author: Watkins, J.

text:
    No. 13,163.
    State ex rel A. A. Browne, Sheriff and Tax Collector, Iberville Parish, vs. The A. W. Wilbert’s Sons Lumber and Shingle Co.
    Syllabus.
    The provisions of Article 229 of the Constitution of 1898, are almost identical with those of Article 206 of the Constitution of 3879; and the clause thereof which provides that all persons, associations of persons and corpor- ' at.ions pursuing any trade, profession, business or calling, may be rendered liable to a license tax, except clerks, laborers, etc., and those engaged in mechanical pursuits, and manufacturers other than those of distilled alcoholic or malt liquors, etc., includes all manufacturers of every kind and character, and those engaged in mechanical pursuits, other than those enumerated in the exception.
    The proprietor of an establishment employed in the conversion of saw-logs into lumber of different kinds and qualities in its rough state, is engaged in changing by machinery raw materials into new and useful forms, and is, therefore, a manufacturer not within the exception.
    A corporation which, by the application of labor and mechanical skill, makes salable articles out of the raw material, and by this means converts them into new and different articles having a distinctive name, character or use from that of the. raw material, is a manufacturer in the sense of the constitution.
    Section 11 of Act 171 of the license law of 189S, which provides that, saw-mills shall pay a license, based on their gross annual receipts, is unconstitutional ltro tanto, and the license sought to be collected is illegal, and can not be enforced.
    I AN APPEAL from the Fourteenth Judicial District Court for the va Parish of Iberville, Talboi, J. . ■

      J. II. Rills for Plaintiff and Appellee.

      Lozano S Hebert, for Defendants, Appellants.
    Argued and submitted May 2, 1899.
    Opinion handed down May 29, 1899.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding by the sheriff and ex-officio tax collector of the parish of Iberville by rule under the statute, against the defendant corporation to compel it to show cause why it should not pay a license under Section 11, Act 111 of 1898 — based on an aggregate amount of gross sales less than live hundred thousand dollar», and amounting'to the sum of $625.00.

The allegation of the relator is, that the defendant company is carrying on, in the town of Plaquemine, in the parish of Iberville, the business of operating and running saw-mills and that, therefore, the license claimed is due.

The respondent for answer admits that it is engaged in said business, but specially denies any indebtedness to the State whatsoever for license; but, on the contrary insists, that its business is that of a manufacturer and it is specially exempt from tlie payment of a license by the terms of Article 229; of the Constitution of 1898.

Respondent further avers, “that with the same steam-power, and in connection with its said saw mill business, it operates a large quantity of machinery which is used solely in the manufacture of manufactured articles of wood. And, in the event it should be held by the court that the business of operating a saw-mill proper is not that of a manufacturer under the terms of Article 229 of the Constitution of this State, then, the license aforesaid should be graded and based only upon respondent’s actual gross sales derived from that portion of its business of operating a saw-mill proper; and all that portion of ■respondent's business shown to be a manufactory, he declared exempt from the payment of said license.”

The purport of the respondent’s return is that it is a manufacturer and exempt, by the Constitution, from the payment of the aforesaid license; but, that, in the 'event it be held that its business is not that of .a manufacturer, then, and in that event, the amount of license should be graded and based upon the actual gross sales of its saw-mill business.

The evidence consists, exclusively, of the following brief statement ■ made by the president of the defendant company, to-wit:

“I am the president of the defendant corporation, and it is engaged in the business of operating saw-mills. In connection with the sawmill business of said corporation, a large quantity of machinery is used and operated by the same steam power in the manufacture of manufactured article of wood, such as shingles, flooring, ceiling, siding, weather-hoarding, plastering, laths, fence-pickets, railroad cross-ties, and all kinds of moulding'.

“The saw-mill business of said corporation is operated by skiddling and floating cypress trees from the swamps and converting them into lumber ready for the builders use. There are more than 350 men employed.”

And of the further statement made by the secretary-treasurer, and general manager, to-wit:

“Said corporation is engaged in the business of operating saw-mills. In connection with the saw-mill business of said corporation, a large quantity of machinery is used and operated by the same steam power, in the manufacture of manufactured articles of wood” — giving the same enumeration as that given by the president.

.There is no other testimony in the record.

For the written reasons contained in the record, and to which reference will be hereafter made, there was judgment rendered to the-effect that the defendant corporation “is liable for a license based “ upon the actual gross sales of the product of its said saw-mill busi- “ ness only, not including or embracing any of the gross sales of the-“manufactured articles of wood herein enumerated and which are “ ready for use, without other or further manipulation.

“The said gross sales for the purpose of fixing a basis for the amount “ of said license are to be ascertained by the affidavit of said defend- “ ant, filed with the tax collector, under the provisions of existing “ laws.”

The judgment further provided, “that the defendant be and it is- “ hereby ordered to cease from tKe further pursuit of its said saw- “ mill business until it has paid the amount of license based as- “ herein directed, with all legal penalties, attorney’s fees and costs of “ these proceedings.”

It appears from the foregoing, that the judge a quo was of the opinion, “that a saw-mill operated only as a saw-mill, and manufact- “ uring lumber only, is not a manufactory.”

Further, “that all of that portion of defendant’s machinery employed in the manufacture of manufactured articles of wood, such “ as shingles, flooring, siding, palings dressed and headed, plastering “ laths, fence laths, mouldings, casing, mouldings, dressed and fin- “ ished, bridge material, fence posts, and railroad cross-ties, -and all “ other articles which, like these, are ready for use without other or “further manipulation, is a manufactory, and exempt from the pay“ment of a license under the provisions of Article 229 of the Consti- “ tution, etc.”

As we understand the answer, and as it is distinctly stated therein, respondent’s claim is, that its business “is that of a manufacturer, “ and it is specially exempt from the payment of a license by the terms “ of Article 229 of the Constitution; and the claim made by the “ relator is that the respondent is liable for a license tax only.”

No claim is made for the payment of a property tax. The two are entirely different, and easily distinguishable.

In our view, the judgment pronounced has confused the two ideas, atad misplaced the defence of the company altogether.

For instance, the judgment says: (1) “The court is of the opinion that a saw-mill, operated only as a saw-mill, and manufacturing “ lumber only, is not a manufactory"j (2) the “court is, also, of the “ opinion that all of that portion of defendant’s machinery employed “in the manufacture of manufactured articles of wood, such as “ shingles, flooring-, etc., * * * which, like those, are ready for “ use without other or further manipulation, is a manufactory, and “ exempt, etc.”

In the written reasons of the court for rendering- judgment, it is stated that the defendant contends in its answer that it is exempt from the payment of a license under Article 229 of the Constitution as a manufacturer.

We make the following quotation from said reasons, as follows, to-wit:

“Article 229, of the Constitution, under which this exemption is “ claimed, is a reproduction of Article 2.06 of the Constitution of 1879, “ and exempts all manufacturers from the payment of a license.

“This power of imposing- a license upon said mills was exercised by. “ the legislature under the Constitution of 1879. Under the revenue “ laws of 1890, these mills were exempted, and this exemption gave “rise to the case of Sheriff and Tax Collector vs. Gall & Pharr, “reported in 43rd Ann., page 961.

“The Legislature, under the present Constitution, has seen proper “ to renew this license. The action of the Legislature, under these “ Constitutions, upon a similar and identical provision, furnishes an “ interpretation as to the liability of saw-mills being licensed, and, “ also, as to their not being manufacturers in the sense of that term. “ And this interpretation will not be lightly disturbed upon the “ familiar principle that the Legislature is presumed to have acted “ within the limits of its power, and this interpretation will be adopted “ by the court unless the exceeded power is placed beyond a reasonable “ doubt.

. “Unquestionably, some of the articles described and enumerated by "the defendants, and which are produced in their business, must be- “ regarded as manufactured, and to that extent confer upon them the- “ character of manufacturers. The Supreme Court, in several cases, “ in deciding, under Article 207 of the Constitution of 1879, which is “ reproduced with a single change in the present Constitution, what “ wood products were manufactured under the clause exempting ■“manufacturers of furniture and other articles of wood,'has placed ■“shingles, laths, fence posts, bridge material, etc., in the category of M manufactured articles.

“It is hardly to be presumed that the Legislature, composed of many “ lawyers familiar with the decisions of the court upon the subject, “ proposed to exact a license from the owner of a factory or mill pro- “ duciug articles of this kind, but that it intended the license to apply M to the owners of saw-mills proper. * * * * * *

“The defendant (coloration) can not be classed as manufacturers in reference to the lumber of their saw-mills. It is true that the “ term manufacturer has a very extensive signification, but in the “ construction of a statute, or constitutional provision, the words in either must be understood according to their ordinary and natural meaning.

“In the case of the City of New Orleans vs. LeBlanc, 34th Ann., “page 597, the Chief Justice said, in defining this term, that ‘a manu- ■“ facturer is not one who creates out of - nothing, for that surpasses ■“ human power; neither is he one who produces a new article out of “ materials entirely raw. He is one who gives new shapes, new quali- “ ties, new combinations, to matter which has already gone through M some artificial change.’ ,

“It can not be said that the lumber of defendant’s mill represents the production of an article out of the raw material that has been “ subjected to artificial force or process whereby something has been added to change its natural, condition, and render it at once useful in itself.

“The logs, or trees, from which the lumber is made simply undergo “ a change of form, and can not be made useful without further labor, ■“ skill, or machinery.”

It is upon this hypothesis that the opinion of the district judge rests; and his theory appears to be, that, inasmuch as lumber in its rough state is made by machinery from trees of natural growth, cut into logs in lengths suitable for that purpose, that same is not a manufacturing process, for the reason that that product is not a finished product, or an article of wood ready for use without other or further manipulation.

In our view, that argument would have more correct reference to the exemption contained in Article 230 of the Constitution of certain enumerated manufactured products, from the payment of a property tax.

