 Boob. !N, Y. 461; 13 L. 110 and cases there cited; 26 Ann. 313; 33 Ann. 397; 29 Ann. 223; 34 Ann. 1107.

      Stubbs & Ihissell, for Defendant and Appellee.
   Tiie opinion of the Court was delivered by

Fenner, J.

At Waverly station the defendant company’s main track is situated at some distance from its depot building, and between the two runs a side-track. Between tlie two tracks defendant had constructed a plank-walk for platform slightly elevated above the tracks, and running for some distance beyond the depot front. Its object was to furnish a convenient landing-place for passengers getting on or off its cars.

It consisted of three parallel planks, and was from three to four feet wide. Between tlie edge of the walks and tlie main track there was a space of between 12 and 18 inches, and, inasmuch as an ordinary box or passenger car projects over the track about 22 to 24 inches, it follows that it would, in passing, project about 6 to 8 inches over the walk. Like conditions existed with reference to tlie side-track.

On December 31 plaintiff had gone to tlie station to meet some families of laborers who arrived on tlie passenger train.

Shortly afterward he observed that some children of the party were on the main track, and noticing that another train was approaching, he walked up this plank-walk to make them get off the track.

After doing so he proceeded on the same walk towards the wagons which were to receive the laborers, going in the same direction in which the approaching train was coming, and with his back toward it. As it neared him he moved from the edge to the middle of tlie walk, and then, considering himself in safety, paid no more attention to it. Any ordinary car would have pass.ed without touching him; but it chanced that this was a construction train running with its engine in the rear, and composed of flat cars for loading and unloading dirt, with a centre-piece down their middle as a guide for an unloading plow which passed along the whole train propelled by a wire-rope attached to the locomotive. This arrangement necessitated the placing of the brakes on the side, instead of at the ends of the several cars, as is usual. Hence, the wheels of the brakes projected some fourteen inches beyond the edge of the caí, and being about the height of plaintiff’s ear, the wheel struck him as the cars passed, inflicting the injuries for which the present suit in damages is brought.

We think the defendant is clearly liable. .The plank-walk was built for the accommodation of passengers and the public, aDd the latter were invited to use it. Plaintiff was properly on the walk, and had the right to suppose that he was in safety there. Conceding that his eye might have informed him that the edge of the walk was too near the track to permit the passage of cars of ordinary width without projecting over it, yet he availed himself of this information, and occupied the middle plank, where he would have been safe from any ordinary train. It happened that there were some stationary box-cars on ' the side-track which projected over the opposite edge of the walk, and, if he had tried, he could not have moved much further away, though if he had.moved a little farther, he would have escaped, as his companion did. Still, in occupying the middle plank, he passed be-' yond the reach of any ordinary car, and certainly had the right to suppose himself in absolute safety, as he w'ould have been but for this unusual system of brakes. There is some evidence to show that the brake which struck him was bent outward, though this is not uncontradicted.

The engineer saw' him, and knowing the projection of the brakes, and the situation of the platform, should have recognized and guarded against the danger.

Plaintiff was guilty of no negligence.- He did not kuow, and was not bound to know, the existence of these unusually projecting brakes. He had a right to suppose he was safe, at least in the middle of that walk, and in taking that position, common experience and reasonable foresight assured him that, under all ordinary conditions, he ran no risk. The injury, therefore, was not an ordinary and natural sequence of his act, hut was the result of extraordinary conditions brought about by the acts of defendant, and which plaintiff could not have foreseen, and had no right to anticipate. Summers vs. R. R., 34 Ann. 144.

In tlie case just quoted, the nature and characteristics of juridical negligence are fully discussed. The conduct of defendant falls precisely under the principle there approved as laid down by the Supreme Court of Pennsylvania: “When we are engaged in an act which the surrounding circumstances indicate may bo dangerous to others, and when the event whose occurrence is necessary to make our act injurious is one which we can readily see may occur under the circumstances and unite with the act to commit the injury, we are culpable if we do not take all the care which prudent circumspection would suggest to avoid the injury.” Fairbanks vs. Kerr, 70 Penn. St. 86.

The jury, which tried the case below, appreciated the facts as we have done, so far as defendant’s liability is concerned, and gave a verdict for plaintiff for one hundred dollars.

Plaintiff is the appellant, and demands an increase of the allowance.

He is clearly entitled to it.

With all our indisposition to increase verdicts for damages tendered by juries, who rarely under-estimate them, yet it is a matter within our jurisdiction, upon which we are in duty bound to pass, and we most do justice when clearly satisfied that the jury has failed to do it. Hence, in proper cases we have extended such relief. Scheen vs. Poland, 34 Ann. 1107; Decoux vs. Lieux, 33 Ann. 397; Richardson vs. Zuntz, 26 Ann. 333; 2 Sedgwick on Damages 661, and cases there cited.

Iu this case plaintiff was knocked senseless, his ear was cut in two, he received a severe gash on head, his face was mashed and bruised, and his leg severely sprained. After recovering consciousness, he was seized with vomiting, which continued for several hours. He was laid up for several days, suffering great pain and incurring expenses for board and medical treatment, and did not fully recover for some weeks.

It is absurd to consider this verdict of one hundred dollars as affording reparation for such injuries. Indeed, it would scantily compensate the trouble and expense of the law-suit which he was compelled to bring in order to vindicate his rights.

We think an addition of $500 to the verdict will mete out only moderate justice.

It is, therefore, ordered, adjudged and decreed, that the verdict and judgment appealed from be amended by increasing the principal sum from one hundred to six hundred dollars, and that, as thus amended, the same be now affirmed, defendant tq pay costs of appeal,


author: Watkins, J.

text:
    No. 1171.
    R. M. Blakemore vs. J. C. Blakemore.
    In case a, partition cannot bo effected in kind •without serious inconvenience to one of the co-proprietors of the property held in indivisión, it must be sold at public auction in order that the partition be effected by licitation.
    APPEAL from the Sixth District Court, Parish of Morehouse. Ellis, J.

