author: MoEnery, J.

text:
    No. 10,623.
    The State of Louisiana vs. Horace Gonsoulin.
    °Ia an indictment for perjury, it is suJUeient to charge the materiality oí wliat is sworn to.
    it is a question for the jury to determine whether there is variance between the charges in the indictment and the proof offered to sustain it.

      PPEAL from the Twenty-first District Court, Parish of Iberia. Mouion, J.

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

      A. & C. Fontelieu for defendant and Appellant:
    On (lie question oí perjury, tlie materialty oí tlio facts testified to is a (jucstion oí law. Archbold, 172K.
    Tlie indictment shows conclusively, that the alleged false testimony given by the defendant was material to the issue upon which he was examined as a witness.
    If it is not material to the issue, it can not by any means induce the judge to give judgment one way or the other.
   The opinion of the court was delivered by

MoEnery, J.

The defendant was indicted for perjury, and convicted and sentenced to hard labor for one year.

The defendant appealed and relies for a reversal of the judgment upon a motion in arrest of judgment, which is based upon the following grounds:

First. Because the pretended false statement does not appear to be material upon the face of the indictment.

Second. Because the deposition or assertion made by the accused was not material to the issue pending — the pending issue being relative to the ownership of a certain cow,"and the fact that the accused swore that that cow bore the brand of one Gabriel Gonsoulin in 1882, did not, and could not, mean that he swore that the said Gabriel Gonsoulin was the owner of the animal in question.

The bill of indictment alleges, “that on the 16th day of the month of July, 1887, in the parish of Iberia, aforesaid, in the fourth ward of said parish, before A. Fenelon Dugas, a justice of the peace, duly elected, commissioned and sworn as such justice of the peace, in and for said fourth ward of said parish of Iberia, then and there holding his court in a certain cause wherein one Chas. Y. Broussard was the plaintiff, and one Homer Gonsoulin was the defendant, a certain plea and issue between the said plaintiff and the said defendant, as to the ownership of a certain cow, the subject matter of said suit, came to be tried in due form of law, etc., upon which said trial one Horace Gonsoulin then and there appeared as a witness in ■said case, on the plea and issue aforesaid, and was then and there sworn according to -law, and it then and there became, and was a material question to know whether in the year 1882 the cow forming the subject matter of said suit bore the brand of one Gabriel Gonsoulin, and the grand jurors do further present, that the said Horace Gonsoulin being so sworn, as aforesaid, contriving and intending to prevent the due course of law and justice, etc., falsely, corruptly, knowingly, willingly and maliciously, did depose and swear in substance and to the effect following, that is to say, that in the year 1882, the cow, forming the subject matter of the aforesaid suit, bore the brand of one Gabriel Gonsoulin.”

The indictment distinctly charges the materiality of what was sworn to. This is sufficient. Bis. Orim. Proc., par. 924, Yol. 2 E.

It is charged in the indictment that the brand on the cow of Gabriel Gonsoulin was a material fact to prove ownership.

It is a question for the jury to determine whether there is variance between the allegation in the indictment and the proof offered to sustain it.

Judgment affirmed.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 10,606.
    The State of Louisiana vs. Ross Guillory.
    1. The charge In an Indictment, and not the verdict of the jury or judgment of the court, determines the right of appeal.
    2. riuler an indictment for murder a verdict of “guilty with an assault with the intent to kill” is not responsive to the charge in the. indictment, and the variance is fatal.
    8. The two offences are separate and distinct crime's, which could not be joined in the same count in the indictment.
    A PPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      Walter H. Rogers, Attorney General, for the State, Appellee:
    “ The proem verbal of the coroner's inquest is admissible for the restricted purpose of showing the fact and cause of death.” 39 An.*419.
    Self serving declarations made after traveling half a mile from the scone of the homicide can not bo taken as part of the res gestee.

    This court will not interfere with the enforcement of reasonable rules made by the • lower court for the purpose of expediting business. Conviction for a minor included in a major crime responsive to the verdict.

      E. P. Veazie and C. W. DuRoy for Defendant and Appellant:
    J. The charge irfthe indictment, and not tlic verdict of the- jury, determines the* right of appeal.
    2. Under an indictment for murder, a verdict of “ guilty of an assault with intent to hill ” is fatally variant.
    3. The two offences are separate and distinct crimes, which could not be joined the same count of an indictment.
    4. The trial judge must charge the jury in writing, if requested by the counsel of either imrty, in all cases appealable to the Supreme court. Const, of 1879, Art. 81; 33 An.1227; 37 An. 200; 34 An. 977; 26 An. 599; 35 An. 535; 37 An. 729, 785.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for murder, and convicted of an assault with intent to kill, and sentenced to pay a fine of' $100 and to be imprisoned in the parish jail for six months. From this judgment he has appealed. 1

On Motion to Dismiss.

The motion to dismiss the appeal is based on the fact that the fine-imposed does not exceed $300.

The offence charged in the indictment is punishable with death or-hard labor.

This question of jurisdiction under Art. 81 of the Constitution of 1879 was elaborately reviewed in the case of State ex rel. Gabriel vs. Judge, 33 An. 1227. The interpretation of the article was that-“under the present Constitution, the accused, in criminal cases in which the punishment of death or imprisonment at hard labor maybe inflicted, is entitled to an appeal to this court, whether the verdict of the jury or judgment of the lower court is or not for a lesser-punishment.”

This has been affirmed in several, cases. State vs. Williams, 37 An. 200; State vs. Taylor, 34 An. 978.

The motion to dismiss is therefore denied.

There are several defences urged.

It will be necessary to notice only the exception to the judge’s, charge to the jury and the motion in arrest of judgment. They will, be considered together, as the verdict was in accordance with that portion of the charge excepted to.

The indictment charged murder.

The verdict was guilty of an assault with intent to kill.

The motion in arrest of judgment is that no such verdict could be-returned on the indictment.

It must prevail.

The two offences are separate and distinct, and could not be included in the same count in one indictment. They are not of the-same generic class, and the lesser is not included in the greater.. The verdict was not responsive to the indictment. State vs. Pratt, 10 An. 191; State vs. Murdoch, 35 An. 729; State vs. Day, 37 An. 785; State vs. Oliver, 38 An. 632.

Under our jurisprudence on an indictment for murder a verdict for-only one crime, manslaughter, of a less grade is permitted. R. S.,. Sec. 785.

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


author: Breaux, J.

text:
    No. 10,628.
    The State of Louisiana vs. Thomas Clement, Jr.
    1. Forgery can be proven, although the instrument forged is not minutely described; provided it be described by any name by which it is usually designated.
    2. An allegation of the value of the forged instrument is not essential in the indictment or information.
    3. The offene.e may be charged in different ways in several counts.
    4. When counts for felonies are joined in a way to prejudice the defendant, the remedy is by motion to elect, motion to (ptasli; but after verdict it is too late.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buchner, J.

      Walter H. Rogers, Attorney General, for the State, Appellee:
    Bill of indictment need not contain an exact copy of the forged instrument. 41 An. 318.
    Verdict of the jury not invalidated by a clerical error. 34 An: 370.

      K. A. Cross for Defendant and Appellant,
    cited: State vs. Sheldon, 8 Rob. 542.
   The opinion of the court was delivered by

Breaux, J.

The accused is charged with having committed forgery.

From the sentence to hard labor he appeals.

During the trial he objected to the admissibility of evidence, and assigned as error, that the bill of information was too vague and indefinite to authorize the admissibility of the proof offered; that the check alleged to have been forged was not described, nor the name forged alleged.

The objections were overruled and a bill of exceptions was reserved to the court’s ruling.

By way of motion in arrest of judgment, the grounds overruled and reserved in this bill are alleged, and with particularity it is set forth that the first count of the bill of information is insufficient and illegal; that it is not alleged in what the forgery consisted, nor whose name was forged on the order.

A bill of exception's was taken to the court’s refusal to permit its minutes to be amended by substituting the words ‘“guilty on both accounts” to the words “guilty on both counts.”

Lastly, it it assigned as error that the accused was not present when the motion for a new trial and the motion in arrest of judgment were argued and overruled and when the verdict was returned into court.

I.

In support of his proposition, the first presented, with reference to vagueness and the absence of material allegations, counsel for the defendant cites as authority the case of the State against Sheldon, 8 R. 540.

Since the date of that decision the statutes denouncing forgery have been amended and remodeled, and criminal pleadings, in so far as relates to forgery, have been liberalized without curtailing the protection. of the innocent, accused of crime. State vs. Maas, 37 An. 293; State vs. Mignon, 40 An. 735; R. S., Sec. 1049.

It is sufficient to describe the instrument forged by any name by which it is usually designated.

It is not essential to state the value of the forged instrument in the indictment or bill of information.

It is alleged that the accused forged the endorsement.

This denounces the felony, and sufficiently notifies the defendant of the name he is accused of haying forged. It was proper to admit the evidence.

II.

In support of defendant’s motion in arrest of judgment, it is urged by counsel that the first count does not charge in what the alleged forgery consisted, or the amount of the order, or whose name was forged.

That the second count does not- charge whose name was forged as endorser, and does not describe the order.

We have already discussed some of these grounds, and have expressed our conclusions.

The defendant is charged in two counts.

In the first, with having falsely made, forged, counterfeited and uttered as true, a false order, for the payment of money, knowing the same to be false, forged and counterfeited, with intent to injure and defraud the First National Bank of Baton Rouge.

In the second he is charged with having falsely made, forged and counterfeited and uttered as true an endorsement of a bill of exchange, for the payment of money, knowing the same to be false, forged and counterfeited, with intent to injure and defraud the First National Bank of Baton Rouge and A. Martinez.