The only appearance which the relator has made in this court is by answer to the appeal, in which it is said “that the judgment of the lower court is erroneous in this, that it exempts a portion of the products of defendant front the license required by law.”

It, therefore, prays that the judgment appealed from be so amended as “to include all of the products of" the defendant’s saw-mill business, “ and that as so amended, it be affirmed.”

The theory upon which the appeal of the defendant company proceeds is, that under Article 229 of the Constitution “all manufacturers are exempt from license taxation:” whereas under Article 240 of ' the Constitution “only the certain, designated manufactories therein mentioned are exempt from property taxation.”

And his argument is that a saw-mill is a manufactory, and that the company is a manufacturer in the sense of Article 229 of the Constitution, and, therefore, the license act in so far as it levies a license tax on saw-mills, is unconstitutional and void.

The contention is not only that the company is engaged ,in the business of operating a saw’-mill and cutting logs into lumber in its crude state, but that a large part of its machinery is operated by steam power and used in the manufacture of rough lumber into finished articles of wood, such as shingles, flooring, etc.

In other words, the company’s business is commenced by skiddling and floating cypress trees out of the swamps, converting same into ■ lumber ready for the builders’ use; and, also; of converting rough lumber into finished articles of wood.

For the purpose of showing the appreciation ’defendant’s counsel has of the view the district judge has taken of the matter, we make the following extract from his brief, page 3, to-wit:

“The lower court based its reasons and conclusions upon the decis- “ ion of the Supreme Court on the question of exemption from prop- “ erty taxation, under Article 207 of the Constitution of 1879.

“Its conclusions are, that the same interpretation should be placed “ on the term 'manufacturer’ under Article 229 of the Constitution of' “ 1898, in reference to license, etc., as the Supreme Court has placed “on Article 207, Constitution of 1879, as to property taxation of “manufacturers of furniture and other articles of wood. And that, ^ “therefore, shingles, flooring, siding, etc., * * * and all other “ articles of wood, which, like these, are ready for use without further-“manipulation, is a manufactory, and exempt from the payment of “ licenses under Article 229 of the Constitution.

-* * * * -X- -X- ' -X- * *

“There is no doubt, that had the claim been for property taxation, “ under Article 230 of the present Constitution, which is nearly a “ reproduction of the old Article 201 of the Constitution of 1819, his “ contention would be correct.

“The Supreme Court has repeatedly decided that ‘the test of manu- “ facture of furniture and other articles of wood,’ etc., under Article “ 201 of the old Constitution, was the readiness for immediate use”— citing the cases.

“In all those cases, the articles were manufactured from raw mate- “ rial, and were ready for immediate use without further manipula- “ tion.

“But, we contend that Article 201 of the Constitution of 1819 only, “ contemplated the exemption from taxation of machinery, etc., of the “ certain class of manufactories therein mentioned, while Article 206 “ of the constitution (now 229 of the new constitution), exempts from “ license all manufacturers, except those of alcoholic and malt “ liquors.”

■ Having stated specifically the contention of the defendants and that of the district judge — relator’s counsel having filed no briefs in this court — we will proceed to the discussion of the authorities bearing on the question, which seems to be, the liability vel non of the defendant as a manufacturer for State licenses under Article 229 of the Constitution.

Section 11 of Act 111 — the license law — of 1898, amongst other things provides, “that for carrying on each business of gas-light, “ electric-light, water-works, * * * * * * “ saw-mills employing ten or more hands, etc., * * * *■ “ the license shall be based on the gross annual receipts, etc.” It is on this statute that the relator relies for the collection of the license tax in question.

The provisions of Arcicle 229 of the Constitution of 1898 are almost identical with those of Article 206 of the Constitution of 1819, and the clause of that article upon which the defendant relies is couched "in the following terms:

“The General Assembly may levy a license tax, and in such case shall graduate the amount of such tax to he collected from the persons pursuing- the several trades, professions, vocations and callings.

“All persons, associations of persons, and corporations pursuing any trade, profession, business or calling may be rendered liable to such tax, except clerks, laborers, clergymen, school-teachers, those engaged in mechanical, agricultural, horticultural and mining pursuits, and manufacturers, other than those of distilled alcoholic or malt liquors, tobacco, cigars and cotton-seed oil.”

Therefore, the question propounded to us by the defendant is, -whether its business as described, is a mechanical pursuit; and whether it is a manufacturer, not included in the exceptions mentioned therein.

It is noticeable upon the face of Article 229, that its provisions relate, exclusively, to “all persons, association of persons, and corporations,” and that it has reference to the levy by the General Assembly of a license tax against all such persons as are not embraced within the exception thereto.

It is, also, noticeable upon the face of Article 230 of the constitution, that its provisions relate to exmeptions from property taxation; and that among the exemptions are, to-wit, “all public property, places of religions worship, etc.” And that it especially declares that there shall be exempt from taxation, “the capital, machinery, and other property employed in mining operations, and in the manufacture of textile fabrics * * * and furniture and other articles of wood, etc.”

. From the foregoing it is manifest that the provisions of Article 229 have reference to license taxation, and exemptions therefrom; and that Article 230 has relation to exemptions from property taxation, exclusively.

That in the former, reference is had to such persons as are engaged in mechanical pursuits, and such as are manufacturers, other than such as are excepted therefrom; and that in the latter, reference is had to exemptions from property taxation, and nothing else.

Under the former, all manufacturers eo nomini, and all persons engaged in mechanical pursuits are exempted from license taxation other than those excepted; and the provisions of the latter deal with property taxation, and not with personal licenses.

The language of Article 207 of the constitution of 1879, to-wit: "and shall also be exempt from taxation and license, etc.,” has been so altered by Article 230 of tlie Constitution of 1898, as to eleminate the word license, and the doubt hitherto existing in regard to the import of that word, as used therein, is thereby removed, and the provisions of the two articles rendered harmonious.

This court had occasion, recently, to examine the particular question now under discussion with regard to the provisions of Article-200 of the constitution of 1879, in State of Louisiana vs. American Sugar Refining Company, 51 Ann., 562; and, in the course of our decision we carefully reviewed and analyzed all the adjudications of this court upon the questions, and reached the conclusion that the defendant company in that ease was not exempt from license taxation as a manufacturer. As that case is an important one, and has been removed to the Supreme Court of the United States upon a writ of error, we think it well to re-examine the decisions therein cited, and apply them to the questions of exemption in the instant case.

In City vs. LeBlanc, 34th Ann., 597, this court held that:

“A manufacturer is not one who creates out of nothing, for that “surpasses human power; neither is he one who produces a new ar- “ tide out of materials entirely raw. He is one -who gives new shapes, “pew qualities, new combinations to matter which has already gone “ through some artificial process.

“A shoemaker is none the less a manufacturer, because he does not “ also tan the leather; the tanner is none the less a manufacturer of “leather, because he does not breed and raise the bullocks from which •“the raw hides are taken. The tanner makes leather to sell, but does ■ “ not buy hides to sell-produces the article of the leather and “ depends for his profit upon the labor which he bestows upon the raw “ material.”

On that statement, the court sustained the defendant’s exemption from the payment of a license, on the ground that his occupation was that of a cooper and that he made barrels and hogsheads from rough logs and splitts.

In City vs. Ernst & Co., 35th Ann., 746, the court sustained the defendant’s exemption,as a rice-miller, and in so doing, employed this language, to-wit:

“A manufacturer is defined to be, one who is engaged in the business of working raw material into wares suitable for use, who gives new shapes, new qualities, new combinations to matter which has already gone through some artificial process.

“A manufacturer prepares the original substance for use in different forms.

“Tie makes to sell, and stands between the original producer and the dealer, or first consumers, depending- for his profit on the labor which he bestows on the raw material.

“Rice is an agricultural product extensively raised in this State. The milling- of it is effected by different processes, during- wheh it passes from its original roughness to conditions in which it is fit for different uses.

“Deprived of its outer shell, and of the silica enveloping the denuded grain, it becomes an object of marketable value. It is only after several manipulations that various substances or products are obtained, which arc the hull, the bran, the flour, the red grain and, finally, the cleaned and polished kernal, all of which become separate and distinct articles of commerce.

“It is not easy to distinguish between the several processes to which rice is subjected by the manufacturer, who, from beginning to end,, works it up into various forms for use.

“It may be said to undergo one and the same process throughout. * * * The person who puts it through the process gives to-it gradually new shapes, new qualities, - new combinations, and thus is a manufacturer within the intent and scope, the spirit and letter-of the constitutional immunity.”

In State vs. Dupre, 46th Ann., 561, the court maintained the defendant’s exemption from the payment of a license for pursuing the' business of editing and printing a daily newspaper, and the court, after making the foregoing quotation from City vs. LeBlanc, used this language, to-wit:

“Keeping this definition in view,'the statement of facts embodied' in this .record shows that defendant’s use in their business, valuable-machinery and implements; that, in addition to the clerical and editorial departments, they employ a large number of mechanical laborers, such as type-setters, engineers, pressmen and their assistants; that they purchase and use great quantities of raw materials;, such as paper, ink, glue, etc.; that, by means of this machinery and mechanical labor, they convert this raw material into a new and distinct article, fit for use and in commercial demand, called a newspaper, which they sell directly to dealers and consumers.”

In State vs. Manufacturing Company, 47th Ann., 160, this court maintained tlie exemption of the defendant from license taxation as a manufacturer of crackers, biscuits and Italian paste — the proof disclosing that “the process of manufacture is, that the flour leaves the barrels and passes through a powder sifter, thence into a powder mixer, from this into a dough box on tracks, and is worked into two different kinds of dough; goes into a cutting machine, and, finally, into the oven, from which the complete articles are taken, boxed and shipped. The material is handled exclusively by machinery.

