text:
    No. 9469.
    The State ex rel. New York Guaranty and Indemnity Company vs. Allen Jumel, Auditor.
    The courts of this State have no jurisdiction over a suit by an individual, the object of which is to enfoico specific peiformnnc© of a contract with (ho State, whore the hitter is not o party to the suit, 1ms not consented to be sued and is not represented therein by a Slate functionary duly empowered to do .so, at the bringing of the action.
    The power conferred to represent may be recalled. Tbo withdrawal thereof leaves the once constituted agent without authority to further rejn’osent.
    APPEAL from tlic Civil District Court for the Parish of Orleans. Tissot, J.

      Kennard, Howe & Prentiss, for the Relator and Appellant:
    1. The relator does not ask that the Auditor should, levy a tax, but simply that ho should estimate and collect one already levied. Such antecedent levy has been customary since 1852, and has been repeatedly held valid by this court. Hamlin vs. Board, 30 Ann. 445; State vs. McGinnis, 26 Ann. 558; Acts Nos 176, 177 and 17Í) of 1853, and No. 134 of 1857.
    2. The rights of relator cannot be affected by the 14th and 15th A rticles of the Constitution of 1879, because:

      а. The duty invoked is not legislative,
    б. The Constitution of 1879 cannot impair a contract right acquired in 1871. White vs. Hart, 13 Wallace, 646 ; 37 Ann, 440; 111 TJ. S. 716 ; 32 Ann. 884.
    3. Nor can such rights bo affected by Acts Nos. 3 and 55 of 1874. 4 Wall. 535; 10 Howard, 190; 102 TJ. S 672; 105 TJ. S. 301; 16 Wall. 314.
    4. Nor can they be affected by repeal of State aid by same Acts of 1874. Id.
    5. Nor by subsequent limitations of the rate of taxation. 13 Wall. 646; 4 Wallace, 535 tQ2 H. S. 672; 105 TJ. S. 300; 103 U. S. 355; 34 Ann. 1149.

      6. Tbe rights of relator not affected by adverse decision in its suit against the “Funding Board. Manning’s TJnreported Cases, p. 198; 105 IT. S. 622.
    7. The Act No. 116 of ]869 provided adequate means under Article 111 of Constitution of 1868. Mather's case, not reported, 29 Ann. 690; 30 Ann. 443; 25 Ann. 70.
    8. The power existing to issue the bonds, and the bonds themselves purporting to have been issued in pursuance of the power, the presumption in favor of the bona, fide holder is conclusive, and entitles the relator to the relief demanded. 1 “Wall. 83, 393; 15 “Wall. 355; 92 TJ. S. 487; 113 IT. S, 227.
    9. This is not a suit against the State. 14 Ann. 249; 92 TJ. S. 531.
    ilf. J. Gwvningham, Attorney General, for the Respondent and Ap»pellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the State Auditor to perform what is represented as a ministerial duty.

The reiatrix company charges that it owns $250,000 of the bonds of the State, issued under the provisions of Act No. 116 of 1869; that the interest has been paid thereon up to 1873, none being paid since; that by the seventh section of said act it is made the dnty of the State Auditor to calculate the rate of taxation on the total assessed value of taxable property in tbe State, sufficient to pay the interest, and to notify said rate when fixed to the tax collectors, requiring them to collect the-same in the manner prescribed by law.

The Auditor, among other defenses, sets up substantially: that this is a proceeding to enforce a State contract; that the State is not a party to the suit; that he has no authority to represent the State in it; that, whatever duty and power were once imposed on the State Auditor by the seventh section invoked, have ceased to form part of his functions, because forbidden by tbe State Constitution, which prohibits the levy of State taxes for any purpose in excess of six mills; that the Court has-no jurisdiction over the subject-matter and cannot compel him to make the computation asked and issue instructions for the collection of tlié tax thus ascertained.

From an adverse judgment the reiatrix company has appealed.

It is proper to premise, that it appears from the record that the present plaintiff, as the holder of the saino bonds, took steps to have them funded at the rate of sixty cents on the dollar, as a compromise, under the terms of Act No. 11 of 1875, contradictorily with the State Board of Liquidation, but was not allowed to do so, the court holding that the bonds had not issued “in strict conformity to law and for a valid consideration,” and that want of knowledge- of the fraud and acquisition for a valid consideration would not relieve third parties. Manning’s U. R. C. p. 118.

On writ of error, the United States Supreme Court, after reviewing the facts, considered that the question was not whether in an authorized action against the State, Act 11 permitted the State to prove, as against a Iona fide holder, that the bond was invalid; but whether such holder was entitled to the funding offered to holders of securities, valid in the hands of the first taker.

The court held that every legal right which the original holder acquired still remained and was enforceable by the company, — this obligation of the State to pay continuing to exist and the judgment refusing the funding being no bar to any proper proceeding for payment.

The court, on the federal question, distinctly observed that the State-had a right to say, when she proposed a scheme for the compromise of' her debts, what creditors should be included, and that, as the act in-question, No. 11 of 1875, did not impair the obligation of the contract with the first taker, it was not to be viewed as unconstitutional.

The federal question having been correctly decided below, the^judgment was consequently affirmed.

The present proceeding contemplates the enforcement of the contract of the State with the first takers, insisting on specific performance by the levying and collecting of the required tax.

The State Auditor denies the jurisdiction of the court, because it is-a suit against the State, who is not made a party and who has never-consented to become such; because he does not and cannot represent-the State, the duty and powers conferred by the section relied on having been recalled by the Constitution.;

The fact is that the State is the real defendant in the case, and that-she,, has not been made a party.

Neither does the Act of 1869, nor any other legislation, permit the-State to be sued in this or any other similar action.

It would be pure loss of time to reason and to adduce authorities to-show that the pretensions of plaintiff cannot be adjudicated upon in. the absence of the State; for it is self-evident that the remedy asked could hot be allowed without finally determining that the bonds sued on constitute part of the indebtedness of the State which must be paid.. This cannot be done.

But the relatrix company claims that suit was authorized by the Act of 1869, sec. 7, against the State, represented by the Auditor; that the suit is thus brought-, and that the defense does not hold good.

It is sufficient to say that if this was ever so, the authority to sue, as well as that to be sued, were formally revoked by the State, in the exercise of her supreme political power, as results from the prohibítions placed by her Constitution against the. levy, an.d collection of any State tax in-excess of six mills. See Con.st., art. 209, and the State debt, ordinance. . . .

In the eases of Louisiana vs. Jumel, and of Elliott vs. Wiltz, both taken from the United States Circuit.Court for the Eastern District of Louisiana to the United States Supreme Court, in which it was sought to take from tiie State Treasury, by proceedings against .the Auditor and the Treasurer, money collected to pay coupons of State, bonds maturing on January 1, 1880,-and diverted by the debt ordinance, which forms part of the Constitution, and applied to other and independent purposes. — the Supreme Court of the United States distinctly held that the ordinance having forbidden the payment of the interest and withdrawn from the State officers the means of carrying her contract into effect, the execution of the contract could not be enforced nor the relief sought awarded in a suit to which the State js no.t a party and which is brought againstofficers who are merely obeying the positive orders of the supreme political power of the State. 107 U. S. 712 (XVII Otto); see also 33 Ann. 498, quoted with approbation.

The reply of the relatrix company to this position is, that the doctrine is established and familiar tliat, as to the contract rights acquired by it, no provision of the Constitution of 1879 can have any legal effect. In support, many authorities are quoted, but they have no, bearing. They differ toto calo, as not one refers to a suit by an individual to ■enforce a State contract, affected by some constitutional provision, expressing tlié adverse icill of the State to the execution of the contract.

It was long since solemnly announced by the Supreme Court of the United States, through its organ, Chief Justice Taney:

“Those who deal in the bonds and obligations of a sovereign, are aware that they must rely altogether on the sense of justice and good faith of the State, and that the judiciary of the State cannot enforce the contracts without the consent of the State, and the courts of the United States are expressly prohibited from exercising such jurisdiction.” Bank of Washington vs. Arkansas, 20 How. 530.

This announcement has never been questioned or gainsaid, so well founded is it on principles of the highest order in political economy. .33 Ann. (511-2.)

In the Virginia coupons cases, 114 U. S. 332, the principle was recognized, the court by a mere majority holding, however, that it did not apply to a ease in which the State actively attempted a violation of its contract. The main question there was,.after the State h.ad issued her bonds with coupons to be received in payment of taxes, whether the State could revoke the right to give in payment, and where an offer or tender had.been made, whether tbe State could seize the taxed property and subject it to the claim. The.injunction'was maintained.