In'each count he is charged with forgery, and altering and publishing a forged instrument.

In the last he is especially accused of having forged the endorsement on this forged instrument.

The defendant chose to plead to the information without presenting the plea of duplicity, without calling on the prosecutor to elect, ■ and without motion to quash.

In permitting different counts the object is to permit the charge to be brought so as to prevent an acquittal by reason of insufficient allegations.

Bishop on Criminal Procedure, page 422, sets down certain rules on the subject, and concludes that where counts for felonies are joined contrary to these rules, or in any way to prejudice the defendant, the remedy is by motion to compel the prosecutor to elect on which count he will proceed, or by motion to quash; but after the verdict it is too late. State vs. Depass and Baptiste, 81 An. 488.

The offence may be charged in different ways in several counts. Nelson vs. People, 5 Parker, 39; Lanagan, vs. People, 6 Parker, 209.

III.

It is also contended that the defendant was not present when the-motions for new trial and the motion in arrest of judgment were heard and overruled, also when the verdict was returned into court.

There was no necessity of his presence when the motions for a. new trial and in arrest of judgment were argued and denied.

He was present when the verdict was returned into court. State vs. White, 37 An. 173.

He was present when the jury was impaneled.

The case was tried in a day; there was not any adjournment during the trial; unless the absence is shown, the defendant must be considered present when the verdict was returned into court. State vs. Victor Price, 37 An. 215.

IV.

The last ground is directed against the form of the verdict.

The defendant presents that he is' aggrieved in that the verdict-read “guilty as charged in both accounts,” and that an incorrect entry was made in the minutes of “guilty as charged on both counts.”

This does not vitiate the verdict. It escaped attention at the time; some time after the entry had been made in the minutes; after sentence and after the judgment had been signed, a motion was made to correct the minutes and refused.

The verdict might have been delivered orally. It was idem sonaua, and not a material error. State vs. Florey, 5 An. 429; State vs. Ross, 32 An. 854; State vs. Smith, 33 An. 1414.

Judgment affirmed.


text:
    No. 10,640.
    State of Louisiana vs. Fred. Bellow.
    Xhe use of wine in moderate quantity atameal will not per se vitiate llie finding* of the jury, when not attended by circumstances of misconduct and it is not shown that any member was under the influence of an intoxicating* liquor.
    ►Separation of a juror from his fellows a moment to wash his hands in one of the jury rooms, the door to which was open in the court room, in view of the officer in charge, is not cause for a new trial.

      APPEAL from the Criminal District Court for the Parish of Orleans Marr, J.

      Walter H. Rogers, Attorney General, for the State, Appellee,
    cited; 41 An. 584.

      Louis P. Paquet and Paul O. Lasselle for Defendant and Appellant
    1. In cases where persons are charged with the crime of rape,' statements made to third parties by the prosecuting witness, two hours after the commission of the alleged offence, that the accused was the party who committed the alleged offence, is inadmissible against tlie accused to prove his identity. State ys. Robertson, 38 An. 618.
    2. Jurors in capital cases are not permitted to have wine brought to them in a demijohn containing two gallons, either for their meals or otherwise, without an order of court. State vs. Brunetto, 13 An. 49; State vs. Demarcate, 41 An. 413; State vs. Broussard, 41 An. 83.
    3. Jurors in capital cases are not allowed to separate; and in the case of a conviction of a capital offence, and where it appears jurors have been permitted to separate, there arises a presumption of undue influence, and a now trial will bo granted. State vs. Evans, 21 An. 331; State vs. Frank, 23 An. 213; State vs. Hornsby, 32 An. 1268; Knob. Or. Digest of La., p. 295, par. 3, and authorities there-quoted.
    4. In capital eases jurors are not permitted to separate, even if they have agreed upon their verdict, where it is shown that the separation took place during the • recess of the court, and before they had delivered their verdict in open court in presence of the accused. State vs. Hornsby, 32 An. 1268.
    3. After the cause lias been submitted to the jury, if a separation takes place, and even if the juror who lias been permitted to separate is accompanied by a sheriff, such separation will vitiate tlieir verdict. Knob. Or. Dig. of La., p. 297, par. 3 and 6, and authorities there quoted.
   The opinion of the court was delivered by

Breaux, J.

The- accused was charged with having committed a rape.

He was found guilty of assault with intent to commit rape, and-, sentenced to two years’ imprisonment at hard labor.

From the verdict and sentence he appeals.

The appeal rests on the overruling of a motion for a new trial.

The grounds are: The misconduct of the jury in that, without an-order of court, they were permitted to have wine brought to them in such quantity as to have occasioned misbehavior; also, that they separated after the judge’s charge and before returning into court, with their verdict.

To sustain the grounds of the motion a number of witnesses were examined at the instance of defendant; none on the part of the State.

The record discloses that one of the jurors wrote an order for two gallons of wine, which he handed to the deputy sheriff in charge of the jury.

The wine was provided. At dinner it was served by another deputy, in about equal quantity to each juror, except one, who does not drink. Two of the deputies also drank of the wine. The whole quantity used was about one gallon.

The remainder was taken away after the dinner by one of the deputies.

The jury did not have any wine before or after the meal.

An attempt was made to prove that one of the jurors was not sober in the room of deliberation. This failed.

Three witnesses for the defendant testify, in positive terms, that he was not under the influence of liquor.

Two others, of his witnesses, testify that the juror was ill, or had an appearance of illness; and one of the two adds, that he did not have an entirely sober look about him.

These witnesses, at the time, were not near this juror; they did not speak to him.

The three other witnesses were the deputy sheriffs in charge of the jury. They were with' him and unhesitatingly assert that he was sober.

The trial judge, in overruling the motion for a new trial, said “that he is informed that it has been for years past the habit to allow jurors to have claret for their dinner.”

The wine should not have been sent to the jury without a special ■order from the presiding judge.

As it was not the cause of any misconduct on the part of the jury, the verdict will not be annulled.

It would be decidedly preferable if, while jurors are entrusted with the consideration of questions involving the life and libert5r of a fellow being, nothing but necessary food were provided.

At any rate, if intoxicating liquors are deemed necessary, they should he procured only on the judge’s order.

We will avail ourselves of this opportunity to state that we adhere strictly to the cases of the State vs. Broussard, 24 An. 83, and State vs. Demareste, 41 An. 413, on the subject, and that in a case at all similar our conclusions would be the same as that arrived at in those cases.

The next ground of the motion for a new trial is not supported by the facts.

It is alleged that one of the jurors was permitted to separate from the jury.

The testimony shows that one of the number at one time while the jury was being conducted by deputies from one apartment to another was a little slow in following. The deputy who was following in the rear urged him on. This can not give rise to serious complaint.

At another time, while the members of the jury'were standing on the gallery projecting in the court room, one of the jurors stepped into one of the jury rooms and washed Ms hands.

The three deputies in charge of 'the jury testify that he was followed by one of their number, and in a few minutes returned.

There is conflicting testimony as to the immediate presence of the officer in the room. It is unimportant, for if the juror was absent at all, it was only for a moment, within view of the .officer. State vs. Johnson, 30 An. 921; State vs. Kennedy, 8 R. 590.

The motion for a new trial was legally denied.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,634.
    The State ex rel. T. Nores et al. vs. Judges of Court of Appeals of the Third Circuit.
    A suit to annul a tax sale for $180 of property wortli more tlian $2000, ■with a view to subject it to the payment of a sum exceeding- $10,000, lias for its purpose the validity of the title to the property.
    The result of a judgment in such a case can only be to recognize title to the ownership of the property in either of the claimants.
    Sueli judgment would adjudicate upon a matter in dispute of a value exceeding $2000.
    The Oourt of Appeals was right in refusing to take jurisdiction on the ground that it bad none ratione materim over the controversy.

      2!((jid(ü»ns does not lie to them.
    A: PPLICATION for Mandamus.

      T. D. Foster and W. J. Burke for the Relators.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an application for mandamus to compel the respondent judges to take jurisdiction of, and determine on its merits, a case which they have declined thus to decide, on the ■ground that they have no jurisdiction over it, ralione, materia?.

The suit which the relators have brought, and which the District ■Court dismissed, has for its object to annul a tax sale of a certain plantation under which the defendants hold, in order to subject the property to the payment of a large sum due relators, said to be secured by vendor’s privilege and special mortgage thereon.

The tax sale was for $180; the amount of the claim said to be thus guaranteed, and the value of the property, are far in excess, separately, of $10,000.

The purpose of the suit is clearly to have the court to declare that the property, which exceeds $10,000 in value, still belongs to the succession of one Hayes, because the tax sale thereof to the defendants in the suit is a nullity, for the many reasons alleged.

The consequence of a judgment in that case would be to recognize title to the property, either in the succession or in the defendants.

The price, $180, for which the property was sold at the tax sale, is no more a factor in the question of jurisdiction than the absence of any consideration would be if the property had been the object of a gratuitous donation. It would be an easy way of securing property from just creditors.

The matter in dispute is the title of the property, which is worth more than $10,000, and the claims to which it is expected to subject it, amount to more than that sum.

It is clear that the judges of the 'Court of Appeals have ruled correctly in holding that they have no jurisdiction over the controversy, xatione materise.

It is therefore ordered and decreed that the application for a mandamus be refused at the cost of relators.

Mr. Justice Breaux recuses himself, having been of counsel.


text:
    No. 10,607.
    The State of Louisiana vs. Adam Anderson.

      .An accused lias a right to have testimony reduced to writing, in exceptional cases, to establish material facts touching which their exists a difference o£ opinion between the judge and himself, which would have disclosed a condition o£ tilings favorable to the accused and assisted him in his efforts for an acynittal.