Upon this statement, the court say:

“It will readily be perceived that the establishment is a manufactory in which raw materials are made into wares suitable for use. There are new shapes, new combinations, new qualities given to the raw material by the process of manufacturing the article from the original material.”

After citing other cases, and distinguishing them therefrom, the court concludes thus, to-wit:

“In the instant case the identity of the original material is lost in the new articles created in the change of shape, new qualities and new combinations, which enter into their composition, which render them suitable for use in an entirely different manner from the manner in which the original material could be used.”

After citing a number of eases in which the exemption was disallowed, the court, in the ease cited — State vs. American Sugar Refining Company — made the following statement, to-wit:

“Considering these various expressions of opinion with regard to the term 'manufacturer,’ what is the proper conclusion to arrive at in respect to the defendant’s employment?

“This court said, that a cooper who makes barrels and hogsheads from rough logs and splits of wood was a manufacturer, because he gave new shapes, new qualities, and new combinations to matter which had already gone through some artificial process.

“It held that a rice-miller is a manufacturer, because he works raw materials into wares suitable for use, and makes from the denuded grain, after several manipulations, various commercial products and substances, such as bran, flour, red grain, and the polished kernel.

“It held that a corporation which made crackers, biscuit, and Italian paste from flour to be a manufacturer, because the raw materials were made into wares suitable for use — new qualities being given to the raw materials by various manufacturing processes, whereby the identity of the raw material was lost; that, the process by which the moisture in offal and animal matter is vaporized, and the grease and oil separated therefrom, and the residuum converted into fertilizers, is a manufacturing process.

. “But it has held that one who purchases wet, muddy and damaged ■cotton, and cleans and prepares same for sale, is not a manufacturer, because cleaning and ginning cotton do not make the result the manufacture of cotton; that one who makes ice-cream from sugar, ice, milk, and other ingredients, is not a manufacturer; that one who makes bread from flour, salt and other ingredients, is not a manufacturer; that the natural import of the term ‘manufacture’ is to produce an article by changing the raw material into some new and useful form, and that to produce an article is not a mere addition, or mode of use of an article already manufactured; that a corporation, which by a secret non-patented process, is enabled to make a selection of green coffee, possessing the requisite qualities for an intended purpose, after having been subjected to certain manipulations, is not a manufacturer; that one who by the application of labor and mechanical skill makes certain kinds of shells more polished and attractive in appearance, is not a manufacturer, because he did not' manufacture them into newr and different articles, having a distinctive name, character or use from that of shells, for they remained shells still; that the washing and scouring of wool, do not make the result a’manufacture of wool; that mining and ship-building are not manufactruing occupations; that the printer of calicoes is not a manufacturer, because he does not make the goods, but only prints the colors upon them, and improves their salable value, unlike the painter, who with his brush spreads colors upon a canvass, and thereby creates a work of art, which produces a pleasing impression upon the mind, and captivates the fancy of the beholder.”

The result of the evidence as applied to the authorities, and to the facts of this case, sceems to be, that the conversion of saw-logs into lumber of different kinds, is the changing, by machinery, of raw materials into new and useful forms, and is not a mere addition of materials.

That the defendant corporation, by the application ■ of labor and mechanical skill, makes salable articles out of the raw material, and by this means manufactures them into new and different articles having a distinctive name, character, or use from that of the raw material.

We make the following’ quotation from the brief of defendant’s-counsel, to-wit:

“We contend that saw-mills are equally entitled to be termed and-declared manufactories. We claim that a saw-mill proprietor is clearly a manufacturer under the foregoing definitions.

“He works raw materials, to-wit: trees and logs into wares suitable for use; he gives new shapes to matter which has already gone through some artificial process. He makes, by manipulation and machinery, lumber to sell, and stands between the original producer and the dealer, or first consumer, depending for his profit on the; labor which he bestows on the raw material.

“He, also, comes clearly within the reason and motive of the constitutional exemption, which was to encourage enterprises that furnish employment to home labor, in the making of things which people use and require, and which, if not made here, would be bought abroad.

“Surely the employment of over 350 persons, and gross sales of nearly $500,000 per annum shows the magnitude of the defendant’smanufactory.

“Now we say, that, while the Supreme Court has never decided pointedly that a saw-mill manufacturing’ lumber was a manufactory, yet, in several decisions they use the term manufacture in reference-to them.

**********

“To toke a saw-mill out of the category of manufacturers, would be contrary to the decision of every court, and even of the constitutional intendment; and we feel satisfied that this will not be done.

“Should, however, the court come to the conclusion that the sawmill business proper, is not a manufactory, then the judgment of the lower court should be affirmed under ruling of the court, in 33 Ann., 361, etc.”

In State vs. Weckerling, 39 Ann., 37, defendant as a manufacturer of beer, claimed exemption from the payment of a license under Article 206 of the constitution, and the court denied the exemption on the ground that the manufacture of beer came within the terms of the exception therein contained, butj in the course of their opinion it. said:

“The Article 206 (of the Constitution) exempts from the payment of license * * * and we have heretofore held, that the •constitution clearly exempts from license tax all manufacturers not •excepted.”

In Washburn vs. City, 43rd Ann., 226, we said: “It will be observed that all manufacturers are in terms excepted, unless they are included within the express reservation of that article.”

Reference has been made to the decision of this court in Jones vs. Raines, 35th Ann., 996, in which was involved an alleged exemption of a saw-mill from property taxation under Article 207 of the constitution, on the ground that “its capital, machinery and other property (were) employed in the manufacture of * * * and •other articles of wood,” but, in denying the exemption we said:

“Our conclusion is, therefore, that capital, machinery and other property employed in the construction, and in the operation of sawmills, is not exempt from taxation under the provisions of Article 207 •of the constitution.”

And in Plaquemine Lumber & Improvement Co., Ltd., vs. Browne, Assessor, 45th Ann., 459, there were involved three mills and manufactories.

In that case exemption was also claimed, under Article 207; and plaintiff sought to exempt from property taxation saw-mills, and planing mills, upon the theory that they turned out dressed flooring, wainscoting and other articles of wood ready for immediate use, within the contemplation of that article, and the exemption was sustained in part and denied in part.

But, in neither of those cases, nor in any other case to which we have been referred, or, with which we have any acquaintance, has any ■exemption of the proprietor of a saw-mill from license taxation been ■claimed and denied under Article 206 of the Constitution of 1879, on the ground that he was a manufacturer as in the instant ease.

But, it is worthy of notice that in Lumber Company vs. Assessor, supra, saw-mills and planing mills were mentioned specifically as "manufactories

Our examination of the authorities has resulted in the conclusion that there is no case in our reports which is adverse to the exemption claimed by the defendant.

In Tide Water Oil Company vs. United States, 171 U. S., p. 210, the Supreme Court said on considering- a similar question, viz.:

“The primary meaning of the word ^manufacture’ is something ■“ made by hand, as distinguished from a natural growth; but, as ma- chinery has largely supplanted this primitive method, the word is “ now ordinarily used to denote an article upon the material on which “ labor has been expended to make the finished product.

“Ordinarily, the article so manufactured takes a different form, at “least, subserves a different purpose from the original materials; and, “ usually it is given a different name.

“Raw materials may be and often are subjected to successive pro- “ cesses of ‘manufacture/ each one of which is complete in itself, but “ several of which may be required to make the final product.

“Thus, logs are first manufactured into boards, plantes, joists, scant- “ lings, etc., and then by entirely different processes are fashioned “into boxes, furniture, doors, window sashes, trimmings and the “ thousand and one articles manufactured wholly or in part of wood.

“The steel spring of a watch is made ultimately from iron ore, but “ by a large number of processes or transformations, each successive- “ step in which is a distinct process of manufacture, and for which the “ article so manufactured receives a different name.

“The material of which each manufacture is formed, and to which “ reference is made in Section 3019, is not necessarily the original raw “material — in this case the tree or log — but the produce of a prior “manufacture; the finished product of one manufacture thus becoming the material of the next in rante. (Our italics).

“This case, thus resolves itself into the question whether the ma- “ terials out of which these boxes were constructed were the boards “ which were manufactured in Canada, or the shooks which were im- “ ported into the United States.

* -x- -x- -x- * -x- * a -x-

“It may be said, generally, although not universally, that a complete “ manufacture is either the ultimate product of prior successive man- “ ufactures, such as a watch spring, or a pen-knife, or an intermediate “ product which may be used for different purposes, such for instance “ as pig iron, iron bars, lumber or cloth (our italics); while a partial “manufacture is a mere stage in the development of the material “towards an ultimate and predestined product, such for instance as “the different parts of a'watch which need only to be put together to “ make the finished article.

“If, for instance, the wheels, chain, springs, dial, hands and ease of “a watch were all imported from abroad, and merely put together in u this country, we do not think it could he said that the watch, was ‘ ‘wholy manufactured within the United States.

“The same remark we think may be made with reference to the “shooks in this case, which were practically worthless except for being “ put together for a box of a definite size.”

From the foregoing quotation taken altogether, as well as the portions which are italicised as specially important, we think it is clear, that the use and employment of machinery in cutting saw-logs into lumber in its rough state, of various kinds, qualities, dimensions and' descriptions, is a manufacturing process, and that the proprietor of saw-mills thus engaged is, in the sense of the jurisprudence of this State and of the United States, a manufacturer; and that as such, the defendant company is entitled to the exemption claimed, from the payment of a license tax, under Article 229 of the Constitution of 1898.

Consequently, Section 11 of Act 111 of the license law of 1898, which provides that saw-mills shall pay a State license, based on the gross annual receipts, is'unconstitutional, and the license sought to be collected is illegal, an can not be enforced quoad hoc.

It is therefore ordered and decreed, that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the demands of the relator be rejected, and that the exemption claimed by the respondents be sustained and enforced at the cost of relator in both courts.