In that case, nevertheless, four Justices dissenting, one of them, Mr. Justice Bradley7, well said:

* * “No State can be coerced into a fulfillment of its contracts or obligations to individuals by tbe instrumentality of the Federal judicial'}7. It is true it cannot proceed against them contrary to its contract, but on the other hand it cannot be proceeded against on its contract. All those who deal with a State have notice of this fundamental condition. They know, or are bound to know, that they must depend upon the faith of the State for the performance of its contracts, just as if no Federal Constitution existed, and cannot resort to compulsion unless the State chooses to permit itself to be sued.

“Moreover, the Eleventh Amendment is not intended as a mere formula of words to be slurred over by subtle methods of interpretation so as to give it a literal compliance without regarding its substantial meaning and purpose. It is a grave and solemn condition, exacted by sovereign States for the purpose of preserving and vindicating their sovereign right to deal with their creditors and others propounding claims against them according to their own views of what may be required by public faith and the- necessities of the body politic. We Lave no right, if we were disposed, to fritter away the substance of this solemn stipulation by any neat and skillful manipulation of its words. We are bound to give it its full and substantial meaning and effect. It is only thus that all public instruments should be construed.”

In the matter uow under consideration, we conclude that., as the object in view is tbe enforcement of a contract of the State, as the State is not directly or indirectly a party to the suit, as the defendant has no authority to represent the State, we have no jurisdiction to hear the cause and determine whether or not the obligation of the contract has been impaired.

Under such circumstances, the judgment appealed from is affirmed, with costs.


source: Caselaw Access Project

author: Pochí;, J. Fenner, J.

license: Public Domain

text:
    No. 9691.
    E. J. Hart & Co. vs. Anger & Nicol.
    Tlie following clause in an act of partnership does not attest an agreement "binding on both parties that the partnership should, continuo at the death of one of the partners between the survivor and the heirs of the deceased: “ In the event of the deaoli of either of the parties to this act, it is to he optional with the survivor whether said co-partnership shall continue or not.”

      Such a stipulation does not create an agreement equally binding on bofcli parties, but it gives all the advantage to the survivor, without any corresponding right to the heirs of the deceased. It does not comply with the requirements of the Civil Code touching the right of continuing a partnership after the death of one or more of the partners, and it has no sanction in law. Hence, it cannot be enforced.
    APPEAL from the Twcnty-tliirol District Court, Parish of Iberville. Talbot, J.

      Read & Qoodale for Plaintiffs and Appellees:
    1. That principle of the old Roman law adhering to the laws of Spain and obtaining in -Louisiana up to the adoption of the Civil Code in 1828, which treated as nullities stipulations in acts of partnership, providing for the continuance of the partnership between the survivor and the heirs of the partner dying first, was superceded by Art. 2880 (2851) of the Civil Code. The exception in said article, “unless an agreement has been made to the contrary, ” means that an agreement in the articles of partnership for continuance of the partnership hinds the estate of the partner dying first. Code Napoleon, 1868, Dnvergier, 440; Troplong, 052, 953 ¡ Duranton, 473$ Mourlon, 3d vol., p. 401; Zacharie, 2, p. •252, § 384; Lindley on Part., 232 (304), notes; Story on Partnership, §§ 201, 317, note, 319 a, 201 a, note; Burwell vs. Mandeville’s Executors, 2 How. 560, and cases therein cited; exparte Garlan, lOYes.liO; ex parte Richardson, 3 Madd. 138,157; Thompson vs. Andrews, 1 Myl. and K. 116; Pitkin vs. Pitkin, 7 Conn. 307; Alexander vs. Lewis, 47 Tex. 481; Cook vs. Rogers, 3 Fed. Rep. 69; «Tones vs. "Walker, 2 Morrison’s Trans. 257; Smith vs. Ayres, 10L H. S. 320; Kottwitz vs. Alexander, 34 Tex. 639.
    Especially : Laugliliu vs. Lorenz, 48 Penn. St. 275; Davis vs. Christian, 15 Gratt. 11; Taylor vs. Castle, 42 Cal. 367; also, Collyer on Partnership, vol. 1, p. 152, note; Butler vs. American Toy Co., 46 Conn. 136; Walker vs. Wait, 50 Yt. 668.
    Especially: Scholefield & Taylor vs Eicholherger, 7 Peters, 594, and 2 How. 560; also, DufEeld vs. Brainerd. 45 Ct. 424.
    2. Where the administratiix of the estate of a deceased partner, whose surviving partner has elected, under ox>tion given in the articles of partnership, to continue the partnership for the term fixed in said articles, makes no objection thereto, but continues the partnership for aterm of years, she will be presumed to have-ratified such a stipulation, even were such ratification necessary.
    Such ratification will also he presumed against the heirs. Grieff & Byrnes vs. Boudousquie & Fortier, 18 Ann. 631; Story on Partnership, secs. 36, 37, 48, 49, 53, 54, 64 and 65; 3 Kent, sec. 43, pp. 31, 33; Richardson vs. DeBuys & Louyer, 4 N. S. 127; 9 Johns. 489; City ef New Orleans vs. Gautlireaux," 32 Ann. 1126; Parsons on Part,, 30, 31; Robertson et al. vs. DeLizardi et a 1., 4 R. 300; McDonald vs. Millaudon, 5 La. 408; Dodd, Brown & Co. vs. John Bishop & Co. et al., 30 Ann. 1178; 37 Conn. 259; 4 Barn. & Aid. 663; 16 Yes. 49; 17 Id. 404; 18 Id. 300; 19 Id. 291; 6 Madd, 145, n; 4 East. 144; 10 Johns, 226 ; 16 Id. 34; 1 Story C. C. 371; 1 Cliff. 28; Collyer on Part., sec. 6.
    Especially: Alsop vs. Mather, 8 Conn. 587.
    .3. Such a stipulation, in an act of partnership, is self-operative, is a charge upon the estate, and requires no ratification. Duranton, Cours.de Droit Francai*, vol. 17, p. 557, et seq., commenting on Art. 1868, C. N., No. 473; Troplong, Livre III, tit. ix, art. 1868, No. 949-964; Mackeldy’s Roman Law, p. 329, n; Price vs, Matthews, 14 A. 11.
    4. Even minority is no exemption from its provisions. 26 Juill., 1827, Liege (p. 21, 668); Troplong, No. 954, de Fróminville, Tr. de )a Minoiitó, t, 2, No. 1006; Duranton, 1.17, No. 473; Codes Annotes Sircq., ed. 1859. vol. 1, p 862.

      David N. Barr oto, contra.

   The opinion of the Court was delivered by

Pochí;, J.

The facts are as follows:

In February, 1881, Joseph Anger and T. W. Nicol formed by authentic act a partnership for the cultivation of sugar-cane, for the manufacture of sugar, and for the business of keeping a general country store.

The partnership was to last five years, and the act contained the following stipulation:

“ In the event of the death of either parties to this act, it is to be left optional with the survivor whether said co-partnership shall continue or not.”

Joseph Anger died before the end oí the year 1881, and his widow was qualified as testamentary executrix of his succession.

On the 5th of December, 1881, Nicol, the surviving partner, presented to the District Court of Iberville a petition, in which lie recited substantially the foregoing facts, and in which he indicated his intention to continue the co-partnership, claiming the right, as conferred in the act, of the full administration of the business and of the property of the partnership for the unexpired term of five years.

The record does not show what action, if any, was taken by the court on that petition, but it appears that no visible change occurred in the management of the partnership business.

The record shows that after the death of Anger, Nicol, as the osteni sible manager of the firm of Anger and Nicol, bought considerable merchandise from plaintiffs for resale in the country store, which continued in the name of the firm, and that up to November, 1884, the aggregate cost of the goods thus purchased amounted to $2,637 50, the larger portion of which is represented by a promissory note for the sum of $2,604 26, executed on May 9, 1884, and signed by T. W. Nicol in the name of the firm.

The object of this suit is to obtain judgment on that indebtedness, against the succession of Joseph Auger and T. W. Nicol, in solido; and the present appeal is taken by the administratrix from a judgment in favor of plaintiffs as prayed for.

Plaintiffs’ contention, which is the theory of the judgment of the district court, is that under the terms of the act of partnership, the co-partnership as formed thereby, continued until the expiration of the five years therein stipulated, and that therefore the surviving partner was clothed with legal authority to contract the indebtedness sued ■upou, in the name of the partnership.

As legal authority for the stipulation invoked, we are referred to Article 2880 of the Civil Code, which read's: “Every par nership ends of right'liy the death of oiie of the pa'rthers, unless' aii agreement has been made to the contrary)” ' ’ ’ '

It is then argued that the stipulafion herein above transcribed from the act of partnership has the legal effect of removing the partnership beyond the domain of the general rule, and that it places it under the effect of “an agreement to the contrary” within the'scope of the exception contemplated by the article.

