author: McEnery, J.

text:
    No. 12,393.
    State of Louisiana vs. James Whitesides.
    This court is not required to assign counsel to an accused except on his applioation showing inability to employ counsel.
    The rule is stringent that the defendant, if he does not interrogate the juror as to his qualifications, can not take advantage of the disqualifications of the juror after verdict.
    If the juror swears falsely on his voir dire and the fact is discovered after verdict, the disqualification may be urged as ground for a new trial. The fact of dis-, qualification must be shown by other testimony than that of the juror.
    In the refusal to grant a new trial, and in the discipline of the court in allowing time to file motions and to hear arguments, in all matters referred to his sound discretion, the Supreme Court will not disturb the rulings of the District Judge, unless they are arbitrary and manifestly inflict a wrong upon the accused.
    APPEAL from the* Twenty-first Judicial District Court for the Parish of Jefferson. Rost, J.

      M. J. Cunningham, Attorney General, and Robert J. Perkins, District Attorney, for Plaintiff, Appellee.

      William L. Thompson and Thomas P. Maher, for Defendant, Appellant.
    Argued and submitted January 23, 1897.
    Opinion handed down February 1, 1897.
    Rehearing refused March 1, 1897.
   The opinion of the court was delivered by

McEnery, J.

The defendant by information was charged with an attempt to commit the crime of arson. He was convicted and sentenced to hard labor for five years. He made application for the assignment of counsel, but managed his own case, challenged jurors, examined witnesses and made an argument in his own behalf before the jury. The record shows no error in the trial of the case.

After his conviction the accused employed counsel to take charge of his case. His counsel presented the following motion for a new trial, which the judge could, on its face, have instantly overruled with propriety:

“ On motion of William L. Thompson, attorney, and Thos. F. Maher, of counsel for the accused, and upon suggesting to this Honorable Court that the conviction and jury verdict of guilty as rendered against the accused in the above entitled and numbered cause is contrary to the law and the evidence, and that the trial of the case was conducted with grave irregularity, which prevented him from getting the benefit of substantial justice.
“That the verdict is contrary to the law in this, to-wit: That the jury did not give the proper consideration to the charge of the court as to the weight, application and effect of circumstantial evidence, and the legal construction and difference between circumstantial and positive evidence.
“ That the jury disregarded and did not intelligently understand the charge of the court as to what is known in the law as the reasonable doubt, and that the jury did not follow the instructions of the court, and give to the accused the benefit of the reasonable doubt.
“ That the composition of the jury which found the accused guilty was not the character of jurors having the capacity to serve as grand and petit jurors as provided by Art. 116 of the Oonstitution of this State and the jury laws passed in conformity therewith, and it was only after the trial and verdict that he made this discovery, and that he could not have made this discovery before or during the examination of the tales jurors, while being examined upon their voir dire, by the exercise of due diligence, as he was not represented by counsel before, at or during his trial.
“That a majority of the jurors impaneled and sworn to try the accused, and did try .the accused, expressed a pronounced opinion as to the guilt of the accused previous to their being selected to try him, and being unrepresented by counsel before and at the time the jury was being impaneled and ^ sworn he could not interpose the proper legal objection to the jurors while on their voir dire, and he did not waive any of his legal right to a fair and impartial trial, as this state of facts could not have been discovered by the' accused by the use of due diligence and was only discovered since his trial and conviction.
“That the Oonstitution of this State gives the accused the right to have the assistance of counsel to defend him, and the laws of this State provide and make it the duty of the court to appoint counsel to defend him.
“ That the accused was charged with the commission of a felony, and under the laws of this State it was made the duty of the court to appoint counsel learned in the law, to represent him so as to secure his legal as well as constitutional rights guaranteed to him by the Oonstitution and laws of this State, and that the accused was not represented by counsel.
“ That the accused was unable to employ counsel learned in the law at the trial of this case, and owing to his inability to employ counsel and being unrepresented by counsel he was not allowed to make his full defence.
“That since the trial of the case the accused has discovered evidence which he could not produce at the former trial of the case by the exercise of any degree of diligence on his part. That the newly discovered evidence is material, and not merely collateral, or cumulative, or corroborative or impeaching, and the said evidence will produce a different result on the merits on another trial. That the said newly discovered evidence will go to the merits and not rest on merely- a technical defence.
“That the court erred in permitting the District Attorney to comment on other charges of arson charged against this defendant. That said argument appealed to the passions and prejudices of the jury, and was illegal, and should have been so charged by the court.
“That the court erred in allowing testimony of two bottles of coal oil to go to the jury as evidence, without first connecting defendant with said coal oil, and some attempt to use the same on a dwelling house.
“ That the evidence was not responsive to the charge of attempting to set fire to a dwelling house in the parish of Jefferson.
“ That in character the newly discovered evidence will prove that the police authorities of this parish on the night of the arrest of the accused, and at the time of the offence, and at the place where the alleged attempt at arson was committed, made a careful investigation, and were unable to find any evidence after several hours’ search, in and about the premises, that could or would connect the accused with the commission of such an offence, and that it was only the next day, or many hours after ■ the complainant caused the arrest of the accused, that two bottles containing coal oil were found upon the adjoining unoccupied house, which was open at all hours of the day and night to the public; that the bottles containing the oil were found, and it was only after the brother of the accused had asserted that the complainant, or the party who claimed that an attempt was made to set fire to his house, would be held responsible for the false accusation made against his brother, the accused, that the bottles containing the coal oil were found, and it was owing to this character of circumstantial evidence, and the only evidence that caused the conviction.”

There was no obligation on the court to appoint counsel for the accused unless he applied for the same, alleging his inability to employ counsel.

Having undertaken his own case, he must abide the consequences. It is certainly no reason for reopening the case that he had failed to avail himself of the privilege of having counsel assigned him.

It will be noticed that the greater part of the motion relates to matters which should have been urged in the course of the trial, and can not be urged as grounds for a new trial. This extends even to that part of the motion in relation to the charge that the jury which tried the accused did not have the qualifications required by law. The rule is stringent that the defendant, if he does not interrogate as to the qualifications of the juror, can not take advantage of the want of the necessary qualification after verdict. State vs. Bird, 38 An. 497; State vs. Bower, 26 An. 383; State vs. Kennedy, 8 Rob. 590; State vs. Nolan, 13 An. 276; State vs. McLean & Hamilton, 21 An, 546.

If the juror answers falsely and this fact is afterward ascertained for the first time after verdict, this disqualification may be urged as grounds for a new trial. The fact of incompetency must be shown by other testimony than that of the juror. State vs. Nash and Barnett, 45 An. 1137.

Complaint is made of the refusal of the trial judge to issue compulsory process for the witnesses, the jurors, and one Martin to prove what is alleged as newly discovered evidence. There is no averment or statement as to any fact which the witnesses were expected to prove. The motion seems to have been formed for the purpose of searching for evidence. Certainly, if any fact had come to the knowledge of the accused after verdict, he could have alleged it. We do not think the judge was called upon to make the court the means of searching for facts which would serve the accused in his efforts for a new trial. But if it were a fact that some of the jurors were not qualified, this could not be urged for a new trial, as it is not shown that the person was interrogated on his voir dire as to his qualification and swore falsely. Same authorities quoted above.

The motion was tried, and there were a number of bills of exception reserved to the ruling of the court.

Several of the bills relate to the refusal of the judge to summon the twelve jurors who tried the case. We have passed upon this point.

The accused was not entitled to compulsory process for obtaining witnesses in his favor in support of a motion for a new trial. State vs. Gauthreaux et al., 38 An. 608.

Evidence was offered on the motion for a new trial to prove that the District Attorney in his argument referred to other attempts and trials therefor, for arson alleged to have been committed by the accused. There was no objection urged to the argument on the trial and no ruling of the judge required thereon. The District Attorney, however, in his testimony fully explans the reason for his argument, being called for by the testimony of the accused in his own behalf.

There were many objections and rulings thereon in the course of the trial of the motion. It is unnecessary to notice them. No part of the evidence sought to be introduced could have been of benefit to the accused, and the legal principles involved are Dot such as to serve any useful purpose. A great deal of the testimony was an effort to retry the case, or to show the weakness or unreliability of testimony on the trial.

The accused applied for additional time to prepare a motion in arrest of judgment. The application was made on the last day of the term. This was refused. Counsel then asked for half an hour in which to prepare the motion. This was granted, but without the privilege to ai;gue it. Counsel ior accused declined to accept this ruling. We are not informed on what ground the motion would be urged. It is not shown that the accused has, in any way, been prejudiced by the ruling of the trial judge.