      A bill of exception, taken to tlie refusal of the trial judge to cause sucli testimony to be taken down, can not bo sustained when it does not show the nature and substance of the testimony; that there existed a differeneobotween the accused and the judge; that the testimony was illegally admitted and was insuflicient to serve as a foundation for the introduction of proof of voluntary declarations, and that, had the' testimony been written down, it would have shown that the declarations ought not have been received, and that, by its not being thus taken, the accused has sustained real injury.
    A motion in arrest, based on the insufficiency of the description of part of the goods alleged to have been stolen, in an information for larceny, comes too late, after trial and conviction. Even if the description was defective it would be- no reason to quash the entire information, where it contains another good count, descriptive of other obiects said to have been stolen.
    A bill of exception to the overruling of a motion in arrest is a superfluity.
    A PPEAL from the Thirteenth District Court for the Parish of St. ÍX Landry. Lewis, J.

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

      E. P. Veazie and Chas. DuRoy for Defendant and Appellant.
   The opinion of the court was delivered by

Bermudez, C. J.

Anderson appeals from a judgment sentencing him to hard labor for eighteen months, on a conviction for larceny.

The record contains a bill of exception to the refusal of the trial judge to have certain testimony reduced to writing; a motion in arrest and an other bill, to the overruling of such motion.

I.

The first bill recites, “ that, on the trial of this prosecution, on its merits, the State was proceeding to offer evidence to lay the basis for the introduction in evidence of voluntary declarations of the accused, when the accused asked the court to reduce the said evidence to lay a basis to writing, inasmuch as this was a question of blended law and facts, reviewable by the Supreme Court, and inasmuch as the accused wished to have the question reviewed by the Supreme Court, which could only be done by writing down said evidence to lay a basis for the introduction of voluntary declarations; but the court refused to reduce the same to writing, and proceeded and admitted the said declarations of accused. To which ruling,” etc.

In support of this position the decision in State vs. Seiley, 41 An. 143, is invoked.

The right of the accused to have testimony reduced to writing in exceptional cases was there, it is true, recognized; but, for the sole purpose of establishing material facts, in cases in which a difference of opinion as to such facts exists between judge and accused, and in which, had the testimony been thus reduced, it would have disclosed a state of facts favorable to the accused, and assisted him in his efforts for an acquittal.

In the present instance the bill does not show, as it ought, the nature and substance of the testimony, whether there existed any difference between judge and accused or counsel; that it was illegally received and is insufficient to serve as a foundation, and that, had the testimony been thus taken down, it would have shown that the voluntary declarations should not have been received, and that, by its not being so reduced to writing, accused has sustained great and irreparable injury.

The bill can not, therefore, be considered well founded.

II.

The motion in arrest of judgment charges “that the indictment against him (accused) is insufficient, defective and null in this: that it does not describe all the goods alleged to have been stolen, with legal certainty; that part of the count charging the stealing ‘and other things of the goods and chattels of Joseph Landry,’ being a component part of the charge, is too vague and indefinite,” * * * and does not enable “the defendant, in case of acquittal or conviction, to plead the same to a subsequent indictment relating to the same property.”

If the information was defective in not specially describing the “other things,” the accused should have demanded before trial a bill of particulars, or objected to the admission of proof when offered during trial, to show what those “other things” consisted in.

After taking the chances of a trial without any complaint on that score, his attack comes too late. Even if he were in time, it is more than questionable whether the objection could prevail against an information which contains a sufficient description of other goods, and effects alleged to have been stolen. 37 An. 856.

III.

The hill of exception taken to the overruling of the motion in arrest is a redundance. The decree denying the motion is of record. Bills of exception are designed to put of record matters which, without them, would not appear. Considering that the motion in arrest was properly set aside, it is unnecessary to notice this bill further.

'Judgment affirmed.


author: Eenner, J.

text:
    No. 10,576.
    The Wilson Sewing Machine Company vs. The Southern Express Company.
    An equitable estoppel arises when one party to an action has, by his faulty and negligent conduct, induced his adversary, from whom he claims a loss, to omit some act, or acts, which, but for said fault and negligence, he would have done, and which, if done, might have prevented the loss.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Bice & Armstrong for Plaintiff and Appellant:
    1. Express companies are common carriers.■ Hutchinson on Carriers, Sec. 68; Red-field on Carriers, Sees. 47,64; Anderson’s Dictionary of Law, verb. “ Express Carriers.” So. Ex. Co. vs. Cook, 44 Ala. 473.
    Courts take judicial notice that express companies are common carriers. AVells, Jfargo & Oo. vs. Cook, 16 Am. and Eng. Ry. Cases, 71.
    2. A stipulation or condition in a bill of lading, or express company’s receipt, purporting to exempt it for losses resulting from its negligence, or that of its servants, is void. Hutchinson on Carriers, Secs. 42 to 44,248,250,257,260 to 263; N. O. Mut. Ins. Co. vs. N. O., J. & G. N. R. R. Co., 20 An. 302; Berje vs. T. & P. Ry. Co., 37 An. 468; O. C. 2754; Phoenix Ins. Co. vs. Trans. Co., 117 U. S. S. C. 322; R. R. Co. vs. Lockwood, 17 Wal. 357; Liverpool Steam Co. vs. Phoenix Ins. Co., 129 U. S. S. O. 435, et seq.; R. R. Oo. vs. Ealer & Co., 9 Am. and Eng. Ry. Oases, 97; Nicholas vs. R. R. Co., 9 Am. and Eng. Ry. Cases, 103; Holsapple vs. K. R. Co., 3 Am. and Eng. Ry. Cases, 487; Scrutton on.Charter Parties and Bills of Lading, pp. 145 and 149.
    '3. A like stipulation or condition, purporting to limit its liability, in any event, to $50, is void, where the property is lost through its negligence, or that of its servants; and in eases of conversion. Lawson on Carriers, Sees. 92, 93, 95; Maginn vs. Dinsmore, 62 N. Y. 35; 56 N. Y. 168; 76 N. Y.; Unnevehr vs. S. S. Hin■doo, 1 Eed. Rep. 627; Lockwood vs. Ry. Co., 17 Wal. 537; Hutchinson on Carriers, Secs. 248, 250, 256, 260 to 263; AVesteott vs. Eargo, 61 N. Y. 551; MeEadden vs. Ry. -Co., 4 S. AV. Rep. 689; The Montana, 17 Eed. Rep. 379.

      4. A like stipulation or condition, that the company shall be liable, in no event* for loss or damage, unless claim thereof be presented within thirty days, is void, where the loss was caused by the negligence of the express company, or its servants. Westcott vs. Fargo, 61N. Y. 553, et seq.; Lawson on Carriers, See. 186; Porter vs. So. Ex. Co., 4 S. C. 135; Browne on Carriers, p. 144; 2 Am. and Eng. Enc. of Law, p. 909. .
    5. “ Loss and damage,” as found in a carrier’s receipt or bill of lading, does not include loss or damage from negligence, except in those countries or States whore limitations are permitted, and then the limitation as to loss or damage from negligence must be express. Westcott vs. Fargo, 61 N. Y. 551, 553; French vs. R. R. Co., 4 Keyes (N. Y.) 108; Guillaume vs. Hamburg', etc., lb Co., 42 N. Y. 213; Berje vs. R. R. Co., 37 An. 469.
    6. Non-delivery, misdelivery, nor any other species of conversion, is included in the terms “ loss or damage ” found in defendant’s express receipt. Conversion is not “ loss or damage.” Hutchinson on Carriers, Secs. 344, 390, 428; Lawson on Carriers, Sec. 186; Browne on Law of Carriers, p. 144; Berje vs. R. R. Co., 37 An. 469; Westcott vs. Fargo, 61 N. Y. 553; AnderSon’s Dictionary of Law, verb. “ Conversion;” Covington vs. William, Gow. 115; Bishop on “Non-Contract Law,” Sec. 405.
    7. The law admits no excuse for misdelivery, or failure to deliver (conversion), except the fault of the shipper. Furman vs. Ry. Co. (N. Y.), 32 A. and E. Ry. Cases, 500; Wilson 8. M. Co. vs. Ry. Co. (Mo.), 6 A. and 35. Ry. Cases, 593; Tattle ítóck, etc., Ry. vs. Glidewell (Ark.), 18 A. and E. Ry. Cases, 539.
    8. Construction of clauses in bills of lading and carrier’s receipts is contra proferentem. Hutchinson on Carriers, Sees. 276, 275, 270; Menzell vs. Ry. Co., 1 Dillon, 534-5; Bank of Ky. vs. Adams Ex. Co., 93 U. 8.174; Carvers’ Carriage by Sea, p. 172; French vs. R. it. Co., 4 Keyes (N. Y.) 108.
    9. There can bo no estoppel en pals, where the, party pleading- the estoppel know, or, under all the circumstances, ought to have known the facts upon which the estoppel is founded. Bigelow on Estoppel, 5th Ed. 557, 570, 626; Wait’s Actions and Defences, Vol. 6, C81, 683, 685, 707; Leather Manuf’g Bank vs. Morgan, 117 U. S. S. C. 112; Steel vs. Smelting Co., 106 11. S. S. C. 456; Brant vs. Ya. O. &J. C., 93 U. S. S. O. 326; Hensliaw vs. Bissell, 18 AVal. 255.
    10. The proscription of the instant cause of action is ten years. C. C., Art. 3544.
    11. The measure of damages for loss or conversion of a debt, by carrier’s or agent’s default, is prima facie the amount of the debt and the interest thereon. Westeott vs. Fargo, 61 N. Y. 551, et seq.; Jolletts vs. Ry. Co., 16 A. and E. Ry. Cases, and .notes, p. 249; Sutherland on Damages, Yol. 3, p. 238; Miranda vs. City Bank, 6 La. 741; Livaudais vs. Davis, 4 An. 300-4; CraAvford vs. Bank, 1 N. S. 214, 365; Collins vs. Andretvs, 6 N. 8.195; Police Jury vs. Bullitt, 8. N. S. 323, 327-8; ITennen vs. Johnston, 7 An. 366; Sedgwick on Measure of Damages, Vol. 2, p. 94; Segura VS. Reed, 3 An. 696; Art. C. C. 2754, 2948, 2953.

