author: Watkins, J.

text:
    No. 10,795.
    S. D. Robbins vs. Thomas J. Martin, Jr., et als.
    What is termed a pica of no cause of action, ceases to bo such, and degenerates into an answer, if it presents an essential averment of fact nut stated, or admitted in the petition.
    Dilatory pleas must be tendered and disposed of in limine, and can not be legally embodied in an answer.
    The prescription of one year, which is provided by R. O. O. 2498, is not applicable to a suit instituted under It. C. 0 2511 and 2314. 4
    The articles of Code of Practice 410 etseq., relative to “ real tender” do not relate to a suit brought under the last mentioned articles of the Revised Civil Code; but the putting of defendants in mora, in conformity to Articles 1911 and 1938, is required in suits for the rescission or cancellation of sales.
    In case a party to a contract of conventional sale of real properly, seeks its cancellation on the ground that he has been evicted from a portion thereof which is of such consequence relatively to the whole that he would not have purchased it without the portion from which he has been evicted, the question is, whether in point of fact, the plaintiff has been evicted from a part of the property possessing such consequence, when the contract wa§ entered in.fco,that its acquisition operated as an essential inducement to the trade.
    An absentee may be brought into the courts of this State by means of substituted service in all cases partaking of the nature of an action in rent; but lie can not be thus reached and subjected to judgment in our courts in a purely personal action.
    APPEAL from the Eighth District Court for the Parish of Madison. Montgomery, J.

      . 8. D. Robbins and Wade R. Young for Plaintiff and Appellant.

      A. L. SlaeJc, Curator ad hoe, for the Absent Defendants, Appellees.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff seeks the cancellation of a conventional sale of a tract of land made to him by the defendants, on the ground that he has been evicted from a portion thereof which is of such consequence relatively to the whole thát he would not have purchased it without the part from which he has been evicted.

Defendants being absentees were cited through a curator ad hoc, who first tendered several peremptory exceptions, viz: (1) No cause of action; (2) Prescription of one year; (3) Want of previous legal tender, or putting in mora; (4) Want of jurisdiction ratione personse.

Over the objection and exception of defendant’s counsel the third exception was by the court referred to the merits, the others were overruled, and the court rendered judgment rejecting plaintiff’s demand for cancellation of the sale, bui reduced the price of sale by §1400, as the estimative value of the portion of the land from which he had been evicted, proportionately to the total price of sale.

Prom this judgment plaintiff has appealed, but the defendants have not answered, nor requested any amendment thereof. Hence our inquiry must be whether it should be affirmed or additional relief granted the plaintiff and appellant.

I. '

While it might have been preferable to the defendants, that their plea of want of tender should have been disposed of in limine, we can not discover in what way they were injured by its reference to-the merits, as the judge a quo evidently regarded it as not well taken, and proceeded to pass upon the merits. Indeed, had he-entertained a different view, a double appeal might have resulted' with additional delays arid expenses. As it was a question which involved the administration of proof we think it was clearly the province of the judge below to determine the propriety of its reference.

II.

With regard to the plea of no cause of action, however, we have-frequently had occasion to say that it ought to be separately presented and disposed of in limine, as it raises the single issue of the sufficiency of the stated cause of action to justify a judgment in the premises; and that it should not be incorporated in an answer or relegated to the merits.

But in this case we think the plea has been misnamed “ no cause-of action,” as it most distinctly presents an element of defense which-is incorporated in defendant’s answer and founded on an alleged fact which is not averred in plaintiff’s petition.

Possessing this feature,’necessitates its being classed and treated as a part of the answer.

The answer also includes other matters of exception, dilatory and declinatory in character, which need no further mention than to say they should have been separately urged and disposed of before issue was joined on'the merits, and this course not having been pursued they were waived. Chaffe vs. Ludeling, 34 An. 962; Boone vs. Carroll, 35 An. 281.

III.

Defendants urge the plea of one year’s prescription that is provided in R. C. O. 2498, and plaintiff’s counsel insists that same is not applicable, in this case. In this opinion we concur. That article declares that the action for “the supplement of the price on the part of the seller, and that for dimunition of the price, or for the cancelling of the contract on the part of the buyer, must be brought within one year from the day of the contract, otherwise it is barred.”

It occurs in the sixth chapter of the title of sale, which treats “ of the tradition or delivery of the thing sold." The seven articles which immediately precede it deal with the question of the measure or extent of the delivery of the thing sold and of the result of there having been, more or less, delivered than the calls of the contract required. Therein it is declared that if the sale is one per aversionem “ the seller is obliged to deliver to the buyer * * * the quantity mentioned in the contract or . * * * suffer a diminution proportionate to the price.” R. C. C. 2492.

“ If, on the other hand, there exists an extent of more than what is specified in the contract, the buyer has a right either to .give the supplement of the price or to recede from the contract,” etc. R. C. C. 2493.

. “In case there is room for an augmentation of the price for the surplus of the measure, the buyer has the option to give the supplement or to recede from the contract.” R. C. C. 2496.

These articles relate solely and exclusively to the relative and reciprocal rights and obligations of seller and buyer, respectively, with respect'to the measure of the thing delivered under the contract. The prescription referred to in R. C. C. 2498, applies to the rights of .action of both seller and buyer alike.

Plaintiff’s action is founded on R. O. C. 2511 and 2514, the gravamen of which is that the buyer, who has, .subsequent to the sale and delivery of the property, been evicted from a part thereof, is entitled to a cancellation of the sale, or to a diminution of the price. These articles occur in the same title and chapter as the articles last mentioned, but in a different section which treats “ of warranty in case of eviction from the thing sold." They do not purport to treat of the* rights of the seller at all. They proceed upon a wholly different theory from that on which the former articles proceed. They assume that the whole of the property sold, or purported-to have been sold, has been delivered, but that the vendee has been subsequently evicted from the whole or a portion thereof. The prescription urged is not applicable, and defendant’s plea of prescription was therefore properly overruled.

IY.

Of necessiti’V the plea to the jurisdiction of the court ratione personae, must be postponed until after our consideratioñ of the merits, as plaintiff’s appeal brings up for review the cancellation vel non of the sale, and the question whether of not the judge was competent to render the alternative decree he did, will depend upon the result of our opinion and decision of that question.

Recurring to the question raised on the defendant’s exception of want of previous legal tender, or putting them in mora, as a condition precedent to the institution of suit for the cancellation of the sale, ■vye have no hesitancy in reaching the same conclusion the judge a quo evidently did, that plaintiff had substantially complied with the law.

In our opinion, Articles of the Code of Practice 410 et seq., with regard to “real tender,” have no application to this case.

Article 410 declares that “if the object of the obligation on the part of the debtor be real property, a debt, or some other personal right which the debtor has promised to sell, transfer or convey to the creditor, such debtor must previously give written notice to • the creditor to be and appear on a certain day and at a fixed hour, at the office of some public notary * * * in order there to receive the sale, cession, transfer, or conveyance which he is ready to make to him, either of.the real estate, debt or personal right •which he had contracted to transfer to such creditor."

Article 411 declares that “ after due notice having been given the debtor must appear,” etc.

Article 412 declares that “if the creditor refuse to accept,” etc.

These provisions relate exclusively to the “real tender” which a party must first make, of the conveyance he has contracted to execute to another as a condition precedent' to the institution of suit for ’compliance on the part of the contractee.

The decisions of this court, ancient and modern, are to the effect “ that in all action of recission, the party seeking relief must first offer to restore his adversary to the situation he was in before the contract.” McDonough & Coon vs. Vaughan, 14 An. 716.

That and like decisions are predicated upon the provisions of R. C. C. 1911 et seq. (1904 et seq., old numbers) which indicate the manner in which a “ debtor may be put iii default.” Article 1911 R. C. O. provides that the debtor may be put in default in three different ways, one of-which is ‘“by the act of the creditor,” which is defined as an “ act of the party when * * he demands that (the contract) shall be carried into effect; which demand may be made either by the commencement of a suit, by a demand in writing,” etc.

•The provisions of those articles have been frequently applied to actions for the recission, and those for the cancellation of sales; and the Code further declares that “when the breach (of the contract) has been passive Only, the damages are due from the time The debtor has been put in default,” etc. R. O. O. 1933; Livingston vs. Scully, 38 An. 1%1.

It was, in our opinion, perfectly proper and competent for the plaintiff to put the defendants in default by means of a letter sent them by mail offering to restore them to the situation they were in before the sale was made; and we think the evidence sufficiently discloses a full compliance with the law in this respect.

V.

On the merits the facts are substantially as follows:

In January; 1889, Annie E. Martin and Thomas J. Martin, Jr., the defendants, executed, respectively, in the cities of Louisville, Ky., and Chicago, 111., two separate acts of sale transferring and conveying, or purporting to transfer and convey to the plaintiff a certain tract of land, which is situated in the parish of .Madison, in this State; the vendors being joint half-owners thereof at the time.

The price or consideration of the sale was $10,000, of which one-third was paid in cash, and for the remainder the plaintiff as purchaser executed and delivered his two certain promissory notes due at one and two years. One of these credit instalments 'was paid at maturity, January 2, 1890, only a few days before this suit was filed.