      Newton & Gasón and J. P. Madison, for Plaintiff and Appellee :

      li. P. Todd, Jr., and JD. Todd and Bussey <& Naff for Defendant and Appellant
   The opinion of the Court was delivered by

Watkins, J.

This is a suit for the partition between two joint owners of two tracts of improved real estate, known as the Barton and Buatt plantations.

The plaintiff demands that the partition be made in kind; but the defendant denies the practicability of a partition in kind, and insists that same cannot be so made without great inconvenience to the proprietors, a depreciation in the value of the properties, and a cantling of tenements — and he demands that a partition be made by licitation.

The only question to be determined is whether the partition shall be effected by a division in kind, or by licitation.

I.

The defendant’s counsel make complaint of certain alleged irregularities in the proceedings that occurred in the lower court, and of the celerity with which they were conducted; and, among other things, our attention has been attracted to the fact that the experts appointed by the court at the suggestion of the parties, for the purpose of making an examination of the properties, and determining whether a division could be made in kind, did not make such an examination and report, but proceeded to make a division thereof instead.

When one of those gentlemen was interrogated as a witness he stated that he did not understand the purpose for which he was appointed, and was of the opinion that a partition could not be made in kind without causing great inconvenience and injury to the proprietors.

The gentleman appointed for the purpose of acting as umpire made a similar statement. Hence, the defendant’s counsel contend that if a correct examination and report had been made, in pursuance of the order of the court,'it would have been adverse to the pretensions of the plaintiff. The one filed was opposed by the defendant, and the case was fixed for trial. Both parties appeared with their witnesses, and during the progress of the trial each was allowed the fullest opportunity of being heard on the vital question in the case.

While it is true that the proceedings antecedent to trial and judgment were irregular, and might have vitiated the decree, yet, inasmuch as the defendant has condoned the fault, if fault there was, and has participated in the trial on the merits, we are of the opinion that no injustice will be done him by examining and deciding the cause on its merits.

IT.

The record shows that the Barton place is situated in Morehouse parish, on the road leading from Oak Ridge to Eason’s ferry, on Bayou Bartholomew, and contains about seven hundred acres, of which about three hundred arc in a fair state of cultivation.

On this place there are a good dwelling-house, corn-crib, steam-gin and mill, and about fifteen cabins for the use of laborers.

The above-mentioned road runs through the cultivable portion of the land centrally, or very nearly so, dividing some into two fields of nearly equal size and proportion. The dwelling, steam-gin, corn-crib and nine laborers’ cabins are situated upon a small area of about five acres, and same are in a good sta'te of repair. The other six are situated upon a different portion of the plantation, and same are not in good condition. All of these improvements except six cabins are on the northern portion.

This plantation and improvements are estimated to be worth $8000 or $10,000. The plaintiff insists — and the proof shows — that all of the improvements are worth about $750 only. The open land on this plantation is in shape a parallelogram, the length of which is double that of its breadth, and extends north and south.

The Buatt place is situated six miles distant from the Barton plantation, and only contains one hundred and sixty acres, of which one hundred and twenty are in cultivation.

This place has a horse-power gin and six laborers’ cabins; and the gin and three cabins are on one part of the land, and three cabins are on the other part of the land.

It is estimated to be worth about $2500.

Several witnesses were introduced on either side, but a fair preponderance of the evidence establishes that a partition in kind cannot be effected of the properties in controversy, without loss or inconvenience resulting to one of the co-proprietors. The Code declares that-a partition in kind cannot be made where a diminution in value, or loss or inconvenience would result to one of the owners. R. C. C. 1340.

This question was well considered and decided by this court in Meyers vs. Pargoud, 34 Ann. 969, in which the court says :

“A division in kind should give to each proprietor a smaller plantation, if not complete, with at least a share of the open land, woodland, buildings, etc., if not equal, approximating equality.”

In that case the court held that a partition in kind was impracticable, and could not be made in conformity with the views expressed.

If in that case a partition in kind would have been inconvenient and injurious, situated as the Pargoud place was, we feel the better assured that the two plantations in controversy could not be divided in kind without one of the co-proprietors sustaining loss or inconvenience.

The fact that the plantation improvements on the properties in dispute, are of small value, and some of them are not in good repair, cannot exercise any control over its division. They seemed to have been satisfactory to the co-proprietors, and must be viewed as we find them.

We are of the opinion that the judgment of the lower court is erroneous.

It is. therefore, ordered, adjudged and decreed, that the judgment appealed from be avoided, annulled and reversed, and proceeding to render such decree as should have been rendered.

It is ordered, adjudged and decreed, that plaintiffs and appellee’s demand for a partition in kind be rejected, and that defendant’s demand for a partition by licitation be sustained.

It in further ordered, adjudged a.nd decreed, that the two plantations and all their appurtenances and improvements, held in indivisión by the plaintiff and the defendant as co-proprietors, “be sold at public auction, after the time of notice and advertisement prescribed bylaw,” and in the manner prescribed by law for sheriffs’ sales under execution; and it is further ordered, adjudged and decreed, that the cost of appeal be taxed against the plaintiff and appellee, and that all other costs be prorated between the parties equally.


author: Poems,'J.

text:
    No. 1176.
    State National Bank vs. L. D. Allen, Jr., and Garnishees.
    In a garnishment proceeding involving an appoal, an issue restricted between plaintiff and several garnishees, against each of whom plaintiff had prayed for judgment in separate and distinct amounts, the test of jurisdiction is in the respective amounts prayed for against each of the garnishees, and not by tlio original demand against tbe defendant, or in tbe cumulated, amount- of all tbe claims against garnishees respectively and separately.

      APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      Tmdeling <& Stillman, for Plaintiff and Appellant.