Counsel for appellees have made a very thorough and intelligent investigation of the jurisprudence of this and of other States of the-American Union, of France, of Spain, and of ancient Rome, touching the legal and binding effect of an agreement between partners looking to the continuation of the partnership, after the death of one or more! of the partners, between the, survivor or survivors and the heirs of the deceased, — and they call our attention to the dearth of opinions on the subject in our own reports.

Counsel of both parties are anxious that we should discuss the matter, and finally settle the question, which is of unquestionable importance to. commerce in this State. But we are constrained to disappoint them, for in our view of the case we are met with a .question which overshadows this particular controversy, and on which we must rest our decision. That question is: Docs the act of partnership in this case contain a stipulation that in ease of the death of one of the partners, the partnership was to continue between the heirs of the deceased and the surviving partner, and are plaintiffs, seeking to enforce an obligation arising under such a contract in their present action ?

To he well understood, the exception contained in Article 2880 must be read with the provisions of Article 2882, which are as follows:

“If it has been stipulated that, in case of the death of one of the partners, the partnership should continue between the heit of the deceased and the surviving partners, or between the surviving partners only, either of these stipulations shall be observed.”

Now, counsel and t-lie district judge all seem to construe the clause on this ,subjectrmatter .in the act of partnership between Anger and Nieol,. a,s containing such a stipulation, The .language, of the Code clearly contemplates a positive, agreement or contract between the •partners that the partnership should continue after the death of one or more of them. But we can draw no such meaning from the language used in this connection in the act now under discussion. That clause reads: In the event of the death of either of the parties to this act, it is to be'left optional with the survivor whether said co-partnership shall continue or not.”

Read in the light of Article 2880, that language ,means that at the death of either of the parties, the partnership would he dissolved, unless at his option jhe survivor should choose to make it continue. Bntit.is.no where stipulated, as a contract between.the parties, that the death, of either would not dissolve the-partnership. It may have been the intention of the parties to-have-made such a- stipulation. If such he the case, it is plain that the notary'did not understand them, or that he was unfortunate in the use'óf the words which he wrote as containing the agreement of the parties. ' By an agreement must be understood a stipulation which equally1 bind's botli parties, and in the case provided for by the Code, it should' have'the'effect of continuing the partnership after the death of one of the partners, as a continuing, contract, without regard to the wishes, desires or option of file survivor. Such is not the import or legal scope ánd meaning of the language used in the clause under consideration.' 1

Our own courts', and the commentators' of 'the Article 1868 of the Code, Napoleon, which is the origin of <u.f Article 2882, have uniformly construed the power thus confeírcd ‘ oh a party to burden his heirs by anticipation, very strictly, and Lave'restricted its effect within a very nariów compass.

Troplong says'On the subject. “Comme la continuation de sociéíó est un état- exceptionnel, il ne faut pas étehdre la convention d’oii elle dócoule.” Droit Civil Expliqué, No.' 955, v. 2, p. 427.'

Commenting on a similar provision in the Code Of 1808, this Court said: “This máy happen when the heirs'are óf age, and accept the benefit of a stipulation,"made in'their favor; like any other third person, who would perhaps be at liberty to claim the benefit of sncli a stipulation. But'we are clearly of opinion that according to the'laws and usages of commerce, as they prevailed in this country at tlie time of the adoption of the Code of 1808,"no stipulation could be made by partners, absolutely binding on the heirs of one of-them who should die, to continue the partnership after his death, an'd be made responsible for ' contracts' made in the partnership nanle.” Louisiana Bank vs. Kenner’s Succession, 1 La. 384.

And later on, the Court'said "oh'the same subject: “A partnership is ■ dissolved by tlie death óf one of the partners, unless there be a stipn- - lation to tlie contrary, but where tlie- succession of a partnér in a pa.rticular' partnership is insolvent, and a'dniinistéred'with the benefit of inventory, the partnership cannot be continued without the assent of •all the creditors, though the articles of partnership have provided.for its continuance.” Buard vs. Lemée, 12 Rob. 243.

Keeping in mind that these restrictions have been applied to cases in which tliere was a stipulation to continue the existence ot the partnership, after the death of one or more of the partners, we see that m the instant case we are expected to enlarge the meaning of a clause in a contract, which purports at most to vest discretionary power in the survivor, so as to eke out of it an absolute agreement between the parties to continue the existence and operation of the partnership after the death of one of the partners.

As a striking illustration of the old adage that “the wish is father to the thought,” we find that unconsciously the parties who refer to the clause in question change its phraseology and thus shape it so as to impart the meaning of the article of the Code.

Thus, in his petition to the court averring his desire to continue the partnership, the attorney of Nicol refers to the clause as saying: “That by said co-partnership it was stipulated that the death of either party should not dissolve the same unless the survivor so desired.” * * *

And in his opinion, the district judge describes the same clause, as follows: “The articles of partnership between Nicol and Anger stipulated that in the event of the death of either, that the partnership should continue for five years.”

The difference between the real language and the literal as well as legal meaning of the clause in the act, and the two references just quoted, is so striking that it requires no argument to show that the judge of the lower court had committed a serious m-ror as to the nature of the case which he was trying.

These considerations are perhaps sufficient in themselves to defeat plaintiffs’ claim against the succession, but in addition, the record shows that there is no claim of a partnership having continued between the survivor and the heirs of the deceased. The right, as conferred by the Code, is restricted to the heir, and no provision of our laws can be construed so as to extend the right to executors, administrators or other official representatives of successions. Hence the impossibility of recovering against the executrix in this case.

Undei the views which we adopted, we eliminate the question of the kind of partnership which had been formed between Anger and Nicol.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered that plaintiffs’ demand against the administratrix of the succession of •Joseph Anger be rejected, and their action against her dismissed at their costs in both courts.

Concurring Opinion.

Fenner, J.

Article 2881 C. C. declares: “Every partnership ends of right by the death of one of the partners, unless an agreement has been made to the contrary.”

I think this sanctions any otherwise lawful “agreement to the contrary,” and that the mention of particular agreements of that kind in the following Article 2882, is only exemplary and not limitative. Hence, I could see no objection to that feature of the act of partnership herein which subjected the continuance of the partnership to the option of the survivor.

If tlie deceased partner ctuld have validly created an absolute obligation to continue the partnership, he could have created a conditional one.

But the object of this suit is to hold, not the heirs, hut the executrix administering the succession of the deceased, bound under tlie continued partnership. I think this cannot be done, at least without proof that the succession has no creditors and that the executrix represents no interests except those of the heirs alone. Aman may bind his heirs by such agreement, but he cannot bind his creditors.

Thus it was held that the widow and heirs of a deceased partner could not, by voluntary agreement, continue a partnership as to the succession without the consent of the creditors. Buard vs. Lemée, 12 Rob. 243.

The administering executrix represents creditors as well as heirs. If ■the plaintiff has any rights, he must look to the heirs alone, not to "tlie succession or the administratrix.

' For these.reasons I concur in the decree.

.Manning, J., concurs in this opinion.


author: Fenner, J.

text:
    No. 9669.
    D. H. Chamberlain vs. Robert Worrell.
    ‘The general rule governing the measure of damages in actions for tortious conversion the value of the property converted with interest.
    The rule is subject to exceptions where the conversion is accompanied by violence or personal outrage, and perhaps where other particular damage is shown to have been clearly and directly occasioned by the wrongful act.
    .Bub in this case we see no reason to disturb the verdict of the jury, which applied the gen> eral rule.

      APPEAL from the Ninth District Court, Parish of Tensas. 'Young, 3.

      Steele <& Garrett for Plaintiff and Appellant..

      Wade JR,-. Young and Farrar & Kruttschnitt for Defendant and Appellee. ■ ■ • ■
   The opinion of the Court was delivered by

Fenner, J.

Defendant, Worrell, is the keeper of a public landing on the Mississippi river, in which capacity he received from plaintiff six hales of cotton to he shipped by him to plaintiff’s cotton factors in New Orleans, Shattnck & Hoffman.

Plaintiff being indebted to Worrell, the latter, instead of complying with the terms of his bailment, diverted the six hales and consigned them to his own meichants in New Orleans.

This was undoubtedly a tortious conversion, without legal excuse. Plaintiff brings the present action for damages, claiming the value of the cotton and about $6000 as consequential damages.

The case was tried by a jury, who disallowed all the damages claimed, except the value of the cotton, for which verdict and judgment were rendered, and from this judgment plaintiff is the appellant.

Tlie jury has simply applied the general rule governing the measure of damages in actions for tortious conversion, which is the value of the property converted with interest. N. O. Draining Co. vs. DeLizardi, 2 Ann. 280; Badille vs. Tio, 7 Ann. 487; 1 Sutherland on Damages, 173; 3 Id. 487, et seq.

The rule ,is not w ithout exceptions, as where the conversion is accompanied by violence or personal outrage, or where other damage is shown to have resulted clearly and directly from the wrongful act.