In the refusal to grant a new trial, and in the discipline of the court, in allowing time to file motions and to hear arguments in all matters referred to his sound discretion, we will not disturb his rulings, unless they are arbitrary and manifestly inflict or do a wrong to the defendant. This is the uniform jurisprudence of the State.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12,364.
    W. H. Bristol vs. A. J. Murff.
    Property described in the assessment roll, as it is described in a partition and is on record, is sufficient to identify the property.
    When property is constructively seized by the tax collector, when it is under seizure by attachment in a Federal Court, and the^attachment is dissolved, the tax collector’s seizure will hold good.
    When property can be conveniently offered in less quantity than the entire tract,, the tax collector must comply in offering it for sale with Art. 210 of the Consti • tution.
    APPEAL from the Second Judicial District Oourt for the Parish of Bossier. Watkins, J.

      T. F. Bell for Plaintiff, Appellant.

      A. H. Leonard for Defendant, Appellee.
    Argued aDd submitted January 20, 1897.
    Opinion handed down February 1, 1897.
   The opinion of the court was delivered by

McEnery, J.

This is a suit to annul a tax sale. The tax collector of Bossier parish sold for the delinquent taxes of 1891 property of the plaintiff, described on the assessment rolls as one-fourth interest in Succession of B. F. Hollingsworth. Lot 3 of partition of seven hundred and ninety acres, in Township 18, R. 13, valued at two thousand seven hundred and fifty dollars.” The taxes due were fifty-eight dollars and eighty cents. Prior to the sale the property had been seized under writs of attachment from the Federal Court.

The grounds for the annulment of the tax sale are insufficiency of the description of the property on the assessment rolls, its prior seizure by the United States Marshal under the writ of attachment, and the non-compliance with Art. 210 of the Constitution of the State.'

The description was sufficient to identify the property. The seven hundred and ninety acres in the succession of Hollingsworth had been partitioned, and Lot 3 was the part or portion belonging to plaintiff. The partition proceedings were matter of record, and Lot 3 distinctly ascertained to be the property of plaintiff.

The attachment was dissolved in- the Federal Court. This made the prior seizure by the tax collector constructively, while the property was in the custody of the marshal, a binding and legal seizure.

The failure of the tax collector to comply with Art. 210 of the Constitution is more serious than the other reasons alleged for the nullity of the sale.

The tax deed is prima facie evidence of a valid sale. Its recitals, however, are not conclusive, but may be contradicted as to the essentials required for a valid tax sale. One of these essentials is that the tax collector “ shall sell the least quantity of property which any bidder will buy for the amount of the interest, taxes and costs. In the tax deed there is no recital that Art. 210 of the Constitution had been complied with. On the contrary, it recites that “ he proceeded to offer said described property for sale for cash» without appraisement.” The lot contained 197½ acres. It was easy of subdivision and could have been offered at less quantity than the whole tract.

In case of Norres vs. Hays, 44 An. 912, in which the tax deed was annulled, we said that “ the tax deed also shows that said article of the Constitution was violated in the sale of the property in block.”

Also case of Land and Improvement Company vs. Succession of Fasnacht, 47 An. 1294.

Whenever the property can be conveniently offered in less quantity than the entire tract, the compliance with the article of the Constitution is imperative. In municipalities, when the lots have a designated size, it is impractical to offer less than the minimum size of the lot prescribed by municipal ordinances. As held in the last case referred to, when there are several lots or parcels of ground within municipal limits held by different titles, it is error on the part of the tax collector to offer all the properties at one time for the tax due. The plot accompanying the record shows that the tax collector could have offered less quantity of the property than he did for the amount of taxes due. The defendant asks, in ease of the sale being annulled, to be reimbursed for all taxes paid by him and the price of the adjudication. Article 210 provides: “No sale of property for taxes shall be annulled for any informality in the proceedings until the price paid, with 10 per cent, interest, be tendered to the purchaser.”

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the tax deed set up by defendant as title, and the tax sale under which defendant purchased b.e annulled, on the condition that the plaintiff shall pay to the defendant the price of the adjudication to him of the property, with ten per cent, interest thereon and the amount of taxes paid by defendant since he acquired possession of said property. The defendant to retain possession of said property until the above amounts are paid, when he shall make restitution of said property to plaintiff; defendant to pay costs.


author: Breaux, J. McEnery, J.

text:
    No. 12,302.
    Louis T. Michenor et als., Trustees of the Land Trust of Indianapolis, Indiana, vs. Jacob A. Reinach.
    On Motion to Dismiss.
    The appeal bond is given for the sum ordered by the judge; the appeal is devolutive, although the bond is not for one-half over and above the judgment appealed from.
    In a suit to compel the acceptanee of title to property adjudicated to defendant it is not required that plaintiff shall set out his whole chain of title in the petition. The character of the title tendered is a matter of proof-
    Where several distinct adjudications have been made at the same sale the plaintiff can cumulate the demand for specific performance of adjudications.
    There is no law in this State which forbids an association of individuals from holding property in common for their mutual benefit, and such association can confer power upon some of its individual members to hold title for purpose of sale.
    On the Merits.
    In Indiana when such an association exists and it has transferred title to trustees for certain purposes, the death of one of the parties will not affect the transfer. The equitable title so transferred will survive in the surviving member of the tz-ust. Hence when such an association has created trustees to sell and dispose of its property, the death of one of them will not abate the suit instituted in this State by them. It is not, therefore, required that the sale of the property entrusted to said trustees should be in accordance with the laws of this State for the sale of property under administration.
    A party is not compelled to accept title which threatens litigation.
    In this case the peculiar circumstances accompanying it and the facts bring it within the ruling of Billgery vs. Land Trust, 48 An. 890, and on the authority of that ease the judgment is affirmed.

      \ PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      E. Howard McCaleb for Plaintiffs, Appellees.

      Benjamin Ory for Defendant, Appellant.

      William Winans Wall for John Watt, Intervenor, Appellee.
    On Motion to Dismiss.
    Submitted on briefs November 16, 1896.
    Opinion handed down November 30, 1896.

      On the Merits.
    Argued and submitted February 3, 1897.
    Opinion handed down February 15, 1897.
   On Motion to Dismiss.

The opinion of the court was delivered by

Breaux, J.

The motion has been made to dismiss this appeal on the ground that the bond furnished by the appellant is in amount insufficient for a suspensive appeal; it not being for one-half over and above the amount of the judgment appealed from.

Under the rules governing appeals the motion, as stated, presents the only ground for decision in this case.

It is true that the amount of the bond is less than is required bylaw for a suspensive appeal.

The amount of the bond is that fixed by the judge a quo.

While it is not sufficient for a suspensive appeal, it is sufficient for a devolutive appeal.

This was the decision, upon this point, in a number of cases before this court. Succession of Keller, 89 An. 580, and authorities cited.

The present appeal should be sustained in so far as it is devolutive.

To that extent the motion to dismiss the appeal is denied.

On the Merits.

McEnery, J.

This suit was instituted to compel defendant to accept title to property adjudicated to him at auction sale.

The defendant excepted to the suit (1) because the plaintiffs have not stated in their petition the nature and derivation of the title under which they claim the ownership of the property, and that the petition is vague and indefinite; (2) because plaintiffs claim to be the trustees or agents of a corporation named the “Land Trust of Indianapolis,” and neither their agency nor the domicile of said corporation is mentioned in said petition; (3) because plaintiffs have cumulated in one action sundry separate and distinct contracts based upon separate adjudications of distinct properties.

The petition states that plaintiffs are owners of the property described in the petition and that the same was adjudicated to defendant. This is sufficient. It was not necessary that the plaintiffs should set out the chain of title to the property. It was a matter of proof on the trial for plaintiffs to exhibit to defendant the title which they proposed to give to the property.

The petition alleges that the plaintiffs are the trustees of the “ Land Trust of Indianapolis, Indiana,” and that they reside in said city. The capacity of plaintiff to sue is accurately set forth. If said corporation has no existence, and was not properly represented by the trustees, it was a matter of proof.

The character of plaintiffs’ suit in cumulated demands is in accordanee with the text of Art. 148, Code of Practice.

A second exception was filed of no cause of action; that plaintiffs pretended to act as agents and attorneys in fact of an unauthorized corporation, and failed to annex to their petition the power of attorney under which they acted; that plaintiffs can not appear in court except in their individual names. Much of this exception was contained in the first one filed.