      O. J. & J. 8. Boatner, for Defendant and Appellee.

      Stubbs & Russell, Botts & Hudson and M. T. Liddell, for Garnishees.
   The opinion of the Court was delivered by

Poems,'J.

Plaintiffs brought suit to recover eight thousand dollars of the defendant, against whom they sued out a writ of attachment, accompanied by garnishment process, upon a large number of persons alleged to be his debtors.

Judgment was rendered against the defendant in the full amount claimed from him, and as that judgment has not been appealed from, it is now final, and is no factor in the present appeal.

The only issue submitted to our view under the pleadings is the right of plaintiffs to hold a large number of the garnishees for the respective sums claimed of them in plaintiff’s traverse of the answers, which they made respectively to the questions propounded to them touching their respective indebtedness to the defendant Allen.

Judgment was rendered in favor of plaintiffs against two of the garnishees, for small amounts respectively acknowledged to be due by each to the defendant, but for reasons unnecessary to detail here, all the other garnishees were discharged.

Plaintiffs have appealed fromltliat part of the judgment.

Appellees make the point that we have no jurisdiction ratione mate-rue on the ground that, under the pleadings, no judgment can be rendered against any one of the garishees in a sum not exceeding $2000; and that there is no community of interests or privity between the garnishees, so as to justify^tho addition together of all the separate claims urged against each of them respectively as a test of our appellate jurisdiction, j

The point isjwell taken, and"the~ appeal cannot be sustained.

The fact that alFthese^various garnishees may be debtors of the defendant does not contribute to make them joint debtors of the latter more than the’ fact of their being residents of the same parish could produce the same result. ,.

The j status of the several garnishees, even if they should all be debtors of the defendant,"cannot be traced to the same or common source, and the result may bejthatjsome of them are debtors, and that others are not indebted to the defendant.

That feature is illustrated by the very terms of the judgment rendered below, in which two of the garnishees are held and the others discharged.

It is clear that, if the judgment had been rendered against all the garnishees except one, the parties cast could not have brought their appeal before this court, where they could not have shown an appeal-able interest without adding together all the amounts claimed of them respectively ; and it is just as plain that the tw'o garnishees who were held below could not sustain an appeal before this court. It is also undeniable that plaintiffs can exercise no right of appeal which their opponents, and each of them, could not exercise, if the position was reversed.

In a suit in which several defendants could be sued in one action by virtue of a special legislation, this court has held that the separate interests of the defendants could not be cumulated so as to create an appealable amount, when the record showed that the separate interest of each was less in amount than the lower limit of our jurisdiction.

In that case, which was an expropriation proceeding by a railroad company, the court said : There is no community of interest between the various defendants ; the evaluation of the lands and damages of each must be made separately, and the adjudication affects each separately and distinctly, as though they had been made defendants in so many different suits.” “ If the company had been satisfied with the award and judgment, and appeal had been taken by one of the defendants, he certainly could not have invoked the entire value of the lands expropriated as the test of our jurisdiction.”

“He would have been limited and confined to the vindication of his own separate and distinct interest, and the amount allowed him by the award would have been held to constitute the matter in dispute.” La. Western R. R. Co. vs. Hopkins, 33 Ann. 806.

And so with each of the garnishees in this suit, who, in case of appeal, would have been confined, under a question of jurisdiction, to the particular amount claimed of him in plaintiffs’ motion for judgment in their traverse of his answers. See also Marshall vs. Hormes, 39 Ann.-.

Plaintiffs’ counsel does not deny the proposition that no judgment could, under the pleadings, be rendered against any one-of the garnishees for a sum exceeding $2000, but his contention is that llie amount of plaintiffs’ claim against the defendant is the test of jurisdiction, and that his prayer was for judgment in that sum against each of the garnishees who would fail to answer.

In making that point counsel loses sight of the present status of his claim against the defendant, which has been merged into a final judgment, from which no appeal has been taken, and rendered several months before the trial of the issue between plaintiffs and the garnishees, and of the present status of his clients’ claims against the latter, as characterized by his pleadings in his traverse, in which he prays for judgment against each garnishee in a separate amount against them all separately, in sums ranging from forty-one to fifteen hundred dollars.

Under his amended pleadings counsel has abandoned his original prayer, and he must now be held to the demands contained in his last pleadings.

On that point the question under discussion is entirely covered by the decision of this court in the case of Wood, Slayback & Co. vs. Rocci, New Orleans Insurance Association Garnishee, 32 Ann. 1120 in which similar pleadings had been made.

In that case plaintiffs had originally claimed from the garnishee the full amount of their demand against their debtor, but in their traverse they had prayed for judgment against the garnishee for the value of the property which the company had acknowledged to hold for the defendant. The court said : “By resorting to this rule plaintiffs unequivocally shifted their position, and clearly abandoned their previous prayer, as set forth in their supplemental petition. The character and amount of their demand are therefore to be tested under the relief prayed for in their rule to traverse garnishee’s answer.” * *

This is precisely the condition of the case in hand — and hence we must decline jurisdiction.

It is therefore ordered that the present appeal be dismissed at appellants’ costs.


text:
    No. 1184.
    William C. Culverhouse et al. vs. Jacob Marx—James Pearson, Warrantor.
    Though plaintiffs in a suit may have given no express authority to their attorneys to compromise the same, yet where the attorneys have compromised it, and given proper information to their clients of the terms of the compromise, and remitted to them the money paid under it. which is received, the latter will he held to have ratified it, and will be hound by it. A judgment rendered on the compromise can be pleaded as res adjudicate to another suit between the same parties, and embracing the same subject-matter.
    PPEAL from the Third District Court, Parish of Union. Holstead, Special Judge.

      Thos. O. Beivton for Plaintiffs and Appellants.

      Jas. A. Bamsey and J. W. Bolbert on the same side.

      IS. M. Graham and J. E. Ih'imble for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs, as heirs of their mother, Mary Culverhouse, sue to recover one undivided half of the property described in the petition, which was once the property of the community that existed between the said Mary Culverhouse and her husband Win. Culverhouse, both deceased.