      Leovyx & Blair for Defendant and Appellee:
    1. An estoppel enpais or equitable estoppel occurs when a party to an action has* by his statements or conduct, induced the other party to do some acts which otherwise would not have been done, or to omit to do some act or acts which he would have done, and by means of which he has been injured. 6 AYait’s Action and Defences, pp. 681, 683, 685, 684; Con. Bank vs. Bank of Com., 50 N. Y. 575; Weinstein ys. National Bank, 6 Southwestern Reporter 174; Leather Manufacturers' Bank vs. Morgan, 117 U. S. 96; Sessions ys. Rice, 80 N. W. Reporter 735.
    2. The stipulation in the receipts, or contracts of shipment, requiring claims for loss or damage thereunder to he presented within thirty days, is valid, and is fatal to plaintiff’s case. Express Co. vs. Caldwell, 21 Wall. 264; 32 Am. and' Eng. Ry. Cases, p. 546, note; Wheeler’s Modern Law of Carriers, p. 123.
    3. The receipt, or contract, under which the first package of notes was shipped contained a limitation of liability to $50 in case no other value was stated. As no valuation was placed on the notes by the shipper, this .stipulation limits the amount of recovery in any event to $50. Hart vs. Railroad Co., 112 U. H. 331; Louisville, etc.,R. R. Co. vs. Sherrod, 4 Southern Reporter 29; Craves vs. R. R. Co., 137 Mass. 133; Wheeler’s Modern Law of Carriers, p. 123.
    4. There was no misdelivery of the notes. They wore handed to the managing-member of the firm to whom consigned. They had boon sent at his personal request. The collection of old notes was not a part of the firm business. If the itrm chose to repudiate the transaction, it could do so whether Kirby signed for the notes individually or in the firm name.
   The opinion of the court was delivered by

Eenner, J.

The statement of the ease made by the District Judge in his reasons for judgment is so full and so perfectly correct that we adopt it.

Plaintiff sues the defendant for damages suffered by the non-delivery of three packages containing promissory notes, valued at §3164.80, to the consignee, S. B. Kirby & Oo., at Little Rock, Arkansas.

The evidence proves the following substantial facts:

On October 1, 1883, the plaintiff delivered to the Adams Express Company at Chicago a package of promissory notes of the face value of §2348.58, addressed and to be delivered to S. B. Kirby & Co., at Little Rock, Arkansas. Around the package and enclosed in the sealed envelope delivered to the express company was a list of the notes and a receipt to be signed by the consignee. Accompanying the package was also a letter of instructions addressed to the express company at Little Rock, Arkansas. It instructed the company, upon receipt of the package, to deliver it to S. B. Kirby & Co., when they had compared the notes with the list in the^ receipt and signed the receipt. It also instructed the express company to return the receipt given by Kirby & Co. to plaintiffs.

The express company received the package, agreed to deliver the same for a charge of fifty cents, signed the usual receipt, which contained in printed letters a special contract limiting their liability for loss or damage, unless claim therefor be made within thirty days after date of shipment and to the extent only of $50, unless a greater valuation should be given by the shipper at the time of shipment.

This contract inured to the benefit of the connecting carrier.

The defendant, the Southern Express Company, received this package from the Adams Express Company, at St. Louis, and carried it to its destination, Little Rock, Arkansas. It was received by the express agent at Little Rock, George T. McFadden, on October 3, 1883.

The firm of S. B. Kirby &Co. was composed of Samuel B. Kirby and Logan H. Roots. Kirby was the managing member of the firm.

The agent sent the package to the firm and Kirby declined to receive it. The agent then carried it to their office in person, and Kirby stated that the Wilson Sewing Machine Company had made a mistake in sending the package to S. B. Kirby & Co., and that it should have been sent to him individually. The agent answered that the package was sent to S. B. Kirby & Co.; that they were the proper parties to deliver it to, and that his receipt was good. Thereupon Kirby opened the package, took out the notes and list, compared the same and then signed the receipt, “S. B. Kirby.”

The agent then placed the receipt and the original letter of instructions in a sealed envelope marked “Receipt of S. B. Kirby & Co.,” and addressed it to the Wilson Sewing Machine Company, Chicago, and forwarded the same on October 4, 1883. It was received by plaintiff about October 6, 1883.

On October 19, 1883, plaintiff delivered another package of notes, • face value $2860.44, addressed to S. B. Kirby & Co., with a like list, receipt and letter of instructions. The express company entered into a like contract with the exception of limiting its liability to the sum of $50. This package was received by the agent of the Southern Express Company at Little Rock, and delivered by him on October 24, 1883, to S. B. Kirby. Kirby and the agent made in substance the same statements. Kirby signed the receipt, “ S. B. Kirby,” and the receipt, list and letter of instructions were in like manner sent to the plaintiffs at Chicago. . They were received by the plaintiffs about October 26, 1883.

On December 10, 1883, plaintiffs delivered to the Adams Express Company another package of notes addressed “S. B. Kirby & Co.,” face value $88.45, and they were delivered, received and receipt signed and returned in like manner. The last receipt was returned December 18, and received by plaintiffs about December 20, 1883.

These notes were secured by pledge on sewing machines sold to the signers thereof. They were held by plaintiffs as collaterals to secure an indebtedness due to them. They were sent to S. B. Kirby & Co. for collection.

Plaintiff demanded of S. B. Kirby & Co. the return of the notes. On January 15, 1884, S. B. Kirby & Co., in answer to the demand, denied that they had ever received the notes and refused to return them.

On the 17th day of October, 1884, plaintiffs obtained judgment in the United States Circuit Court at Little Rock, Ark., for $3164.80 against S. B. Kirby on the debt due for which the notes herein mentioned were given as collateral. The judgment was not realized, as Kirby was then insolvent.

On the 9th of July, 1885, plaintiffs sued the Adams Express Company for $10,000 damages, sustained by the loss of the said three packages of notes. They also sued S. B. Kirby & Co. in Chicago. In both suits judgment was rendered in favor of defendant.

On the 15th day of June, 1885, eighteen months after the delivery of the notes, a demand for their return or value thereof was made upon the defendant, the Southern Express Company.

On April 23, 1888, this suit was filed. S. B. Kirby is now insolvent, and the notes, under the laws of the State of Arkansas, were prescribed when this suit was filed.

Defendant sets out several defences arising out of the conditions expressed in its contract, and also pleads estoppel.

The estoppel, which was sustained by the judge a quo, appears to us to be so clearly well founded that we find it unnecessary to consider any other defences.

We are dealing with no gross misconduct on the part of defendant. The main function of an express company is to make safe carriage of things entrusted to it to their destination, and there to make delivery to one authorized to receive it. Here the express company’s agent delivered the thing at the proper place, and into the hands of the proper person, viz: at the office of S. B. Kirby & Co., into the hands of the managing partner of the firm, S. B. Kirby. The only error committed was in accepting a receipt signed by S. B. Kirby instead of S. B. Kirby & Oo. The agent evidently thought that the duty of the express company was fully discharged by such proper delivery, and if the receipt taken proved the fact of delivery, it mattered not whether S. B. Kirby, who was authorized to receive it, signed the receipt in his own name or in the firm’s name.

However this be, he immediately complied with the direction contained in plaintiff’s letter of instructions by returning to plaintiff the receipt taken. The express company thus informed the plaintiff exactly what had been done. If the plaintiff was dissatisfied with the manner in which its trust had been executed, its duty was plain immediately to disaffirm it, and to notify defendant. No such disaffirmance was made. On the contrary, plaintiff shipped a second package with similar instructions, which were executed by taking and returning a similar receipt; and this was followed by a third consignment executed in the same way.

These several transactions took place in October and December, 1888. It is admitted that the receipts returned were all promptly received by plaintiff. No notice of disavowal was given to defendant until June, 1885. Defendant had a right, conclusively, to presume that its action, thus fully communicated to its principal, was ratified by the latter. The only excuse of plaintiff is the pretence that it never looked at the receipts. If so, this was gross fault and negligence on its part. It is more than doubtful, in point of law, whether it can be heard to set up such fault as a ground of excusing its gross dereliction of duty to defendant. Bank vs. Morgan, 117 U. S. 108, and numerous authorities there cited.

But it is very clear that it had full knowledge of the receipts at least one year before it ever made any complaint to the express ompany. Instead of disaffirming these, it seems to have adopted them, and actually brought suit and recovered judgment against S. B. Kirby, in October, 1884; and yet no' notice of any claim against defendant wgs given until eight months more had elapsed.