The entire tract was stated to contain 1098 acres, of which 391 were cleared, and susceptible of cultivation, and which had been, at one time, cultivated; and the residue of 617 acres was wood land.

It appears from the evidence that there is now, and was at the date of the sale, an outstanding title in other persons to 280 aerés the mere existence of 'which, it is claimed, operates an eviction of plaintiff therefrom, entitling him to his action for the cancellation of the sale'or a proportionate diminution of the purchase price.

It is satisfactorily shown that this defect in his title, and this deficit in the quantity of land conveyed, was only brought to the plaintiff’s knowledge about the 20th of January, 1890, and subsequently to his making payment of the second instalment of the purchase price. Immediately afterwards he gave the defendant notice thereof as stated'.

The proof shows that the particular 280 acres to which plaintiff obtained a defective and inadequate title, are wood lands of a superior quality. The other wood land is low and marshy, and of comparatively little value. The open lands are not in a high state of. cultivation, and the buildings and improvements thereon are inferior in quality and limited in quantity.

On this state of facts, is plaintiff entitled to the cancellation of the sale?

Defendant’s make the point in their answer that an outstanding title does not constitute such an eviction as to authorize an action of warranty. But it has been otherwise decided.

In Landry vs. Garnet, 1 R. 362, the court observed:

“ It is true that, by the authorities to which we have been referred, the doctrine is well established that in order to constitute an eviction it is not absolutely necessary that the purchaser should be actually dispossessed.
“That eviction takes place, although the purchaser continues to hold the property, if it be under a title which is not that transferred to him by his vendor; as if he should inherit the property, or acquire it by purchase from the true owner.”

In McDonald vs. Vaughan, 14 An. 716, that doctrine was recognized and applied, and to those enumerated the court added another ease in which an actual eviction was unnecessary, viz: ‘ ‘Or if a perfect title exists in some third person whereby it is rendered legally certain that his vendor had no title.” In that view we concur,-and it applies to this case.

The District Judge of the locality, who is familiar .with the locus in quo, and upon whose judgment on a question of fact we feel disposed to rely, was of opinion, and decided that such a title did exist in other persons, to the 280 acres mentioned. The curator ad hoc, in brief and argument, concedes the correctness of his decision as to a part of this land, but he questions its correctness as to the remainder of 160 acres. On this theory, we feel bound to maintain the opinion of the District Judge. No palpable, or manifest error has been pointed out in his ruling.

On the main question, we can not perceive how it can be justly said that this 280 acres of wood land, valuable though it be, was “ of such consequence relatively to the whole” that the plainttiff would not have bought the land at all without it.

The question is whether the portion front which the plaintiff has been evicted was in point of fact “ of such consequence relatively to the whole,” that he would have been unwilling to have made the trade at all had he known of the outstanding title? Was that particular tract an inducement to thp trade, and without which it would not have been made? The District Judge declined to accept this theory of plaintiff’s contract, and we coincide with him.

Had this diminution existed in the quantity of cleared land, or any moderate proportion, of same, we might have been more impressed with plaintiff’s claim. We are unwilling to increase the allowance made by the judgment appealed from, and in the absence of an answer to the appeal it can not be reduced ex propria motu.

Having thus concluded, the question of jurisdiction rations persones arises; but we are satisfied that this exception is not well taken.

In Penoyer vs. Neff, 95 U. S. 730, in was said that “ substituted service may answer in a.11 actions which are substantially proceedings in rem. But when the entire object of the suit is. to determine the personal rights and obligations of the defendants, that is, when the suit is merely in personam, constructive service is insufficient for-any purpose.”

After quoting this paragraph in quite a recent case, we said:

“ It is obvious in this case that the sole object of the proceedings, as-against Hernandez” — who was an absentee — “is to define the status of this property, to determine the validity of his apparent lien upon it in order to enfore a contract respecting same. He can not be reached for personal service, and unless he could be brought in by such substituted service, his mere absence would have the-effect to place and keep this property out of commerce.
“We therefore hold that he was validly brought into court through service on the curator, and will be concluded by the judgment.” Duruty vs. Musachia, 42 An. 357. In that case the validity of a title to real estate was the question involved, and there was drawn into the controversy the validity and binding force of a judicial mortgage in favor of an absentee; and it became important to- determine whether a judgment predicated upon substituted service would be binding and efficacious as to him. We held that it would. '

In the more recent case of Young vs. Upshur, 42 An. 367, we had! under consideration and decided a controversy between citizens of the State of Mississippi and those of the District of Columbia, respecting an unliquidated interest in a judgment for money, at the time pending on a writ of error from.the Supreme Court, and we entertained jurisdiction and rendered judgment against the absentee defendants, upon substituted service of citation, on the ground that the situs of the judgment was in this State, and, hence, the action being to reach and ascertain an interest therein, it was in the nature of an action in rem, and not one in personam.

In McKenzie vs. Bacon, 38 An. 765, we examined this question of jurisdiction as applicable to a suit for dissolution of a sale of real estate, on account of the nonpayment of the price, some of the intervening owners of which residing out of the State being made parties defendant by appointment of a curator ad hoe, and notwithstanding there was a large amount of money claimed on the score of rents and revenues, for an accounting whereof the nonresidents might be ultimately held responsible, we maintained it on the ground that it was “not a purely personal action, as is contemplated in our Code- of Practice, and as understood in jurisprudence, but it partakes of the nature of a proceeding in rem.” ’ ■

In our opinion the instant case is an exact parallel to the eases cited. If indeed a nonresident can not' be brought into a court of this State in such a case, such a cause of complaint as that propounded by the plaintiff, though well grounded 'in our law, would be practically remediless.

The plea as to jurisdiction is therefore overruled.

Judgment affirmed.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 10,730.
    The State of Louisiana vs. John Mahner et als.
    An ordinance of a municipal corporation which violates any of the recognized principles of legal and equal rights is necessarily void so far as it does so.
    An ordinance which prohibits dairies within certain designated limits and gives the City Council the authority to grant permission to carry them on within the prohibited limits is not general in its operations among the class it is intended to affect, and is therefore null and void.
    APPEAL from the Third Recorder’s Court of New Orleans. Landry, J.

      Henry Renshaw, Assistant Oity Attorney, and Carleton Hunt, City Attorney, for Plaintiff and Appellee:
    Unless ordinance shows no action for penalty was intended without prior demand, unnecessary to aver one. Unnecessary to aver notice of ordinance, this being conclusively presumed as to all on whom it is binding. Dillon Mun. Cor. See. 41G, ICd. of 1S90.
    All on whom ordinances are binding are bound to take notice of them. Dillon Mun. Cor. Sec. 306, Ud. of 1890.
    The notice referred to in Ordinance 3175 O. S. has no reference to the fine imposed in this ease.
    The designation of an official is sufficient, if. by reference to the Oity Charter, the official intended may easily be ascertained.
    The enforcement of clause of ordinance under which defendant is prosecuted not subject to the discretion of any official.
    •Ordinance 3175 O. S. within the power of Oity to enact under Charter of 1856; Ordinance 3414 C. S. authorized by Act 20 of 1882, Sec. 7.
    No unlawful discrimination by Ordinance. State vs. Schlemmer, 42 An. —; 8 Southern Reporter, 308, 309; 3 An. 689.
    The question of the validity of a judgment is distinct from the question of the manner of its enforcement.
    •Courts will not interfere with discretion of municipal corporation unless the corporation has manifestly abused its powers. 42 An. 487.

      A. D. Henriques and Branch K. Miller for Defendants and Appellants :
    Where an Ordinance provides a penalty for failure to obey a notice, the notice given must conform strictly to the Ordinance. 36 An. .903.
    The operation of an Ordinance can not be left to the discretion of an executive officer. 15 A. and E. Oorp. Cases, 356.
    The power to prevent the following of a lawful occupation, save in certain localities, is not inherent in a municipal corporation.
    An Ordinance void for want of power in the Council which passed it, can not be valid against an amendment of a subsequent Council having power to pass the original Ordinance. Hun, Pol. Ord. 138, 162.
    Ordinances must be general in their operation. 1 Dillon Hun. Corp. Sec. 322; 118 IT. S. 551.
    Power to imprison in default of payment of fine must be expressed. Dillon Hun. Corp. Secs. 336, 353, 3804.
    An Ordinance can not make one continuous act a number of offences. 1 Dillon Hun. Corp. 342; 88 111. 274; 12 Johns, (X. Y.)122; 9Wenclell, (X. Y.) 591; 3 An, 688; 36 An. 247
   The opinion of the court was delivered by

McEnery, J.

The defendants were prosecuted for violating or - dinanee No. 3414 of the City of New Orleans, convicted and fined.

This ordinance, and amended ordinance No. 3175, extended the limits within-which the dairies were prohibited.

The defendants ask that the ordinance be declared null and void, because it is not general in its operation, is unconstitutional and oppressive.

The objectionable feature of the ordinance is contained in the first section.

This section prescribes the limits within which dairies may be conducted by permission of the City Oouncil, and it is made unlawful to keep more than two cows without a permit from the City Oouncil. The defendants are within the prohibited limits, and keep more than two cows.