Blanchard, J., dissents.


source: Caselaw Access Project

license: Public Domain

text:
    No. 13,146.
    State of Louisiana vs. John alias Rabb Fields.
    Syllabus.
    In an indictment for murder, it is sufficient to charge in general terms that the accused committed the crime, without giving details as to the time or place' it occurred; and, if on the trial the proof discloses that the mortal Wow was inflicted within the jurisdiction of the indictment, and that the death occurred in some other parish of the State, or in some other State, the court has, nonetheless, jurisdiction.
    The Supreme Court can not entertain and, decide questions raised in bills of exception involving testimony which is not annexed to, and made a part thereof.

      ON APPEAL from the Thirteenth Judicial District Court for the' Parish of East Feliciana. Golsan, J.

      M. J. Ourmingham, Attorney General, and Isaac D. Wall, District Atorney, for Plaintiff and Appellee.

      JI. F. Walker for Defendant and Ax>pellant.
    Argued and submitted May 6, 1899.
    Opinion handed down May 29, 1899.
   The opinion of .the court was delivered by

Watkins, J.

The defendant stands charged, in general terms, with having feloniously, wilfully and of his malice aforethought, killed and murdered one Lee Hughes, in the Parish of East Feliciana.

He was tried in September, 1898, and found “guilty as charged.”

A new trial was granted, and he was tried the second time, at March term, 1899.

He was again found guilty as charged, and sentenced to be hung, and from that judgment and sentence, prosecutes this appeal.

I.

The first question presented relates to a motion made to quash the indictment on the ground that the deceased having died in the parish of Orleans, the thirteenth district court was without jurisdiction, notwithstanding the fatal blow was given in the parish of East Feliciana.

The motion to quash on the ground of the want of jurisdiction ivas overruled by the district judge, and we think correctly.

Our statute with regard to criminal proceedings, controls the provisions of the common law; and it provides that “when any crime or misdemeanor shall be committed on the boundary line of two or more parishes * * * or shall be begun in one parish and completed in another, it may be dealt with, inquired of, tried, determined, and punished in either of the parishes, as if it had been atcually and wholly committed therein.” Rev. Statutes, Section 988.

In State vs. Foster, 8th Ann., 290, it was held, that “the common law adopted by our Act of 1805, was modified by the statute of 2nd George, which provides that when the stroke has been given in England, and the death occurs out of England, or the reverse, the killing may be inquired of in that part of England where either the death or stroke shall happen, respectively.” 1 East, Pleas of the Crown.

“And so the late Court of Errors and Appeals in criminal cases held in the case of State vs. McCoy and others: ‘That when the mortal .stroke was given in this State, but the death occurred in the State of Mississsippi, the crime might be prosecuted in the parish where the mortal stroke was given.” 8 Rob. Rep., 545.

“It was proper, therefore, to charge in the indictment the truth, that the death occurred on Lake Borgne, and it was immaterial whether it occurred within the jurisdiction of Louisiana, Mississippi or on the high seas, within the jurisdiction of the United States.”

So, in State vs. Jones, 38th Ann., 792, it was ruled, that “under this statute, the District Court of Bossier, where the mortal blow was inflicted, was expressly clothed with jurisdiction over, the offense and its prosecution; arid, in consideration of this fact, it was legitimate and competent, to charge in the indictment found by the grand jury of that parish, that the murder was therein committed, as was done, and not required to set out in detail that the death occurred in one parish, and the mortal wound was inflicted in another, since the place of death need only be averred, as before stated, for the purpose of showing the jurisdiction in the court.

“The substantial fact charged in the indictment was the murder, rthe place where the victim died was an immaterial circumstance, considered with reference to the law investing with jurisdiction over the crime the court of the place where the mortal stroke was given.”

The foregoing authorities are perfectly conclusive against the motion to quash.

II. ■

The next point urged by counsel for defendant is, that the court .erroneously permitted proof of a dying declaration of the deceased Lee Hughes, on the ground that the proper basis had not been laid for its introduction.

The testimony was admitted by the trial judge, and objection was taken, and a bill retained to his ruling; but, as the record contains no ■part of the evidence, it is impossible for the court to determine what its character was, or whether the ruling admitting it was or was not erroneous.

III.

The next objection relates to the judge’s declination to grant a new trial. The first ground of the motion stated relates to the ruling of the judge in overruling his motion to quash, on the ground of the want of jurisdiction of the court; but we think the reasons previously assigned are quite sufficient, and nothing further need be said.

The next ground of the motion is as follows:

“That after the court had charged the jury, and after the jury had retired to their room for deliberation upon their verdict, and had deliberated thereon for several hours, the trial judge, without any request from the jury for additional instructions, and on his own motion, ordered the deputy sheriff to bring the jury into court.

“That the judge t-hen asked the foreman of the jury whether it was a question of law or fact that had prevented them from arriving-at a verdict, and the foreman answered: ‘It is a question of law and of fact.’

“That the judge then said to the jury that their duty was plainly before them. That they had the evidence and the law before them.

“The accused had been in jail for more than a year and that they should make some disposition of the case.

“That the jury then retired to their rooms, and after a short time, they returned for further instructions, and were brought into court, and they requested the judge to read his charge to them again. That the judge then gave to the jury a definition of murder, and said to them what should be required to constitute the crime of murder, and ■ what should be required to reduce the crime of murder to man* slaughter. He then stated to the jury substantially in these words: ‘Gentlemen, I can not instruct you as to the defence in this case; he has none.’

“That these words were a comment on the evidence, and were calculated to and did influence their verdict, all of which we stand ready to verify.”

In overruling the application for rehearing the judge made this statement:

“This case came on for trial on the motion for a new trial after: argument was submitted, and it is ordered that the motion be overruled:”

“On the -(rial of the motion, counsel for defendant offered the names of the foreman of the jury and other jurors to prove the following remarks of the court, made at the close of his second trial, by a jury as follows: ‘Gentlemep, I can not instruct you as to the defence in this ease, he has none.’ To which offering, counsel for the State objected on the ground that, even if such remark had been made, no exception was taken thereto at the time, and the court cannot act upon anything which does not appear by hill of exception or assignment of error taken at the time. 2nd. That jurors cannot he heard to impeach their own verdict.”

The judge then further remarked that “the court has no remembrance of using any such language in his charge, as is now sought to he proven by the members of the jury. .

“The law clearly points out the remedy of the defense in such cases, “ and to adopt the practice as is herein sought, would be a reversal of “ all former proceedure ,and dangerous to a correct administration of “ criminal law.

“And the objection is further sustained upon the ground set forth by the district attorney.”

To this bill of exception, no part of the evidence is annexed, and it stands upon the statement contained in the bill, and the counter statement of the judge in overruling it.

In repeated decisions, this court has sustained the principle that the declaration of the judge is controlling in case of any difference existing between his statement and that of counsel, in the bill of exception.

Altogether, and in any view that can be taken of it, this hill of exception is without merit.

On the face of the record, we see no ground of relief that can be afforded the defendant.

Judgment affirmed.


text:
    No. 13,177.
    State ex rel Vincenzo Moreci vs. Joshua G. Baker, Judge, et al.
    Syllabus.
    Under the Constitution, tile Criminal District Court is without jurisdiction to entertain and pass upon an application for naturalization, notwithstanding it is, in a certain sense, a court of record, which is possessed of common law jurisdiction.

      N APPLICATION for a writ of Mandamus.

      E. A. O’Sullivan and Philip J. Palomo for Relator.

      Dinhelspiel & Ilari for Respondents.

      JR. li. Browne for Recorder of Mortgages el al., pajuces out of the Judicial Expense Fund.
    Submitted on briefs May 3, 1899.
    Opinion handed down May 29, 1899.
   The opinion of the court was delivered by

Watkins, J.

The relator’s petition states, that on the 5th of September, 1887, in accordance with the laws of the United States, he declared under oath his bona fide intention to become a citizen of the United States, and renounced his allegiance to the King' of Italy, before the Criminal District Court in and for the parish of Orleans, and that more than two years have elapsed since that date, and that he now desires to further comply with the Acts of Congress with renard to naturalization, in order to be admitted to the full and complete ■citizenship of the United States.

That he presented himself to the Honorable Joshua G. Baker, Judge ■of the Criminal District Court- — said court having common-law jurisdiction and a seal and a clerk; and also to E. J. Thilberger, clerk of the Criminal District Court, praying to be admitted to citizenship, and that the proceedings required by law be taken; that he be examined and sworn as to his right to citizenship, and that other necessary provisions of the law to that end be performed by said respondents, but that they declined and refused to take cognizance, ■of the same.

Relator represents, that under the laws of the land, courts are re■quired to be open to all citizens, for the purpose of nauralization unless the same is forbidden by the legislature of the State in which ■application is made.

That your relator has no other remedy adequate to his demand than this application for relief by mandamus.

Wherefore, the premises considered, relator prays that, after due proceedings had, that mandamus issue to said clerk and judge, commanding' them to show cause why said writ should not issue, and why they should not perform the functions of their respective offices in the-respects related in the foregoing petition.

The respondent judge returns, that he presides over section “A” of the Criminal District Court for the parish of Orleans, but, that under the Constitution of 1898, the jurisdiction of said court is exclusively criminal, that it has no civil jurisdiction of any kind or character whatever; that respondent declined to entertain the application of the relator in this ease to be naturalized,.for that reason; that is, that his-'court- was without jurisdiction in the premises.

That the constitution of 1898 gives the Civil District Court for the parish of Orleans, jurisdiction in cases of naturalization by providing1 that such applications need not be allotted, but may be passed upon by any judge of that court.

That since the adoption of the constitution, he, as judge of said court, is absolutely without power to entertain and determine the-rightfulness of relator’s application to be naturalized.

The respondent clerk returns, that he is an officer of the court of' the respondent judge of the Criminal District Court, and that that court can, alone, direct him as to the performance of his duties in any given case, and that the supervisory jurisdiction of this honorable court extends only to the judges of inferior courts, and not to other-officers thereof.