If plaintiff had promptly notified the express company or its representatives of the latter’s conduct when the receipts were returned, there is little doubt that the defendant could have protected itself against loss by proper proceedings against Kirby. Even if the notice had been given in January, 1884, when the letter of Roots, the other member of SI B. Kirby & Oo., distinctly informed plaintiff that the receipts had been signed by S. B. Kirby individually, defendant might still have found means of. protection. It was a condition precedent to any claim against defendant that plaintiff should have given such notice and secured to defendant the opportunity of recourse against Kirby. As was said by the Supreme Court of the United States in an analogous ease, “if the depositor was guilty of negligence in not discovering and giving notice of the fraud of his clerk, then the bank was thereby prejudiced, because it was prevented from taking steps, by the arrest of the criminal, or by an attachment of his property or other form of proceeding, to compel restitution. It is not necessary that it should be made to appear by evidence that benefit would certainly have accrued to the bank from an attempt to secure payment from the criminal. * ® As the right to seek and compel restoration from the person committing the forgeries was, in itself, a valuable one, it is sufficient if it appears that the bank, by reason of the negligence of the depositor, was prevented from promptly, and it may be effectually, exercising it.” Bank vs. Morgan, 117 U. S. 108.

The foregoing doctrine is fully applicable here and sanctions the formulation of the doctrine of estoppel, sustained by universal jurisprudence, to the effect that an equitable estoppel arises when a party •to an action has, by his faulty and negligent conduct, induced his adversary either to do or to admit some act or acts, by means of which the loss which is claimed against him might have been averted. 6 Wait’s Action and Def., pp. 681, 683,685, and authorities there cited.

The authorities relied on by plaintiff to the effect that there is no estoppel when the party pleading it knew or ought to have known the facts on which the estoppel is founded, are sound, but totally inapplicable. The vital fact upon which this estoppel is founded, and which the defendant did not know, is the fact that plaintiff dis-affirmed the receipt taken and claimed to hold defendant responsible therefor. Plaintiff’s conduct 'and silence authorized defendant to assume that its action was approved, and induced it to omit taking those steps to avoid the loss which it would have taken but for plaintiff’s culpable fault and neglect in failing to give any notice of its complaint.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,450.
    Barbara Weller vs. Jacob Von Hoven.
    Under Art. 2420, it. O. O., the failure of the wife separated from bed and board to accept the community, cither expressly or tacitly, within the delays therein prescribed, operates a conclusive and irrevocable renunciation thereof, which bars any subsequent assertion of community rights.
    Art. 2420 remains in force, and was not repealed by Act No. 4¡ of 1882.
    Failure of wife io repay to the community sums which had been advanced by it during its existence for the benefit of her separate property, does not amount to taking possession of community property operating a tacit acceptance.
    Peremptory exceptions founded on law may be filed at any stage of the trial before judgment.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

    (3. A. Breaux and G. H. Ostenberger for Plaintiff and Appellant:
    1. Act 4 of 1882 was intended to and prof esses to obliterate all distinction theretofore existing in the attitude of a divorced wife and a widow in community and heir, in regard to the community dissolved, irrespective of cause of dissolution.
    2. The differences existing were, first, that in dissolution by death acceptance was presumed; whereas, in dissolution by divorce renunciation was presumed, unless acceptance was manifested in thirty days.
    8.As no other difference existed, the law could have had no other purpose than its obliteration; it grants no right not theretofore existing of acceptance with or without benefit of inventory. C. N. 1468; C. C. 2410, et seq.; Duranton, Ed., Bruxelles, 1841, Vol. 8, p. 209; Art. 458.
    4. The prescription invoked can not avail under the change operated by the Act of 1882, Art. 2420, O. C., having been necessarily repealed thereby.
    5. Wife bound to have inventory made only when she wishes to take benefit of inventory and renounce. O. O. 1032, 4, 5; G. O. 1050, 8; G. 0.1060.
    6. Widow may still renounce, though she has not acted within delays, and until an action to elect forces her to act. O. G. 2414; 28 An. S50; 14 An. 1; 22 An. 435; 20 An. 30.
    7. A party who has made a judicial assertion is estopped from thereafter contesting or contradicting it. Iiovcn having sworn in judicial proceedings as to his estate in 1869, can notnow gainsay the statement. Gilmer vs. O’Neal, 82 An.979; Reuder vs. Belknap, 28 An. 765; Folger vs. Balmer, 35 An. 743.
    8. Where the master of a community having exclusive charge thereof refuses to permit an inventory to be taken, or to give any account whatever of its operation and assets under his management, he should not equitably be heard to say that there are debts due by said community.
    9. Where, under such circumstances, he is shown to have paid his separate debts during the community, and that property exists, he should not be permitted to show debts of the community while concealing the assets.
    10. The master of the community can not claim reimbursement of separate funds coming into his possession during the community, unless he proves specifically and clearly that they were used for the benefit of the community. Succession. Bollinger, 30 An. 193; Succession Breaux, 38 An. 728.

      B. R. Forman for Defendant and Appellant:
    1. The wife separated from bed and board (or divorced), who has not, within thirty days from the separation, finally pronounced, accepted the community, is conclusively presumed to have renounced the same, unless within thirty days she has obtained a prolongation from the judge, after the husband was heard, or after he was duly summoned; and this renunciation is final and irrevocable. C. C. 2420 (2389); Code Napoleon, 1463; Herman vs. Theurer, 11 An. 70; Snoddy vs. Brashear, 13 An. 469; Ewing vs. Altmeyer, 16 An. 416; Deeuir vs. Lejeune, 15 An. 569; Marcade, Yol. 5, p. 605, Bd. 1859.
    2. This law is not repealed by Act 4,1882. Repeals are not favored nor implied unless the new law is irreconcilable and inconsistent with the former law. New Orleans vs. Mechanics’ Bank, 15 An. 107; State vs. Parker, 15 An. 231; Bond vs. Hiestand, 20 An. 139; Durand vs. Dubuclet, 24 An. 155, and other cases there cited.
    3. Before the year 1882, the widow could not accept the community with benefit of inventory; she must accept unconditionally or renounce; and in order to renounce she must first make an inventory. C. O. 2413 (2382) \ Monget vs. Pate, 3 An. 270; and the only object of the Act of 1882 was to enable the wife, when the marriage had been dissolved either by death or decree of court, to accept the, community with benefit of inventory.
    4. When a case has been fully tried and submitted to the District Court on its merits, together with a peremptory exception founded on law (such as prescription), and the District Judge sustains the exception, the whole case is before the Supreme Court for review, and if this court should not sustain the exception, it can then pass on the merits. It is to the interest of the republio that a law suit should end; otherwise there might be as many appeals as there are points of law in the case. C. P. 905; Kenner vs. His Creditors, 8 N. S. 63; Levi vs. Weil, 24 An. 223.
    5. The community, to which the wife who accepts on its dissolution is entitled, is the net result of its earnings, its acquets and gains, C. C. 2402 (2371), and the debts contracted during marriage must be acquitted out of the common fund, C. O. 2403 (2372), and the husband is the head and master, and during the community can do what he pleases with its assets, and at its dissolution is not accountable to the wife for anything done before. C. C. 2404.
    6. She is liable for her share of the debts. C. C. 2409 (2378).
    7. Where the right to an adjudication existed before a marriage, although it was only accomplished after a marriage, the property does not enter into the community. Barbet vs. Langlios, 5 An. 213; Succession Morgan, 12 An. 153; Code Napoleon, 1408; Marcade, Vol.5,p. 474,Sec. 7; The dictum in Chapman vs. Woodward, 16 An. 167, rests entirely on Hache vs. Ayraüd, 14 An. 178; and Breaux vs. Carmouche, 15 An. 588; and these eases have been overruled by Troxler vs. Colley, 33 An. 426; .Vavasseur vs. Mouton, 34 An. 1044.
    8. If the last proposition of law be not sustained, and the adjudication of the in-, terest of minor children of the first marriage, in property acquired during the first marriage, fell into the second community, then: (a) when the evidence shows that part of that property was sold during the second community, the husband is not accountable for its proceeds; and (6>the wife owes her share of the price of that remaining on hand, and must pay her one-fourth of the price , before she can talco her one-fourth of the property, say........................... $7,088 75
    .(c) She must also first repay the money advanced by defendant to her to pay her separate debts which she owed before marriage............... 9,662 25

      (d) And also one-half of the debts of the second community existing on 16th May, 1884, say $16,406.80 ........................................................ 8,203 40
    Total.........................................................................................$24,954 40
    Before plaintiff can legally and justly talco one-fourth of the property adjudicated to Von Hoven in 1869, and now remaining on hand, she must pay the aggregate of the above throe items.
    9. A parent who hold's property in common with his minor children may have a part and need not have the whole adjudicated to him, C. C. 343 (338), and where the only object of the proceedings is to adjudicate a part of the property of the first wife’s succession, or rather of the first community, and there is no attempt to liquidate and settle the whole succession, and the general debts and funeral charges and expenses of last illness and other debts are wholly omitted, and only those affecting tills particular property adjudicated are mentioned, there is no duty or obligation to describe or mention property or assets, which it is not desired to adjudicate under the article, and since estoppel is relative to persons, the parent is not estopped to allege and prove that at the time he had other property which ho did not wish to have adjudicated, and in no event could he be estopped as to plaintiff, who could not be injured legally by his failing to include all his property in such proceedings.
   The opinion of the court was delivered by

Fenner, J.

Plaintiff and defendant were married in 1868. In 1884 the hnsband sued the wife for separation from bed and board and obtained judgment, which became final on December 17, 1884, and from which no appeal was taken. Subsequently he obtained a final divorce.

On June 9, 1886, plaintiff filed this suit, in which she claims a settlement of the community of acquets and gains which subsisted during the marriage, and which was terminated by the judgment of separation from bed and hoard rendered in 1884. Rev. O. 0., 155.

The defendant joined issue on the merits, and the trial of the ease had made some, progress, when he filed a peremptory exception founded on law to the effect that, by reason of plaintiff’s failure to accept the community within the delays allowed by law, she had tacitly and irrevocably renounced the same, and her right of action here asserted was thereby barred and destroyed.