The ordinance is not general in its operation. It does not affect all citizens alike who follow the same occupation which it attempts to regulate. It is only those persons who keep more than two cows within the prohibited limits without the permission of the Oity Council who are subject to the penalties in the ordinance. The discretion vested by the ordinance in the City Oouncil is in no way regulated or controlled. There are no conditions prescribed upon which the permit may be granted. It is within the power of the-City Council to grant the privilege to some, to deny it to others.

The discretion vested in the Council is purely arbitrary. It may be exercised in the interest of a favored few. It may be controlled, by partisan considerations and race prejudices, or by personal-animosities. It lays down no rules by which its impartial execution-can be secured, or partiality and oppression prevented. Yick Wo vs. Hopkins, 118 U. S. 856; Horr & Bemis, M. P. Ordinances, paragraphs 135, 136.

It was the evident intention of the Council in amending ordinance SITS to prohibit dairies in other places than within the prescribed limits.

The amended ordinance, Section S, grants twelve months’ time to the proprietors or owners of all dairies now in existence in violation of the amended ordinance to move their dairies. But as the amendment to the ordinance only extends the limits within which dairies-are prohibited, those who have them in pursuance of the permission from the mayor are exempt from its operations.

Section 4 of ordinance 3414 is open to the objections above stated. It is as follows:

“That henceforth no new dairies keeping more than two cows shall be established within the limits above named, under the same penalties as are now in force under existing ordinances.”

This section establishes an inequality, granting to some persons, following the same occupation, privileges that are not extended to others.

The ordinances do not regulate dairies in the interest of the public-health. One dairy may be a nuisance because the City Council has refused to give the required permission for its establishment; another may be perfectly harmless and in no -way detrimental to-public health because it exists by permission of the Council. They may exist along side of each other, both unobjectionable in their-police regulations, and one a nuisuance and the other a lawful establishment.

Both the original and amended ordinance violate equal rights, among the class they are designed to affect, and are therefore necessarily void so far as they do so.

This opinion in no way conflicts with the views expressed in the-case of the State vs. Gisch, 31 An. 544. In that ease the ordinance regulated private markets in pursuance of express legislative enactment, by imposing a license upon them when they were conducted in certain localities. The ordinance affected all persons alike who were engaged in the same occupation, and was free from the objections in the ordinance under consideration. Nor does this opinion conflict with the opinion and decree in the case of Bozant vs. Cambell, 9 R. 411, in which the court was called on to deal with a municipal ordinance prohibiting the establishment of private hospitals within certain limits. The court held that, as the Council had a right to repeal the ordinance, it could do so partially and modify it so as to permit in exceptional cases the erection of private hospitals within the prohibited limits.

The instant case does not present the same features. In the exercise of its power in the interest of the public health, the court said the council of the municipality had prudently exercised it.

It is therefore adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the suit of the City against the defendants be dismissed with costs of both courts.

On Application roe Reheaeing.

. The City Attorney asks for a rehearing in this case.

In the brief for the rehearing the City Attorney says: “ But should your Honors determine that the question involved herein is to be determined upon a possible instead of an actual case, we respectfully submit that your Honors’ decree should go no further than to declare null the clause providing for previous permission from the City Council.”

We can not conceive of a more actual case for determination than one wherein the defendant has been tried, convicted and sentenced for the violation of the ordinance under consideration.

The ordinance made it an offence for keeping a dairy within prohibited limits without permission from the City Council. We did not consider the right or power of the City to prohibit dairies within the City limits. This power is undoubted, when exercised in the interest of the public health. • We distinctly asserted in the opinion that this ordinance was not enacted in the interest of public health. The permission to keep dairies within the limits, we said, negatived this view.

It is true that a portion of an ordinance may be objectionable and the other portions may be good, and in such cases that which is good remains.

What was the offence denounced in the ordinance? Keeping a dairy within certain,prohibited limits without permission. Dairies were prohibited within certain limits without the permission of the City Council.

The City Council could, under the ordinance, permit as many dairies as they desired within the prohibited limits. As stated, the offence is keeping a dairy without permission. Strike this out and there would be no penalty. Therefore the permissive part of the ordinance was an essential and connected part of it, without which it would be only a prohibition. To declare the permissive part void, and to state that the penalty should remain, would be, on our part, legislation. It would be amending and reénaeting the ordinance. This is the business of the City Council.


author: McEnbry, J.

text:
    No. 10,733.
    The State of Louisiana vs. Mike Dulaney.
    Same syllabus as in preceding case.
    PPEAL from the Third Recorder’s Court of New Orleans. Landry, J.

      Henry Renshaw, Assistant City Attorney, and Oarleton Hunt, City Attorney, for Plaintiff and Appellee.

      Martin Voorhies for Defendants and Appellants.
   The opinion of the court was delivered by

McEnbry, J.

The issues involved in this case are identical with those disposed of in the case of State vs. John Mahner et als.

For the reasons assigned in that case, it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and the suit of the City against defendants be dismissed.


text:
    No. 10,781.
    Julia and Florentine Strausse vs. J. M. T. Elliott, Sheriff, et al.
    Use is a limited and a veritable usufruct, except as to the extent of the enjoyment of the thing given.
    Use and usufruct are established and lost in the same way.
    Use is included in the definition of usufruct.
    The reservation in a donation of the “use and occupancy” by the donor of the thing given is in violation of the prohibition contained in Article 1533, O. C.
    APPEAL from the Tenth District Court, Parish of Red River. Hall, J.

      J. F. Pierson for Plaintiffs and Appellees:
    The reservation by the parents in an act of donation inter vivos made to the minor children of their marriage of the “use and occupancy” of the immovable donated is not a reservation of the “ enjoyment and usufruct,” under C. 0.1533.
    There are three hinds of personal servitude: usufruct, use and habitation. C. C. 646.
    Usufruct defined to be the “ enjoyment ” of property. C. C. 533.
    Enjoyment used to signify usufruct. C. C. 223.
    Use defined. O. C. 626.'
    Habitation defined. C. C. 627.
    Usufruct and use distinguished. O. C. 633, 634, 638; see 640, et seq.

    The prohibition against the reservation of usufruct in C. C. 1533, does not apply to donation by parents to the minor children of their marriage, because parents have the usufruct of such property by O. O. 223.

      J. O. Pugh, J. C. Egan and Scarborough & Carver for Defendants and Appellants:
    1. A donation is without effect until it is accepted by the donee. C. C. 1540, et seq.

    2. The donor can not act as agent of the donee, and as such agent accept the donation.
    3. In a donation of a dwelling house and its appurtefiant out-houses, the reservation by the donor of the “use and occupancy” of the property during his pleasure, is a reserve of the “ enjoyment” of the property in the sense of O. C. 1533, and such donation is an absolute nullity. C. C. 1533; 4 An. 37; 15 An. 585; 5 An. 433; 11 An. 705; 12 An. 721; Anderson’s Dictionary of Law, verbi “ use” and “ enjoyment.”
   The opinion of the court was delivered by

McEnery, J.

The plaintiff’s, minor children of Reuben and Theresa Strausse, claim to be owners of certain immovable property donated by act inter vivos to them by their parents.

The act of donation contains the following reservation: “That their possession and use of the storehouse and the warehouse thereto annexed shall be subject to the lease this day made to Adolph Stern for the period of two years from and after the 1st day of January, 1884; and their use and occupancy of the dwelling house thereon including, new and old, and the out-buildings and cleared land, shall be subject to the use and occupancy of the donor and his wife, Theresa, during their pleasure, and without any charge therefor.”

Strausse failed in business, so it is stated in the brief, but does not appear in the record, and Martinez and Ross, judgment creditors of Strasse, seized the property donated to said minors as the property of Strausse. The minors enjoined the sale of the property, claiming title by virtue of the act of donation to them passed before D. A. Hayes, notary public, on 28th December, 1883.

The defendants allege that in consequence of the reservation of the usufruct, the donation being in contravention of a prohibitory law is absolutely null and void.

Article 1533 Oivil Oode says: The donor is permitted to dispose for the advantage of any other person, of the enjoyment and usufruct of the immovable property given, but can not reserve it for himself.”

The word “ use and occupancy”, employed in the act of donation are equivalenfin meaning to “ use and habitation ” as used in Title III, Chapter 2 of the Oode.

Use and habitation are treated under the Title of Usufruct in the Oivil Oode.

There is a difference in the law in some instances which is applied to use and usufruct, because of the different degree in the enjoyment of the thing held by the usufructuary and the user.

Use is distinguished from the usufruct in this that while usufruct carries the right to enjoy all the fruits and revenues which the property subjected to it can produce, use consists in taking only from the fruits of the property the portion which the user can consume, such as is necessary for his person or regulated by the title; the surplus belongs to the owner of the property. Domat. Title XI, Sec. 11, Art. 1.

Use is a limited usufruct for the needs of the user, and it is a veritable usufruct except as to extent of enjoyment.

They are both established, and lost in the 'same way. The user must, like the usufructuary, give security, make statements and inventories. He is bound to enjoy like a good father of a family. He is subject to the costs of cultivation, to those of keeping in repair, to the payment of contributions.- There is a difference between the two rights only as to their extent. The usufructuary has the right to enjoy all sorts of fruits, while the user can require only such as are necessary for himself and family. Demolombe, Title X, p. 713, No. 752; Laurent, Vol. 7, p. 118, No. 102; Civil Code, Title III, Chap. 1, Secs. 1, 2, 3, 4, 5, Chap. 2.