It is not essential to go into the history of the organization of the said trust company of Indianapolis. The defendant is not interested therein. It was either a valid and legal corporation, a defacto corporation, or an association of individuals for certain purposes. Those who authorized it to act are bound by its acts and third- parties are protected. This association conveyed to plaintiffs its rights in and to the, property in controversy. All parties, members of said Trust Company, are bound by this deed, as they authorized it. The plaintiffs, whether as agents or attorneys in fact for the Trust Company, or as bona fide purchasers under said deed, had the power to sell said property, and the purchaser at such sale being an innocent third party, would be undoubtedly protected in his purchase. There is no law in Louisiana which prevents an association of individuals from acquiring property and holding it in common for their mutual benefit. And there is no law which prevents them from selling the same. In this case all individual interests were represented in the power to acquire and to dispose of the property.

The Western Land and Immigration Company, which sold to the plaintiffs, is an incorporated company, as appears by the certificate of the Secretary of State of Indiana.

We understand that the plaintiffs had a conveyance from the Trust Company for the purpose of selling the land in controversy, and that they were the agents or trustees of said company or association of individuals for that purpose. The capacity in which they sell is amply set forth in the petition.

In reference to the interest of W. W. Smith, a member of the Land Trust Company, whose estate is now under administration in the State of Indiana, it appears that in his lifetime, as a member of said company or association, he transferred with the other members of said association whatever interest he had to the present plaintiffs.

This deed investing the trustees with a legal estate survived, and could be executed by the survivors under the laws of Indiana. Peter vs. Beverly, 10 Peters, 532; Grisar vs. McDowell, 6 Wallace, 377.

Tne exceptions were overruled. The defendant answered, denying that the auctioneer had authority to sell said properties from the proper authorities, and he affirms that the titles offered by plaintiffs are illegal.

(1) The property described as square No. 187, in the Seventh District, stands on the records in the name of Joe Walton; (2) all the property described in plaintiff’s petitionis alleged to be owned by John Holliday, Francis T. Holliday, James N. Houston, J. Augustus Lemeke, Julius F. Pratt, Charles Bradford, Henry B. Drew, Henry Jameson, William B. Heard, Louis T. Miehener, William J. Richards and the estate of William W. Smith in Indiana, and the sale of said property can not be made in the manner adopted by plaintiffs; that said property was never adjudicated to the Western Land and Immigration Company, of Indianapolis, the author of plaintiffs’ title, at tax sale; that the Western Land and Immigratioh Company never had any corporate existence, and even if it had Henry E. Drew and William W. Smith, who claimed to be president and secretary respectively of said company, acted without authority; that the tax sale on which the title is based was defective in the fourth and fifth described properties for the years 1876, 1877, 1878, as the property was not properly assessed, being in the name of Miss B. A. Clarke; that the sixth, seventh, twelfth and thirteenth described pieces of property for the taxes of 1876, 1877 and 1878 were also improperly described on the tax rolls, being assessed to Mrs. M. G. Knorr; that the eighth.and ninth pieces of property were erroneously assessed for the same year to Eliza B. Walker; that the tenth piece of property for the same year was improperly assessed to H. Lahen, and the eleventh for the same year erroneously assessed to Mr. Druhan; that the Western Land and Immigration Company claiming to have acquired the first, second and third pieces of property through D. Negrotto, who purchased at tax sale, had no title to said property, as Negrotto’s title was null and void, because for the years for which it was assessed it was on the rolls in the name of Edmond L’Hoste. There are other defective assessments as to the second and third pieces of property for the year 1878, being in the name of E. A. Collins. It isjurged in the answer that none of the parties to whom the assessments were made were ever notified of same; that neither plaintiffs nor the author of their titles have complied with the terms and conditions of the tax sales, and paid the taxes assumed by them on said property; that Eliza A. Collins is dead, that her succession has been opened, and that certain persons named in the petition have been recognized as her sole heirs; that ElizaB. Walker is dead, and that Mrs. Kate Walker has been recognized as her heir; that Martin;Druhan is dead, and that his widow has been recognized as surviving]widow in community; that all of said parties claim adversely to plaintiffs’ title. He prays that all of these parties be cited and be made parties to the suit. The order was granted as prayed for. It does not appear that the citations were served on the parties.

Plaintiffs claim title as follows: Adjudications by the State Tax Collector, under Act 82 of 1894, to the Western Land and Immigration Company, and by purchase direct from the Auditor and from D. Negrotto, who purchased at tax sales, by said company which sold to the trust company, and^who sold to the present plaintiffs, who are to all intents and purposes, according to the law of Indiana, vested with the legal estate. Revised Statutes of Indiana, Secs. 2985, 2977.

In the attack on plaintiffs’ title, defendant offered in evidence the records in the succession of Druhan, and the record of the suit of Eliza A. Druhan vs. L. T. Michener et a Is.; the record in the succession of E. A. Collins and the record in the suit of Lloyd Posey vs. L. T. Michener, and the record in the succession of Mrs. Eliza B. Walker, and the record in the succession of B. L’Hoste, and the petition in the intervention of John Watt claiming ownership of Square 187.

No evidence was introduced to impeach the validity of the tax sales other than to show that the property in the above successions was in litigation between the interested parties in said succession and the plaintiffs herein.

So far as these suits and the succession records show that the property claimed therein is in litigation and the title uncertain, the defendant can not be compelled to accept title from the plaintiffs.

The decree of the lower court was in accordance with the recognized principle in our jurisprudence that the defendant can not be compelled to accept a title that carries with it a threatened litigation, or disturbance.

The decree, therefore, recited that the defendant should comply with his bid for all properties adjudicated to him where there was no clouded title, and released him from his bid on properties adjudicated to him where the ownership of the same was claimed by other parties and involved in litigation, and as to the demand for the specific performance of the adjudication for these properties, he entered a judgment of won.-suit.

Act-No. 82 of 1884, Sec. 5, provides that the purchaser under said act shall assume all unpaid taxes subsequent to 1879. They are not prescriptible under ten years, if at all.

The purchaser is bound to pay them, and the tax collector should demand and receive the payment of the same before making title to the property. State ex rel. Martinez vs. Tax Collectors, 42 An. 677; Remick vs. Lang, 47 An. 914.

But on the authority of Billgery et als. vs. Land Trust Company of Indianapolis, 48 An. 890, we conclude that all the taxes on this property were canceled by a decree of the Federal Court in 1888, in the ease of the Western Land and Immigration Company vs. George Guinault et als., No. 11,764, United States Circuit Court, Eastern District of Louisiana. The reasons for the decree, and taking that case outside of the ruling of the cases referred to in the 42d and 47th Annuals, are fully stated in the opinion in the Billgery case. The decree in the Federal Court had been rendered before the decision in the case of State ex rel. Martinez, 42 An. 677.

John Watt intervened in the suit, resisting the demands of plaintiff and setting up title to square 187. He redeemed the property for the unpaid taxes assumed by the Western Immigration Company in 1894. The facts in his case are identical with those of the Billgery case, 48 An. 890. Under the ruling in that case we can afford him no relief.

Judgment affirmed.


text:
    No. 12,259.
    State of Louisiana vs. Jacob Itzcovitch.
    Ordinance of tlio City of New Orleans No. 12,619, regulatin'g pawnshops and secondhand stores, amending its Ordinance No. 12,512, is null and void. No legislative authority vested the Oity Council with power to enact ?said ordinance. It is not within any of the police powers necessary for the administration of the municipality.
    A PPEAL from the First Recorder’s Court of the city of New Orleans. Finnegan, J.

      James J. MeLoughlin, Assistant Oity Attorney, and Samuel L. Oil more, Oity Attorney, for Oity of New Orleans, Plaintiff, Appellee.

      A Ibert D. Henriques for Defendant, Appellant.
    Argued and submitted February 5, 1897.
    Opinion handed down February 15, 1897.
   The opinion of the court was delivered by

McEnery, J.