From a judgment maintaining this exception the present appeal is taken.

The exception is founded on Art. 2420, Rev. O. C.: “The wife, separated from bed and board, who has not within the delays above fixed, to begin from the separation finally pronounced, accepted the community, is supposed to have renounced the same; unless, being still within the term, she has obtained a prolongation from the judge after the husband was heard, or after he was duly summoned.”

It is shown and is undisputed that plaintiff did not accept within the term prescribed, and obtained no prolongation thereof from the judge.

The above article is taken from Art. 1463 of the French Code, and its meaning and effect are conclusively settled by both our own and the French jurisprudence. It is universally held to mean that the failure of the wife separated from bed and board to accept the community, either expressly or tacitly, within the prescribed delay, operates a conclusive renunciation thereof, which is irrevocable, and which bars any subsequent acceptance or assertion of community rights. 5 Mareadé, p. 605; 3 Baudry-Lacantiniére, p. 130; 22 Laurent, pp. 425, 431; Herman vs. Theurer, 11 An. 70; Aurich vs. Lamothe, 12 An. 76; Ewing vs. Altmeyer, 15 An. 416; Decuir vs. Lejeune, 15 An. 569; Shoddy vs. Brashear, 13 An. 469.

We do not understand the learned counsel of plaintiff to dispute the perfect validity of the exception, if Art. 2420 remains in force.

But they claim that this article has been repealed by the statute No. 4 of 1882, which is in the following words:

“ At the dissolution, for any cause, of the marriage community, it shall be lawful for the wife to accept the community of acquets and gains under the benefit of inventory, in the same manner and with the same benefits and advantages as heirs are allowed by existing laws to accept a succession under the benefit of inventory.”

The statute contains no repealing clause, and it can not be held to repeal Art. 2420 by implication, unless its provisions are “contrary to or irreconcilable with those of the former law.” • R. O. O. 23 Repeals by implication are universally disfavored. The principle formulated by Mr. Sedgwick and approved by this tribunal, as well as by courts generally, is that “ laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subject, and it is, therefore, but reasonable to conclude that the Legislature, in passing a statute, did not intend to abrogate any prior law relating to the same subject matter, unless the repugnancy between the two is irrevocable.” Sedgwick Stat. Construction, pp. 106, 98; N. Q. & C. R. R. vs. City, 34 An. 441, and authorities there cited.

There is no such repugnancy between the Article 2420 and the subsequent statute. On the contrary, they may well stand together, and might be incorporated in a single consistent statute, which would provide: (1) The delays within which the wife separated from bed and board should be bound to signify her acceptance; (2) that said acceptance, however, might be made' under the benefit of inventory in the same manner and with the same benefits and advantages as the law provides in the case of beneficiary heirs. Where is the inconsistency? The article and the statute, in fact, treat of different matters. The article treats of the time within which the wife must signify her acceptance; and the statute treats of the manner in which she may accept.

The evil intended to be remedied by the statute was very clear. Under the prior law the wife, in all cases, was bound to accept or renounce the community unconditionally, taking upon herself the risk of its solvency or insolvency. The object of the statute was simply to change this, and to authorize the wife to accept under benefit of inventory, whereby she incurred no liabilities beyond the value of the community.

We have been unable to appreciate the force of the argument of counsel that the Act of 1882 destroys the reason and motive on which Art. 2420 rests, and that ratione eessante, eessat etiam lex. His suggestion of the reason underlying the article as being intended only as a protection to the wife, is quite contrary to the view expressed by this court and by the French commentators.

“The reason of the rule,” said this court, “ is doubtless this: the husband is the head and master of the community, and at once responsible for its debts, and being seized of it he ought not to be compelled to demand of the wife a partition of the effects in- his hands, and thus lessen his means to meet the debts, particularly as he is responsible for the whole, whilst his wife, by acceptance, would only be responsible for one-half of the same. The interest of the creditors and of the public require that the delay allowed the divorced wife to accept should be, as provided by the Code, a short one.” Herman vs. Theurer, 11 An. 70.

Other reasons are given by the French commentators, but all are entirely contrary to the one suggested by counsel. 3 Baudry-Lacantiniére 130; 22 Laurent 425.

Authorizing the wife to accept with benefit of inventory detracts. in no manner from the reason and policy of the law which requires her to exercise the right within a brief delay, under penalty of forfeiture.

The objection to the timeliness of pleading the exception is unfounded. It is clearly a peremptory exception as defined by Art. 845, O. P., “which, without going into the merits of the cause, show that the plaintiff can not maintain his action, either because it is prescribed or because the cause of action has been destroyed or extinguished.” Such exceptions, under the express terms of the following Art. 846, “may be pleaded in every stage of the action previous to the definitive judgment.”

The contention that plaintiff tacitly accepted the community within the term prescribed finds no support in the record. Surely the suggestion is hardly serious that because the wife is indebted to the community for sums advanced during its existence for her separate estate, her failure to pay such debt is to be treated as a conversion of community property operating as an acceptance.

The earnest and very able argument of counsel for plaintiff has commanded our attentive consideration, but we can discover no ground for reversing the judgment of our learned brother of the District Court.

Judgment affirmed.


text:
    No. 10,616.
    The Board of Liquidation of The City Debt vs. Otto Thoman, Comptroller, et al.
    1. The duty of the Common Council of the city to approve or reject the revisions of assessment rolls made by its committee on assessment, as directed by the Revenue Act of 1888, may bo validly performed by the adoption of a mere motion to that effect, and requires no ordinance or resolution having the force of law and governed by Sec. 9 of the City Charter.
    2. The functions of the City Council in reference to the reduction of assessments made by the Board of Assessors are explicitly defined and limited by the teams of the law, and action in excess thereof is ultra vires and void.
    8. When the City Council does not reduce the valuation placed by the board on property assessed, but adopts the same and assumes to deduct therefrom a certain portioai of such value which it considers exempt from taxation, it exercises, not a power of reduction, but a power of exemption, which is not conferred by the law.

      i. The exemptions made by the City Council in the assessment of bank shares are not lawful, as held by this court in the Bank of Shreveport case, which is affirmed.

      APPEAL from the Civil District Court, Parish of Orleans. Voorlvies, J.

      Henry G. Miller for Plaintiff and Appellee:
    Tlie shares of stock of banks and of corporations “whose stock is represented by shares,” must be assessed to the shareholders at their cash value, deducting from the share the pro rata of direct taxes paid by the bank, and with no deduetion'for United States bonds or other tax exempted securities held by the bank. Act 1888 No. 85, See. 6; 24, See. 90; par. 1, Con. Art. 203, Shreveport Bank vs. Board of Reviewors, 41 An. p. 1.
    Under their power to review for over-valuation assessments of the assessors, the standing committee of assessments and the council itself are restricted to tlioassessments made by the assessors and can not make other and different assessments. See Act No. 95 of 1888, Sec. 20.
    Nor is it any part of the function of the assessment committee or of the council, instead of reviewing assessments for over-valuation, to apply in assessing shares of stock a method of assessment utterly repugnant to the law. Act 1888 No. 95, Sec. 20; State vs. Tax Collector, 39 An. pp. 534, 535.
    The law requires tno council to adopt the action of the assessment committee with respect to assessments; the adoption requires legislative action of the council in the mode prescribed by law; henee a motion adopting the action of the committee, at the same session the motion is made, is forbidden by law, and therefore void, the law requiring that no ordinance or resolution shall pass the council the same session it is introduced. City Charter, Acts 1882, No. 20, Sec. 9.

      Charles Louque for Defendants and Appellants.
   The opinion of the court was delivered by

Fenner, J.

The Act of the General Assembly No. 85 of 1888 provides that the assessment of taxable property in the parish of Orleans, to serve as the basis for ¿both State and municipal taxation, shall be made by a Board of State Assessors appointed for said parish, who are required to complete the'p’olls thereof by the 1st of March of each year. Notice by publication is to be given of such completion, and the rolls are to be exposed to public examination by the tax payers for a period of twenty days. Certain powers) of revision are delegated to the standing committee on assessments of the City Council of New Orleans (the nature and extent of which will be hereafter considered), which committee is required to meet on the 20th of March of each year and to hold sessions until the 10th of April, “to consider and examine into the applications of those owners of assessed property who believe the assessors’ valuation to be in excess and beyond the actual cash valuation of the property so assessed.”

The said committee is authorized “to determine said applications and to report their action to the Oity Oouncil for its approval or rejection, and such decision by the council shall be final.”

Such action must be taken by the Oity Oouncil before the 1st day of June, before which date the law requires the rolls to be filed in the offices of the Recorder of Mortgages, the Tax Collector and the Auditor.

Corrections in valuations lawfully made by the Oity Oouncil are undoubtedly binding on the Board of Assessors, and must be entered on the rolls as the basis for taxation.

In the year 1889 the committee on assessment of the Oity Oouncil made numerous and important changes in the valuations on the assessments, and reported the same to the council, which body, at a meeting on the 16th of April, passed a motion approving the report. At the following meeting, on April 28, the Mayor objected to the action taken, on the ground that it was in violation of Sec. 9 of the Oity Charter, Act No. 20 of 1882, which provides that “No ordinance or resolution shall pass the council at the same session at which it was first offered, but any ordinance or resolution shall at its first offering be read in full, and shall lay over for one-week before being finally considered by the council.”

But, notwithstanding the Mayor’s protest, the council maintained and persisted in its action.

When the corrections thus made were reported to the Board of Assessors, they refused to receive or recognize the same, and proceeded to file their rolls, without such corrections, in the various offices required by law.