Habitation is governed by the same principles in the Code that apply to use. Laurent, Vol. 7, Chap. II, No. 102.

Use is included in the definition of usufruct, in Article 533 C. C., and in the meaning of the prohibition in Article 1533 C. C; Laurent, Vol. 7, p. 119, No. 103.

Article 1468 of the Oivil Code is as follows: “A donation inter vivos (between living persons) is an act by which the donor divests himself at present and irrevocably of the thing given, in favor of the donee who accepts.”

The exception to this in the Code Napoleon, Article 949, permitted the donor to reserve to himself “the enjoyment or usufruct of the immovable property given.”

This exception, when said article was adopted in the Louisiana Ood.e, was stricken out. Article 1468 was then left without any exceptions to its provisions. If the use and habitation reserved by the donor was not a usufruct, and not embraced in said article as contended by plaintiffs in injunction, there is not now, nor was there ever any exception, relieving it from the effect of Article 1468. The ■only reason that could have brought it within the exception or Article 949, Oode Napoleon, would have been to treat it as a limited' usufruct.

The striking from the article the exception, in the adoption of the present Article 1533 could not then create an exception in favor of a right that never existed.

Plaintiffs’ claim can not prevail,’ whether use and habitation be ■considered as a limited usufruct, or whether it does not belong to that class of servitudes.

There is an agreement that the injunction may be dissolved without damages.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and annulled and reversed, and it is now ordered that the injunction issued herein be dissolved without damages, and plaintiffs’ demand be rejected at cost of plaintiffs.

Watkins, J., recuses himself.


author: Breaux, J.

text:
    No. 10,734.
    Miss Ida Durbridge vs. Charles H. Crawley et als.
    A suit should not be dismissed for inconsistency and improper cumulation o causes of action, In haying cumulated an action of partition with a petitory action.
    Demands not inconsistent may be brought in one petition, when between the same persons, in the same capacity, and when they are not contrary to each other, both as to the cause of action prayed for and the relief.
    A PPEAL from the Twenty-fourth District Court for the Parish of i-*- St. Bernard. Livaudais, J.

      Geo. G. Walshe, for Plaintiff and Appellant, cited: O. P., Art. 151; 34 An. 204.

      Henry Ghiapella for Warrantor and Appellee, and Drolla & Augustin for Defendants aud Appellees, cited:
    O. P. 148, 149, ISO, 152; O. P. 43 etseq.-, R. O. O. 1289 et seq., 1308, 1309, 1304; Bonjean (Traité des Actions), 2 Vol. pp. 244, 248; Ortolan (Instituts), 2 Vol. p. 533; Pothier (Pandects), 4 Vol. pp. 535, 539, 551; Morris vs. Lalaurie, 34 An. 204; McOall vs. Irion, 40 An. 690; LeBlanc vs. Robertson, 41 An. 1021: Troplong (Prescription), Secs. 243, 244.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sues to recover one-fourth of a tract of land and improvements situated in the parish of St. Bernard.

She alleges that this property was acquired by her late father, William Durdridge, during the existence of the community which existed between him and her mother, who died in the City of New Orleans, in 1867.

That there were three children issues of the marriage, one of these is deceased, another is made defendant in this suit, and the third is petitioner.

That this property was sold at sheriff’s sale in execution of a judgment against. William Durdridge, individually, for a debt contracted after the death of his wife, although one-half was the property of her heirs, of which she as an heir claims her share.

That since this sale was made several conveyances have been made of the whole property (the last to Robert M. Flautt and Charles H. Crawley). That the latter and the heirs of the former are in possession and claim to be owners.

She alleges her right to a partition; that the property can not be divided in kind, and a sale is necessary; she claims rent from judicial demand, and to be recognized as an heir of her mother and sister.

She prays for a judgment recognizing these rights, and to be placed in possession as an heir. She also prays for a partition.

The defendants filed separate answers denying plaintiff’s allegations, and plead that they are purchasers and have had continued and uninterrupted possession since more than ten years.

They also plead prescription and have cited their vendor in warranty. Prescription cuts no figure in this appeal as the suit was discussed solely on the plea of illegal cumulation of demand. The warrantor excepts to plaintiff’s action also to the call in warranty on different grounds, which we summarize as follows, viz:

That a suit can not be maintained for a partition when the defendants claim to be sole owners under title translative of property; and that an action of partition can not be cumulated with a petitory action and a claim for rent.

The exception was maintained.

From the judgment of dismissal plaintiff prosecutes this appeal.

The Code of Practice provides that demands not inconsistent may be brought in the same petition. Arts. 149, 151, C. P.

The judicial interpretations of these articles maintain the cumulation of demands when they are between the same persons in the same capacity, and are not contrary to each other, both as to the cause of action prayed for and the relief.

Ill the case at bar the causes of action tend to the same conclusion.

The petitory action to recover an undivided interest is a step in the direction of a partition which may be immediately followed by a partition.

In the case of the heirs of Davis vs. Elkins, 9 L, 147, it was held that “ a partition might perhaps have been decreed in the same suit according to the prayer of the petition.”

It seems to be apprehended that this cumulation may prove prejudicial to the defence; that questions relating to prescription may arise which will be confusing.

The following extract from the decision just quoted meets the suggested difficulties:

“But simply stating themselves as owners in common with the defendants can not preclude the latter from disputing the rights of the former, and setting up the title in opposition to the claim made.”

It is in this respect primarily an action in revendication involving the prescription of ten and twenty years.

The same method of pleading was maintained in the case of LeBlanc vs. Robertson, 41 An. 1028, i. e. “that the prescription applying to each of the cumulated demands remains unchanged.”

The question of cumulated demands was considered in the case of Morris vs. Lalaurie, 34 An. 204. It was decided: “There is no inconsistency in coupling his demand of a petitory character with that for a partition and thereby avoid a multiplicity of suits.”

Plaintiff claims a community of interest with the defendants in the property in question.

The denial of this-interest by the defendant and the warrantor does not make it necessary to resort exclusively to a petitory action to establish it. The court hears the demand; if founded, the partition should be ordered. It is not because defendant and warrantor choose to deny the allegation of common ownership, that none exist. If it exists, it may as well be proven in a petitory action cumulated with an action of 'partition, as in the former without the cumulation.

The rental claimed by the plaintiff against the defendant, does not present an issue inconsistent or contradictory to the others pleaded. It is a claim frequently made in petitory actions.

The prayer made by the plaintiff for judgment recognizing her as an heir of her mother and sister, is not repugnant to, or inconsistent with, the other demands.

The order of recognition might have been obtained ex parte; it is prayed for contradictorily with the defendant and warrantor.

An heir can sue directly, without having been recognized as an heir by the probate court, and prove his heirship and his right to recover as an heir. “All that can be required of him is to furnish ■satisfactory evidence of his right to inherit.” Miller vs. Rongieus, 20 An. 577; Tugwell vs. Tugwell, 32 An. 853; LePage vs. New Orleans Gas Light Co., 7 R. 183; DeOisald vs. Lobdell, 2 L. 303.

We therefore hold that a suit should not be dismissed for inconsistency and improper cumulation of causes of action,-in which plaintiff prays for judgment recognizing her as heir of one-fourth of a •certain tract of land and to be put in possession; for a sale of the property to effect a partition, and for a money judgment for rent.

The writings of certain French commentators referred to and ■quoted by counsel for defendants and for warrantor have arrested our attention as models of reasoning on the subject of partition and actions for partition, but they can not prevail against the plain propositions of our Codes, and the construction placed upon them by this court. They afford every protection, and the permitted cumulation is not prejudicial to the rights of defendants and warrantor.

It is ordered and decreed that the judgment appealed from be .annulled and reversed; that the suit be reinstated and proceeded with in' accordance with law; the appellee to pay the costs of appeal.


text:
    No. 10,763.
    Catherine V. Ackerman vs. A. J. McShane.
    AToney received under a compromise can not be retained and at the same time the contract he annulled.
    'Tender or deposit of the same is an essential allegation.
    As long as the plaintiff retains the consideration and does not deposit the amoun received he is estopped.
    PPEAL from the Civil District Court, Parish of Orleans. Monroe, J.

      J. M. Pratt for Plaintiff and Appellant.

      P. L. Fourchy for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff was placed in possession of the succes sion of Harry F. Hall as universal legatee.

The defendant was the surviving partner of the firm of Harry F. Hall & Co.

In order to finally settle the affairs of the partnership the plaintiff and defendant, .on the 10th day of October, 1890, entered into a compromise in which plaintiff received $20,000 in cash, in full satisfaction and settlement of all interest of the testator Hall in the partnership of H. F. Hall & Co., and she relieved the defendant from all further liability, and authorized him to continue on his account with the business of the late firm.

A short time after this compromise had been consummated plaintiff brought the present suit for an additional amount of $9000.

The petitioner sets forth that the surviving partner made untrue statements of the condition of the partnership; that he charged amounts which were not due, and committed frauds to enable him to buy her interest, which hebought for $20,000 although worth $29,000.