The foregoing statements of the petition and returns disclose the question to be, jurisdiction vel non of the respondent judge, to entertain and pass upon relator’s application for naturalization.

The constitution provides, that “the Criminal District Court shall have exclusive original jurisdiction for the trial and punishment of all offences, when the penalty of death, imprisonment at hard labor, or imprisonment without hard labor for any time exceeding six months, or a fine exceeding $300, may be imposed, and appellate jurisdiction in all cases tried before the City Criminal Courts or Recorders’ Courts of New Orleans, etc. * * * Said court shall have general and supervisory jurisdiction over all inferior State and municipal criminal courts in the parish of Orleans, and shall have authority to issue writs of haebas corpus in criminal or quasi-criminal cases, and' such other writs and orders as may be necessary or proper in aid of the-jurisdiction conferred upon it, etc.” Article 139, Constitution of 1898. ' . ■

The foregoing provision is the only one in the organic law" which deals with the jurisdiction of the Criminal District Court; and it is evident that it can 'exercise no other.

The claim made by relator’s counsel is grounded upon the theory that under the constitution of the United States, Congress had the exclusive power to establish a uniform rule of naturalization, and that all power upon that subject is withdrawn from the States.

That, as Congress had passed laws upon subject of naturalization, they were controlling; and that the Congress had provided that an applicant for citizenship should make his declaration before any court of record of the United States, or of any one having common-law jurisdiction.

Therefore, the only essential necessary for the exercise of the power is, that the court to whom such application is made shall be a court of record; and his allegation is, that the Criminal District Court is a court of record, and possesses common-law jurisdiction — it is therefore, competent to entertain his application.

While conceding the authority of the Federal Constitution, and the laws of Congress to be as stated, in regard to naturalization, it is a non-sequiiur that the Criminal District Court can exercise such jurisdiction.

Clearly, it is within the competency of a sovereign State to declare in its organic law what jurisdiction the courts established by it shall possess and exercise; and, unless a court of this State is clothed with civil jurisdiction to entertain and decide questions of naturalization, it certainly could not- do so, and notwithstanding such court, in general terms, is a court of record, and possessed, in a certain sense, of common-law jurisdiction.

That common-law jurisdiction must be restrained within the limits fixed in the delegation of authority conferred by the constitution of the State.

We are of the opinion that the respondent judge was right in declining to entertain jurisdiction of the relator’s petition, and the consequence is, that his application is refused, and the writ of mandamus denied at his cost. ,


author: Nioholls, C. J.

text:
    No. 13,005.
    William Jones vs. The Texas and Pacific Railway Co.
    Syllabus.
    It is not sufficient ¡or a plaintiff, seeking damages o¡ a railroad company for personal injuries, to show that a particular appliance of the company was in bad condition; he must establish the fact that the injuries were occasioned by the same.
    ON APPEAL from the Oivil District Court for the Parish of Orleaos. Theard, J.

      Ambrose Smith and T. M. Gill for Plaintiff and Appellee.
    Howe, Spencer & Cocke for Defendant and Appellant.
    Argued and submitted May 20, 1899.
    Opinion handed down May 29, 1899.
   The opinion of the court was delivered by

Nioholls, C. J.

This was a suit instituted in the Civil District Court to recover the sum of $10,070 for alleged personal injuries.

The substantial allegations of the petition are that the plaintiff was employed by the defendant as brakesman; that on or about the 14ih day of -October, 1895, at ten o’clock p. m., while in the discharge of his duty the plaintiff attempted to descend a freight ear attached to one of the trains of the defendant by means of the hand holds or grab-irons thereon, the said train being then in motion, that the said handhold gave way and precipitated petitioner to the ground, where he ■came in contact with cross ties of the said railroad and had his right leg and ankle badly and seriously bruised, twisted and broken.

The petition further alleges, that as a result of the said fall, petitioner suffered great bodily and mental pain and still suffers the same, and has been rendered incapable of pursuing his occupation as brakesman, in which occupation he earned wages amounting to sixty dollars a month.

It is further alleged that the said injuries were caused by net fault or negligence on the part of the petitioner, but were occasioned and caused solely by the fault and negligence of the defendant; that the said hand-hold was defective, old and insufficient to the knowledge of said railway company, and its agents, and that petitioner had no knowledge or notice of the said defect. The answer of the defendant consisted of: (1) A general denial. (2) An admission that the plaintiff was in defendant’s employ, coupled with a special denial that he was injured by any negligence or want of care on its part or on. the part of anyone for whom it was responsible; a denial that the plaintiff was injured by reason of the defect of any car belonging to respondent, or if injured by any such defect (which was denied) thou respondent denied that it had any knowledge of the same and averred that plaintiff assumed by virtue of his employment, the risk thereof, if any such defect did in fact exist. (3) Defendant averred contributory negligence on the part of the plaintiff.

Opinion.

There is no doubt as to the fact that the plaintiff was severely injured at Whitecastle, while in the employ of the defendant company,, but the only person who testified as to the circumstances under which these injuries were received was the plaintiff himself.

The account given by himself is, that being a brakeman on the-train in the discharge of his duty, he was descending, about ten o’clock at night, one of the side ladders which are fastened onto the cars, when the end of one of the rounds of the ladder pulled out from the side of the car to which it was attached, and dropping down, caused him to fall with violence to the ground and to break his ankle.

The claim made is that the fastening to the car was defective and - the defendant company negligent in not providing safe appliances.

The only attempt at corroboration of this statement is through the testimony of one Robinson, who declared that as he was walking along the public road which runs parallel to the railroad track, he saw the ■ plaintiff (lantern in hand) fall to the ground and in going to his assistance he was then told by him that the hand-hold “had pulled out and had caused him "to fall and injure himself.”

This statement was permitted to be introduced as part of the “res gestaeRobinson said that he was unable of himself to say how the-plaintiff came to be hurt.

As against this version of the facts, Barksdale, the conductor of the freight train, and Brown and Cunningham, brakemen thereon, testify that before the train reached Bayou Goula, fhé next- station, three-miles off, the plaintiff told each of them that he had jumped off thu ear and hurt himself and that on reaching that' station they had examined the car and found the ladder and the “hand holds” thereto-intact. The ear inspector at Baton Rouge Junction testified to having- made a similar inspection at that point with a like result.

There was evidence to- show that the “draw head”.of the particular-car which the plaintiff was upon at the time of the accident, had: pulled out that morning at Gouldsborough before the train left New Orleans, but that particular fact carried with it no significance as the “draw head” had nothing whatever to do with the side ladders.

The draw head might well pull out and the ear be otherwise hr: thorough condition, and the car inspector at Gouldsborough testified: that sueli was the fact, that he had fully inspected it before Restarting- from that point.

Under this condition of the evidence we think the judgment appealed from is erroneous.

Eor the reasons assigned, it is ordered, adjudged and decreed that, the judgment appealed from be and the sanie is hereby annulled,, avoided and reversed, and it is now ordered and adjudged and decreed! that plaintiff’s demand he rejected with costs in both courts.


author: Nicholls, C. J.

text:
    No. 13,157.
    Andrew Jackson Sharpe et als. vs. August Levert.
    Syllabus.
    1. Though a tract of land be subject te the legal servitudes of receiving tlie Waters running naturally from another adjoining It, the proprietor of the latter is not entitled to enter, at pleasure, on the contiguous property without the eonsent of the owner and dig thereon a ditch to increase the drain.
    2. A tresspass can not be justified, nor continued, upon the ground that it is beneficial to the person whose property is tresspassed upon. Even benefits «an not be forced npon a person without his consent.

      ON APPEAL from tlie Fourteenth Judicial District Court for the Parish of West Eaton Rouge. Talbot, J.

      J. E. LeBlanc, Jr., for Plaintiffs and Appellees.

      Iieberi & Hebert for Defendant and Appellant.
    Argued and submitted May 21, 1899.
    Opinion handed down May 29, 1899.
   The opinion of the court was delivered by

Nicholls, C. J.

The plaintiffs after alleging' themselves to be the owners of a certain described plantation in the parish of West Baton Rouge known as the “Chenango” plantation, averred that the fields thereof were drained through a coulee which, running .about fifty-acres from the river on a line almost parallel 'thereto, through the width of the property, emptied its waters at almost the upper line of the defendant’s plantation in a bayou known as Bayou Bourbeaux; fthat the coulee was the natural drainage of the Chenango plantation and had been recognized as such from time immemorial; that the ■defendant intended either to construct a dike across the coulee at the line between his and petitioner’s plantation or plough through said coulee in the event said dike was not constructed, thereby very materially interfering with their drainage; that they feared he would carry out his expressed intention; that they had a growing1 crop on their plantation of considerable value, and unless the threatened acts were enjoined the defendant would suffer irreparable injury. In support of their 'demand they pleaded the prescription of ten and ■thirty years.

The prayer of their petition was that a writ of injunction issue, •enjoining defendant from intercepting or interfering in any wav, manner or form, with petitioner’s drainage through the said coulee; that defendant be cited, and after due proceedings there be judgment in their favor perpetuating their injunction and making it the judgment of the court with attorney’s fees as damages.

Defendant moved to dissolve the injunction for the reasons first:

That the allegations of the petition and the affidavit thereto were false and fraudulent.

2nd. That plaintiffs were trespassers on said property, wherein he •claimed a right of drainage, having invaded same with various employees and dug ditches and drains therein.

The court after trial of the motion to dissolve and hearing evidence, decided the motion in vacation under Act No. 12 of 1884. It dissolved the injunction which fiad issued; it recognized the coulee in question as a natural drain and reserved the right of the plaintiffs to institute such proceedings' as might be necessary to prevent the defendant from stopping said drain as then existing, or to enforce such rights as they might have to said natural drain; it further under the provisions of the' same act, granted an appeal to the parties from its judgment.