But we liave carefully examined the testimony in the case and have considered the various points made by counsel, and without further particularizing them, we are not disposed to disturb the verdict of the jury, which we think is sustained by the law and does substantial justice.

Judgment affirmed.


author: Manning, J.

text:
    9596.
    The State of Louisiana vs. W. H. Chapman.
    This Court lias not jurisdiction of a criminal causo when the fine imposed is three hundred dollars. It must exceed that sum.
    If the costs added to the fine make an aggregate of over three hundred dollars, that will not confer jurisdiction. Th§fme must exceed that sum by the express letter of the Constitution.

      The obligation to pay the costs oí a criminal prosecution rests upon a convicted defendant as a necessary consequence of the conviction, and would there abide whether expressed in the judgment or not.
    APPEAL from the Tenth District ■ Court, Parish of Rapides. Blackmail, J. ....

      M. J. Cunningham, Attorney General, and J. C. Wickliffe, District Attorney, for the State, Appellee. '

      H. L. JDaigre and JE. Q. Hunter for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was prosecuted for retailing spirituous liquors without a license, and on conviction was sentenced to pay a fine of three hundred dollars and the costs, and in default of payment to be imprisoned in the parish jail for sixty days.

Our jurisdiction in criminal cases is restricted to those wherein the punishment of death or imprisonment at hard labour may be inflicted or a fine exceeding three hundred dollars is actually imposed. Const. Art. 81.

The fine imposed on the defendant does not exceed three hundred dollars. It is exactly that sum. We have no more jurisdiction where the fine is three hundred than we should have if it was only three dollars.

The costs cannot he added to the fine so that the aggregate will make a sum within our jurisdiction because the fine must exceed three hundred dollars. And besides, the payment of costs by a convicted defendant or the obligations to pay them follows necessarily upon the conviction and rests upon the convicied party whether expressed in the judgment or not.

This Court has uniformly refused to assume jurisdiction in criminal causes unless they fall within the express letter of the Constitution. State vs. Drown, 27 Ann 236, and cases therein cited.

There is no motion to dismiss, but consent neither express nor implied can give us jurisdiction and therefore The appeal is dismissed.


author: Ejínneb, J.

text:
    No. 9665.
    Mechanics and Traders’ Insurance Company vs. Nathan Gerson, et al.
    An order refusing or revoking permission to file a supplemental petition is not ordinarily appealable. !No doubt, however, the rule would be different if the object of the supplemental petition were to engraft; a revocatory action on the principal suit and. to make the third persons concerned parties. Such light.is given by Arts. 1972 and 1975, C. C., and being the only mode in which the revocatory action can be prosecuted before judgment, the right should be protected.
    In this case, however, the supplemental petition does not present the features of a revocatory action, and the ruling of the court was correct.
    APPEAL from tho Fifteenth District Court, Parish of Pointe Coupee. Yoist, J.

      O. 0. Provosly, for Plaintiff and Appellant.

      Thos. H. Hewes for Defendants and Appellees.
   The opinion of the Court was delivered by

Ejínneb, J.

This record presents a separate appeal taken, in the-case just decided, from an interlocutory order of the judge revoking an order previously made by him permitting a supplemental petition to be filed.

The object of this supplemental petition was to make Barbara Sauter and her husband parties with the view of recovering judgment against them.

An order refusing or revoking'permission to file a supplemental petition is not ordinarily appealable, Penrice vs. Crothwaite, 11 Mart. 547; Giordano vs. Thomas, 13 La. 315.

No doubt a different rule would apply where the object of the supplemental petition was to join a revocatory action to the principal demand, and for that purpose to make tire third persons concerned parties. Such a right is granted by Art. 1975 and 1972, C. C., and being the only mode by which the revocatory action can be prosecuted before judgment, the right should be protected.

But after careful examination of the supplemental petition, we cannot class it as a revocatory action on the ground either of fraud or simulation. It does not pray for the judgment appropriate to such an action, as stated in Art. 1977, but asks for an independent money judgment against the Sauters.

The matter is of slight consequence, because under the judgment rendered by us in tlie principal case, plaintiff’s remedy, if be is entitled to any, is open in an independent, action, which would be as effective as if the case were remanded.

Judgment affirmed.


author: Todd, J.

text:
    No. 9372.
    C. P. Bertrand vs. N. K. Knox et al.
    Id an action to annul a judgment, all parties to the judgment must be made parties to tlie suit, as a general rule.
    Where a married woman is sued, but in the petition she is not so described and no order is asked for her authorization, and more than a year after the institution of the suit an amended petition is filed, wherein she is alleged, for the first time, to be a married woman, and the court is asked to authorize her to defend the suit, and the order therefor is then entered but no notice of the order is served upon her, and no delay allowed her to prepare her defense — a default being taken against her so soon as the order was signed — and she never thereafter appears in the suit;

      Held, that the wife was not a party to the suit.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      Favrot & hamon for Plaintiff and Appellant.

      I). K. Barrow and Knox <& haycock, for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.


text:
    No. 9459.
    MacFarland & Dupré vs. Lehman, Abraham & Co.
    In this suit for damages for wrongful attachment, it appearing that, prior to the attachment, the financial embarrassments of plaintiffs were such as to necessitate the stoppage of their business unless they could obtain relief from some source; and it not appearing that there was any source from which such relief could he obtained, they cannot recover damages for breaking up oí the business and loss of credit therein as occasioned by the attachment.
    The sale of plaintiffs’ rice mill, voluntary or forced, being inevitable, and they having tried in vain to find a purchaser befoie the attachment, and the forced sale thereof having been made after due advertisement and on twelve months credit, and no evidence being produced to show that anyone was or had been ready or willing to buy at a higher price, and none to show any deterioration in value resulting from the seizure, we are bouDd to accept the price hid at the sale as the criterion of its value, and to reject tlie demand for damages on that account.
    Considering the open and honest dealings of plaintiffs and their faithful efforts to pay their creditors at every sacrifice, communicated to all interested and to defendants themselves, the lattei’s proceeding by attachment, on the charge of fraudulent intent, was peculiarly injurious and insulting to plaintiffs, and substantial damages are allowed therefor.
    APPEAL from the Civil District Court for the Parish of Orleans. JZightor, J.

      Percy Koberts for Plaintiffs and Appellees.

      White & Saunders for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

This is an action for damagés resulting from the wrongful issuance of an attachment, being the same writ of attachment which was considered by us in the case of Lehman, Abraham & Co. vs. MacFarland & Dupré, reported in 35 Ann. 624.

In their petition herein, MacFarland & Pupró aver that-they have suffered $30,000 actual damages from the attachment of. which we have ■spoken. They itemize their claim, as follows: ... .....

1. For lawyer’.» fees incurred by petitioners on account of ■ ■ said attachment...................................350 00

2. For printing brief in said suit............■. .■.............

3. Paid stenographer for testimony taken, by him.......... 64 75

4. Rent paid on building Nos. 141 to 140 South Peters street, from November 14, 1882, to January 25, 3883........ 396 00

5. For loss of profits in their business caused by said illegal attachment during the term of said attachment and detention......................................... 8,000 00

6. For loss caused your petitioners by the forced sale of their said rice mill below its real value............. 8,000 00

7. For the breaking up of their business, the destruction of their credit and commercial standing, loss of time, trouble and distress of mind, wholly and exclusively caused by said wrongful, illegal and malicious attachment and detention................................. 13,178 00

Making in the aggregate the sum of..............$30,000 00

There is no serious dispute as to the liability of defendants for the first four items, the respective amounts of which were fully proved, and were allowed by the judge a qiio. He rejected the fifth item for loss of profits and the seventh item for breaking up of business, loss of credit, etc., and allowed the sixth item for loss on the forced sale of the mill, as claimed.

So far as the loss of profits and the breaking up of their business are concerned, we are constrained to sustain his rulings.

We cannot avoid the conclusion that the breaking up of their business and the consequent loss of profits resulted from the financial embarrassments in which plaintiffs were placed, entirely independent of the attachment.

They could not have been averted otherwise than by obtaining indulgence from their creditors, which the creditors refused to grant, or by a sale of the whole or a part of the mill, which they were unable to effect, and which, even if effected for the whole, would necessarily have terminated their interest in the concern.

Such was the clear acknowledgment of plaintiffs themselves in their •defense of the attachment suit, as the excuse for their efforts to dispose -of their property, and such was the theory upon which we maintained their defense.

Thus we said in our opinion: “The record shows that the defendant firm, owing to heavy Josses sustained in speculation in rice, had become financially embarrassed and so badly crippled that their business could not longer continue. The partners, therefore, concluded to sell their •mill for the purpose ol meeting their obligations, and this intention was at once communicated to their heaviest creditors, including the plaintiffs in this suit. * * 4 The record not only fails to show any frandulent. design of defendants, but it proves conclusively an honest, honorable and persistent intention on the part of these unfortunate debtors to make any sacrifice necessary to the payment of all their debts and liabilities.”