The defendant called in warranty his vendor, James Pearson. They both answered, and from a judgment in their favor the plaintiffs have appealed.

In their answers among other defenses set up, were those of estoppel and res adjudieata.

These pleas are founded on the following facts and proceedings :

In the year 1882, these plaintiffs instituted an action in the district court of Union parish against the same defendant and for the same property now sued for.

There was a compromise entered into between the attorney representing the plaintiffs in said suit and the defendant and warrantor therein, and judgment rendered on said compromise on the 22d of October, 1882, declaring the settlement of the controversy by compromise and dismissing the suit.

In the petition in the instant case that compromise is referred to, and the same is alleged to be null and void on account of the want of authority in the attorney affecting it, and error on part of the plaintiffs.

By the terms of the said alleged compromise, the plaintiffs, through their said attorneys, agreed to receive $56?, and did so receive it, in full settlement of their claim to the property.

In the written agreement, evidencing the alleged compromise, we And this language, quoting :

"And the attorneys representing plaintiffs herein agree lor them that this shall be in full settlement for all of the property situated in the town of .Farmerville that was placed on the inventory of the succession of Mrs. Culverhouse, taken by W. C. Smith, recorder of Union parish on March 1st, 1859, bought by James Pearson, and it being the understanding that this settlement is to include all the property that ever belonged to the father of these plaintiffs, and which subsequently came iuto the possession of Jacob Marx by purchase from James Pearson, and of James Pearson himself and none other.”

Soon after this agreement was entered into, Wm. R. Rutland wrote to one of the plaintiffs, Thomas Culverhouse, in which he thus referred, in his letter to this compromise, quoting: “We have received a compromise of the first suit in your favor of $500 and something over, which pays all costs. * * *

“Amount to distribute.........................................$500

One quarter amount of our fee as per contract................... 125

Amount to divide less fee...................................... 375

One-eightli interest to each heir................................ 46 for which amount please find my sight draft, etc.”

And in another letter to W. C. Culverhouse, also one of the plaintiffs, he wrote:

“ The compromise only embraces the town property, and does not effect other lands near town.”

Drafts representing the several inteiests of the heirs in the fund were sent and received. At least this is not disputed.

It seems to us that from this agreement, and the information given to the parties by those letters referred to of the counsel, there could be no mistake about the property, the subject of the compromise, or the terms thereof.

Now, although the plaintiffs may never have authorized the making of the compromise, yet it is certain that after receiving the money after being thus informed of the fact and the terms of the settlement and making uo objection, they fully ratified it.

It was nearly three years before the parties were again heard from, and then through the present action.

We conclude that the pleas of estoppel aud res adjudicata are fully sustained, and so concluding, we cannot disturb the judgment of the lower court.

Judgment affirmed with costs.


author: Fionnek, J.

text:
    No. 1181.
    The State of Louisiana vs. James Faulkner.
    "Wliore in a single transaction a party commits two distinct crimes, so related to each other that proof to sustain one need not involve the proof necessary to sustain the other, indictments will lie for both and conviction of one will not bar the other.
    Thus when one, entrusted by A with cotton for aparticular purpose, obtains money thereon from B, by falsely representing himself as owner and selling to him, he may be indicted as well for embezzling As cotton, as for obtaining B’s money under false pretenses ¡ and conviction of latter offense will not sustain axiirefois convict to the other.

      A PPEAL from the First District Court, Parish of Caddo. LX. Hicks, J.
    ill. S. Grain, District Attorney, for the State, Appellee.

      George J3. Head and ]¶. H. Randolph for Defendant and Appellant.
   The opinion of the Court was delivered by

Fionnek, J.

Two indictments were filed against defendant: one for embezzlement of eight bales of cotton entrusted to him by George ; the other for obtaining money from Martin by the false pretense that he was the owner of said eight bales of cotton.

To the last mentioned indictment ho pleaded guilty and was sentenced. He then entered, in the embezzlement case, his plea of autrefois convict, based on the sentence just stated.

The State demurred to the plea and the lower judge sustained the demurrer. A bill of exceptions was reserved and this ruling is the sole error assigned on the appeal.

The ruling was correct. In the language of Mr. Bishop, “ each indictment sets out an offense differing in all its elements from that in the other, though both relate to the same transaction.” Bishop Cr. L. § 1057.

The general principle is, that a former trial is "not a bar, unless the first indictment was such that the prisoner might have been convicted upon proof of the facts set forth in the second indictment. Burns vs. People, 1 Parker, 182; Price vs. State, 19 Ohio, 423; Durham vs. People, 4 Scam. 172; Com. vs. Wade, 17 Pick, 395; Com. vs. Roby, 12 Pick. 496; Roberts vs. State, 14 Geo. 8.

The indictment in the instant case makes no allusion to the dealing with Martin, or to the false pretenses on which money was obtained from him; nor, to maintain it, would it have been necessary, even in establishing the particular transaction, to prove any false representations. Proof of the mere sale to Martin would have sufficed to sustain the embezzlement, even though Martin had been informed that defend- ■ ant was not the owner.

It has been held, in numerous cases, that where a particular act is of such a character as to constitute two distinct crimes, conviction for one will not bar prosecution for the other. Thus a person may be legally convicted of “retailing without a license” and of “trading with a slave,” though both offenses arise out of the same act; and for “keeping a drinking-liouse,” and also for “being a common seller of intoxicating liquors,” though the same illegal acts are offered in support of each offense; and there are other like cases. State vs. Glargon, Dudley, S. C., 50; State vs. Inness, 53 Maine, 536; State vs. Maher, 35 Id., 225; State vs. Coombs, 32 Id., 529; Com. vs. McShane, 110 Mass. 502.

These eases are much stronger than the one before us, because, here the identity of the transaction constituting the two offenses is only partial.