Defendant answered, pleading first, the general issue; he specially denied that plaintiffs ever had a right of drainage through or on his property in the manner and form which he sought to establish. He denied that the coulee was a natural drain. He averred that all the property belonging to that section of the country, starting from ihe plantation formerly belonging to Thomas Gourrier, on the right .bank of the river Mississippi, in Iberville, about one mile above the town of Plaquemine up to and including the “Ohenango” plantation of the plaintiffs’, form a drainage district sanctioned by the State of Louisiana and the Police Juries of Iberville and West Baton Eouge parishes. He also averred that the plaintiffs fraudulently, tor tiously and maliciously entered upon and invaded his property with divers employees, and as trespassers without his knowledge and consent and against his will,' made and established in the bottom of a coulee there existing, a canal six and a half acres long, six feet wide, .and ten inches deep, joining it to a canal used by him of very large dimensions on the upper of his St. Delphine plantation to meet that portion of a coulee which is deep and wide, and which afford'ed ample drainage to the whole of his property; that by the fraudulent, tortious and malicious acts of the plaintiffs, his property has been injuriously affected by a large accumulation of water on it, which never had a right to pass there and which nature never intended should pass there, that in making said canal plaintiff maliciously closed and filled up iwo canals on his property, one leading to and the other leading from the said coulee, all on his St. Mary plantation; that the said canal made by plaintiffs should be closed by the sheriff of the parish and the canals belonging to him (appearer) should be reopened and the conditions existing before plaintiffs wantonly, maliciously and illegally invaded his property should be re-established; that his rights-in damages should be reserved; that the canal dug by plaintiffs affected his plantation to the extent of twenty-five hundred dollars.

In view of the premises, he prayed that there be judgment in his favor against plaintiffs, decreeing the coulee not to be a natural drain; condemning them to close the canal which they had made on his St. Mary plantation in the coulee aforesaid, and to open the two canals on said plantation belonging to him which they had closed, and to re-establish the premises in the same condition in which they were before they invaded and trespassed on his property; that the work of closing the canal and of opening the ditches be done by the sheriff of the parish and he be commanded to carry out the court’s decree.

The District Court rendered on the trial of the merits identically the same judgment which it had rendered on the motion to dissolve-the injunction, and defendant appealed. Plaintiff prayed for no amendment of the judgment. The proceedings in the lower com! were very irregularly conducted, but as wo are not disposed to raise objections not urged by the parties themselves and the whole case with its evidence is before us, we will dispose of the issues which they have-elected to try.

. The Chenango plantation of the, plaintiff Sharpe has just above it two plantations, the St. Mary and the Delphine, belonging to the defendant Levert, and just below it, first the plantation of Gay, and next that of Lozano. These lands fall from the Mississippi river to-the rear. At about forty-five acres from the river there is on all of' them a low place or depression, referred to in .the pleadings as a coulee,, which starting at a point on the “Delphine” plantation of Levert (the upper plantation of the five named) runs diagonally forward towards-the Mississippi river, to a point on the Lozano plantation.

It is about thirty or forty feet wide, and the surface waters from the front find their way naturally to it.

Behind this couleee or slough some five or six acres, is a Bayou known as Bayou Bourbeaux, with which this slough connects above, on the Delphine plantation and below on the Lozano plantation at the points referred to.

The waters from this slough fall into this Bayou Bourbeaux; th» general natural fall of the slongh or coulee (though small) being from the Lozano place below to the Delphine plantation of the Levert above.

The real drainage of all the places is ultimately Bayou Bourbeaux.

All the plantations have ditches from front to rear, crossing the .slough and reaching Bayou Bourbeaux.

The controversy iu this case between the Sharpes, owners of the Chenango plantation, on the one side, and Levert, owlier of the St. Mary and the Delphine plantations, on the other, is in respect to ■drainage through this slough or coulee.

The Sharpes claim that the coulee is a substantial and important factor in the drainage of their property; that the fall of the surface waters in the slough, is across their place towards and over Levert’s two places, through the coulee to Bayou Bourbeaux, and that Levert threatens to throw a dam or dike across the coulee or to plough across it and make it useless; while Levert claims that the conlee has an elevation-on his St. Mary plantation which causes it to serve as a drain (above the Sharpe place) for only the St. Mary and Delphine plantations. That, though the coulee may serve partially as a drain for the Sharpe and the Gay and the Lozano plantations, it is because ■of a fall from Sharpe’s upper line to the point of connection of the slough with Bayou Bourbeaux, below on the Lozano plantation. ITo maintains in other words, that the coulee drains in two different directions. He complains that Sharpe has by agreement with Gay, thrown a dam across the coulee on the line dividing their plantations, and at the same time has gone on to his St. Mary plantation without his knowledge or consent and dug a ditch in the centre of the coulee ncross the width of the St. Mary plantation, and through the elevation or ridge in the slough on that place, so as to make connection with a ditch which he, Levert, had himself dug on his own place, in the centre of this slough, from the point of elevation or ridge therein referred to, across the St. Mary and Delphine plantations, to the upper connection of the slough with Bayou Bourbeaux; that Sharpe was utterly without right or authority to have gone upon his land and dug this ditch, the effect of which was to illegally cause his property to serve as a drain for the Chenango plantation, and to increase the volume of water which could and would have passed over it under any possible circumstances. The Sharpes claim that the dam which they had thrown between their plantation and that of Gay is of advantage to the defendant, as otherwise the waters from the Gay and Lozano plantations would pass through the coulee over the Levert plantation. They further say that the ditch which they have dug through the St. Mary plantation is of no special advantage to them, and benefits Levert. An examination of the testimony leads ns to the conclusion that the District Court was not in error in holding that the coulee referred to was a natural drain for the Chenango plantation, and wo approve and affirm the finding' on that point. We think,, however, that ft should have passed on defendant’s reconventional demand and granted him a part of the relief prayed for.

There was no warrant or justification for Sharpe’s going upon Levert’s property and digging' a ditch thereon through the coulee-(Landry vs. McCall, 3rd Ann., 134.) He was guilty of a wrong an! trespass in so doing and can predicate no right upon it. Plaintiffs say the ditch was of benefit to defendant, but a trespass cannot he justified or continued on the ground of its being beneficial to the party trespassed upon. Even benefits cannot be forced upon a person without his consent. They should be ordered to fill up said’ ditch and replace matters to the-situation in which they were prior to the digging of the same.

For the reasons assigned it is ordered and decreed that the judgment appealed from be amended and altered by decreeing plaintiff's-(as they are now decreed and ordered) to close and fill up the ditch <;r canal which they have made on defendant’s St. Mary plantation and to re-establish the property in the same condition in which it was, before said ditch or canal was made, that on their failure to do the-same, it shall be done by the sheriff of the parish of Iberville at plaintiff’s -costs.

It is ordered that as so amended and altered the judgment appealed from he and the same is affirmed, costs of appeal to he borne by plaintiffs and appellee.


author: Blaxchard, J.

text:
    No. 12,881.
    In re Liquidation of Grant & Jung Furniture Company, Limited On Rule Taken by The National Furniture Company and the Jasper Furniture Company, Creditors, to Set Aside Order Appointing Liquidators, Etc.
    Syllabus.
    1, On the showing made, it is held that the Civil District Court could legally order the liquidation of the dissolved corporation, and, to this end, appoint liquidators, and further as incidental to the liquidation, it had authority to enter a restraining order staying proceedings against the corporation and its property.
    2. The principal and essential action on part of the court was to order the-liquidation. The particular form of words used is of no consequence. When the matter was brought into court and the judge concluded on the showing made that the liquidation ought to be ordered and acted accordingly, a proceeding at once became pending for the liquidation of the affairs of the corporation, and, in aid of these proceedings, the court could appoint liquidators and stay proceedings independently by the creditors.
    Nicnoixs, C. J., dissents.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Saunders &,Miller for National Furniture Co., and Ernest T. Florance for Jasper Furniture Co., Plaintiffs in Rule, Appellants.

      ParJcerson & Tobin for Liquidators, defendants in rule, Appellees.

      Howe, Spencer & Cocke for Lessor, Appellee.
    Argued and submitted April 5, 1899.
    Opinion handed down May 15, 1899.
    Rehearing refused (Nicholas, C. J., dissenting, for reasons assigned), June 12, 1899.
   The opinion of the court was delivered by

Blaxchard, J.

In 1893, the Grant & Jung Furniture Cofnpany, Limited, was incorporated under the limited liability law. Acts of Louisiana, 1888, No. 36.

Its charter provided that the corporation might he dissolved at any time by the vote of three-fourths of the stock, at a meeting of stockholders held after thirty days’ written notice; and, further, that whenever it was so dissolved, its affairs should he liquidated under the supervision of two stockholders, appointed by the stockholders, with the assent of a majority in amount of the capital stock.

In January, 1898, at a general meeting of the stockholders, eon-' veiled in accordance with the terms of the charter, for the purpose of considering the question of the dissolution and liquidation of the corr; poration, all the stockholders being present, a resolution of dissolution: and liquidation was unanimously adopted, and Peter Jung and Joint i G-. Grant, stockholders, were, in accordance with the provisions of the .charter, appointed to conduct the liquidation.

Following this, the said lung- and Grant filed a petition in the Civil .District Court, setting- forth the above facts, averring- the corporation .to be heavily involved in debt and the likelihood of the institution of -.many suits by creditors, and prayed the court, in the exercise of its •equity jurisdiction, to take charge of the liquidation of the affairs o£ the corporation, to recognize and confirm them as liquidating- commissioners, and permit them to conduct the liquidation under the orders and the protection of the court, and in accordance with the terms of the charter.

It was averred that this was necessary in order to prevent waste of -the assets and to insure a fair and equal distribution among the , creditors.

It was further prayed that an inventory of the property and effects ióí the company be taken and an appraisement made, and that pending '.liquidation, proceedings against the company be stayed.