On the 27th of August, 1889, the Oity Oouncil passed, over the veto of .the Mayor, an ordinance directing the Oity Comptroller to make, upon the rolls deposited with him, the changes which had been adopted by the council, and to make out the city tax bills in accordance therewith.

Thereupon the Board of Liquidation of the Oity Debt instituted the present action, in which an injunction is sought against’the Oity Comptroller, the Oity Treasurer and the Board of Assessors, prohibiting them from making said changes in the rolls, and from complying with said ordinance and collecting taxes in accordance therewith.

The Board of Liquidation is a corporation created by the State, charged with certain powers and duties touching the liquidation of the debt of the city, and is entitled to receive and administer the interest taxes levied by the city, amounting, under existing laws, to one-half the entire city tax. The board is therefore directly interested in seeing that the taxes shall be collected according to law.

The grounds of the action are twofold, viz:

1. That the entire action of the City Council in the matter of correcting and changing the assessment rolls was null, void, and of no effect, because the City Council did not, within the time fixed 'by law, “ approve ” the changes reported by the committee on assessment by an ordinance or resolution adopted in accordance with Sec. 9 of the City Charter above quoted.

The language of the law regulating the action to be taken by the City Council is as follows: “ The said committee shall * * report their action at once to the City Council for its approval or rejection, and such decision by the council shall be final, unless set aside in accordance with Art. 203 of the constitution.” The committee did seasonably report to the council, and that the council, by a vote of twenty-three yeas to three nays, passed a motion approving said report.

Did this action embody and signify the “ approval” required by the terms of the law?

The Common Council, upon due consideration on the objection of the Mayor, determined that this was the proper method of expressing its approval, and we should not overrule their construction of the law regulating the method of discharging their functions, unless convinced that it is manifestly erroneous and untenable. We can not say couthe neil erred.

The Sec. 9 of the City Charter obviously refers to ordinances and resolutions, which are, as expressed in Sec. 20, to have “the force of law,” which require to be transmitted to the Mayor for his consideration, which he may either sign or veto, and which, in the latter case, do not become laws unless passed over his veto by the requisite majority of two-thirds.

The action here involved no function of law making. It was simply an expression of the will of the council, approving the' report of the committee, which was all the statute required.

The action conclusively shows that the council approved the report. It is not a law in any sense; it is a simple decision by the council of a question required to be submitted to it under the statute, viz: Shall the report of the committee be approved or rejected ?

2. The second ground for the injunction is far less sweeping in its scope. It attacks the specific changes made by the committee and the council in the assessment of the shares of stock held by individual share holders in the various banks of the city, on the ground that the action of the committee, approved by the council, was ultra vires, null and void.

Sec. 27 of the Act 85 of 1888 expressly provides that “No assessment shall hereafter be made under that name, as (of?) the capital stock of any National bank, State bank, etc., whose capital stock is represented by shares, but the actual shares shall be assessed to the shareholders,” etc.

Acting under this direction the Board of Assessors entered upon the rolls a valuation of said shares of stock.

The functions of .the committee of assessments of the Common Council, in the matter of reducing assessments, is very concisely and explicitly defined in Sec. 26 of the Act, in the following words: “The said committee on assessments shall meet on the 20th day of March * * to consider and examine into the applications of those owners of assessed property who believe the assessors’ valuation to be in excess of and beyond the actual cash value of the property so assessed. Said committee shall determine upon said applications and report their action to the City Council for its approval or rejection,” etc. ■

Not another word exists in the statute authorizing the committee to exercise any other power in the reduction of assessment than that thus pointed out. It is simple and well defined, viz: to determine whether or not the valuation exceeds “ the actual cash value of the property assessed,” and, if finding that it does, to reduce the valuation accordingly.

We have hitherto considered this subject in construing Sec. 9 of Act 107 of 1884, of which the section now before us is an exact copy, and we there held that the power of the council was limited and that its action in excess of such limit was void. Mercier vs. New Orleans, 38 An. 958.

The record here shows that the Board of Assessors entered on the-rolls the shares of stock-in the different banks and assessed their value. From this valuation they deducted, as directed by the law,, the value of the real estate and other corporate values which had been taxed directly to the bank, and the difference was run out as. the taxable valuation of the stock.

The council committee did not reduce or alter the valuation of the-shares as fixed by the assessors; on the contrary they adopted the same; but they undertook to deduct therefrom the value of nontaxable securities belonging to each bank and only extended the residue as the taxable value.

It is perfectly evident that this was not an exercise of the power of valuation, but an exercise of the power of exemption. The council said in effect: “We do not pretend that* the valuation of these shares by the assessors exceeds their actual cash value; on the contrary we adopt and approve their valuation; but we choose to exempt a certain portion of that value from taxation, and therefore we deduct it.”

It is impossible for us to recognize the existence of such a power-in the council. It would be giving to the council a power not even possessed by the Legislature itself, and to place .the creature above-the creator.

The deductions were made in disregard of the very recent decision of this court that they were unauthorized by law. Bank of Shreveport vs. Board, 41 An. 181.

We can only account for the action of the council on the theory that, as the matter had been but once determined, it was hoped that-the court might, on a second hearing, recede from its position. If it were a question of policy many reasons have been urged which are. of weight.

But as a question of law we have never had a question submitted to us as to which express constitutional legal mandates and authoritative precedents left us so little discretion.

The following are the propositions on which the decision rests, not one of which can be controverted, and which taken together lead inexorably to the conclusion reached. They are:

1. The tax is levied, not on the capital or stock of the corporation, but on the shares as the property of the individual share holders. Such is the express language of the law:

“ No assessment shall hereafter be made under that name, as the capital stock of any bank, etc., whose capital stock is represented by shares, but the actual shares shall be assessed to the shareholders,” etc.

2. If the shares are taxed they must be taxed according to their value. So says the Constitution: “All property must be taxed m proportion to its value, to be ascertained as directed by law.”

8. No portion of its value so ascertained can be exempted from taxation by mere legislative direction. So says the Constitution: “The following property shall be exempt and no other.” And such has been the consistent jurisprudence of this court in very numerous decisions.

4. No portion of the value of shares in banks is exempt from taxation on the ground that the capital of the banks is invested in nontaxable securities. So the Supreme Court of the United States has distinctly and repeatedly held. Mercantile Bank vs. New York, 121 U. S. 145, and numerous prior eases there cited and reviewed.

The same principle has been substantially reiterated in a case not yet reported.

So far as United States bonds were concerned this was distinctly a Federal question, and the decisions of the Federal Supreme Court thereon are of paramount authority.

5. If the value represented by the capital invested in United States bonds is not exempt, it is impossible to exempt the like value represented by investments in State and city securities.

These propositions being admitted, how can the conclusion be evaded? The Legislature had no more right to say that in assessing shares of stock, the assessors shall deduct from their value as ascertained by law, the amount of the non-taxable securities in which the capital of the bank is invested, than it would have to direct them to deduct from the value of the plantations of the State the value of the improvements thereon. Such deductions amount to an exemption of the values deducted from taxation, and as the paramount law decrees no such exemption, the Legislature is powerless to make it, or, as we said in the Shreveport Bank case, “When the Legislature deals with an object of'taxation, it can exempt no part of its ascertained value not exempted by-paramount law.”

Fortunately the Legislature of the State is now in session. If, instead of taxing the shares of .banks to the individual share holders, it should see fit to revert to the former system of taxing the capital of the corporations, different questions would be presented.

The judge a quo granted and perpetuated the injunction as prayed for. It must be modified so as to apply only to the shares of stock in the banks named in the petition.

It is, therefore, ordered and decreed that the judgment appealed from-'be amended so as to read as .follows, viz: It is ordered, adjudged and decreed that there be judgment, in favor of plaintiffs and against the defendants enjoining and..prohibiting them from enforcing the changes directed by the City Council in the assessment of the shares of stock in the various banking corporations named in the petition and from collecting or receiving taxes thereon on any assessments other than those made by .the Board of Assessors,, and that, in other respects, the preliminary injunction be dissolved. And that, as thus amended, the .judgment appealed from be affirmed, appellee to pay cost of this appeal.

Justice Breaux, not having been present when the case was submitted, takes no part.


author: Watkins, J.

text:
    No. 10,578.
    State of Louisiana vs. Joseph Natal.
    The, term “ square,” as employed in City Ordinance No. 4798, A. S., indicates what is generally understood by that word; and the term “block,” as employed in City Ordinance No. 4145, O. S., means the same .thing. These terms are convertible, and are synonymous.
    APPEAL from the First Recorder’s Court, Parish of Orleans. Murphy, J.

      T. MoC. Hyman, Assistant- City Attorney, and Oarleton Hunt, City Attorney, for Plaintiff and Appellee.

      Branch K. Miller and 8. Belden for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant’s appeal is taken from sundry judgments pronounced against him in the Recorder’s Court for sundry violations of Oity Ordinance No. 4145, O. S., which is known as the private market ordinance. It provides that no private market shall be established “within a walking distance of six blocks of any public market,” and the only question for us to determine is whether defendant’s private market, which is established at the corner of Liberty and Erato streets, is within the prohibited distance of Dryades market.

This and similar questions have been recently examined and decided by us.

In State vs. Barthe, 41 An. 46, we had under consideration and interpreted Oity Ordinance No. 4798, A. S., founded on Act No. 100 of 1878, which prohibited private markets “within a radius of six squares of any public market,” and we held its true meaning and import to be “a distance of six squares over which customers would be able to walk from one market to another.” In reaching that conclusion reference was made to the provisions of Act 116 of 1888, on which city ordinance now under review is founded, and the identical language of which is employed. It was referred to, not as controlling that case, but as illustrating the theory entertained by the court, and to exhibit a possible difference there might be between it and the one announced in State vs. Berard, 40 An. 172.