On these grounds we held that the attachment was wrongful, though, even then, by a divided Court.

We have carefully reviewed so much of the evidence in that case as was offered in this, and it satisfies us that the embarrassment existed to an extent incompatible with the continuance of the business in absence of relief, which was not forthcoming. The refusal of Maxwell & Peale and of Lehman, Abraham & Co. to extend the maturities falling due on Monday, November 13th, undoubtedly brought about a crisis iu plaintiffs’ business which necessitated its suspension until relieved.

They had no rico on hand and no money to buy with, and their mill must have remained idle,unless they could buy rice for milling on •credit. Their credit had undoubtedly been good; but tlieir default in paying for defendants’ rico sold on ten days’ time, which they had already resold and of which they had received the price, together with approaching necessary defaults on similar transactions, must have paralyzed the highest credit. They fully recognized this fact; admitted, in advauce of the attachment, that they were “frozen out,” and fell hack on the desperate alternative of selling an interest in their mill, or the mill itself.

Their claim that, hut for the attachment, they could speedily have raised money by sueli a sale or otherwise, and that their business would then have gone swimmingly on, is sustained by nothing but their own asseverations, honestly believed no doubt, but supported by no proof that any one was willing to buy or to advance them money -on any terms. It is true a Mr. Tisne liad tlieir proposition of sale under consideration, but lie bad asked for farther time, and he is not even produced as a witness to show what his determination would have been. Several other persons to whom the proposition had been offered had positively declined, and these embraced the persons most likely to-desire such an investment.

We find nothing to satisfy ns that plaintiffs could have found any means of extricating themselves from their embarrassment and of continuing the business, and, therefore, hold that the breaking up of their business and consequent loss of profits, the latter doubtful at best, were not attributable to the attachment.

The judge allowed as damages the sum of $7,700, the difference between $18,000, the estimated value of the mill, and $10,300, the pricewhicli it brought at the forced sale.

The sale was effected under afi.fa. issued on a judgment obtained by Maxwell & Peale against the plaintiffs, under the following peculiar-circumstances.

Maxwell & Peale were holders of a note having at the date of the attachment about six months to run to maturity. As soon as the attachment was levied, plaintiffs voluntarily substituted for the immature note one past due, on which Maxwell & Peale immediately brought suit and obtained judgment by default, without defense by plaintiffs. On this judgment fi. fa. issued, and the mill was seized and advertised for sale. By consent of parties, the leases of the property on which the mill was elected were offered at the same time, and the-whole was advertised for sale on twelve months’ credit. The property was adjudicated at $10,300 to the last and highest bidder.

We pretermit consideration of the questions as to whether such proceedings do not present serious features of a consent sale, and whether the attachment can be considered as the legal cause of the damage, if' any, occasioned thereby.

Mr. Maxwell testifies he would not have sued if the attaciiment had not been levied. He could not have sued if the substitution had not been made. Other creditors have not testified that they would not have sued regardless of the attachment. It is very certain that Lehman, Abraham & Co. would have sued, whether they had attached or not. In absence of any proof of the ability of plaintiffs to consummate any arrangements to settle with their creditors and continue the-business, we see no reason why other creditors should not have sued,, and why Maxwell & Peale, if they had obtained the substitution,, should not have done the same.

The evidence satisfies us that the sale of the mill, voluntary or forced,. was inevitable, unless plaintiffs could raise means to settle their indebtedness and continue the business. While professing great confidence in their ability so to do, they have pointed us to no source from which aid could have been obtained, except to a possible sale of an interest in the mill, which they had tried in vain to make, and they have failed to produce a single person who testifies that he would have-given the price demanded or any price greater than that of the adjudication.

Testimony as to the cost of the mill and opinions as to its value are,, therefore, ineffective.

If it were clear that, but for the attachment, plaintiffs could have-held and used their mill, and that no sale would have taken place, we might accept the value to them as the standard by which to measure the loss occasioned by the forced sale.

But if a sale was necessary, the criterion of value is obviously the price that can be obtained. Now we have searched the record in vain for any evidence showing that anyone was ready or willing to pay more for the mill than it brought under the hammer.

The terms of the public sale were of the most advantageous character, well calculated to induce purchasers at the fullest price.

There is no evidence of any injury or deterioration to the property during the seizure, or of any reason why it should not have brought as much at public sale as otherwise. It is not like cotton or dry goods, which have a certain market value at which they are readily convertible into cash, and which, when sacrificed at a forced sale below their value, afford a ready measure of the loss occasioned thereby.

Hence the following cases quoted do not apply: Duperron vs. Van Winkle, 4 Rob. 41; McDaniel vs. Gardner, 34 Ann. 34; Frank vs. Chaffe, Id. 1205.

On the whole we are compelled to conclude that the allowance for-alleged loss on the sale of the mill was error.

It only remains to consider the damages claimed for injury to their-commercial standing as individuals, and loss of time, trouble and distress of mind occasioned by the wrongful attachment.

Evidence on these points is scanty, but even if fuller, could have thrown little light not reflected from the very facts of the case.

We have never seen an example of debtors who were making more faithful and earnest efforts to pay their creditors, and who were more-determined to do so even at the heaviest sacrifice. Their purposes- and motives were thoroughly honest, their action was open and above board, communicated to all interested and.to the defendants themselves. Under these circumstances the action of the latter in taking the attachment upon an affidavit that plaintiffs were seeking to defraud their creditors and place their property beyond their reach, was insulting and aggravating in the extreme, and well calculated to wound and incense them. Necessarily, also, it occasioned trouble and loss of time, and cast injurious imputations upon their character as merchants and honest men.

We think they are entitled to substantial reparation for these injuries, which we shall fix at one thousand dollars.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing tire principal sum allowed therein from $8,522 to $1,622, and that as thus amended the same be now affirmed, appellees to pay costs of appeal.

Todd, J. dissents from so much of the opinion and decree as allows more than $822.


author: Bermudez, C. J.

text:
    No. 9678.
    Successions of Zenon and Elise Labauve. Austin Hunt et al. vs. C. A. Bruslé et als.
    An appeal taken from an order refusing to dissolve an injunction on the face of the papers, is not maintainable.
    The rule is in the nature of an exception of no cause of action. It is merely an interlocutory order requiring no execution, producing no effect, Its rendition can work no irreparable injury, the less so when the injunction simply arrests funds in the hands of the ■executive officer of the court.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      A. Talbot and Jonas cO Nixon for the Administrator, Appellant.

      D. N. Barrow, A. Hebert and F. F. Grau, contra.

   The opinion of the Court was delivered by

Bermudez, C. J.

It is urged that, as the judgment appealed from is merely interlocutory and works no irreparable injury, the appeal -must be dismissed.

The suit has for its object the removal of an administrator, at the instance of creditors, and the appointment of a successor to him when ■displaced.

The petition avers that there are certain funds in the sheriff’s hands which should not be paid over to the administrator, for reasons stated.

On affidavit and bond, tlie court allowed ail injunction to prevent tbe sheriff from paying those funds over to the succession representative, whose removal is sought.

A rule was taken to dissolve this injunction on tlie face of the papers, no sufficient cause having been shown to justify the issuing of it.

This rule, after hearing, was dismissed, and the judgment thus rendered is brought up for review.

This judgment is purely interlocutory and not such as can cause any irreparable injury.

It can be revised on appeal from the main judgment, should one he rendered against the defendant.

It merely retains in the hands of tlie executive officer of the court the proceeds of sales made by him and, for tlie payment of which to who may be entitled to receive them, he and his sureties are liable.

The rule is in the nature of an exception of no cause of action.

It has been held that a judgment dismissing a rule to dissolve an injunction on the face of the papers, or exceptions having the same purport, are interlocutory orders which can cause no irremediable wrong and which are not appealable anterior to a judgment on the merits. 7 Ann. 206; 14 Ann. 388; 3 R. 437.

Appeal dismissed.

Poclié, J., takes no part in this case.


author: Poché, J.

text:
    No. 9634.
    The State of Louisiana vs. D. F. Burdon and J. F. Burdon.
    In criminal cases, all.tho essential facts must ho found by a special verdict, in order to enable the court to give a judgment of Jaw upon thomnttoi-in issue. Kothingis Jobo taken by the court by implication or intendment. ‘What is not found is supposed not to exist*
    Hence, in a trial under a statute winch denounces the offense of “ receiving or buying any goods or chattels that shall ho feloniously taken or stolen from any oilier person, knowing the same to have been so stolen or taken,” a verdict of “Guilty of knowingly jocoiving stolen property ” dues not contain the legal requirement touching the intent with which the goods were received by the accused, and it cannot therefore be the basis of a legal sentence.
    APPEAL from the Criminal District Court for the Parish of Oilcans, Baker, J.