Upon this, the court entered an order recognizing and confirming ■said Jung and Grant as liquidating- commissioners, directing- them to give bond in the sum of five thousand dollars each, and to take the oath of office as liquidators.

The bond was given, the oath taken, and letters of authority issued, directing them to conduct the liquidation under the orders of the court and pursuant to the terms of the charter.

An inventory was authorized and taken and an appraisement made, •and all proceedings against the company were directed' to be’ stayed pending- the liquidation.

The liquidation was proceeded with, the stock of furniture was sold out at private sale as rapidly as possible, and a remnant thereof, with -other movables, disposed of at public auction by order of the court. The proceeds of these sales were directed by the court to be deposited in the State National Bank and the same'were so deposited.

On March 23, 1898, certain creditors took a rule to vacate and set aside the appointment of liquidators, as well as the restraining order, ■on the ground that such proceedings were without warrant of law and prejudicial to the complaining- creditors.

There was judgment rejecting' this demand and dismissing’ the rule.

'Jn his reason for judgment, the judge a quo stated the appointment of liquidators liad been made in aid of proceedings pending before the court for the liquidation of the affairs of the corporation and rendered necessary for the preservation of the interests of all concerned.

No appeal was taken from this judgment.

Later, certain other creditors, to-wit: the Jasper Furniture Com.pany and the National Furniture Company, took a rule to show cause why the appointment of liquidators should not be annulled. They averred that they had obtained judgments against the Grant & Jung Furniture Company, Limited, in the U. S. Circuit Court for the .Eastern District of Louisiana, that executions had issued thereon, and under the same the U. S. Marshall had levied upon and seized, under garnishment process, the funds of said Grant & Jung Furniture Company in the hands of the State National Bank; that thereupon the liquidators had appeared in the Federal Court and moved to quash and set aside said seizure; and that, acting upon said motion, the Federal Court had entered an order referring the seizing creditors to the State Court, seized of the liquidation proceedings, there to test the validity and binding effect of the seizure made in the Federal Court, etc.

The further allegation was made that the order appointing liquidators herein and restraining legal proceedings against the Grant & Jung Furniture Company was without warrant or authority in law, in so far as the rights of the movers were affected thereby, and that the same operated to their detriment.

They averred a privilege upon the funds and assets in the hands of the State National Bank by virtue of their seizure thereof as aforesaid.

By a statement of facts filed on the trial of this rule the foregoing ■averments are shown to be true, and further that the ordinary creditors of the Grant & Jung Furniture Company, of which class plaintiffs in rule are, would not obtain in the liquidation proceedings over 25% of their respective claims. It was further admitted that the liquidators had collected from the assets of the Furniture Company between $30,000 and $35,000, and the same had been deposited to their credit an the State National Bank.

The proceedings in the Federal Court showed that the State Court through its officers had possession and control of the property and assets of the Grant & Jung Co. which had been dissolved, and that the funds seized in the State National Bank were, at the time of the seizure, deposited there, under the order of the State Court, in the name of Peter Jung and John G. Grant, liquidators.

On this showing the Federal Court quashed the writ of fieri facias and set aside the seizure thereunder in so far as -the same might interfere with the orders of the State Court, and referred the matter in contestation to the latter court.

The order stated its intention to be, first, to declare that all the property or moneys pertaining to the Grant & Jung Co., in the hands of the liquidators appointed by the State Court, are held to be exclusively under its (the State Court’s) control and subject only to its orders; and, second, to preserve whatever rights, if any, may have resulted in favor of the seizing creditors, by virtue of their seizure aforesaid, should the State Court thereafter take action setting aside the liquidation proceedings.

It was under these circumstances that the seizing creditors appeared, in the State Court and took the rule to vacate, now under consideration, and from a judgment rejecting and dismissing the same, they prosecute this appeal.

The question presented is: Could the Civil District Court, on the showing made, legally order the liquidation of the affairs of the Grant and Jung Furniture Company, limited, and, to this end, -appoint Peter Jung and John G. Grant as liquidators, and, further, and as incidental to this liquidation, did it have the authority to enter the restraining order staying judicial proceedings against the corporation and its property?

While, in the application for liquidation, it is stated it was believed the assets of the corporation would be sufficient to satisfy the creditors, subsequent developments demonstrated the insolvency of the concern.

Hero was a corporation whose charter gave its stockholders the power to dissolve it'at any time they might so determine.

No question is íaised as to the validity of the act of incorporation, nor that the company was not a duly incorporated, limited liability corporation under the laws of the State.

Its stockholders voted to dissolve and liquidate, and did what the charter further empowered them to do, named two stockholders as liquidators.

Here, then, was a dissolved and insolvent corporation, whoso affairs were in the hands of persons named in pursuance of the charter under which it held itself out to the world and did business.

Unable, themselves, under their limited powers and liability to interference, to proceed unmolested with the liquidation, to the end of obtaining the best results and realizing' the most possible for the creditors out of the assets of the defunct concern — the common pledge of all the creditors — these stockholders, so named as liquidators, brought "the matter to the attention of the court, and prayed it to take charge of the liquidation and settlement of the affairs of the dissolved corporation.

The parties named as liquidators by the stockholders’ meeting were in possession without bond — not even under the restraint and sanction of an oath of office.

The court mado an order assuming charge of the liquidation. It did this when it recognized and confirmed Peter Jung and John G. Grant as liquidators. It did this when it directed them to give bond, to take an oath, and to have issued to them the court’s letters of authority. It did this when it directed the disposition and sale of the effects of the corporation, and the deposit of funds realized in a given bank. _

The principal and essential action on part óf the court was to order the liquidation. The particular forms of words used in this regard is of no consequence. When the matter was brought into court and the judge concluded on ilie showing made that the liquidation ought to be ordered, and acted accordingly, a proceeding at once became pending for the liquidation of the affairs of the corporation, and in aid of these proceedings the court could and did appoint liquidators, deeming this step necessary for the interest of all concerned. The' facts presented and the exigencies of the case justified its action.

The case is thus within the rule laid down In re Moss Cigar Co., Limited, 50 La. Ann. 789, 23 So. Rep. 544. See also In re La. Savings Bank, 35 La. Ann. 199, and Remington Paper Co. vs. Watson, 49 La. Ann. 1297.

The Moss Cigar case supra, cited by both sides, was lost to the applicant for appointment of receiver on facts appearing and on a showing made essentially different from those of the instant case.

In that case there was no dissolution of the corporation, no action taken by its stockholder's, nor even by its directors, seeking the liquidation of the affairs of the corporation pursuant to authorization of its charter. . There had been no meeting held of its stockholders nor directors to formally authorize dissolution and liquidation proceedings.

There had beeu no attempt at liquidation, nor had its officers been properly authorized to apply to the courts for its action. The corporation was a going concern, when its president, in the name of the •company, applied for the appointment of a receiver.

In the instant case, the corporation had been 'formally dissolved and proceedings taken as directed by the charter for liquidation.' The liquidators named by the stockholders, finding- themselves unable, •without the aid of "the. court, to execute the trust, carried the liquidation proceedings into the court, and this action of theirs as liquidators, not as officers of the corporation, nor in the name of the corporation, which no longer existed, gave to the application the status of a proceeding- pending before the court for the liquidation and settlement of the affairs of the defunct corporation, and in aid. of the same, to effectuate it and to conserve and protect equally the rights of all, it became necessary to appoint liquidators, invest them with the power .and surround them with the protection of the court as officers of the same, and to direct by the restraining order that they be not interfered with.

We think a proper case was presented for the exercise of the equitable jurisdiction of the Court a qua and its action is sustained.

It follows that the judgment appealed from,' dismissing- the rule of complainant creditors, is found to be correct and, accordingly, the same, with costs, is affirmed.


author: Blanchard, J.

text:
    No. 12,949.
    S. Wolff, Administrator, vs. The Mutual Reserve Fund Life Association.
    Syllabus.
    ■J. Suit on a life insurance policy.
    2. Clause of policy makes death by the hand of the Insured, whether sane or insane, not a risk assumed by the contract.
    3. Suicide set up as a defense. Question presented altogether one of fact. The evidence establishing the defense, judgment appealed from is affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      Solomon Wolff, Plaintiff and Appellant, pro se.

      Denegre, Blair £ Denegre for Defendant and Appellee.
    Argued and submitted March 24, 1899.
    Opinion handed down May 15, 1899.
    Rehearing refused June 12, 1899.
   The opinion of the court was delivered by

Blanchard, J.

The Administrator of the Succession of Harry - Goldschmidt brings this action to recover $2500 alleged to be due on a policy of insurance issued by defendant company on the life of the ■ deceased.

The defense is suicide, and is based on the following clause found in the policy, to-wit: “Death of said member, caused by any violation of law, or by his own hand, whether sane or insane, voluntary or involuntary, is not a risk assumed by this contract within three years from its date, nor is disability thus caused such a risk at any time.”

The policy is dated July 30, 1896, and the death of Goldschmidt occurred within two months thereafter.

Having established the death of Goldschmidt, plaintiff offered the insurance policy, with proof of death, etc., made out on the blanks of the company and in compliance with its regulations, and rested búscase.

The burden of establishing the special defense of suicide being upon defendant company, testimony to that end was introduced, with the - result that the case was decided by the trial court in favor of defendant, and plaintiff prosecutes this appeal.

The question presented is altogether one of fact.

Goldschmidt, the deceased, and Joseph Goldstein were acquaintances — perhaps friends.

Both lived at No. 218 Bourbon street, New Orleans, where a board'-ing house was conducted.

On the night of September 25, 1896, they quarreled and a serious-difficulty was then narrowly averted.

Early the next morning as Goldstein, who occupied an apartment on the third floor of the house, descended the stairs, he was suddenly saetín the hall-way of the second story by Goldschmidt, who,, pistol in-hand, demanded the retraction of offensive terms applied to him by Goldstein the preceding night.