Indeed, common sense suggests no plausible reason why defendant should not be punished for embezzling cotton entrusted to him by George, because he has been punished for obtaining Martin’s money on false pretenses.

Judgment affirmed.


text:
    No. 1175.
    The State National Bank vs. G. A. Singer.
    On© signing liis nara© on tli© back of apiece of commercial paper as tlie cashier of*a bank cannot be held as surety thereon in case of its non-payment, if he was at the time of signing duly authorized to sign as such.

      \ PPEAL from the Fifth District Court, Parish of Ouachita. XJL Richardson, J.

      John T. Budding for Plaintiff and Appellant.

      O. J. & J. S. Boatner for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

The plaintiff sues the defendant as surety for and bound in solido with L. D. Allen, Jr., as the maker of three promissory notes, aggregating $8,000, which had been discounted by the plaintiff for the account of the Bank of Monroe before maturity.

These notes were made payable to the maker’s own order and by him endorsed in blank. Below the indorsement of the maker, L. D. Allen, Jr., on the back or reverse of the notes, is written the signature of “G. A. Singer, Cashier.” If bound at all, Singer is bound as a surety, because, not being a party to the notes originally, his contract was not that of an endorser.

Defendant’s contention is that he is not bound at all, and that he only indorsed his name on the paper “as a memorandum * * for the purpose of identifying the same with the account of the bank;” while on the other hand, plaintiff’s theory is that, inasmuch as it dealt, with the Bank of Monroe, and discounted the paper of L. D. Allen, Jr., who was at the time its reputed and ostensible president, and of which G-. A. Singer was the acting cashier, and the proceeds thereof were placed to) the credit of the latter bank on open account, and in the usual course of their dealings, it (the plaintiff) believed, and had a right to believe, that the Bank of Monroe was bound to them for the amount of the notes as security for the maker. But that it subsequently transpired that L. D. Allen, Jr., was one and the same person as the Bank of Monroe; and as, in this state of affairs Gr. A. Singer, cashier, did not, and could not, bind the Bank of Monroe, as it was already bound by the signature of L. D. Allen, Jr., who was the Bank of Monroe, he (Singer) bound himself personally as surety in its place and stead.

The proof shows that L. D. Allen, Jr., had, since 1880, conducted a banking business in the city of Monroe under the name and style of the Bank of Monroe, of which Allen was the ostensible president, and defendant the cashier. Eor several, years the plaintiff had been the correspondent of the bank.

In May, 1886, the Bank of Monroe desired to negotiate a loan from the plaintiff on the faith of the notes in suit, and they discounted those notes and placed the proceeds thereof to the credit of the Bank of Monroe, and accepted and held the notes of Allen as collateral security therefor. At their maturity, Allen made default in their payment and they were sent to protest, and Singer was sued as surety.

Conceding all that plaintiff’s claim concerning the Bank of Monroe and Allen having been one and the same juridical person, and it cannot change the status or increase the liability of Singer. He was cashier of the Bank of Mouroe, and had authority to represent it in placing his name, in his capacity as cashier on the notes as he did, and he did not and could not incur any personal liability thereof to the plaintiffs. He, in no way deceived them, and they did not discount Allen’s notes at his request or on his account, or that of his signature.

Plaintiffs counsel complain of the rejection by the court below' of certain evidence he offered to connect Singer with the discount of the notes and the use of the proceeds. Such evidence was not competent under the pleadings.

We think the judgment appealed from is correct, and it is therefore affirmed.


text:
    No. 1170.
    Folger & Co. vs. Mrs. Alice J. Peterkin and Husband.
    A general mandate to the husband by a wife separate in property to manage her plantation and administer her property, does not authoiize him to bind her by the drawing of bills of exchange, the power to draw which must be express and special.
    When bilis are so drawn by such an agent in the name of his principal, payable in the future, and are accepted by the drawees and by them passed off to third persons, the latter cannot recover on them against the principal without proof of express and special authority in the agent to draw them.
    APPEAL from the Sixth District Court, Parish of Morehouse. Judge, ad hoc.

      G. T. Dunn for Plaintiffs and Appellants.

      Newton <& Gasón for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

Mrs. Peterkin, a wife separated in property from her husband, is sued upon two bills of exchange drawn by “Geo. A. Peter-kin, agent for Mrs. A. J. Peterkin,” to his own order and endorsed “G. A. Peterkin, agent,” addressed to and accepted by the firm of Wyche & Morgan, of New Orleans.

The defense is a general denial and a special denial that her husband, Geo. A. Peterkin, had any authority to draw the bills as her agent.

The defendant wife testifies positively that she had never given any such authority to her husband, and that she never knew of the existence of such drafts until long after their maturity, -when she immediately repudiated them.

There is no countervailing proof except that evidence that her husband acted as her general agent in the administration of a plantation owned by her and of her other property.

Nothing,is better settled than that such general mandate does not confer power to bind the principal by drawing bills or notes. The Code itself declares that “A mandate, conceived in general terms, confers only a power of administration. If it be necessary to alienate or give a mortgage or do any other act of ownership, the power must be express.” Article 2996.

The next article declares a number of acts which are not within the powers of administration conferred by a mere general mandate, saying: “Thus the power must be express and special for the following purposes,” enumerating, amongst others, “to draw or endorse bills of exchange or promissory notes.” Art. 2997.

Plaintiff contends that the general mandate to manage a plantation includes the power to. draw bills and notes, under the following Article 3000, which declares : “Powers granted to persons, who exercise a profession, or fulfil certain functions, of doing any business in the ordinary course of affairs to which they are devoted, need not be specified but are inferred from the functions wliich these mandataries exercise.’’

Whether there exist professions or functionaries, the nature of whose functions would include the right to bind their employers by notes or bills without express authority, might be questioned ; but it is well settled that persons employed to manage plantations or administer other property for their principals, have no such right. Laplante vs. Briant, 13 Ann. 566; Avery vs. Lawes, 1 Ann. 457; Nugent vs. Hickey, 2 Ann. 358; Robertson vs. Levy, 19 Ann. 327; Nall vs. Higginbotham, 21 Ann. 477.