The Oity Council of New Orleans enacted the following ordinance:

Mayoralty of New Orleans,)
City Hall, September 3, 1896.)
(No. 12,619, Council Series.)
“ An Ordinance amending Ordinance No. 12,512, Council Series.
Be it ordained by the Common Council of the City of New Orleans, That Ordinance No. 12,512, Council Series, be and the same is hereby amended so as to read as follows:
Section 1. Be it ordained, That from and after the passage of this ordinance, it shall be the duty of every person keeping a shop or other place, whether as owner or agent, where second-hand goods are bought, sold or exchanged, to furnish to the superintendent of police, at his office, between the hours of 3 o’clock p. m. every day in the year, a complete descriptive list of all articles bought, sold or exchanged, at such shop or place, during the twenty-four hours last preceding, and since the furnishing of the last report, together with the name, sex, color, apparent age, and general description and place of residence of the person or persons buying, selling or exchanging each of said articles; provided, that all dealers in goods of any kind or description, which shall have been used, or which shall have been transferred from the manufacturers to the dealer, and then received in the possession of third persons, whether the same consists of clothes, bicycles, or other vehicles, carpets, clothing, firearms, weapons, household utensils, or of articles of personal use, or of male or female wearing apparel, or of jewelry, gold or silver, shall be and are hereby declared to be second-hand dealers; provided, further, that second-hand furniture dealers, paying licenses as such, and who buy and sell furniture exclusively, either at auction or private residences, shall not be considered second-hand dealers within the meaning of this ordinance.
“Sec. 2. Be it further ordained, That whoever loans money on deposit or pledges of personal property, or who purchases personal property, or ehoses in action, on condition of selling the same back again at a stipulated price, is hereby defined and declared to be a pawnbroker.”
“ Sec. 3. Be it further ordained, That all keepers, whether as owners or agents, of shops or places commonly known as loan offices or pawnbroker shops, and all persons who habitually lend money on pawn or pledge of diamonds, jewelry, plate, valuables, clothing, firearms, or other movables or personal property, shall at the time of receiving any article of property whatsoever in pawn or pledge, enter in a book to be kept by them, respectively, a full and complete description of the articles of property so pawned or pledged, with the date and hour of receiving the same, and the name, description and place of residence of the depositor or pledgor, and shall, on demand of the. Superintendent of Police, or of any officer or person acting under his authority, exhibit to him, with the articles of property therein mentioned, the books of the description so required. It shall also be the duty of such keeper to make daily reports in the same manner required in the preceding section, save that the name and place of residence of the pledger may be omitted therefrom. The reports herein provided for in this section shall be considered as confidential, and shall be for the private use of the police, solely.
“ Sec. 4. Be it further ordained, That the shops and places mentioned in Secs. 1 and 2 hereof shall be kept closed from the hour of 10 o’clock P. M. to 6 o’clock A. M.f except on Saturdays, when the hours of closing may be extended to 11:30 P. M.
“ Seo. 5. Be it ' further ordained, That in the event that any day shall be a legal holiday, then the said report required by Secs. 1 and 2 shall be made on the day following and between the hours aforementioned.
“ Seo. 6. Be it further ordained, That the proper blanks for the reports aforementioned shall be furnished at the office of the Superintendent of Police on application.
“ Seo. 7. Be it further ordained, That it shall be unlawful for the owner or keeper of a shop described in Sec. 1 to sell, exchange, barter or remove from their place of business, or permit to be redeemed, any of the goods bought, exchanged, pledged, pawned or deposited by, to, or with them for the period of seven days after the making of the report thereof provided for in this ordinance.
“ Sbc. 8. Be it further ordained, That it shall be unlawful for any owner or owners, keeper or keepers, agent or agents or parties representing said owner or owners or proprietors of any secondhand store, pawn shop, or loan office to buy, pawn, pledge or exchange any article or] articles from any minor under the age of sixteen years, from a person appearing to be intoxicated, from a person known to be a notorious thief, or from a person known to have been convicted of larceny or burglary.
Seo. 9. Be it further ordained, That in the event any person or persons shall tender for sale, pawn or exchange any article or articles to the owner or owners, keeper or keepers, agent or agents, or parties representing said owner or owners or proprietors or keepers of any second-hand store, pawn shop, or loan office, and they having good reasons to believe that such article or articles were stolen, it shall be their duty to have the person or persons so tendering the same immediately arrested.
“ Seo. 10. Be it further ordained, That any violation of this ordinance shall be deemed a misdemeanor, and any person or persons violating any of the provisions of this ordinance shall be liable to a fine not exceeding twenty-five dollars or imprisonment in the parish prison not exceeding thirty days, at the discretion of the recorder of the district in which the offence shall have been committed.”
(Other sections omitted.)

The defendant, who keep s a second-hand store in the city of New Orleans, was arrested and convicted for violating provisions of the above ordinance. He contested its legality and constitutionality in the recorder’s court. He specifically avers that the Oity Oouncil was without authority or power to enact said ordinance.

The regulation of such establishments as are named in the ordinance is, undoubtedly, an exercise of police power, but they are of that character that the Oity Oouncil of New Orleans is without power to police them in the manner adopted in the ordinance without special legislative permission.

We presume there was a necessity for the attempt to regulate the establishments mentioned and provided for in the ordinance, but however great the necessity, without the sanction of legislative authority the City Council was without power to enact such an ordinance. Under the grant of police power to the city no such power is vested in the City Council. Hence its exercise was unlawful. 1 Dillon on Municipal Corporations, par. 817; Secs. 14, 15, City Charter.

In the case of State vs. Robertson, 45 An. 954, this court held that an ordinance of the City Council of New Orleans providing for the office of inspector and examiner with the power to examine engineers, and to grant certificates of competency and to inspect boilers, etc., was illegal, as the power to enact such an ordinance was not granted to the city and could not be inferred from the powers granted.

In State vs. Von Sachs, 45 An. 1416, it was held the City Council of New Orleans had no power to enact an ordinance requiring labor agents to give bond for a faithful discharge of duties as labor agents.

The language employed in that case is applicable here. “ The Oity Oouncil can exercise only such power as legislative authority confers upon it. It can prohibit no business authorized by the Legislature and when it assumes that the Legislature authorizes the taxation of the occupation * * * it can not, in authorizing the business or occupation to be carried on, impose obligations not authorized by the Legislature.”

The occupations attempted to be regulated are legitimate occupations licensed by the State, and the city can impose no burden upon the carrying on of these occupations not authorized by the Legislature.

In the City of Clinton vs. George W. Phillips, 58 Ill. 102, there was an effort made by the plaintiff city to regulate the sale of intoxicating liquors for medicinal, mechanical and chemical purposes, requiring a report quarterly of the. kind and quantity sold for such purposes, when and to whom sold and on whose prescription. The ordinance was held to be illegal, because there was no power to enact it.

In Long vs. Taxing District, 7 (Lea) Tenn. Reports, it was held “ a municipal corporation can not, without special legislative authority, pass an ordinance requiring merchants, parts of whose business is the buying and repacking of loose cotton, in addition to the other conditions prescribed by law and ordinance for taking out merchant’s license, to give bond to keep in a book specially provided for the purpose a daily record of the name of each seller of loose cotton and the quantity of each purchase, and that he will keep such book at all times open to the inspection of the police.”

The ordinance was enacted to break up the stealing of loose cotton. The court said : “ The ordinance does not regulate the administration of the local government, the convenient transaction of business or the conduct of ¡she citizens with a view to health and comfort, nor is it such as can be said to fall within the general duties of municipal bodies. It is rather intended to facilitate the enforcement the criminal law against theft of loose cotton.”

And the ordinance under review was evidently intended to facilitate the enforcement of criminal law in the detection of thefts of personal property.' The ordinance, no doubt, has accomplished good results, but there was no authority to enact it. Legislative grant of power to enact such an ordinance must be obtained before it can have any effectual force.

That part of the ordinance which makes the violation of any of its provisions a misdemeanor is illegal, in that it makes or creates an act a crime which the Legislature has not seen fit to do. State vs. John McNally, 48 An. 1450.

The ordinance above recited, No. 12,619, council series, is declared to be null and void, and the judgment'appealed from is annulled and reversed, and it is ordered that the defendant be discharged.


author: Watkins, J.

text:
    No. 12,424.
    State of Louisiana vs. Antour Hollier.
    1. It is not sufficient ground to authorize the continuance of a cause that a material witness is absent on the day set for the trial, if the statement in the defendant’s affidavit discloses that the testimony of such witness would be open to the objection of inadmissibility as hearsay.
    2. Surprise at the statement of a witness is not ground for a new trial, in case the trial judge informs tlieparty surprised that he may introduce any other witness or evidence he may have for the purpose of supplying the ellipsis of proof, notwithstanding it may tend to contradict the statement of the witness giving the surprise, and such party has failed to avail himself ol the opportunity.
    8. An application for a new trial, predicated upon newly discovered testimony, will not be regarded as having been improperly refused in case the proposed testimony is cumulative or corroborative, and the affidavit is not sworn to by the witnesses upon whom the affiant relies.
    APPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. Voorhies, J.