The plaintiff does not allege that she made a tender of the amount received by her as one of the parties to the compromise. She prays to recover the sum of $9000 as a balance due her in excess of the amount paid in accordance with the terms of the compromise.

If the prayer were granted, the compromise alleged to be null on account of fraud'would be given effect to, in so far as relates to the amount received by the plaintiff.

“By fraud or dole a contract perishes.”

The fraud denounced can not be limited and a part selected of the contract to enure to plaintiff’s benefit.

She alleged fraud, if proven, it can not be cured.

The parties must be placed in the position in which they were before it was entered into.

Instead, it is proposed to supplement the amount received to a sum equal to the alleged value of the property.

The defrauded party, if defrauded, can not be restored to his original rights in the manner proposed. Good pleading and regularity, which should characterize legal proceedings, require that in suits of this nature the party shall resort to an action in rescission, and that the amount received shall be tendered or deposited. In all such actions the parties seeking relief must first offer to restore his adversary to the situation he was in before the contract.

As long as the plaintiff retains the consideration and does not offer to return the amount received, he is estopped. Byrne vs. Hibernia National Bank, 31 An. 81.

To annul the contract and recover §9000 is the purpose of the suit. If the contract be annulled the defendant would be without title to the property, and if judgment be rendered for the $9000 he would add that amount to the §20,000 already paid on a contract alleged to be null.

Another compromise would be substituted to the old, not sustained by practice and law.

There are exceptions to the rule requiring tender, such as, for instance, when a liquidation is necessary to ascertain the respective rights of the parties.

In the case at bar the issues are well defined and the amounts fixed. It, therefore, does not come within the exceptions.

The exception of no cause of action was properly maintained.

Judgment affirmed.


author: Bermudez, O. J.

text:
    No. 10,829.
    The State of Louisiana vs. Alcée Jolivette.
    The Supreme Court can exercise no jurisdiction over a criminal cause, when the transcript has been filed long after the return day, at a place at which the ap • peal was not made returnable, in the absence of any just cause shown author* izing the delay and irregularity. Appellant must stand the consequences of his laches.
    APPEAL from the Twentieth District Court for the Parish of St. Martin. Mouton, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.

      Louis J. Voorhies and Dan W. Voorhies for Defendant and Appellant.
   The opinion of the court was delivered by

Bermudez, O. J.

The defendant was indicted for burglary and larceny, and on a conviction was sentenced to bard labor for one year.

On the 29th of September, 1890, he was allowed an appeal “returnable according to law."

The Supreme Oourt held sessions in Shreveport in October following. The transcript of appeal was not filed at all at Shreveport, bnt was filed on March 21, 1891, more than three months after, at New Orleans, where it does not belong.

Under the law the appeal was returnable at Shreveport, where the transcript should have been seasonably filed.

There is nothing to prove that any showing was made to the Supreme Oourt, while sitting at Shreveport, to justify the non-filing of the transcript there, to obtain an extension of time, or to change the place of return, either there, or at New Orleaus in November-following. Neither does the record show any reason why it was not filed in New Orleans at the opening of the term, if there existed good reasons for not having filed it at Shreveport. V. Act No. 30 of 1876, Section 4, p. 56; Act No. 69 of 1884, p. 92; 35 An. 392; 37 An. 709; 38 An. 33, 464; Pratt vs. Holmes, ante, p. —.

If this court ever was, it has ceased to be, seized with jurisdiction over the cause, and can not pass upon the questions presented. It will dispose of it proprio motu.

It is therefore ordered that the case be stricken from the docket of this court.


text:
    No. 10,821.
    The State of Louisiana vs. Pierre Stevens.
    An accused is not entitled to have a new subpcena issued in place of a previous one,, not returned served on the day of trial, when it appears that he is guilty of want of due diligence, andhisobject is delay; particularly when, on intimation of the trial judge, that if amotion for a continuance is offered and a showing made in support, he will allow relief — the accused declines action and rests on his.motion for a new subpcena.
    APPEAL from' the Thirteenth District Oourt, Parish of St. Landry Lewis, J.

      W. H. Rogers, Attorney General, for the State, Appellee.
    Defendant and Appellant unrepresented by counsel.
   The opinion of the court was delivered by

Bermudez, O. J.

The accused was prosecuted for horse stealing, convicted and sentenced to three years at hard labor.

On appeal his sole reliance is on a bill of exception to the refusal of the District Judge to allow a new subpoena to issue in place of one which had issued and on which no return had been made on the day of the trial.

It appears that the District Judge intimated to the counsel for the accused that if a motion was made for a continuance of the case, and a plausible showing was made, he would afford relief; but that the counsel declined to act formally on the suggestion, contenting himself with his motion for another subpoena.

The District Judge has given elaborate reasons showing that the object in view was delay, and that the accused was guilty of want of due diligence.

We have considered those reasons and accept them as satisfactory.

In this court the accused has offered neither oral nor written argument in support of his complaint.

Judgment affirmed.


text:
    No. 10,754.
    Frank T. Copp vs. Louisville and Nashville Railroad Company.
    a legal or equitable right, under State Lavs, may be presented before State Courts, and vliere the [parties reside in different States, before Federal Courts, subject to this qualification, 'tliat, when a right arises under a lav of the United States, Congress may give the Eederal Courts exclusive jurisdiction.
    If an act of Congress gives a penalty to a party aggrieved without specifying a remedy therefor, it may be enforced in a State Court; but if a right is conferred by statute, and a specific remedy is provided, or a new power and means of execution are granted, the right can be enforced only in the mode provided in the act.

      A party who seeks damages alleged to have boon sustained in consequence of tlie violation by a common carrier, of the Interstate Commerce Raw, as the act provides for redress by procedure cither before the Commission or by suit before the Federal Court, can not bring suit before the State Court, which is without jurisdiction to enforce the right, but is relegated exclusively to the Commission or the Federal Court; otherwise, the party would have a third alternative or mode of redress, not contemplated by the act, by which he is restricted to one of two remedies.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      B. B. Forman for Plaintiff and Appellant:
    The State Couvts have jurisdiction (concurrently with theU. S. Circuit Courts), of all suits of a civil nature, when the amount in dispute exceeds $2000, arising under the Constitution and Laws of the United States, inciutlingthe act to regulate commerce as one of those laws. 2*1 Statutes at Large, p. 552, year 1887; Olailin vs.Houseman, assignee,98 17.S. 180; Fystervs. Gaff,91U.S.525; McHenry vs. La Societe Franeaise, 95 U. S. 08; Davis vs. Friedlantler, 101 U. S. -570; Good - rich vs. IVilson, 139 Mass. 129; Didder vs. Dorobin, 72 X. Y. 159; Clark vs. Kwing, S Fed. Reports, 88; Saunders vs. Taylor, 6 X. S. 520.

      Bayne, Denegre & Bayne for Defendant and Appellee:
    1. Whore a right arises under a law of tho United States, Congress may, if it sees lit, give to the Federal Courts exclusive jurisdiction.
    Jurisdiction is sometimes exclusive by express enactment, and sometimes by implication.
    2. When a right is given by statute, and a specific*, remedy provided, or a new power and also the means of executing it are therein granted, the power can be executed and the right vindicated in no other way than that prescribed by the act. Sutherland on Statutory Construction, Section 399; Dudley vs. Mayhew, 3 25. Y. 9.
    3. The Interstate Commerce Act providing that remedies thereunder must be sought in the United States Court or before tile Interstate Commerce Commission, but not in both, by necessary implication excludes the idea of jurisdiction in any other tribunals. The act confers the rights and pz’ovides the z*emedy and means of enforcement.
   The opinion of the court was delivered by

Bermudez, O. J.

This is an appeal from a judgment sustaining a plea to the jurisdiction of a State Court, relegating the plaintiff to that of a Federal Court.

The action arises under the Act of Congress known as the Inter State Commerce Act, and is for the recovery of damages for averred unlawful discrimination by defendant injurious to • plaintiff, for the transportation of coal from, another State for several years. Y. 24, Statutes at Large, p. 552, See. 9.

The section relied on is to the effect that any person or persons claiming to be damaged by any common carrier, subject to the provisions of this act, may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of damages, for which such common carrier may be liable under the provisions of this act, in any District or Circuit Court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt.

After referring to the ruling of the United States Supreme Court in the case of Clafflin, 93 U. S., 136-7, which is in point on the question, the District Judge has well said:

“The general rule is that where a particular remedy is provided by law, such remedy must be sought to the exclusion of all others, in the cases contemplated by the Statute; otherwise a person claiming injury under the Act of Congress, instead of being compelled to elect which one of the two methods of procedure provided by the act he. will adopt will be afforded a third alternative not contemplated or provided for by the said act, and this, in violation of its express terms whereby he is limited to a choice between two remedies.”