The Barthe case was closely followed by that of State vs. Schmidt, 41 An. 27, in which we treated of Ordinance 4798, A. S., again, and held that the various charges against the defendant must fail, because his market was not within six walking squares of St. Mary’s market, counted the nearest way.”

The Berard case states: “ It is further apparent that when the Legislature used the language stated it meant what was generally understood by the word square. 40 An. 174. (Italics ours.)

Thus we have it effectually proved by these opinions that the word “square ” in the former ordinance and law meant what was generally understood by that term; and that the word “block" in the latter ordinance and law means just the same thing. In other words “square” and “block” are, strictly speaking, convertible terms.

To the transcript is appended a sketch made of the locus in quo by ■the draughtsman in the Oity Surveyor’s office, plainly showing that defendant’s private market is within the prohibited distance, counting the squares or blocks or by making the. estimate by feet. Other testimony fully confirms the correctness of the sketch.

Judgment affirmed.


text:
    No. 10,582.
    James Sweeney vs. Joseph A. Shakspeare, Mayor, et als.
    1. The City of-New Orleans has the right to control, manage, and administer the ■ use of the hanks of the Mississippi river within her limits for the public convenience and utility; to establish landing plaees for vessels, boats and barges; to determine what are proper and needed facilities for commerce, and on what part of the batture they maybe established.
    2. The proprietor of the soil adjacent to the river has no right to appropriate to his exclusive use the banks of a navigable water course, because he has no property in the use thereof. It belongs to the public.
    3. The owner of coal boats and barges, moored to the river bank within city limits has no authority, derivable from the proprietor of riparian property, through instrumentality of a lease, to build houses in’which to store apparatus and tackle, and shelter his men, by resting their foundations on piles driven in batture outside the levees.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      T. M. Gill for Plaintiff and Appellant:
    1. None of the authorities cited by counsel for the defence or by the judge below are in point.
    2. The authorities of Assistant Oity Attorney and said judge would apply only in case the batture in question was public property, out of commerce and incapable of ownership or in the possession and administration of the city for use of the public.
    3. The allegations of plaintiff’s petition fully contradict any such facts or presumptions, and show this batture to be both owned by and in the possession of another.

      4. That a front proprietor can place “hitching posts” and clusters of piles and other accessories thereto and construct wharves, landing places, etc., in front of his property, for the benefit of others or for his own use. 81 An. 66; 84 An. 701.
    5. It must appear that the city has held the possession of the land in question, has appropriated or is in administration of the same, before it can be said it withholds the land to require plaintiff, as suggested by the Oity' Attorney, to resort to the action provided by Section 318, Revised Statutes. This section does not provide for the case involved. The allegations of plaintiff’s petition of ownership, possession and enjoyment preclude any such requirement.

      Francis B. Lee, Assistant Oity Attorney, for Defendants and Appellees :
    No riparian owner of property within the limits of the City of New Orleans along the banks of the Mississippi river has the right to erect upon the batture outside of the levee in front of his property, upon piles driven into the earth, sheds or other buildings for his own personal and exclusive use and benefit,and the city in cases where such structures have been erected, has the right in the exercise of the control vested in it of the banks of the river within its limits, and of the batture outside of the levees, to order the same removed, and in case of refusal on part of owner, to remove the same at his expense and risk. Mayor, etc., vs. Magnon, 4 Martin 9; Henderson et al. vs. Mayor et al., 3 La. 564; Municipality No. 2 vs. Orleans Cotton Press Co., 18 La. 124; Pulley & Erwin vs. Municipality No. 2,18 La. 279; Shepherd et als. vs. The Third Municipality, 6 Rob. 350; Watson vs. Turnbull, 34 An. 856; Pickles vs. Dry Lock Co., 38 An. 416; Heirs of Leonard vs. Baton Rouge, 39 An. 275; Foreman vs. Railroad Co., 40 An. 449.
   The opinion of the court was delivered by

Watkins, J.

As a dealer in coal, the plaintiff has constantly on hand a number of barges laden with coal, and for their safety and security he avers it to be necessary that there should be some place on the banks of the Mississippi river, and within the parish of Orleans, where same may be landed and secured, and where suitable quarters may be provided in which to store the necessary apparatus with which to protect and secure said barges and other boats, and also for the purpose of housing the men employed, and who are required to be in immediate and constant attendance.

In his petition he avers that he has leased certain batture and riparian property about five or six miles above Oanal street landing, “where he has, at large expense, sunk piles and clusters of piles or hitching posts, to which he makes fast said barges and boats of coal, and has built two small wooden houses at an expense of about $500, in which to house the men, * * * and to store the apparatus absolutely necessary to his business,” etc.

That the Mayor and Oommissioner of Public Works “threaten to interfere with him in the peaceful possession and use of said house, and to remove, or cause the same to be removed, on the ground that he is a squatter and obstructing Oalhoun street.”

This he denies, and affirms that he is the lessee, or tenant of the aforesaid batture and riparian rights from the Texas and Pacific Railroad Company, the owner thereof.

He avers “that his said houses are not only necessary, as aforesaid, to the commerce in which he is engaged, but are neither on, nor do they obstruct, any street, and are built on the outside of the levee, upon piles driven in the batture aforesaid, and which batture is some 300 feet in width from the levee to the water’s edge.”

Against the threatened interference alleged, plaintiff obtained an injunction, in order to preserve the status quo.

The City Attorney ruled plaintiff to show cause why his injunction should not be dissolved, on the ground that his petition stated no cause of action; and, pending the trial of the rule, he specially excepted to his petition, on the same ground; and prayed that the suit be, dismissed.

On trial, the rule was made absolute, the exception sustained and suit dismissed. From the judgment plaintiff has appealed.

The City Attorney’s contention is that, conceding the plaintiff to be the lessee of the railroad company, and that the company was the proprietor of the soil over which the plaintiff’s right of use extends, and yet, he discloses no legal right in himself, or in his lessor, to permit the construction of such houses, or other permanent structures on the batture, as those described in his petition.

On the other hand, the plaintiff’s counsel seeks to restrict the issues to the limits prescribed in his petition, i. e., as to whether or not he was a squatter, and his houses an obstruction to Calhoun street.

We do not think the issues can be so restricted; for, conceding that plaintiff was not a squatter, but a lessee, and that the houses he had erected were no obstruction to Calhoun street; and yet, the mayor of the city and the commissioner of public works have a perfect legal right to question his authority to build houses '• outside of the levee, upon piles driven in the batture,” as plaintiff avers he did.

The District Judge evidently entertained this view, and rested his decision on our opinion in Watson vs. Turnbull, 34 An. 857, which appears to be conclusive of the whole ease. In that ease we said:

“ Within the corporate limits, the City of New Orleans, under her charter, and under the general law, has the right to control, manage and administer the use of the river banks for the public convenience and utility; to establish wharves and landings; to erect and provide facilities for the use of vessels and water crafts, and to charge just compensation for the use thereof. Riparian proprietors have no right to appropriate to their exclusive use these banks, and they have no private property in the use thereof, which is in the public. The discretion of the city authorities, in determining what are proper and needed facilities for commerce, and on what part of the river bank, within her limits, they should be established, is manifestly not a proper subject for judicial control or interference. Whatever incidental damage may result to proprietors from the exercise of their unquestionable corporate rights, it -is damnum absque injuria.”

The bank of river has been defined to be “ that space which the water covers when the river is highest in any season of the year.” Morgan vs. Livingston, 6 O. S. 216.

The term batture “ is applied principally to certain portions of the bed of the Mississippi river, which are left dry when the water is low, and are covered again, either in whole or in part, by the ar nual swells.” Hollingsworth vs. Chaffe, 33 An. 548.

It therefore follows that plaintiff’s vendor, as a riparian proprietor, has no right to appropriate to its exclusive use any portion of the batture, and it has no right of property in the use thereof. That the city authorities are vested with a discretion in determining what are proper and needed facilities for commerce, and on what part of the batture they shall be established.

Hence, the plaintiff, as lessee, acquired under his contract no such right; and, under the law, he could not select the place at which he should establish the landing place for his coal boats and barges.

In Pickles vs. Dock Company, 38 An. 412, we held that the defendant had no right to locate their dock, and drive pilis in the bed of the river near the shore, although owner of the riparian property.

In Railroad Company vs. Winthrop, 5 An. 36, it was held that a conversion of a portion of the batture in front of Carrollton into a wood yard was not a public use, but a private destination of property.

In Hudson vs. Mayor, 3 La. 564, the court decided that ‘ ‘any works or constructions made by individuals, calculated to prevent their use entirely, or to abridge it, may fairly be considered as public nuisances, and subject to be abated by the authorities of the city.”

In Mayor vs. Magnon, 4 Martin 9, the court held that “ as the fisherman could not justify the inclosure of a space of ground on the bank of a river for the safety of his net when spread to be dried, nor the erection of a warehouse for the storage of fish, the carpenter can not justify the erection of a permanent shed or building for the safety of Ms tools or the materials which he uses, nor to fence the ground for the protection of the timber which it may be his interest to accumulate.”

From these frequent adjudications on the subject, we think it is well settled that the plaintiff was without right or authority to build houses on the batture, and rest their foundations upon piles driven in the ground. This was an evident appropriation, to his exclusive use, of the river bank within the limits of the city, in direct violation of the right of control and administration vested in the city.

The judgment appealed from is correct, and it is therefore affirmed.

Rehearing refused.