      M. J. Cunningham, Attorney General, James Simon, District Attorney (R. F. Broussard and P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      James F. Mouton for Defendant, Appellant.
    Submitted on briefs March 6, 1897.
    Opinion handed down March 15, 1897.
   The opinion of the court was delivered by

Watkins, J.

Having been indicted for the perpetration of the crime of abduction, and tried, convicted and sentenced to imprisonment in the State penitentiary at hard labor for a term of three years, the defendant prosecutes this appeal, relying on one bill of exceptions which was reserved to the refusal of the trial judge to grant him a continuance; another to his refusal to grant him a new trial; and another to his declination to arrest the judgment.

This prosecution is grounded upon Sec. 1 of Act 134 of 1890, making the abduction of women a crime, which is of the following tenor, namely:

“ That any person who shall fraudulently, deceitfully, or by any false representation, entice, abduct, induce, decoy, hire, engage, employ or take any woman of previous chaste character, from her father’s house, or from any other place where she may be, for the purpose of prostitution, or for any unlawful sexual intercourse, at a house of ill fame, or at any other place of like character, or elsewhere * * * shall on conviction be punished by imprisonment at hard labor in the penitentiary for not more than five years.”

This quotation from the legislative act will serve to illustrate the character of the prosecution and of the proceedings, the correctness of which are drawn in question and presented to us for decision.

I.

The cause having been set for trial, defendant’s counsel objected to proceeding therewith at the time fixed, on the ground that one of his principal witnessess, Pierre N. Thibodeaux, though duly ordered summoned, had not been served and was not present, and that he could not safely go to trial without the benefit of his testimony.

In support of his application the defendant made affidavit, amongst other things, to the substance and purport of the testimony the absent witness would give, and which statement was, in substance, as follows, viz.:

That previous to anything being said or done which tended, in any way to connect the defendant with the abduction of the prosecutrix, Maude Gallagher, her mother visited the house of said witness, Thibodeaux, and told him, in an angry and threatening manner, that her daughter had assured her that she, Maud Gallagher, had been seduced and abducted by him (Thibodeaux) and was with child by him, and that she (the mother) had come to tell him that she (the daughter) would force him (Thibodeaux) to marry the said Maud, her daughter;” and many other statements of like character.

That neither in that interview, nor at any other time, was anything said or intimated, to the effect that the defendant was connected with the abduction of the prosecutrix, in any way.

The purpose and object of this proffered statement was, to show that the prosecutrix, Maud Gallagher, was not “ a woman of previous chaste character,” which is the sine qua non of the statute; for the reason that she was, herself, in doubt as to the paternity of her child — her mother, at her suggestion, having charged the witness (Thibodeaux) to have been its illegimate father.

The judge declined to grant the requested continuance, because of the alleged declaration to the witness (Thioodeaux) having been made by the mother of the prosecutrix as having been requested by the latter, it was hearsay, and would be inadmissible as evidence on the trial.

This ruling was manifestly correct. The mother might have been placed upon the stand, under certain circumstances, to make proof of the facts detailed; and, if the prosecutrix had made such a statement to the witness (Thibodeaux), it might have been received as part of the res gestæ. But, taking the statement as it occurs in the defendant’s affidavit, it would have been open on the trial to the objection that it was hearsay.

II.

The motion for new trial is based upon the grounds following, viz.: (1) That his application for a continuance was incorrectly refused, and he was unseasonably and hurriedly forced into trial without his most important witness; (2) that during the progress of the trial he placed upon the stand a person by whom he expected to prove that the prosecutrix had, repeatedly, sent messages to the defendant proposing appointments or assignations at certain designated places, but that very much to his surprise and disappointment, the said witness when interrogated professed to have no recollection thereof; that the anticipated statement of said witness was perfectly true and in conformity with the facts as they actually existed, and in his opinion and belief said witness was intimidated by friends of the prosecutrix and prevented from making the disclosures expected; (3) that since the trial and verdict defendant has discovered new, important and material testimony “whereby he can and will prove that long previous to his alleged false promise or representations to Maud Gallagher, and previous to her alleged abduction by him, she was not of chaste character,” giving full particulars of frequent' unlawful sexual intercourse between the prosecutrix and other men.

In the course of the reasons assigned by the trial judge he reiterated, in reply to the first ground of complaint, the statement he made in the first bill of exceptions, that the testimony of the absent witness, Thibodeaux, would have been objectionable as hearsay; to the second he said that, conceding defendant’s surprise at the statement of the witness referred to, he informed counsel that he was at liberty to introduce any other witness or testimony he had upon the same subject matter, notwithstanding it might be diametrically opposed to the statement made by said witness while on the stand, and he did not avail himself of that offer; to the third he said that, in his opinion, the proposed newly discovered evidence was cumulative, or corroborative, of the testimony of other witnesses who were sworn at the trial in reference to the same subject matter — the prosecutrix’ want of chastity.

But the judge made the further point with regard to this newly discovered testimony, that the affidavit of the defendant, alone and unsupported by the oath of the witnesses upon whose testimony the relief depends, was insufficient, and did not justify the allowance of a new trial.

The proposition of the judge seems unanswerable. We have frequently held that it was not a ground for a new trial that the defendant had urged an objection which was overruled, and to which a bill of exceptions had been retained.

That the testimony of a witness has given the defendant surprise, is unfortunate for him; but the only course open to him was to substitute other testimony.

This course was left open to him, and it is no ground for a new trial that he was unable to supply that deficiency. Had he made the discovery of such testimony after the trial, there would have been greater force in his application.

The ground of his application, based upon testimony newly discovered since the trial, does not go to that extent. And, if it did, the motion is insufficient in itself.

III.

The motion in arrest of judgment rests on the charge of unconstitutionality of Act 134 of 1890, in that it makes the abduction of a woman a crime, in direct violation of Art. 29 of the Constitution, in that it embraces more than one object; and that the different objects of the statute are not set out and embraced in its title.

Further, that the title makes no mention of the penalty the statute authorizes to be imposed.

The judge entertained the opinion that the first section of the act — quoted supra — which defines the crime of which the defendant is indicted, is constitutional and valid; and that the title fairly embodied the single object of the law in employing the phrase, “ making the abduction of woman a crime.”

He thereupon overruled the demurrer, and the defendant’s counsel reserved a bill of exceptions.

We think the title fairly responds to the object stated in section one of the act, the purport and effect of which is, that any person who shall fraudulently, deceitfully and by any false pretence or representation, entice or abduct any woman of previous chaste character from her home, for the purpose of prostitution, shall be deemed guilty of an infamous crime.

We do not regard the fact, that no mention is made in the title of the act to the character of the punishment which may be inflicted, as of any consequence whatever.

Such a provision of a statute is merely directory, and follows as the natural and legal sequence of the text. The denunciation of the text would be of no force and efficacy without the superaddition of the punishment therefor. It requires both to create a penal statute.

Judgment affirmed.


author: Breaux, J.

text:
    No. 12,428.
    State of Louisiana vs. George Heard.
    Tie pleas were autrefois acquit and the invalidity oí the proceedings, because of a copy substituted to the indictment lost.

      Former Jeopardy — There was no autrefois acquit — the accused had not been arraigned and had not pleaded. It became, in consequence, necessary to discharge the jury prior to verdict. Without a joinder of issue the proceedings are null and can not serve as a basis for the plea of autrefois acquit.

      Copy of Indictment Lost. — The indictment had been misplaced or lost.
    As authorized by Act 17 of 1878, properly a true copy of record kept as required by the statute was substituted. The trial judge was satisfied that the indictment was lost; he therefore had the authority to replace the loss with an authenticated copy and to continue with the trial.
    APPEAL from the Criminal District Court for the Parish of Orleans. Baker, J.

      M. J. Cunningham, Attorney General, and Robert H. Marr, District Attorney, for Plaintiff, Appellee.

      Thomas F. Maher for Defendant, Appellant.
    Submitted on briefs March 6, 1897.
    Opinion handed down March 15, 1897.
   The opinion of the court was delivered by

Breaux, J.

The defendant was found guilty of manslaughter and sentenced to imprisonment at hard labor during a term of twelve years.

The defences are autrefois acquit; and the invalidity of the copy of the indictment under which he was tried.

With reference to the plea of once in jeopardy, for the crime charged, he alleged that after the jury had been sworn, it was discovered that no issue had been joined.

We copy from the record:

Now comes counsel for defence and objects to any further proceedings being had herein, on the ground that there is no issue joined between the State and the defendant.”

It appears that after the court had maintained the objection, the defendant’s counsel objected to the jury being discharged.

Subsequently the plea of former jeopardy was filed in the District Court and overruled.