The authority referred to contains the following language:

“ A legal or equitable right, acquired under the State Laws, may be prosecuted in the State Court,’ and also, if the parties reside in different -States, in Federal Courts. So rights, whether legal or equitable; acquired under the laws of the United States, may be prosecuted in the United States Courts, or in the State Courts, competent to decide rights of the like character and class, subject to this qualification, that where a right arises under a law of the United .States, Congress may, if it see fit, give to the Federal Courts exclu•sive jurisdiction.
“ This jurisdiction is sometimes exclusive by express enactment, •and sometimes by implication. If an Act of Congress gives a penalty to a party aggrieved without'specifying a remedy for its enforcement, there is no reason why it should not be enforced if not provided otherwise, by some Act of Congress, by a proper action in a State Court.”

In the instant case the right asserted by the plaintiff is claimed under an Act of Congress which specifies the remedy for its enforcement.

This circumstance suffices to evidence that Congress saw fit to give the Federal Courts exclusive jurisdiction. The motive which induced such legislation may have been, and no doubt is, to create one entire and' one complete system, and provide for the necessary uniform machinery to make it effective on an important and vital subject of national interest.

See further Sutherland on Stat. Const., Sec. 399; Dudley vs. Mayhew, 3 N. Y., 9; 4 Wallace, 429; 1 Wheat., 334; 13 Wall. 236. The authorities referred to by the appellant, do not sustain his position.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,832.
    The State of Louisiana vs. Manuel Paterno.
    1. Jeopardy o£ accused docs not begin until the jury is completed and sworn, and prior to that time the State’s attorney may not. pros, the indictment without prejudice to now proceeding for same offense.
    2. Plea of former jeopardy, when, on its face, bad in law, is demurrable, and may bo decided by judge without reference to the jury.
    3. Evidence of bad character of party injured not admissible when accused was the attacking party, and the attach was not necessary for self-defence.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette Mouton, J.

      Walter H. Rogers, Attorney General for the State, Appellee:
    A nolle prosequi is neither an acquittal nor pardon. It simply discharges the particular indictment without barring' another for the same offence. 8R. 583 ; 3 An. 735; 5 An. 368.
    The character of party injured is irrelevant.

      Jos. A. Chargois and Crow Girard for Defendant and Appellant:
    A plea of autre fols acquit is of a mixed nature, embracing both law and facts, and should be submitted to a jury. 42 An. 414; Wharton Crim. Law, 568; BishopOrim. Pro. 742, 816.

      The State and accused having declared their readiness to go to trial under a valid indictment, trial begun and aiter eleven jurors have been sworn and charged with the case, an abandonment of the prosecution by the District Attorney over defendant’s objection, bars a subsequent prosecution for the same offence. Art. 5, Const.
    Errors in names intended to be set forth correctly, should be corrected by amendment. R. R. S., 1017; 25 An. 573; 35 An. 89, 1139; 39 An. 231.
    Evidence of the character of the alleged injured party is proper matter to be submitted to the jury, when the foundation has been laid. 37 An. 389; 35 An. 970; 30 An. 810; Wharton Grim. Law, Xo. Oil.
   The opinion of the court'was delivered by

Fenner, J.

The defendant complains of the overruling of his plea of former jeopardy based on the fact that, under a prior indictment for the same offence, the District Attorney had entered a nolle prosequi during the impanelling of the jury, and before the jury had been completed.

All authorities agree that the jeopardy of an accused does not begin until the jury is fully impanelled and sworn, and that prior thereto the State’s attorney may nolle prosequi the indictment without prejudice to new proceedings for the same offence. 1 Bishop Crim. Law, Secs. 1014, 1015; 1 Wharton Crim. Law, Sec. 590.

Complaint is also made of the judge’s refusal to refer the above plea to the jury. The plea, on its face, was not good in law, and was clearly demurrable. It involved no matter for a jury, and the judge acted correctly in overruling it.

Error is charged in the refusal of the judge to admit evidence of the dangerous character of the prosecutor, .on whom the offence was committed.

The judge’s statement shows that no foundation had been laid for the admission of such evidence. He says: “ Defendant was keeping an oyster saloon., and William Mainwaring went in to get oysters on credit. Defendant refused, and some hot words were exchanged, and William picked up a vinegar bottle on the.counter to strike defendant with. Defendant, with an oath, ordered William out, and, leaving the bottle on the counter, the latter went out on the sidewalk in front, but when he had reached the sidewalk he told defendant that he had cursed him while in his establishment but could not do so on the outside, upon which defendant drew a revolver, pointed it at William, walked up with revolver in hand and struck the latter, at the same time holding the revolver pointed at his head. After having received the blows from the defendant, William struck him with his fist and broke away in a run, and while he was running away, defendant shot at him when at a distance of twenty-five or thirty feet. act other than above stated.” There is no evidence that William was armed, or made any overt

The shooting is the offence for which defendant is prosecuted.

It is clear that, in the renewal of the fracas, after William had left the saloon, defendant was the attacking party, and that this attack and subsequent shooting were done at a time when defendant was not in danger and when in no way necessary for his self-defence. This absence of danger and of any necessity for self-defence, leaves no foundation for evidence of character. 1 Wharton Crim. Law, See. 641; 2 Bishop Crim. Prae., Secs. 610, 613.

Judgment affirmed.


author: Fbnner, «L

text:
    No. 10,787.
    Mrs. Jane C. Reeves vs. E. L. Harper. F. L. Maxwell et al. vs. Mrs. Jane C. Reeves. Mrs. Jane C. Reeves vs. E. L. Harper.
    (Consolidated.)
    1. Article 136 of our Constitution*does not deny to citizens of Louisiana the privi lego of borrowing money from foreign corporations, nor does it prohibit such corporations from lending money to our citizens, provided only that such transactions are not made in the course of business carried on by the corpora- . tions in the State, without complying with the requirements of the article.

      2. In this case the foreign eoi’poration transacted no business in this State. The contract of loan attacked was made in Vicksburg, Miss.; the notes taken were dated at Viekshui'g, and payable at San Antonio, Texas; the act of mortgage, though executed ih Louisiana by the nxortgagoi', onlyripened into a contract I13' the acceptance of the xhortgagee, which was executed in Vicksburg; the notes were delivered and the money paid to the boi'rower in person in Vicksburg. In thus transacting, the corporation respected, instead of violating, tlxe px-ohihition of our Constitution.
    PPEAL from the Ninth District Court, Parish of Tensas. . Young, J.

      Wade R, Young for Mrs. Reeves, Plaintiff and Appellant.
    A foreign corporation organized for tlie purpose of investing money in mortgage securities, which has at one time seven investments in mortgages on lands in this State, running for a period of years, and which, by its agents, attorneys and employes, inspects and values property, examines titles, makes contracts, takes and approves securities, accepts mortgages, looks to the insurance of the property and payment of taxes, and the security and protection of the investment, collects the interest and principal of the debt, and makes every contract and does every act which it could lawfully make and do if it had a place of business in the .State, is doing business in the State in the contemplation of Article 286 of the Constitution, although for the purposes of its business in several States it lias its place of business in an adjoining State. Cooper Manf’g Co vs. Ferguson, 113 U. S. 727.
    The loan broker or mortgage investor who inspects and values the property, examines and approves the title, considers and decides tlie sufficiency of the security, accepts the mortgage and stipulates that it shall not embrace the immovables by destination, pays the proceeds of the loan, looks to the insurance of the property and payment of the taxes, and the security and protection of the investment, and collects the instalments of the debt and grants indulgence or forecloses for his principal, is the agent of the mortgage company. Slier-wood vs. Roundtree, 32 Federal Reporter, 1.
    A State may impose upon a foreign corporation, as a condition of coming into or doing business within its territory, any terms, conditions and restrictions it may think proper, that are not repugnant to the Constitution or laws of the United States. Doyle vs. Continental Insurance Co., 4 Otto, 535.
    The act of making a loan of money and taking a mortgage to secure it, on lands in Louisiana, by a foreign corporation engaged in the business of loaning money on mortgages of lands in this and other States is a violation of the Constitution of Louisiana, Article 236, providing that no foreign corporation shall do any business in this State without having one or more known places of business and an authorized agent or agents in the State upon whom process may be served, when it has no place of business or agent in the State.
    Where such foreign corporation thus lends money and takes a mortgage therefor, the promise of the mortgagor to pay is void. Farrior vs. New England Mortgage Security Co., 88 Ala. 275 (Southern Reporter, 200), Christian et al. vs. American Freehold Land and Mortgage Co., 7 Southern Reporter, 427.
    The effect of acts passed in one country, to have effect in another country, is regulated by the laws of the country where such acts arc to have effect. Civil . Code, Art. 10.
    No contract can be enforced in tlie courts of Louisiana, no matter where made or where to be executed, if it is in violation of the laws of the State or in contravention of the public policy of the government. Kennett vs. Chambers, 14 Howard, 38; Story on Conflict of Laws, Sec. 244.’
    Whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed. Civil Code, Art. 12.
    An obligation without a cause, or with a false or unlawful cause! can have no effect. Civil Code, Art. 1893.
    It has long been settled that a promise made in consideration of an act which is forbidden by law is void. It will not be questioned that an act forbidden by the Constitution, which is the supreme law, is against law. Craig vs. Missouri, 4 Peters, 436.