      IT. J. Cunningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee:
    1. In an indictment charging the defendant with receiving stolen property, under Sec. 832, • 11. S., a verdict finding the accused guilty of “knowingly receiving stolen property,” ia legal.

      2. Guilty knowledge is of tlie essence of tlie crime. Bishop Cr. Prac.Vol, II., § 906; "Wliar. ton Cr. E. §§ 983, 989; Wliartoa Or. Ev. § 164; Desty Cr. L, 147, a.
    3. In suck a verdict, tko use of the adverb “ knowingly ” “ modifies ” the verb in a particular sense and makes it more correctly descriptive of the offense.

      4. Suck a verdict is not a special one, not being a statement of facts. It is a finding or conclusion of law deduced from a certain state of facts.

      W. B. Wldtdlcer and O. H. Imgeiiberg for Defendants and Appellants:
    “A jury have a right in all criminal cases to find a special verdict. Suck a verdict must state positively tko facts themselves, and not merely the evidence adduced to prove them; and all the facts necessary to enable the court to give judgment must bo found, for the court cannot supply by any intendment or implication any defect in the statement." 1 Ckitty Cr. E. 645; State vs, Ritchie, 3 Ann. 512; State vs. Roster, 7 Ann. 256; State vs. Davis, 20 Ann. 354; State vs. Roster and Davis, 36 Ann. 857; State vs. P. C. Peters, 37 Ann. 730.

      •4t Guilty of knowingly receiving stolen property ” finds the defendants guilty of no crime known to the law of this State.
    .Silence of the jury as to one count in an information containing two counts, is an acquittal .as to that count. Proffat on Jury Trial, § 425; 2 Virg. Gas. 235.
   The opinion of the Court was delivered by

Poché, J.

On trial of tlie defendants under two counts — for grand larceny and for receiving and having stolen goods, knowing the same to have been feloniously stolen — the jury returned tlie following verdict: “Guilty of knowingly receiving stolen property.”

The defendants appeal from the judge’s refusal to sustain their motion in arrest of judgment, which was based on the ground:

“That said verdict is a special verdict; that it is a finding solely as ■to facts; that it is complete in itself; that it finds no offense known to the law of this State, and that no judgment can be pronounced upon it.”

Section 832 of the Eevised Statutes, under which the charge was framed, reads:

“Whoever shall receive or buy any goods or chattels-that shall be feloniously taken .or stolen from any other person, knowing the same ■to have been so taken or stolen,” * * *

It is clear that the essence of the crime denounced by the statute is ■the act of receiving stolen property with the guilty knowledge that the ■same had been stolen, and with the guilty intent of thus receiving it ■with the design of appropriating the same, to tlie detriment and injury <of the true owner.

To receive the stolen property, knowing the same to have been stolen, with tlie design of seeking out the true owner and to deliver ■the same to him, would certainly not constitute an offense under the meaning of the statute, no more than would be the act of a court officer who receives in custody stolen property, knowing the same to have "been stolen, for tlie purpose of producing the same in court at the trial •of the accused.

Tlie language used in the verdict may reasonably be construed to designate either or both of these manners of receiving stolen property, but unexplained and unaided by surrounding circumstances and by the possible meaning of the jury, it does not necessarily convey the idea that the jury had found that the accused had knowingly received stolen property with the guilty design of appropriating it and of thus depriving the true owner of the same.

In default of that essential declaration flowing clearly from the language used ill the verdict, the finding of the jury does not present an offense known to the laws of Louisiana. Hence, the point made by defendants’ counsel was well taken.

In construing the true import and -meaning of doubtful verdicts, the rule is that “all the essential facts must be found by a special verdict, in order to euable the court to give a judgment of law upon the matter in issue. Nothing is to be taken by the court by implication or intendment. What is not found is supposed not .to exist.” Proffat on Jury Tiial, § 436.

In keeping with that principle this. Court has made the following rulings, which are unquestionable precedents for the conclusion which we have adopted iu this case:

In State vs. Ritchie, 3 Ann. 512ja verdict on a charge of kidnapping a slave of another party, who was then and there deprived of the use and benefit of said slave, the verdict was set aside because the jury found the accused, guilty “of carrying away and disposing of the negro ‘A,’ the property of ‘B,’” without tlie statement that the owner had -then and there been deprived of the use and benefit of his said slave-

In Davis’ ease, 20 Ann. 354, the verdict was found insufficient, be■cause the jury found the defendant “guilty for keeping a banking-game or gambling house,” under a statute which denounced the crime of “keeping a banking-game or gambling house, at which money or •anything representing money, or any article of value, shall be bet or hazarded,” * * *

The verdict of the jury in the case of Davis and Foster, 36 Ann. 857, was for similar reasons set aside. On a trial for murder tlie verdict read: “Both guilty of capital punishment.” See also, State vs. Peters, 37 Ann. 730.

It is therefore ordered that the verdict of the jury and the sentence of the court be annulled, avoided and reversed, and that the cause be remanded to the lower court for a new trial according to law.


text:
    No. 9627.
    Citizens’ Bank of Louisiana vs. Succession of Mrs. C. Cuny and J. B. Clement.
    ■When pi open ty, part- of which is subject to a mortgage, is poUI by tho owner, sratl tbo purchaser, in part payment of the price, assume* payment of llie mortgage debt, tho latter,, as part of the piicc, is seemed by vendoi’s pmiiege on tho whole property sold; but the mortgage remains confined to the part oiiginally subject thereto.
    "When in proceeding by executory process to enforce tho mortgage alone, without referenco to tho privilege, an order of seizure and sale issues against tho whole property, it cm»* braces property not covered by the mortgage, and is, therefore, error and the order must, be set aside on appeal.
    PPEAL from tlie Twenty-second District Court, Parish of St.. James. Duffel, J.

      Henry 0. Miller aud Bérault c& Legendre for Plaintiff and Appellee.. liobt. G. Dugué for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff had a mortgage upon a certain tract of land.. A subsequent purchaser subject to the mortgage, sold tho land so mort gaged, with other lands belonging to him aud not included'iu. the mortgage, to a third person, the act reciting:

“ This sale is made for $44,461 14, which the said purchaser has paid, as follows:

“1st. By paying in cash $4,188 14;

“2d. By assuming a mortgage in favor of the Citizens’Bank, resting; upon part of the property herein sold, amounting to $5,573;”

And as evidence of said assumption she furnished a note for that sum, paraphed to identify it with the original act of mortgage, which, was delivered to and accepted by the bank.

For the remainder of the price she furnished nine promissory notes,, which were secured by special mortgage and vendor’s lien on the whole-property sold.

The act contains not a word showing that the note furnished to tho-Citizens’ Bank in evidence of the assumption was secured by any mortgage other than the original one assumed, which bore only on part of the land.

There can he no doubt that the debt to tho Citizens’ Bank, being: assumed as part of the price of the whole property, became secured by a vendor’s privilege on the whole. This is well settled. Scionneau vs. Waguespact, 32 Ann. 283; DeL’Isle vs. Moss, 33 Ann. 164.

But the privilege is very different from the mortgage. While the--bank’s mortgage primes all other claims on the part of the property subject thereto, her privilege on the remaining property is only concurrent with that of the holders of the notes for the balance of the price.

The bank, in this proceeding, obtained an order of seizure and sale-in execution of her mortgage, which is represented as affecting the whole property, and the order directs the seizure and sale of the whole property for the satisfaction of the mortgage. The petition contains no allusion to the vendor’s piivilege.

Prom this order the defendants appeal, and inasmuch as the order in execution of the mortgage simply directs the seizure and sale of more property than is covered by the mortgage, the error is apparent and the order must be annulled and set aside.

It is, therefore, ordered, adjudged and decreed that the order of seizure and sale appealed from be annulled and set aside, in so far as it orders sale of property not covered by original mortgage, and otherwise affirmed; plaintiff and appellee to pay costs in both courts.

Poclié, J., recuses on the ground of interest.


text:
    No. 9645.
    The State of Louisiana vs. Solomon Williams.
    The disqualification of a juryman for the reason that he is a convicted felon cannot be taken advantage of in a motion in arrest of judgment. Itis assimilated to the disqualification of alienage and non-residence and objection must be made before conviction.
    A new trial is not grantable because of newly-discovered evidence, the sole object of which is to impeach the veracity of the leading witness for the State, nor on the giound that a witness for the State has made statements since the trial at variance with his testimony upon it, especially when the lower judge holds that other testimony warranted the conviction, or does not believe the newly-discovered witnesses.
    The greatest reliance is placed on the trial judges in refusing new trials in criminal causes, and it would be an unwise restriction to hold that they shall not take into account their belief that false-swearing has been 1 esorted to in order to break a conviction and obtain a new trial.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.
    If. J. Cunningham, Attorney General, for the State, Appellee.