In our view, it was properly overruled.

The indicted person not having pleaded as he contended, he was not in jeopardy, though a jury had been sworn to try him. Bishop on Criminal Law, Vol. 1, par. 1029.

A conviction is an absolute nullity unless it affirmatively appears that the defendant pleaded to the indictment. State vs. Ford, 30 An. 311.

To entitle the defendant to the plea, the proceedings must have been valid.

He had been permitted by the court to withdraw his plea of not guilty, in order to permit him to file a challenge to the array of the grand jury and a motion to quash the indictment. The court, upon his motion, considered that he should have been arraigned after the challenge to the array and the motion to quash had been overruled, and for that reason, on defendant’s motion that the trial could not be proceeded with, discharged the jury.

The defendant was bound by the action of the court, based upon his own showing, that he had not been arraigned. State vs. Byrd, SI An. 419. Moreover, he had not been arraigned; he had been permitted to withdraw his plea; and to stand before the bar as if he had never been arraigned.

“There must be an issue joined before jeopardy can attach.” Am. and Eng. Ency. of Law, Vol. II, p. 932.

We pass to the second of appellant’s grounds — that he was made to answer, although there was no indictment against him.

We are informed by the recitals of a bill of exceptions that, while the jury was being empaneled, it was discovered that the indictment had been lost or mislaid. The court, being fully satisfied by the record and the statement of the District Attorney, that the original indictment had been lost or mislaid, ordered a copy, as he was authorized to order by Act 17 of 1878, and held the proceedings thereunder regular and legal. The statute in question makes it the duty of the clerk of court, within ten days after the adjournment of any term of court during which any bill of indictment has been filed, to record it; and further directs that in case of the loss or destruction of any recorded indictment, it shall be the duty of the judge, on proof of the loss, to order that a certified copy from the record be substituted for the original, and that further proceeding in the cause be had as on the original. The clerk had complied with the statute, and the judge, after proper substitution had been made, determined that there was no necessity for another copy and another arraignment.

The correctness of the copy is not questioned. It is, in addition, evident that the indictment was not to be found.

The ruling was not in any particular prejudicial to the defence, and was in accordance with the authority conferred by the statute.

Moreover, it was strictly a question of fact. With reference to the question of law, we deem it in point to state that a trial of the issue of the loss of the indictment vel non or of the copy, whether a true copy vel non, does not appear to have been contemplated by the Legislature in adopting the statute. The loss of the indictment having been shown to the satisfaction of the judge, and a true copy produced in compliance with his order, it then devolved upon the defendant to prove wherein an error had been committed.

In the absence of such proof we think the ruling is correct.

Lastly, upon this point the rule is well settled; alleged error will not be considered in a criminal case when the bill of exception does not fully set forth the error complained of. No objection was urged to the mode adopted by the trial judge to satisfy himself that the indictment was lost.

This completes a review of the issues. We And no ground upon which the accused can be relieved.

It is therefore ordered, adjudged and decreed that the verdict, sentence and judgment of the court a qua are affirmed.


text:
    No. 12,180.
    S. W. Vance vs. First National Bank of Shreveport.

    Tile maker of a note pledged by the holder who is unable to pay the debt can in a suit settling the rights between the parties require a return of the note pledged, or claim its value in case it be not surrendered.
    Prior decree amended so that the deposit of the notes and deed in court are not required.
    As amended prior decree affirmed.

      On Application for Rehearing—Interest on a stated account on which charges are erroneously made is reduced from 12 per cent, to 5 per cent.
    The plaintiff will have credits for the deed of trust and -notes of six thousand dollars each, as will, as to their value, be established by testimony, provided there be a timely deposit made in court of these securities.
    APPEAL from the Second Judicial District Court for the Parish of Bossier. Watkins, J.

      Leonard & Randolph and F. G. Thatcher for Plaintiff, Appellee,

      Wise & Herndon for Defendant, Appellant.
    Argued and submitted June 5, 1896.
    Opinion handed down June 20, 1896.
    Argued and submitted on application for rehearing November 21, 1896.

      Opinion handed down December 14, 1896.
    Opinion handed down on second application for rehearing January 4, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

Breaux, J.

The defendant instituted a suit to foreclose on mortgage'notes, executed by plaintiff for fifteen thousand eight hundred dollars. The bank held these notes as pledges to secure an indebtedness of S. J. Zeigler, the original holder.

The plaintiff obtained an injunction to restrain the defendant from foreclosing the mortgage on the ground that he is not indebted to the pledgor, Zeigler, and that, as the notes were pledged after maturity, they are subject to all offsets and equities.

It is not disputed that the mortgage notes were pledged after their maturity. In consequence the defendant must meet the issues raised by plaintiff.

Vance, the plaintiff, carried on in connection with Wyche, under the name of Vance & Wyche, a plantation store. He was in addition engaged in planting.

From 1887, date of Zeigler’s first account, to 1893 he had the entire confidence of his young brother-in-law, the plaintiff.

The balance on account, rendered at different times to the plaintiff, was large.

The plaintiff claims that some of the items were improperly charged to him and that certain credits have not been given him on Zeigler’s books.

The accounts of Vance and Wyche with Perrin and Zeigler were closed by note.

S. W. Vance’s account with Perrin and Zeigler for 1888 was closed by note.

After the dissolution of the commercial firm of Vance & Wyche the balance against this firm was charged to Vance, the plaintiff, with Vance’s consent, the defendant contends.

Zeigler testifies that in July of that year the amount of plaintiff’s indebtedness having increased more than he had anticipated that it would increase, for that reason other mortgages were taken.

In February, 1890, Zeigler says that plaintiff’s indebtedness was so large that he requested a partial payment; that he, plaintiff, finally agreed to borrow an amount, and with that object in view they called on Jacobs, of the defendant bank, who consented to make the loan on the collateral security offered, provided Ziegler executed a note for the amount with the collaterals attached. He further states as a witness that he explained to the lender that it was not for himself but for the plaintiff, to enable him to make a partial payment. He says further that the ten thousand dollars in cash borrowed were received and placed to the credit of Vance & Wyche’s account and a receipt given; that a short time afterward a statement was rendered to them showing that it was to their credit.

The plaintiff was present at this, interview; he denies, however, that the loan was for his account.

At the maturity of the note it was paid by the maker Zeigler and the collaterals were returned to him. Afterward, on the 7th of April, 1892, he gave the collateral security previously taken up by him to the bank as collateral to secure an indebtedness then incurred by Zeigler to the bank. Zeigler failed in 1892, a short time after this loan.

It is claimed in this suit on the part of the defendant that it has the right to compel Vance to pay the notes held by it as collateral security.

One of the grounds of defence is that the notes held by the bank were given Zeigler only to secure payment of advances to plaintiff for the year 1889.

That out of the crop of that year he shipped cotton sufficient to pay these advances and thereby satisfied the note and mortgage. Another ground of defence is, that without reference to the proceeds of the crop of that year Vance was not indebted to Zeigler on the 7th of April, 1892.

In stating the facts of the case it becomes necessary to return to the accounts and give consideration to the different items upon which balances are based.

Perrin and Zeigler’s accounts rendered prior to March 11, 1888, show a balance due by Vance, which should have been charged, he urges, to Mrs. M. B. G. Vance, his mother, and plaintiff— i. e., half to each, as,they were partners for whom the payments had been made by Zeigler.

lb is claimed that he is entitled to other amounts as credits than those allowed in the accounts in evidence.

The amounts improperly charged as averred by plaintiff, Vance, are the following, viz.:

1888.
April 2 — 8. Sell, should be, it is contended, Wash. Vanee............................... $360 00
May 5 — 9. Miss Molly Vance........................................................................... 43 00
August 1 — 10. G. W. Senteli & Co., for Wash. Vance......................................... 200 00
November 10 — 11. G. W. Senteil & Co., for Wash. Vance................................ 250 00
November 5 — 13. Miss O. Vance, only one-third of amount charged, due by plaintiff, it is claimed................................................................................ 66 66
November 5 — 14. Interest................................................................................... 242 37
November 5 -15. Interest.................................................................................. 436 81
November 5 — 16. Interest............................................................................. 78 47
1889.
February 5 — 12. Interest....................................................................................... 200 50
$1,830 81

The witness Zeigler admits that all items charged in plaintiff’s account as money remitted G. W. Senteil & Co. was to pay the expenses of plaintiff’s brother, a minor, and that it should not have been charged to plaintiff, Vance. It was done, he says, through a misunderstanding of the book-keeper.