This proposition does not conflict with that announced in Reynolds vs. Rowley, 3 Rob. 201, where the suit was on an account for moneys advanced to an agent having authority to borrow, and where it was held that the fact that the money was so advanced on drafts drawn by the agent without express authority, did not affect the case. So, no doubt, the manager of a plantation having authority to obtain advances from a merchant might get such advances through the medium of drafts and though the principal might not be bound as drawer, yet he would be bound for the money advanced just as it had been remitted upon request contained in a letter or otherwise.

But there is no claim here upon an account or for moneys advanced; but is a simple suit by a third holder of a bill of exchange to hold the defendant as drawer thereof. Moreover, it is by no means shown that the bills were drawn in execution of any business of the defendant, or that the proceeds inured to her benefit; and indeed there were no proceeds, strictly speaking, because the drawees never paid them or discounted them, but simply passed them off to plaintiffs as collateral security for an existing debt.

The evidence satisfies us that the busiuess in which the account between Peterkin and Wyclie & Morgan was kept, and to which these drafts were passed, was Peterkin’s individual business. In addition to the management of his wife’s plantation, Peterkin carried on, in his own name and for his exclusive account, a general country store business, with which his wife had nothing t.o do. His account with Wyohe & Morgan arose from this business, and it was only after a large indebtedness had accumulated against him that he sought to placate his creditors by furnishing them with these bills executed in tiro name of his wife, at the special request of Wyche & Morgan.

The judge a quo did not err in rejecting plaintiff’s demand.

Judgment affirmed.


text:
    No. 1183.
    The State of Louisiana vs. Louis Brooks.
    'That the legality of an officer’s appointment cannot bo collaterally attacked has been so frequently decided, it cannot be regarded as an open question.
    A defendant in a civil suit is not warranted in assuming that a person acting as an executive officer is a naked trespasser and on resisting a seizure of his property, if such person is armed with proper warrant for making such a seizure, and is acting in pursuance of an apparently legal appointment to such office.
    Tarol is not the best evidence of the contents of judicial records, suits and proceedings. Such records should be produced or their absence or loss accounted for. •
    ‘The facts and details of a civil suit between accused and other parlies is not competent evidence on a criminal trial.
    A witness must state facts and leave the jury to draw their own inferences therefrom.
    Proof of previous threats cannot be adduced by the accused, until it is first affirmatively shown that be was himself previously attached or threatened with immediate danger by vfche deceased.
    APPEAL from the Twenty-fourth District Court, Parish of Plaque-mines. Livaudais, J.
    ill. J. Cunningham, Attorney General, and James Wilkinson, District .Attorney, for the State, Appellee:
    An overt attempt or act of violence by the deceased against the accused shortly before or at the time of the homicide, must be proved before evidence of prior quarrels, threats or of the dangerous character of the accused can be introduced. 35 Ann. 74; 36 Ann. 148; 36 Ann. 862; 37 Ann. 389; 37 Ann. 489; 37 Ann. 644; 37 Ann. 782; 37 Ann, 897; 37 Ann. 443; 38 Ann. 22, aud other authorities.
    The judge need only charge on questions of law which he deems applicable to the cause. R. S. sec. 891; 35 Ann 970 ; 37 Ann. 576, 464.
    Where no constable has been elected, or where the constable has resigned and being functus officio, no constable has been appointed or elected to fill the vacancy, the justice of the peace has power to fill the vacancy by appointing a constable pro tempore until the Governor exercises his power to appoint a permanent or regular constable. R. S, etc, 637; C. P. art. 1158; Const, of 1879, art. 258.
    'The eligibility of an officer dc facto cannot be questioned collaterally. R. S. sec. 2593; 21 Ann. 290 ; 21 Ann. 655 ; 21 Ann. 710; 26 Ann 272.
    Where ministerial officers of a court are de facto, and actually acting as such, their failure to give bond does not deprive them of their official status. 13 Ann. 401; 13 Ann. 607; 2 Ann. 82; 31 Ann. 379.
    Where a courtis seized of jurisdiction ratione mater ice its process however erroneous is voidable, not void, and its orders must he respected. Holdane vs. Sumner, 15th Wallace, 601.
    Witnesses who are not experts are not permitted to give their opinions on facts which they have testified to. 37 Ann. 270.