      W. C. JPerrault for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

Prom a judgment upon a conviction of murder without capital punishment the defendant appeals.

The jury-panel having been exhausted, talesmen were summoned, among whom was one Clavib who sat as a juryman. After the verdict was rendered the prisoner moved “to annul and set it aside,” or as the motion should have been termed, moved in arrest of judgment, on the ground that Clavie was a convicted felon, having been sentenced in 1883 to six months confinement in the parish jail upon conviction of a criminal offence.

Without discussing the question whether a sentence of imprisonment in a jail for the commission of a criminal offence entails the loss of a freeman’s privilege, we think the objection to the juryman should have been made before conviction. This disqualification or incompetency is assimilated to that arising from alienage or non-residence and must be pleaded in time. An accused is not permitted to wait until after conviction to make the objection that a petit juryman is personally disqualified. State vs. McGee, 36 Ann. 206, where the subject is discussed at length.

The motion for a new trial is upon the ground of newly-discovered evidence in this; — that the prosecutor, a brother of the man who was killed, has voluntarily admitted to Moses Cain and George O’Neal that the prisoner and the deceased were good friends up to the moment of the homicide and that the death of his brother was caused by the accidental discharge of the pistol, etc., — that this prosecutor while on the •stand as a witness was questioned “in order to elicit answers-in accordance with the above statements but the witness denied them and swoie directly contrary to their admissions.” In other words the newly-discovered evidence impeaches the credibility of one of the witnesses for the State.

A new trial is not grantable because of newly-discovered evidence, the sole object of which is to impeach the veracity of the leading witness for the State. State v. Fahey, 35 Ann. 9; State v. Diskin, Idem, 46.

Nor will a new trial be granted on the ground that a witness for the State has made unsworn statements since the trial at variance with his testimony on the trial, and especially when the lower judge holds that other testimony on the trial warranted the conviction, or does not believe the new witnesses. State v. Johnson, 30 Ann. 305.

The affidavit of the prisoner is supported by that of the two newly-discovered witnesses a,nd one of the reasons assigned by the judge for overruling the motion is that he did not believe them. We have before said that applications for new trials such as this must be received with .grbat caution and'that the inducements to false swearing are very great. State v. Washington, 36 Ann. 341. The greatest reliance is placed on the trial-judges in refusing new trials in criminal causes, and it would not be a wise restriction to hold that they should not take into account their belief that false-swearing was resorted to in order to break a conviction and obtain a new trial.

The affidavit contains the allegation that with all possible diligence -the defendant could not procure the evidence before the trial, and yet on the trial, as his motion recites, he sought to elicit from the witness .admissions such as lie now alleges he can prove were made. This •shews the sole object of the new.evidence is to discredit the State’s witness, and as we have already said a new trial is properly refused when that is the case.

Judgment affinned.


text:
    No. 9657.
    The State of Louisiana vs. Sam Burns et als.

      An appeal in a criminal proceeding, asked after the term during which the judgment complained of was rendered and mad'o returnable on appellant’s suggestion, on an improper day, must be dismissed as sought and returned too late.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      M. J. Cunningham, Attorney General, and L. J. Beale, District Attorney, for the State, Appellee.

      Robertson & Tiussell and G- & W. Buckner, for Defendant and Appel•ant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The sureties on the appearance bond furnished by ■one of the defendants, appeal from the judgment forfeiting their bond.

The State moves to dismiss the appeal, on the ground that it was taken too late.

It is settled that the proceeding to forfeit is criminal in character. 37 Ann. 200; 7 Ann. 276.

. The judgment forfeiting the bond was signed on the 22d of November, 1884, and the appeal was sought and granted on J une 8th following (1885).

In appealable criminal cases, the appeal must be asked during the term at which the judgment is rendered and not after, and it must be made returnable within ten days from the granting. Act 1878, No. 30) secs. 1, 3 and 4.

The appeal was prayed for by petition and asked to be made returnable to this Court, at New Orleans, on the second Monday of February,. 3886. The order was in accordance. For this error the appellant is responsible, as he suggested an improper return day.

As the appeal was not asked during but after the term at which the judgment complained of was rendered, and is besides made returnable,, at appellants’ suggestion, on an improper day, in violation of law, it. cannot be maintained.

It is ordered that the appeal be dismissed.


author: Poché, J. Fenneu, J.

text:
    No. 9598.
    The State of Louisiana vs. Eugene Offutt.
    A motion for a now tiial made in a criminal canso, after sentence, after the caso has boem finally closed and an appeal taken, comes too late-
    Heneo, the trial judge does not err if he refuses to direct his clerk to include such tardy and irrelevant proceedings in the transcript of appeal.
    Therefore, the Supreme Court will not entertain any proceeding intended to coerce the district judge to order the introduction of such foreign matters in the tianscript.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      M. J. Cunningham, Attorney General, and L. I). Beale, District Attorney, for the State, Appellee.

      K. A. Cross for Defendant and Appellant.
   On Application eor Certiorari.

The opinion of the Court was delivered by

Poché, J.

The accused complains of the refusal of the district judge to direct Iiis .clerk to include in the transcript, as part of the record, a supplemental motion for a pew trial made by his counsel, and the affidavit of a witness made in support thereof, after the trial had been concluded.

His object is to present his said motion together with the supporting affidavit and the judge’s refusal of the new trial to the action and revision of this Court.

His own petition shows that the motion in question was presented after a final disposition by the trial judge of a timely motion made by his counsel for a new trial, after sentence had been passed on him, and afterthc case liad been finally closed and an appeal taken. Hence, the motion and tbo affidavit form no part of the proceedings held in his. trial. The appeal which he had taken from the sentence of the court, ■and from the verdict of the jury, before he presented the motion in ■question, can present for review only such things and matters as have •occurred during, and form parts and elements of, his trial.

It is not error for a judge to sustain a challenge for cause to a juror ou tlio ground that ho does not understand the ordinary use of the English language.

A hill of exceptions to the ruling of the judge in refusing a new trial, which simply states tho fact of the overruling without any recitation of facts relied on or statement of grounds on which the judge acted, affords no hasis for'reviewing the ruling, because it affords no certification of the facts recited in the motion.

Newly discovered evidence, merely tending to impeach or discredit witnesses who have testified on the trial, does not necossarily afford ground for now trial, and wo are not dis. posed to disturb rulings on such question.

It follows that we would be powerless to consider or give legal effect To the proceedings which his counsel is now seeking to bring up to our notice, even if they had been included in the transcript.

On appeal from a criminal prosecution, this Court'lias no more con- • cern with proceedings or other incidents connected with tho accused or with the charge under which he has been convicted, which have occurred subsequently to the trial and sentence, than it would have with the mode of incarcerating the accused, or with tho action of tho Executive Department of the State in enforcing the judgment of tho •court, or in commuting or remitting such sentence.

It, therefore, appears to us that far from erring in tho refusal complained of, the district judge would have committed a grievous error if ho had followed the suggestion of defendant’s counsel, and had thus ordered his clerk to inject in the transcript matters which were entirely foreign to the only issues which could have been tried on appeal.

The reliance of counsel on the decision in the case of The State vs. Bess, 31 Ann. 191, cannot avail him in the relief which he now seeks to obtain.

In that case the matters which were missing from tho transcript formed essential and vital parts of the defendant’s trial, and presented issues which the appellate tribunal had the undoubted right to consider and to dispose of.

It is, therefore, ordered, adjudged and decreed that the writ of certiorari herein applied for be denied.

On the Merits.

Fenneu, J.

The case is before us on three bills of exception.

Bills Nos. 1 and 2 aro so clearly meritless that tlxev scarcely require notice. After a juror had been examined on his voir dire and accepted by both parties, the district attorney, suggesting that perhaps the juror had not understood the questions propounded to him, desired to question him. on that point. The court asked the juror if lie had understood; he answered in the affirmative and remained on the jury. This is the subject of the first bill.

The second is hardly less frivolous, being taken to the ruling of the court in sustaining a challenge for cause of a juror, the court’s reason being that he was “ignorant of the ordinary use of the English language.” This was a proper exercise of the power expressly granted to-the judge to the jury law. See Act No. 54 of 1880.

The third bill is to the overruling of a motion for new trial. It is in the following words: “Be it remembered that the court overruled the motiou for a new trial filed by the accused for the grounds stated. Whereupon the accused excepted to the ruling of the court and tenders his bill for signature and approval.”

Such a bill affords no basis for reviewing the action of the court in this case.

The motion for new trial was based on two grounds:

1st. That tito verdict was contrary to the law and the evidence;

2d. Newly discovered evidence.

The latter was on points immaterial to the intrinsic merits of the case, and went merely to impeach the veracity of the prosecuting witnesses by contradicting certain statements which the motion alleges' they had made.