We will later recur to the other items of this account.

Taking up the account of 1889; here, also, it is charged that many of the items are not due by the plaintiff, and he claims that others should be placed to his credit. In addition to those carried in the name of Senteil & Co. for Wash. Vance, the following are claimed, as having been improperly charged:

November 27 — No. 19. M. B. G. Vance.............................................................. $60 80
September 12 — No. 22. Note due April 1, 1889, given in error for Perrin and Zeigler account......................................................................................... 3,800 66
September 12 — No. 23. Interest.................................................................;......... 318 92
September 12 — No. 24. Interest....................................................................... 222 90

The note stated will be considered later.

The only item not a remittance to Senteil & Co. for Wash. Vance is an entry November 7, No. 28: Remittance to Miss C. Vance.

To tbis item we have found no reference in tbe testimony.

The following are the items charged in 1891, which are, plaintiff alleges, erroneously charged:

January 20 — No. 29. Account of Vance & Wyche........................................... $1,766 1 8
“ “ “ 30. Difference in interest........................................... 1.992 25
February 21. “ 31. Interest on notes........................................................ 1,100 00
March 2. “ 32. G. W. Senteil & Co..................................................... 200 00
“ 25. 33. Miss Molly................................................................ 76 00
July “ “ 34. F. Jacobs, part on note........................................ 600 00
“ “ “ 35. Interest...................................................................... 796 00
“ “ “ 36. Miss Vance....................... 9 00
“ “ “ 37. G. W. Senteil & Co., for Wash. Vance......................... 115 30
“ “ “ 38. Interest....................................................................... 963 70

The Wash. Vance items were deducted in the account as having been erroneously charged.

.The question arises shall we deduct from the account of Zeigler all the items plaintiff asserts are incorrectly charged to his account, and charge him (Zeigler) with the amounts proven correct, for which he has not heretofore given plaintiff credit?

As to the latter, it does not admit of question; they must be charged.

It is a matter of detail that will receive attention in the decree.

As to the former,.the evidence is conflicting. It remains that the burden of proof is with the plaintiff, Vance, and that, with the exception of his own testimony on this point, the evidence sustains defendant’s position.

The orders of Vance were not written so as to enable Zeigler to separate the items. On their face they were for the. account of the one by whom signed. Accounts were rendered, and no objection was made.

A meeting was held at the town of Benton in March, 1893. There were present at this meeting the plaintiff and members of his family. They were represented by counsel and no objection was made to these items. As to Wash. Vance’s indebtedness it was explained by Zeigler as a witness that S. W. Vance would give orders to remit moneys to Wash. Vance. The former’s indebtedness increased to such an extent that he inquired of S. W. Vance if those items were not properly chargeable to the account of Wash. Vance? He assented to a change, charging to the latter. At the meeting of 1893 these credits had been given to S. W. Vance, who did not claim any other credits.

This witness, Zeigler, further says that S. W. Vance always said that he was keeping these accounts against the before named members of his family, and that they owed him a great deal. He also states as a witness that he would have much preferred to charge those items to the mother and sister of Vance, as they were solvent and he had cause to fear that Vance was not. He was not given needful information to make such a charge, he did not know that the items were for them, but was led to believe by Vance that they were for his own account. This testimony is corroborated in part by that of the book-keeper who kept the books and made the entries of these items.

S. W. Vance testifies: “The debits on these accounts were for different things, such as improvements, items charged' erroneously on Zeigler’s account and other things. It was goods that were charged to me and to Vance & Wyche that was for them. I kept an account in the books so that I would have a settlement with all of them.”

As to the commercial firm (Vance & Wyche) there is evidence of record that the change in the account from Vance & Wyche to Vance was made with the consent of S. W. Vance; moreover, Vance was responsible for the whole debt without the necessity of any consent.

Vance knew that his creditor had pledged these claims and he never objected. He was, at least, present when the loan on pledge was discussed with the pledgee Jacobs. Zeigler and his pledgee acted upon the faith of the correctness of these charges.

Concluding upon this point, we quote from the testimony of S. W. Vance: “When we could get goods from Hicks & Co., and pay for them by orders on Zeigler, we would not inform him for whom we were getting tbe goods, but would make the proper charges on our books.” Zeigler positively denies that he was ever informed of purchases for any other than the plaintiff himself.

The following items do not seem tobe disputed: Numbers 8 (as above), 9, 10, 11, 12, 13, 21, 28.

As relates to item 22, the note is subject to the deduction of amounts erroneously charged; the same is true of item 29.

Item 39 also is erroneous. Interest on Zeigler’s indebtedness to Jacobs, or to the defendant, should not be charged to the plaintiff. For the same reason item 34 is also erroneous.

The foregoing all relate to the account of Perrin and Zeigler transferred to the latter.

On another, the account (Abstract B) due Zeigler, growing out of transactions personal in character, there seems to be no dispute about the rent of December 1, 1887, (1) Coushatta plantation, year 1887, $166; December 11, (2) Coushatta plantation, $100; December 11, (3) one-third rent Haynes place, 1888, $150; January 1, (4) Improvement South Buck Hall. That is, that these items should, as erroneous, be deducted.

Item 5, January 1,1889, also for improvement of South Buck Hall, is admitted by Zeigler in answer to interrogatories.

Item 6 also should be corrected; February 26, 1889, by allowing credit to plaintiff on note transferred by Zeigler to Perrin; amount not credited and balance due on the note held by the succession representatives against Zeigler as maker.

Items 9 and 10 are charged on account, seem .to us correct, by plaintiff and cover December, 1889, rent Haynes place, $150; December, 1889, rent Coushatta, $70.

A credit of $12,000 is claimed for two notes, secured by mortgage given by Vance to Zeigler in 1891 in pledge by the holder to the Merchants and Farmers Bank. We do not find it possible to determine the value of these mortgage notes at this time.

The insolvency of the maker does not seem to be questioned and there is no evidence of record showing the value of the property.

The maker will be entitled to the credit remaining after his indebtedness will have been settled; for whatever balance there may be. It is not, in our judgment, chargeable against Zeigler or his transferee at this time. There is variance in the testimony relating to the deed of trust of land in Arkansas. We do not think that we would be justified in decreeing that plaintifr be credited at this time.

The value of the pledged property is not shown. After settling and paying the amount of his indebtedness the plaintiff will be entitled to the pledged property not applied to the payment of his debt.

It is admitted that plaintiff should be charged with thirteen hundred dollars rent for 1891, and a sum of five hundred and eleven dollars and eleven cents; amount of a judgment of Dreyfous & Oo. with which Zeigler should be charged, and which Vance does not contest.

The plaintiff has introduced testimony to prove that the notes held by the defendant had been given only to secure advances for 1889.

It will be borne in mind that ten thousand dollars was the sum borrowed and placed to plaintiff’s credit, or to plaintiff and Wyche, the commercial firm. This loan plaintiff says was paid by shipment and sale by Zeigler of the crop of 1889, as acknowledged, he asserted, by Zeigler himself.

This position is controverted, and Zeigler denies that he made such an acknowledgment. As a naked original proposition, the testimony on this point is against him — plaintiff.

This acknowledgment in the course, as we understand, of a friendly conversation does not absolutely conclude the parties.

From the facts we gather that Vance did not demand his notes thus deposited as collateral; that he executed other mortgage notes for a large amount, and placed them in the hands of his creditors without any consideration whatever, unless it was to secure the indebtedness. The crop of 1889 amounted to about six thousand seven hundred dollars. The difference between the advance and the amount of the crop was due by the plaintiff.

The conclusion does seem reasonable that, as between the defendant and Zeigler, the former owns the latter’s right on the accounts, notes and mortgage, and that for the balance due Vance, plaintiff is indebted to the defendant bank.

After the plaintiff will have secured all his rights, aud all proper deductions will have been made, it can not be of great concern to him whether he pays Zeigler or the defendant.

In calculating the interest, plaintiff complains of the amount of interest and of the compound interest charged.

These calculations were made years ago. We do not think we are authorized to strike out the interest entirely.

In making needful deductions to carry out our decree, the interest charged on the amount deducted must also be deducted.

In conclusion, our summary is:

Deduct items 8, 9, 10, 11, 13, 14, 15, 16, 12, 19, 29, 30, 33, 34, 36, 37.

That all interest charged on amount deducted be also deducted at the rate charged.