      JR. T. Beauregard and Zacharie & Howard for Defendant and Appellant :
    The accused is always entitled to a reasonable time within which to procure counsel for his defense, and the connsel when so retained is entitled to a reasonable time within which to prepare the defense, regard being always had to the circumstances of the accused and liis counsel so to do. 38 Ann. 24 ; 16 Ann. 425 ; 26 Ann. 422; Wharb. Am. Crim.. Law, p. 941, note; 7 Bay, 1; Lord Kilmarnock’s case, 2 Foster; Black. Bep., 514; Const, ol 1579, art. 6.
    The recent occurrence of a homicide, and the natural excitement of the community consequent thereon, is a good ground for a postponement and continuance, when the accused is brought to trial at the next terra, immediately alter the occun ence; 37 A nn. 457. not applicable here, as in that case the continuance was sought many months after the homicide. and did not and could not urge the recency. Bishop Crina. Proc., vol 1, § 951; Wharton's Am Crim. Law, p. 944, 3d; 9 Ga. 127; 5 Ga. 53; Jolly fer’s case, 4 T. It 285; 32 Ga. 581; 14 Ga. 8; Tbach. C. C.,‘516; 2 Moody & B., 192; 26 Ga. 277; 18 Ga. 333 ;T Watts & Sorg., 420.
    The right of the trial judge to decide as to whether sufficient proof of an overt act has been educed to allow the admission of evidence of thieats and character and homicide, is not an arbitrary one, but must be the exercise of a sound discretion, and is roviowable by the Supreme Court. 37 Ann. 461; 37 Ann. 045
    It “is a rule that positive testimony on a given point must always predominate over negative testimony on the same point.” 33 Ann. 800 ; 37 Ann. 258, Selfridge case.
    What occurred at a homicide immediately after the firing is part of the res gestas. as throw - ing light on what had just occurred. Wharton’s Crim. Ev., § 262, et seq.\ Selfridge case.
    Ho man is bound to submit to the execution of a writ divesting him of his liberty or property issuing from. a court without jurisdiction. Boscoe’s Crim. Ev., p. 750; Wharton’s. Am. Crim. Law, p. 554; 3 Gillman, 336; Lieher's Civil Liberty and Govt, vol. 1, pp. 131.134.
    An officer is bound to inquire into the authority of the court from which the writ emanates, and is a trespasser if he executes a writ of a court without jurisdiction. 7 H. S 192; 8-B. 115; 3 Aun. 577; 9 Ann. 350.
    One entering on an office, public or private, without proper authority, subjects bimself to-all the responsibilities, and cannot claim the benefit of the position ho usurps. 4 H. S. 525.
    A justice of the peace has no authority to appoint a constable pro tern, to a vacancy caused by resignation. Act of 1855, Cons. 1879.
    A constable must reside in the ward in which he shall have been elected. (B. S., sec. 124.y He must give bond before entering on his duties. B. S. see. 632.
    In the trial for resisting of an officer, or killing of him, it is competent for the accused to-show that the deceased was not a legal officer nor executing legal process. Wharton’sCrim. Ev., § 883.
    A de facto officer in. civil cases is one who comes into office by oolor of right, and performs tbe duties of the office under a public acquiescence, but is not properly entitled to the office. He must be either appointed or elected by competent authority, or must have for some time acted as such and been publicly recognized. (Cooley on Taxation, p. 185; 13 S. and B., 208.) But this will only give a prima facie right, which may bo questioned. Blackwell’s Tax Titles, * 93; 1 Dill O. C. 2G8; 7 Jones H, C., 113 ; 73 N. C., 550; 37 Me., 428; 5Wend, 234; 24Wend.,539; 16Wend..l44; 60 Barbour, 248; 20 Gratt., 66 ; 33 Grate., 513; 4 Vroom N. J., 201; 6 East, 368; 38 Conn., 476; 3 Bush., 17; 9Hev., 334; 69 111., 529; 7 H.H., 113,140; 56 Penn. St., 436; 29 Penn. St., 129; 1 Hev., 188; 45 Miss., 151; 16 Peters, 71; 3 Port, 334.
    Hor do 1 Ann. 288; 12 Ann. 719; 21 Ann. 336 ; 25 Ann. 2; 27 Ann. 568; 32 Ann. 1234; 28 Ann. 82; 33 Ann. 1412, or 35 Ann, 521, militate against this doctrine in any degree,
    “Where a trespasser goes with the intent to commit a felony, if necessary to accomplish the end in tended, the owner of the property may repel force by force to the extent of killing the aggressor. Owner is not obliged to surrender possession, but may use as much force as necessary for its protection.” 8 Cal., 34; Horrigan’s Self-Defense, p. 900, and multitude of authorities there cited.
   The opinion of the Court was delivered by

Watkins, J.

The accused was indicted for the murder of John Baptiste Allen, tried and convicted, and on appeal to this Court in New Orleans, the verdict and judgment were set aside and he was granted a new trial.

When the cause was, thereafter, called for trial in the, court below, the district attorney announced that he should proceed against the accused, on said indictment, for manslaughter only; and, the trial being proceeded with, he was convicted of that crime and sentenced to fifteen years at hard labor in the penitentiary, and from that judgment and sentence he prosecutes this present appeal.

His demands for relief are based on several bills of exception taken to rulings of the trial judge rejecting proffered evidence aud declining to give to the jury certain special charges, to be found in the transcript.

I.

The record discloses that the fatal rencontre was brough t about by certain judicial proceedings had in the court of L. H. Holmes, justice of the peace, in the suit of C. Marrero vs. Louis Brooks (the accused), in which a writ of provisional seizure was issued, directing the seizure of the defendant’s rice on the Sarah plantation, in satisfaction of the plaintiff’s lien and privilege for the irrigation of defendant's land.

This writ was placed in the hands of the deceased, as the constable of his court, for execution ; and he was proceeding to execute same by seizing the defendant’s rice when met by his resistance, and from which the homicide resulted.

II.

The first bill was taken to the rejection of certain evidence to prove that the deceased did not reside in the same wTard of the parish in which the justice of the peace exercised his official functions, and the consequent illegality of his appointment as special constable, vice E. Perez, who had resigned the office of constable, as a justification of his resistance of his attempted seizure of his rice.

This testimony was objected to upon the ground that the legality of his appointment could not be questioned, or attached collateral]).

This objection was correctly sustained by the trial judge. It has so frequently passed under judicial investigation, and has been so often decided adversely to the pretentions of the accused, that it cannot be considered an open one. The deceased was regularly appointed, and was at the time, and had been for twenty days preceding, in the active discharge of the duties of that office. He was constable de facto, if not de jure, and acting under color of title. I-Iis official acts were not absolute nullities, but entitled to the respect of and obedience from third persons. State vs. Gilbert, 10 Ann. 526; Citizens’ Bank vs. Bey, 3 Ann. 633; State vs. Judge, 22 Ann. 33.

A strong presentation of this doctrine is found in State vs. Fenderson, 28 Ann. 82. The accused was indicted, tried and convicted of murder, and was sentenced to be hung. He complained that the persons styling themselves as grand jurors, and by whom said bill of indictment was found, were not grand jurors, and had no right or authority to indict him as they did, because the person by whom they had been organized and charged was not judge of the court, and that all proceedings had under said indictment were null and void. In that case the judge acted under an appointment before he had received a commission. The court declined to entertain the complaint.of the •accused.