      Snyder & Tullís and Clinton & Garrett for Defendants and Appellees:
    1. Article 236, Constitution 1879, is not sell-operative, and requires legislative ■ action to carry same into effect, and denouncing penalties for its violation, before contracts made by corporations in violation of its provisions will be declared null. Ijauglilin vs. Ice. Co., 35 An. 1186; Groves vs. Peters, 15 Peters, 449; 12 Howard, 79; 5 Howard 138; see also Fairfax vs. Hunter, 7 Craneh; 14 Peters, 122; 79U.S.431; 96U.S.640; 103 U. S. 443; 8 Otto, 621; Fritz vs, Palmer, 10 Sup. Court Reporter, 93, and authorities there cited.
    2. The foreign corporation having no agent or place of business in this State, which lends money outside the State to a person living in the State, secured by mortgage on property in the State, the whole transaction being consummated outside the State, does not violate Article 236 of the Constitution. Barrett vs. Bodge, 19 Atlantic Rep. 531; 35 N. J. Law, 285; Hopper vs. ICiland, 21 Ala., 714; 8 Vt. 94; 20 Johns. 288; Pelton vs. Blair, 21 Wallace, 241; 5 Howard, 295; 43 N. W. Rep. 141. See particularly City of New Orleans vs. Rhenish Westphalian Lloyds, 31 An. 781; City of New Orleans vs. Virginia Fire and Marine Ins. Co., 33 An. 9; Marine Ins. Co. vs. St. Louis Ry. Co. ,41 Fed. Rep. 653; Lamb vs. Bowser, 7 Bissell, 315, 372; State vs. Carl, 43 Ark. 353. See recent ease of State vs. Smith et al., 8 So. Rep. 294. See also 97 Mass. 89; 33 Iowa, 194; S. C. 11 Am. Rep. 118; 96 Pa. 449; Atlantic Phosphate Co. vs. Ely,9 S. E. Rep. 170; BeWolf vs. Johnson, 10 Wheaton, 367, 383; Central Trust Co. vs. Burton, 43 X. W. Rep. 141.

      Si. The contract between Reeves and the foreign corporation is no longer executory, but has been executed. Reeves has paid his debt by conveying the mortgaged property to .Caldwell. Conceding for sake of the argument that the contract could have been avoided while executory, the same right does not exist now that it is executed. Craddock vs. American Freehold Mortgage Co., 7 So. Rep. 196; Sherwood vs.'Alvis, 3 So. Rep. 307; Budley vs. Collier, 87 Ala, 431; 6 So. Rep. 304; Farrior vs. New England Mortgage Co., 7 So. liep. 200. See also Fritz vs. Palmer, 10 Sup. Court Rep. 93; see. also C. C., Art. 2133.
    4. On the question of fraud, see C. C. 1847.
    5. As to error: Reeves owed a natural obligation, if we concede that he owed no legal obligation to pay the debt. C. 0.1766,1757, 1758. Error as to the person is not sufficient cause to avoid this contract. C. 0.1834-1836. The natural obligation was alone sufficient consideration for the contract with Caldwell, and no suit lies to recover what has been paid in compliance with a natural obligation C. O. 1759.
    Even 'if Reeves made the contract with Caldwell in error, the presumption is that not the error but the natural obligation induced the contract, and it will not be sot aside for error. C. C. 1846, Sec. 1, Sec. 6. O. C. 2133, 2302, 2303, 2304, 2305, 2306, 2307.
    .6. This is a petitory action. The issue is the title vel non. The causes were consolidated by consent, and evidence as to title submitted by both parties without objection, and the whole controversy as to ownership and possession can bo determined in one judgment. 4 M. 625; 1R. 242; 1 An. 320.
   The opinion of the court was delivered by

Fbnner, «L

The only serious question involved in these consolidated suits is as to the effect of Article 286 of the Constitution of the State upon certain contracts and transactions which took place between L. N. Reeves, a- citizen of Louisiana, and the United States Mortgage Co., a corporation organized and domiciled in Edinburg, .Scotland.

The facts are as follows:

In the year 1885 the firm of Francis Smith & Co., was doing business as loan brokers, being that of negociating loans, secured by mortgage or otherwise, for such persons as might apply to them. 'Their main office was at San Antonio, Texas, and they had a branch ■office at Vicksburg, Miss., the latter being under the management of A. S. Caldwell, one of the partners. The method of the business was that they received applications to borrow from persons desiring to do so, with a statement of the securities offered. After examining •into the securities, if found satisfactory, they took a power of attorney from the proposed borrower, authorizing them to negocíate the ■loan, and agreeing to pay them a certain commission when negotiated. The firm then negotiated the loan with some of their customers who was willing to take it, and on receiving' the money they paid it ■over to the borrower, after first deducting the commission agreed on.

In this case Reeves applied to the firm in Vicksburg, Miss., to negotiate a loan for him, secured by mortgage on his plantation in Louisiana. They sent an agent to Louisiana to inspect and report upon the security. The report being satisfactory they agreed to negotiate the loan and placed it with the United States Mortgage Co., of Scotland. Notes were drawn up, dated at Vicksburg, Miss., and made payable at San Antonio, Texas, were signed by Reeves in Louisiana, but were delivered by him to Smith & Co., in Vicksburg. The mortgage was executed by Reeves in Louisiana, but the act of acceptance thereof by the mortgagee was executed in Vicksburg.

The notes were drawn payable to the order'of Holmes Ivory, who was the secretary of the Mortgage Company in Scotland, and he was also named as the mortgagee in the act of mortgage.

The money was paid over to Reeves personally in Vicksburg, or rather to a creditor of Reeves, by his order and in his personal presence.

The notes were-payable in annual instalments, and interest on the whole loan was payable annually. Reeves failed to meet the instalments and interest notes due on January 1,1887, and January 1, 1888, and also failed to pay the taxes on the property.

Caldwell (of Smith & Co.), visited Scotland in the summer of 188¶7 and found the company naturally much dissatisfied with this investment. He then personally bound himself to hold the company-harmless against loss.

Various negotiations took place between him and Reeves for some kind of settlement, but without success. At last, in the spring of 1888, executory process was issued to foreclose the mortgage.

Pending this proceeding an agreement was reached between Caldwell and Reeves by which Caldwell agreed to buy the property at the price of the whole amount due on the mortgage, and then to lease the property to Reeves for the balance of the year at a nominal rent, and to give him the privilege of selling the property at any time during the year for a price exceeding the mortgage debt, and to retain any excess of price which he might obtain.

The property was accordingly conveyed to Caldwell; all the mortgage notes were cancelled and delivered to Reeves; the contract of lease was executed, and Reeves went into possession as tenant, and Caldwell agreed to give him a power of attorney to sell the place during the year at any price exceeding that paid.

No sale was effected. Caldwell subsequently sold two-thirds of the place to Maxwell & Waddill,

Reeves died in the summer of 1888. ‘ His widow accepted the community and obtained an order of court placing her in possession of the effects of her husband’s succession. She now claims that the contract of loan and mortgage and the sale made in execution thereof are null and void, because made in violation of the prohibition contained in Article 136 of the Constitution.

It is useless to state the particular details of the several suits. They were all consolidated and tried together, and the paz'tieular issues in each are merged in the general issues of title, which underlies them all.

On this point we think the reasons of the judge for ignoring sub - ordinate technical issues are quite sufficient.

The Article 136 of the Constitution is as follows: No foreign corporation shall do any business in this State without having one or more known .places of business, and an authorized agent or agents in the State upon whom process may be served.”

The case of Mrs. Reeves rests on the following propositions:

1. That the contracts of loan and mortgage, having been made in violation of the above constitutional prohibition, are, under Articles 11, 1898 and 1895 of our Civil Code, null and void.

2. That the execution of said contracts by the conveyance of the property in satisfaction thereof, having been done by Reeves in ignorance of the fact that he was dealing with a foreign corporation in violation of law, which fact had been fraudulently concealed from him, he was not precluded from claiming the cancellation of said conveyance and reclaiming the property.

We have read with much interest the learned and able brief of counsel for Mrs. Reeves, and have studied all the accessible authorities referred to by him; but we are bound to hold that they are totally inapplicable to this ease because of the fact that the prohibition of the Constitution has not been violated.

We have taken pains to give a very full statement of the facts as developed by the evidence, from which it conclusively appears that the Mortgage Company did not, directly or indirectly, transact this business in this State. It simply loaned money to a citizen of Louisiana, who applied to it for such loan in Edinburg through Smith & Co., whom Reeves employed as his agents to obtain the loan for him. The weight of the evidence certainly is that Smith & Co., acted in effecting this loan not as the agent of the Mortgage Companj’-, but as the agent of Reeyes.

But conceding that Smith & Co. were the agents ,of the Mortgage Company 2 the case is not altered. The agency was established and did its business in Mississippi, not in Louisiana. Reeves dealt with Smith & 'Co. entirely in Mississippi. He went there to apply for the loan. The notes which he executed were dated Vicksburg, Miss.; they were payable at San Antonio, Texas; they were delivered by Reeves, after signature, to Smith & Co., in Vicksburg; the mortgage, though executed in Louisiana, only ripened into a contract by its acceptance which was passed in Vicksburg; the money was paid'to Reeves in Vicksburg. We are at a loss to conceive how this can be called transacting business in Louisiana.