The plaintiff is entitled to credit of the following not given on accounts rendered:

1887.
December 1 — 1. One-sixth rent Coushatta, year 1887.............................................$166 00
1888.
December 2 — 2. One-sixth rent Coushatta, year 1888 ...................................... 100 00
December 2 — 3. One-third rent Haynes Place, year 1888........................... 150 00
1889.
January 1 — 4. Improvement South Buck Hall.................................................... 250 00
January 1 — 5. Improvement South Buck Hall................................................... 250 00
February 26 — 6. Credit which should have been given on the R. W. Vance
note:
Credit admitted on paper (R. 114,1-2)..................................... 436 00
Rent of Haynes Place (R. 114,1-2)............................................ 150 00
Rent of Coushatta...................................................................... 70 00
1892.
February 13-15. One-eighth purchase price Haynes Place............................... 604 00,

The following claims are allowed to defendant:

Rent note....................................................................................................... $1,300 00
Judgment Dreyfous & Oo..................................................................................... 511 11

The notes, each for $6000, secured by mortgage, given by Zeigler to Vance, and by Zeigler negotiated with Merchants and Farmers Bank, is left open with rights of parties reserved.

The deed of trust — lands in Arkansas — is left open also for future adjustment.

It is ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed.

It is ordered and adjudged that all items be' deducted as stated in the foregoing opinion; that proper credits be allowed as detailed above; interest, cost and balance of indebtedness fixed in accordance with the view herein expressed.

It is further ordered, adjudged' and decreed that the injunction be dissolved to the amount that the plaintiff is indebted to the defendant, after deductions as decreed; that it be made perpetual in so far as it enjoined the defendant from collecting an amount not due, as shown by balance fixed in accordance with view herein expressed.

The defendant to pay the cost of the lower court, and the plaintiff and appellee those of the appeal.

On Application por. a Rehearing.

We have, on this application for a rehearing, made the additional deductions on Zeigler’s account and allowed the additional credits, as we think authorized under the testimony. We have reduced the-interest charged, and allowed on the accounts, from 12 per cent, to 5 per cent.

With reference to the deed of trust for the Arkansas land and the two notes of six thousand dollars received by Zeigler from Vance, we do not think the mere giving these notes and deed of trust, not received in payment, authorizes us to give the credit for the face amounts of the notes and deed. We have no evidence of the value of the notes and deed, and it follows, no basis to give credits. We think the plaintiff should have such credits for the deed of trust and notes as may be established by the testimony as to their value.

We allow to plaintiff the item: January 9, 1890, improvement South Buck Hall. It was credited on statement of Zeigler, offered in evidence, but it was not credited on the account.

Amount thus allowed, two hundred and fifty dollars.

The terms of our decision already include the amount of two hun dred and twenty-nine dollars and ninety-five cents, items on the Wyche and Vance account which are for Wash. Vance.

The claim for five bales of cotton, we do not think is sustained by the facts.

In calculating interest on balances (difference on interest charged on the account) , there should be only one deduction, and not a deduction of interest prior to a change in the charge and on the amount after the change. One credit or one debit for interest.

It is therefore ordered, adjudged and decreed that the last amount shown to be due by Vance to Zeigler by the last and closing account of April 7, 1892, be diminished by deducting seven per cent, of all the interest charged to Vance on the accounts in evidence; and that the indebtedness of Vance be allowed the additional credit stated in the opinion; interest at five per cent, to be allowed on such credits, and that with these deductions and credits the indebtedness of Vance to Zeigler is hereby fixed on the basis shown to be due by said account of April 7, 1892; that the amount of indebtedness is recognized subject to the deductions and credits herein given. The balance due shall bear five per cent, interest from April 7, 1892, until payment.

It is further ordered and decreed that the indebtedness of Vance to Zeigler on account and notes thus established be reduced and credited for such amount as may be deemed ascertained to be the value of the deed of trust and two notes of six thousand dollars (if the latter has any value at all as against the property previously mortgaged) ; said value to be ascertained by testimony on the appropriate proceeding to establish such value.

In establishing the value of these notes, due regard is to be given to the rank of mortgages not affected by the rules of the commercial law relating to securities subject to equities.

Further, that plaintiff be and is hereby decreed entitled to proceed with his seizure and sale on the amount found due in accordance with this decree.

Costs of both courts to be paid by the appellees. As amended here, our decree is affirmed.

We reserve to the parties the right to apply for a rehearing.

Opinion on Application for Rehearing.

The many details in this case have made another examination necessary.

Plaintiff, in one of the statements of record, shows “to one-half of account of S. W. and B. G. Vance, one thousand four hundred and two dollars and fifty cents.” This is an additional amount to which the defendant is entitled.

In our opinion on the rehearing is the following:

We have reduced the interest charged'from twelve per cent, to five per cent.

In the decree by a slip of the pen the following was written: “Diminished by deducting seven per cent, of all interest charged to Vance.” This is corrected and the decree will now read that the reduction of interest is from twelve per cent to five per cent, ■as written in the body of the opinion.

Appellant directs our attention to the ten thousand dollars loaned by E. Jacobs.

We extract the following statement from appellee’s first brief:

April 7,1892. To balance shewn by account rendered....................................$10,367 77
To one-balf o£ account of S. W. & M. B. G. Vance, $2805, one-balf................. 1,402 50

(The item allowed above,)

To credit matter, credit given Vance & Wycbe..............................................$10,000 00
To rent year 1891 ................................................................................................ 1,300 00
'To judgment, Dreyfous & Co............................................................................ 611 01

We have heretofore decided that these $10,000 were properly charged to Vance.

It is incumbent upon plaintiff to prove that this amount of $10,000 has been paid or settled in some way, otherwise he must stand charged with it. His right to prove payment or settlement of this amount is reserved. This is one of the issues upon which the judge a quo will have* to pass.

As to items as follows, viz.:

January 1,1887. Improvements on. South Buck Hall..................................... $250 00
January 1, 1889. Improvements on South Buck Hall........................ 250 00
January 1, 1890. Improvements on South Buck Hall........................................ 250 00

Vance is entitled to these three credits for these improvements— no more.

The appellee sets forth in his brief, that five per cent., if allowable at all as commission for attorney’s fees, should not exceed five per cent, on the amount as will be fixed by decision of this-court.

The fee is thus limited; that is, the fee is allowed on the amount the court finds is due by Vance to Zeigler or his transferee.

The counsel of the appellee in his brief says:

“ That the court should not require Vance to deposit these notes in court a qua as a condition precedent to his right to a credit for their value to be ascertained by testimony. But that, possibly,. Vance might induce the holders of these notes to present them in court a qua on trial of proceedings to ascertain their value for purposes of identification and to show who is holder at that time.”

We do not think, after further consideration, that it is essential for Zeigler, the defendant, or Vance to surrender the deed of trust or the two notes of six thousand dollars each, signed by Vance as maker.

The investigation can be held as to value and credit given to Vance of the amount of this value, without the necessity of having, the papers in court.

To Zeigler is reserved the right of surrendering the notes and deed of trust, and upon that surrender of being relieved from having the claim reduced on account of the notes and deed of trust being outstanding.

But if he does not produce and surrender the said notes and deed of trust, then, in that case, the value is to be ascertained, and he is to be charged with their value as ascertained.

It is therefore ordered, adjudged and decreed that prior deerees are in force save as amended in this decree.

That the sum of fourteen hundred and two dollars and fifty cents is allowed as an additional credit to defendant.

That the reduction of interest is from 12 per cent, to 5 per cent.— i. e., interest at rate of 5 per cent, is to be computed, instead of 12 per cent.

It is further ordered, adjudged and decreed that right is reserved to plaintiff to prove that the ten thousand dollars loaned by Jacobs, to Zeigler, and by the latter to Vance & Wyche, and subsequently charged to Vance have been paid or settled.

It is further ordered, adjudged and decreed that plaintiff be allowed three years’ credit for improvements of South Bupk Hall.

It is also decreed that the attorney’s fee be limited to 5 per cent, on the amount, when fixed'by the decision of court.

And lastly, it is ordered and decreed that plaintiff be relieved from the necessity of producing and surrendering the notes of six thousand dollars each, and that Zeigler be relieved from the necessity of producing and surrendering the deed of trust.

It is ordered that to Zeigler is reserved the right of surrendering the notes and deed of trust, and upon that surrender of being relieved from having the claim reduced (as to their value), on account of the notes and deed of trust being outstanding.

It is further ordered and decreed, if he does not produce and surrender the said notes and deed of trust, then, and in that case, the value is to be ascertained, and he (Zeigler) or defendant is to be charged with their value, as ascertained.

The questions have been argued orally and by brief; a rehearing would serve no purpose.

It is therefore refused.