Declining the demand thus made, Goldstein was fired upon by Goldschmidt, the ball taking effect in the back part of the head.

The wounded man staggered and fell, recovered, and reeling along the hall-way finally fell at the door of the dining room, where he lay for a time prostrate.

Here he was again approached by Goldschmidt, who fired a second shot, inflicting another wound in the head.

The would-be slayer then backed away from the wounded man, down the hall-way to the opposite corner, where he placed the pistol to his head and blew his brains out.

This is the statement of Goldstein, who, while badly wounded, did not lose consciousness, recovered later from his wounds and was called to the stand as a witness for the defense.

He testified positively to having seen the deceased put the pistol to his head and fire the shot which ended his life.

With reference to this witness the judge a quo says: “His account of the tragic occurrence is clear and straightforward. He impressed me as being courageous, self-possessed, modest withal, and scrupulously veracious.”

We have naught to do with his statement other than that which relates to the death of Goldschmidt.

The latter either shot himself purposely, or accidentally, or was shot by Goldstein.

The theory of the plaintiff is that it was not a case of suicide; that the dead man, if he shot himself at all, did so accidentally; and that, more likely, he was shot by Goldstein in the difficulty between them.

The theory of the defense is that Goldschmidt, having shot and, as he thought, killed Goldstein, in his desperation and with the fear of the law before him, took his own life.

A careful consideration of the evidence leads us to the conclusion that it was a case of suicide.

Goldstein’s statement is corroborated by the coroner who reached the house three-quarters of an hour after the shooting, examined the corpse, made inquiry, became convinced it was a 'case of suicide, deemed it unnecessary to hold a formal inquest, but, nevertheless, saw and examined witnesses informally, and gave a certificate of death by the man’s own hand.

Goldstein is further corroborated, by Mrs. Bass, the landlady of the house, who testified that, having heard the shots, she came from the rear of the house into the dining room and while passing through the latter -on her way to the hall, she saw Goldschmidt standing in the corner of the hall (where the statement of Goldstein placed him); that he was then in the act of falling and did fall;-and that she saw a pistol in his hand as he fell and noted it lying near him after he was down.

Other circumstances corroborate Goldstein and they are these: A number of persons were occupants of the house at the time of the shooting. They gathered in the hall and many came from the street, until a crowd had assembled.

Without dissent, it would seem, the fact of suicide was accepted, and the newspapers published it as such.

No accusation of any kind was made against Goldstein.

Blumenthal, who lived in the house and was the intimate friend of the dead man, reached the scene in a few moments after the shooting. He, too, assented without question to the verdict of suicide.

■There was nothing to impeach the testimony of Goldstein, except a map or plat of the premises where the tragedy occurred,, which was made at the instance of plaintiff. It is sought to show by this that, from the physical difficulties and obstructions in the way, it was impossible for a man lying at the dining room door, where Goldstein fell after being shot, to see a man standing in the corner, down the hallway, where the testimony locates Goldschmidt at the time he is said to have fired the fatal shot which ended his life.

The correctness or incorrectness of this phase of the case was tested by the trial judge, who, at the request of counsel for both litigants, visited the house and viewed the premises. The conclusion he reached was that the contention of plaintiff in this respect is not well founded.

Judgment affirmed.


text:
    No. 13,017.
    Studebaker Bros. Manufacturing Company vs. Fred. Endom, Tutor, et al.
    Syllabus.
    1. To constitute the contract of novation, on the essential point of the extiuguishment oí the pre-existing obligation, there most appear the consent of both contracting parties.
    2. The intention of the obligor that the existing debt should be discharged by the new obligation lie enters into, does not suffice. The creditor must concur in this.
    APPEAL from the Fifth Judicial District Court for the Parish, of Ouachita. Poits, J.

      A. A. Guuby for Plaintiff and Appellee.

      P. T. Larrikin and W. P. Millsaps for Defendants and Appellants.
    Argued and submitted January 30, 1899.
    Opinion handed down May 29, 1899.
   The opinion of the court was delivered bs^

Blanchard, J.

This case was before the court in June of last year,, on appeal by defendants from a judgment favorable to plaintiffs.

Considering the trial court had erred in sustaining an objection raised by plaintiffs to a question asked Fred. Endom, a witness ealled to testify for defendants, the judgment was reversed and the case-remanded in order that the testimony of the said Endom might be taken.

See 50 La. Ann. 674 (23 So. Rep. 872) where the necessary facts-for a proper understanding of the controversy are statec}.

The case is again before us on, appeal by defendants from an adverse decree entered up against them as the result of the second trial..

The community existing between Fred. Endom and his wife owed plaintiffs $2,687.73 on account. On July 1, 1893, three promissory notes of Endom, as head and master of the community, were given for the debt. Shortly afterwards the wife died. Endom qualified as-natural tutor for the minor heirs of the wife. The wife’s succession,, as such, was not opened and there has been no administration of thssame as a succession.

When the first of the three notes, given as above, matured, it was-not paid. Mrs. Endom was then dead.

Ncft being able to meet the matured note, it was agreed between plaintiff and Endom, that the -three outstanding notes (one due, two-not yet due) should he taken up by four notes representing the principal and interest of the first three notes.

Accordingly, on February 6, 1894, the four new notes were executed), replacing the old notes, and the latter were surrendered to Endom, who was alike the signer of both sets of notes.

The day following, Endom, to secure the four new notes, executed a-special mortgage in favor of plaintiffs on certain real property belonging to the community. By its terms the mortgage covered th$ whole of the property.

Subsequently, plaintiffs brought suit on the notes and asked recognition of mortgage on Endom’s interest in the property mortgaged. Judgment followed against Endom for the amount of the notes and recognizing and ordering enforced the mortgage on his interest in the. property.

Neither the heirs of the wife nor her succession were made parties-to the suit.

It would seem that plaintiffs have not been able to realize the-amount due them oil this judgment against Endom and his interest in the community property mortgaged.

Therefore it is that the present action is brought. Its object is to-subject to the payment of the debt the share of the community property claimed by the wife’s heirs under benefit of inventory.

The major heirs are made parties defendant and Fred. Endom, as-tutor, is cited on behalf of the minor heirs.

The petition recites the facts and circumstances leading down to institution of the suit.

The defense is 'extinguishment by novation of the antecedent community obligation and the consequent release of the wife’s interest íhthe community property and discharge of her heirs.’

Plaintiffs having offered the deposition of two witnesses to prove-the allegations of their petition, defendants objected to the testimony on the ground that plaintiffs had declared on certain notes, and parol' evidence was not admissible to prove the existence and contents of the notes in view of the fact that there was no allegation of their loss or destruction, and on the further ground that having declared on notes, evidence was not admissible to establish an indebtedness on an open account.

This objection was properly overruled. Plaintiffs’ action can not be regarded specifically as a suit ou the original notes, nor yet on the account of indebtedness preceding’ them.

Their petition is a recital of the facts, from which, if true, results the liability of the wife’s share of the community property for the debt, unless the special defense of novation set up by defendants is • established.

The sole question, then, at issue is whether the indebtedness due plaintiffs for carriages and vehicles sold to Endom prior to the death . of his wife, was novated after her death by the taking of new notes from Endom in lieu of those executed during the lifetime of the wife.

The plea of novation admits the debt sued for and throws.upon defendants the burden of proving the state of facts necessary to show its extinguishment.

Gails vs. Schooner Osceola, 14 La. Ann. 54.

Novation is never presumed; the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the .original debt. C. C. 2190; Holme vs. Middleton, 14 La. Ann. 484.

It is a contract consisting of two stipulations, one to extinguish an •existing obligation, the other to substitute a new one in its place; and the pre-existent obligation must be extinguished, or there is no novation. A mere modification of it will not do; anything remaining of the original obligation prevents novation. C. C. 2185, 2187.

Applying these rules of the law to the facts of the case at bar our conclusion is the plea of novation can not be sustained.

Endom, whose testimony was taken on the second trial, declares, it is true, 4hat the old indebtedness was absorbed by the new notes and mortgage, and that he considered the' old notes canceled. He gets this idea from the fact that when the new notes were substituted for the old, the latter were surrendered to him. • He states further that it was intention by the execution of the four last notes and the mortgage to entirely extinguish the former debt evidenced by the three notes first given.

“His intention” alone does not suffice. The intention, too, of the other party must appear. To constitute the contract of novation, in the essential point of the extinguishment of the pre-existing obligation, there must be shown the consent of both contracting parties.

Here, one of the stipulations of the contract of novation alone appeal’s, vi:s.: — that new notes were substituted for the old. As to the •other stipulations, to-wit: — an agreement to extinguish the then existing obligation, ir is not established.

On the contrary plaintiffs’ agent, who dealt with Endom at the time, testifies there was no intention whatever to release the estate of Mrs. Endom or to novate the debt; that there was no agreement to ■that effect; that tlie subject was not discussed between himself and Endom; that the latter, being unable to pay the notes at the time, simply proposed to renew them to a certain date and offered to mortgage some property to secure the deferred payments. This was acceded to. Mrs. Endom’s name, or her death as affecting the liability of the whole community property for the debt, was not mentioned at all.

This evidence is corroborated by that of another of plaintiffs’ employees, who was chief accountant for the company, and, as such, had control of the settlement of all its outstanding claims. It was he who sent the agent who dealt directly with Endom and gave him the instructions as to the settlement to he made, etc.

The case is identical, or very nearly so, with that of Rusk, Administrator, vs. Warren, Crawford, et al., 25 La. Ann. 314, and controlled by it. See also Baker vs. Frellson, 32 La. Ann. 822; 33 La. Ann. 1444; 34 La. Ann. 534; 41 La. Ann. 880; 48 La. Ann. 1156.

Judgment affirmed.