It would be a gross injustice to the people of Louisiana were we to hold that the Constitution denied them the privilege of borrowing money outside of the State from foreign corporations, and of securing such loans by mortgages on their property in this State!

Such a proposition does not bear discussion; nor would it be advanced by counsel. But it is so clear that the' above is the precise character of the transaction here involved, that when this proposition is abandoned no ground of attack is left.

The Constitution of Louisiana can not prevent foreign corporations from transacting business in Mississippi, nor does it prevent our citizens from transacting business there with such corporations. Even if it appeared (which it does not) that this corporation established its agency in Mississippi in order to avoid the prohibition of our Constitution, we could see nothing illegitimate in such a purpose. The Constitution does not prohibit the business, but only the transaction of it in this State. So long as it does not transact business in this State, it would be respecting, not violating, the prohibition of our Constitution, which prohibits nothing but such transaction of business.

We may add that the evidence satisfies us that there was no concealment from Reeves of' the fact that his creditor was a foreign corporation. In one letter the creditor is referred to as “ the company,” and in another as The Mortgage Co.,” and Caldwell testifies that Reeves was fully advised on this point before the final settlement was made. He would be in no case to demand the cancellation .of the settlement, and his widow is in no better case.

Judgment affirmed.


text:
    No. 10,815.
    The Postal Telegraphic Cable Company vs. The Louisville, New Orleans and Texas Railway Company.
    1. An attorney at law is presumed to have authority to represent the client in whose name he acts, and denial of such authority will not be noticed unless supported* by affidavit.

      2. The jury of free holders appointed in expropriation proceedings, have, to some .extent, the character and authority of experts. Their verdict, though subject •to appeal, will not be interfered with as to quantum unless grossly and manifestly excessive or inadequate.
    S. In absence of •proof that the particular property expropriated is subject to mortgage, payment to owner will be decreed.

      4. The property condemned must be expropriated as an integer, and not subject to the option of petitioner as to how much thereof he will take.
    APPEAL from the Twenty-Third District Court, Parish of Iberville. Talbot, J.

      John B. Beckwith for Plaintiff and Appellant, cited:
    R. S., Sec. 701; New Orleans and Opelousas Railroad Oo. vs. Lagard, 10 An. 158; Vicksburg and Shreveport Railroad Co. vs. Oalderwood, 15 An. 481; New Orleans Pacific Railroad Oo. vs. Gay, tutor, 31 An. 431; Railroad Oo. ys. Dillard, 85 An. 1005; Railroad Oo. vs. Francis, 70 Ills., 238; Snyder vs. Railroad Oo., 25 Wys. 60; Railroad Oo. vs. Capps, 67 Ills. 607; Pierce on Railroads, 213; Schuylkil Navigation Co. vs. Farr, 4 Watts & S. 362; Rover on Railroads, 373, 383; Sutherland on Damages, 442; Troy and Boston Railroad Oo. vs. Turnpike Company, 16 Bob. 100; Railroad Oo. vs. Old Oolony Railroad Oo., 12 Quish (Mass.) ; Ricket vs. Metropolitan Railroad, 2d English and Irish Repeals (Law Reports), 175; Mills on Eminent Domain, par. 159, p. 194; Section 698, R. S., in so far as itrelatesto the plan to be filed with the petition in expropriation'proceedings is directory, not mandatory; Remy vs. Munipipality, No. 2, 12 An. 500; Telegraph Oo. vs. Railroad, 37 An. 883.

      Hewes T. Gurley and Farrar, Jonas & Kruttschnitt for Defendant and Appellee:
    1. Plaintiff has attempted but failed to prove any corporate action by it in compliance with the terms of its charter to authorize the expropriation of defendant’s property or of any rights thereon.
    2. Where property is expropriated, the leastpossible interest in it consistent with the purposes for which it is required, is to be condemned. This is true upon principle, and is consecrated as to telegraph companies, in this State by statute.

      (а) Upon principle: Lewis on Eminent Domain, Sec. 27S.
    (б) By statute: Act No. 124, Acts of 1880.
    The judgment in this case should be amended to conform to those principles.
    3. The judgment of the lower court,,in so far as it decrees that the amount of ' damages allowed by the jury should be paid into court, and not to the defendant, is clearly erroneous for several reasons:

      (а) Because the record failed to show any mortgage bearing upon this property or rights sought to be condemned.
    (б) Because no mortgag! does or can exist on the judgment for damages.
    (c) Because plaintiff in its petition claims no such right; but distinctly prays • that the sum awarded he paid to defendant.

      (cl) Because the Constitution of 1879, Article 156, which was subsequent in date to the statute providing for the payment of monoy into court, provides specifically that private property shall not be taken or damaged for public purposes without just or adequate compensation being first paid.
    A payment into court may indeed be security for the payment to the defendant, but it is not payment to it.
    Since the adoption of the Constitution the only way in which plaintiff could protect itself against mortgages, if any existed, would have been by making any alleged mortgagees parties. This, we asked to have done, and plaintiff declined

      4. Upon the record, the valuation placed by the jury on the rights expropriated, and the amount allowed by it ior damages, is a very low and conservative one. This court can certainly not distui-b the verdict and judgment upon any evidence in the record. It could at most but remand the ease, which is not asked by plaintiff.
    The proper measure of recovery in expropriation cases is the value of the property condemned, fixed upon the basis of its adaptability for the purposes for which condemned, and this is evidently the valuation adopted by the jury. Boom Company vs. Patterson, 98 U. S. 403,
    5. The-lower court erred in admitting improper evidence against us, which ruling was duly excepted to. The evidence in question was evidence of alleged benefits to be derived by defendant from the construction of plaintiff’s line of telegraph. This evidence was inadmissible under C. C. 2633. .
    The lower court also erred in excluding tile evidence of the cost of clearing- and keeping clear the right of way — evidence clearly admissible to show peculiar adaptability and value of the right of way for telegraph purposes.
   The opinion of the court Was delivered by

Fenner, J.

This is an appeal from the finding of a jury of freeholders in an expropriation proceeding instituted to condemn so much of the land occupied by the defendant as its railroad and right of way, as is necessary for the establishment and erection of a telegraph line by the plaintiff company.

The appeal involves only three controverted questions, viz: (1) certain exceptions interposed by defendant; (2) the quantum of the verdict and judgment; (3) the form of the judgment.

I.

The exceptions are all waived except one, viz: absence of authority from the Board of Directqrs of the plaintiff company to-institute these proceedings. The suit is filed in the name of the corporation by an attorney of -this court. His authority to represent his client is presumed, and denial thereof, unless supported by affidavit, will not be noticed. Hennen’s Dig. Attorney, II. The allegation is unsupported, either by affidavit or proof.

II.

The jury allowed compensation- to the defendant at $50 per mile. The plaintiff complains that this is excessive. The evidence as to value found in the record is vague and unsatisfactory, and if we were to disturb the finding of the jury, it would not enable us to fix any definite value more satisfactory to our own minds.

It has long been held in this State that the jury of freeholders, authorized by our laws to act in expropriation proceedings, have, to some extent, the character and authority of experts, supposed to have some personal knowledge of the matters submitted to them, and authorized -to rely on their own opinions as well as on the testimony adduced before them. Their verdicts are, indeed, subject to review by appeal, and may be amended when manifestly inadequate or excessive ; but they are entitled to great respect and will not be interfered with except in case of gross or manifest error. Carrollton R. R. vs. Avart, 11 La. 190; Remy vs. Municipality, 12 An. 500.

The award of $50 per mile presents no feature of such gross and manifest excess as would authorise our interference. It must stand.

m.

The plaintiff joins in the appeal and complains of the judgment in several respects.

(1) It complains that the judgment, instead ordering the money to be paid to plaintiff, directs that it be paid into court, on the ground that the property expropriated is affected with liens and mortgages. There is no proof that this particular property is subject to liens and mortgages. The certificate produced exhibits sundry mortgages inscribed against defendant but without specifying the property on which they bear. Moreover, defendant claimed that the mortgagees should be made parties, which plaintiff successfully opposed. We think this amendment should be allowed.

2. It complains that the judgment only requires payment of $50 for each mile that petitioners shall take of said property,” thus leaving it optional with them to take as many or as few miles as they choose. This complaint is just. The petition claimed expropriation for the whole distance between the northern boundary of the parish of Orleans, and the northern boundary of the State, as an integer, and the judgment should go accordingly.

No further amendment is necessary. The references to the petition sufficiently define the character and extent of the expropriation. The amount to be paid for will be the actual number of miles between the two points indicated.

It is therefore adjudged and decreed that the judgment appealed from be amended so as to read as follows: “ Considering the verdict of the jury and the law, it is adjudged and decreed that the property described in the petition herein is hereby condemned and adjudged to said petitioner, the Postal Telegraph Cable Company, for the purposes and subject to the conditions set forth and prayed for in said petition, the same to vest in said petitioner when the payment of the amount of said verdict, viz: $50 for each mile of actual distance along the defendant’s road, between the northern boundary of the parish of Orleans and the northern boundary of the State, shall be actually paid or tendered to defendant according to law,'and not until then;, and that the said petitioner pay all costs, and that, as thus amended, said judgment be now affirmed, appellant to pay all cost of this appeal.