In State vs. O’Grady, 31 Ann. 379, the court employed this forcible language:

“ We do not desire to be understood, however, as intimating that a party charged with crime can be heard to raise an issue that the ministerial and other officers of court, actually and de facto acting as such, have no right to such offices. We should never get a criminal tried at that rate. He would commence with a kind of collateral giio warranto as to the judge and then go on down through the official roster of the court.”

But the accused urges us to alio whim to go to a much greater extreme, and sanction his resort to violence on, and the homicide of a person ,acting as constable, under the color of an appointment, and armed with a writ of provisional seizure, on the theory that such person was a naked trespasser, and his act in self-defense, or the defense of his property from spoliation. Though it was the act of a justice of the peace, and the legality of his appointment somewhat questionable, it was the duty of the accused to have respected the apparent authority •of the appointee, and to have sought redress for his grievances in the ■constituted judicial tribunals. It was not proper that he should have taken the law into his own hands, or the risk of himself deciding the ■capacity of an officer.

III.

The second bill was taken to the judge’s refusal to permit him to introduce parol evidence of the contents and purport of the judicial record of the suit and proceedings of Marrero vs. Brooks, in which the ■writ of provisional seizure was issued, and for the purpose of showing the want of territorial jurisdiction of the justice of the peace. We are of the opinion that the judge correctly held that the records themselves were the best evidence and should have been introduced ; and, further, that it was not competent on a trial of the accused for manslaughter to inquire into the particular facts of the civil suit between Marrero and the accused, and which could have no material bearing on the homicide of the deceased.

VI.

The third bill was taken to the judge’s refusal to permit him to prove by the justice of the peace the character of the claim on which he issued the writ of provisional seizure. It was objected on like grounds as the evidence discussed in last bill, and the same ruling is applicable.

V.

The fourth bill was taken to the judge’s refusal to permit him to ask and have answered by a witness the following question, viz:

What was the impression produced upon your mind as to his action and intention when the deceased threw up his right hand to his hip pocket ?”

The judge sustained the objection on the ground that a witness must state facts, and not the impressions they create on his mind; that it was the province of the jury to draw inferences from proven facts.

His ruling was strictly in conformity with that made by this court in the case of State vs. Parce, 37 Ann. 270, and in which there are cited various adjudicated cases.

VI.

The fifth bill was reserved to the judge’s refusal to permit him to make proof of previous threats made by the deceased, and subsequently communicated to the defendant.

The judge assigns the following reasons, viz: “ That from the evidence, so far, there has been no proof of any overt act of violence on the part of the deceased against the accused, immediately preceding the act” (of the latter).

He then quoted the purport of, and extracts from the testimony of the witnesses relied upon by the defendant as justifying the introduction of the rejected evidence. It clearly shows that the slight demonstration made by the deceased was subsequent to defendant's first shot, and while the deceased was retreating from the fray as rapidly as possible.

To entitle an accused person to introduce proof of previous threats made by the deceased against him, it must affirmatively appear that immediately before, or at the time of the killing, the deceased had indicated his intention to execute same by some hostile demonstration State vs. Saunders, 37 Ann. 389; State vs. Labuzan, 37 Ann. 489; State vs. Janvier, 37 Ann. 644; State vs. Kerwin, 37 Ann. 782; State vs. Jackson, 37 Ann. 896; State vs. Spell, 38 Ann. 22.

YII.

The sixth bill was reserved to the refusal of the trial judge to give certain special instructions in charge to the jury. They were:

1. That a justice of th<* peace is without jurisdiction to issue a writ of provisional seizure on aricecrop on anotlierpiece of land than that on which the rice flume is located ; and he cannot, in such case, entertain a suit against a person who does not reside within his jurisdiction.

2. A justice of the peace has no right to appoint a constable pro tempore to fill a vacancy caused by a resignation of a prior incumbent.

3. No one can be appointed constable other than a resident of the ward in which it is made.

4. Before acting as constable an appointee must give bond.

5. “If one thus appointed presumes to act, he is a trespasser; and, if he goes armed to meet resistance to the trespass, he commits a felony.”

6. A person who has not giveu bond, nor complied with the law in other respects, has no color of title.

The judge declined to give in charge to the jury these instructions, principally on the grounds that are assigned in the first bill of exceptions. and on the further ground that if a justice of the peace has jurisdiction to cause the seizure of property situated within his ward, although the defendant and owner reside out of it, he has authority to appoint a constable pro tempore to serve the process of his court, when there shall be no such officer elected or appointed.

This ruling is supported by good authority. The law authorizes a writ of provisional seizure or sequestration to issue against a property that is affected with a privilege, or right of pledge, either within the jurisdiction where the property is situated or where the debtor resides. Voorhies, Rev. C. P. 163; Act 64 of 1876.

The Code of Practice distinctly provides that (the) “justices of the State, without the limits of New Orleans, shall have power to appoint constables pro tempore whenever there shall be no such officer elected for their respective districts in the manner directed by law.” C. P. 1158; R. S. 637.

Prom the evidence it appears that the incumbent had resigned, and no successor had been elected or appointed by the Governor in his place. This seems to have been just suoh a situation of affairs as was in the, contemplation of the framers of the code, and the act of the justice of the peace, in making the appointment of the deceased, was apparently justifiable, and binding on all third persons, including the accused, until set aside in the manner provided by law.

The proof shows that the appointment was evidenced in writing, and made some days antecedent to the homicide. The judge’s ruling was undoubtedly correct.

VIII.

The defendant applied for a new trial on the ground that one of the jpetit jurors had been guilty of misconduct. But inasmuch as no bill was reserved to its refusal by the trial judge, it cannot receive any ■consideration by us. State vs. Redwine, 37 Ann. 780, and. authorities ' •cited.

The objections made are not sustained.

Judgment affirmed.