But we have nothing but the allegations of accused that the witnesses had made the statements proposed to be contradicted, and, for aught we know, the judge may have denied the motion on the ground that no such statements had been made. At all events, the record affords no certification of the truth or pertinency of the matters alleged or of the grounds on which the judge based his ruling; and surely it would be utterly rash for us to pronounce his ruling erroneous.

Besides, newly discovered evidence merely tending to impeach or discredit a witness who has testified, is not necessarily good ground for a new trial, and we are not disposed to disturb the ruling of the trial court on such a question. State vs. Young, 34 Ann. 346; State vs. Fahey, 35 Ann. 10; 36 Ann. 11.

Judgment affirmed.


text:
    No. 9654.
    Mary L. Saunders et al. vs. Sallie E. Burns.
    A suit against a married woman should be brought against her and her husband.
    It is only in case tho husband is absent or refuses his authorization that the judge can validly authorize the wife to stand in judgment alone.
    In this case, the husband was not sued and has not appeared. There being no allegation or pretense that ho was absent or had refused, the judge’s authorization was invalid.
    Tho vice was not cured by going to trial without excepting on this ground. The objections to evidence on tho ground that the wife was not legally authorized to stand in judgment should have been sustained.
    Under Article G06. C. P , the judgment, however rendered, was subject to nullity.
    PPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

      Watkins, Scarborough cG Carver for Piaintiffs and Appellees:
    1. The incapacity of the wife is icmov(d by the antboiization of the husband or the judge. E. O. C. 1786.
    The objection is waived by previous pica and answer, in which the husband joined, and could not thereafter be urged by way of objection to the introduction of evidence. C. P. 107, 118; 14 Ann. 805; 10 Ann. 504 ; 9 Ann. 216; 5 Ann. 369.
    2. The individual creditor may exercise the revocatory action after he has obtained a final judgment against bis debtor*, without making bis debtor a party. E. C. C. 1972,1975.
    Tho defendant’s objections were dilatory in their character, and should have been specially plead and previous to answering to the merits.
    3. The defendant nrnstbe restricted to proving the price or consideration mentioned in the mortgage and dation. Chafle vs. Sheen, 34 Ann. 669; E C. C. 1900.
    4. As there was, and is, in existence a matrimonial community, property purchased in the name of either* of tho spouses falls into it and forms part of it, unless tho married woman asserting title makes iull and conclusive proof as against husband’s creditors. E. C. C. 2402; 29 Ann. 583; 15 Arm. 119; 26 Ann. 552; 20 Ann. 531, 206; 24 Ann. 295, 521; 32 Ann 454, 611; 33 Ann. 806.
    5. Eecitals in the acts of salo are of themselves no proof of the amount of the consideration paid, nor by whom samewas paid. 12La. 302; Demsloy vs. Pollock, 7 ÍT. S.460; Buisson vs- Thompson ; 33 Ann. 609, A ngcle vs. Sonlie.
    6. A wife’s dation from her husband, in satisfaction of his indebtedness to her, without an adequate and legitimate consideraticn, is in violation of a prohibitory law and void E. C. G. 2446; 4 Ann. 65; 1 Ann. 301; 2 Ann. 483; 7 Ann. 52; 11 Ann. 265; 21 Ann. 4GG; 4 La. 421; 30 Aim. 750; 5 Ann. 594; 23 Ann. 439.
    7• Tho defendant had no r ight to demand or receive interest on the debt her husband owed her dining the existence of the community. E, G. C. 2386, 2402; 19 La. 581; 3 Ann. 611.

      Jaclc cG Dismulces for Defendant and Appellant:
    Ko valid judgment, annulling as simulated a dation enpaiement made by the husband to the wifo, can be pronounced against the wife sui juris and alone, in the absence of aver ments of bis inability or refusal to act; and where the petition itself charges that the wifo is not separate in estate from him, and that ho is present in the parish and fails tcpray that he bo cited with her or be made a party in any way.
    In such a case there is neither light nor cause of action disclosed, and tho vice is so glaring and fundamental that it may be brought to tho attention of the court by exception before or after issue joined, by objections to evidence, by plea or suggestion on appeal, and even after (be right of appeal has lapsed by direct action of nullity brought by the wife, tlio husband or tho heirs; moreover, tho court may and should ex-officio notice and declare tho nullity. C. P. art. 606; 3bT.S.493; 2 Ann. 3, 806; 12 Ann. 350; 14 Ann.165 15 Aim. G28; 23 Ann. 323; 28 Ann. 840; 12 Ann. 239; 18 Ann. 735; 29 Ann. GOO; O. P. arts 604 and 609.
    •*' When one intends to sue a married woman for a cause or action relativo to her own separato'interest, tho suit must bo brought both against her and her husband. Should the husband bo absent, tho plaintiff must demand that she be authorized by the judge before whom tho suit is brought to defend it alono.” C. P. art. 118.
    The judge cannot authorize tho wife to defend a suit if the husband be not absent or interdicted or does not refuse to authorize her. 11 Ann. 69 j 24 Ann. 141; Manning’s tJnre ported Oases, p. 65,
    Where tho husband is made a party and joins in the answer or suffers dofault to be confirmed against him, after being duly cited, his authorization of the wife is legally in ferred, alitor, is not made a party and not cited. 28 Ann. 403; 29 Ann. 749 ; 34 Ann. 1048.
    In a suit to annul or to i evoke a sale of an immovable for simulation or fraud, the vendor is a necessary party. 31 Ann. 259, 196; 32 Ann. 9L; 15 L. 503; 10 P. 387; 8 Ann. 386.
    Actions to annul a dation en paiement, made by the husband to the wife for fraud and simulation, combine the elements both of the revocatory action and of the action en declaration do simulation, and where more than one year lias elapsed between the execution and registry of the transfer and tho date of service of citation in the suit, the features of the revocatory action, such as inadequacy of piice, undue preference, and otheis peculiar to that proceeding, may ho eliminated by tho plea of prescription of one year, leaving tho issuo as one of simulation volnon. 2 Ann. 659; 3 Ann. 248; 4 Ann. 36; 6 Ann. 87, 439 : 7 Ann. 298; 12 Ann. 889; 14 Ann. 106; 24 Ann. 124, 246; 30 Ann. 749, 9GG; 3L Ann. 594; 34 Ann. 347, 883.
    Tho object and effect of tho proceeding thus eliminated of tho elements of the revocatory action, is to unmask tho title in favor of alL tho creditors, indiscriminately, and this presupposes that the act never had anything more than a more semblance of existence, and that it was wholly without just cause or consideration. 37 Ann. 308; 11 Ann. 168, 265.
    When an actual consideration, no matter how inadequate, has been paid by the purchaser in an alloged sale, it is not a simulation, and should tbo consideration be different from that stated, it suffices, if it ho a valid one. 32 Ann. 94 ; 1 Ann. 132; 2 Ann. 323, 913, 959;
    4 Ann. 36; 8 Ann. 431; 12 Ann. 173; C. O. art. 1900.
    Tho husband may make a dation en paiement to his wife for a legitimate cause, such as tho replacing of lior paraphernal effects, whether her claims are liquidated by judgment or secured bymortgage or not. O. C. art. 2440; 33 Ann. 818, 532 ; 30 Ann.745; 8Ann.485.
    “A succession is acquired by tho legal heir immediately on the death of the person to whom ho succeeds.” C. 0. 940.
    j'Propcrt.v adjudicated to a married licit* at a succession sale and paid for out of her heritable share, becomes her separate property, and does not fall into the community betu eon her and her husband.” 33 Ann. 425; 34 Ann. 1047; 2 Ann. 930; 14 Ann. 722; 5 Ann. 742; G Anil. 803; 20 Ann. 40.
    Where it is shown that tho husband actually received and appropriated the paraphernal funds of the wife, the creditors are not concerned as to how or why she received the property. 36 Ann. 217.
    A judgment not attacked for fraud is prima facie good as to third parties. 20 Ann. 266; 5 Ann. 401; 4 Ann. 135; 17 L. 205; 15 L. 59.
    “The wife has, during marriage, a right of action against her husband for the restitution of her paraphernal effects and the fruits of them.” G. C. 2390, 2301, 2387; 35 Ann. 806.
    Tho seLtled jurisprudence in regard to the -wife’s paraphernal property is, that the husband is presumed to exercise administration until the contrary he shown, and that in all cases the burden of proof is on those who have an interest to contest it. 16 Ann. 145; 33 Ann, 164.

      When there is no evidence showing that the wife administered her paraphernal property separate and alone, it is the presumption that the husband used tho funds as his own. 18 Ann. 538; Ibid, 105 : O. C. 2362. 2368.
    'The rule announced in 33 Ann. 609, that declarations of tho husband and wife, contained in notarial acts, are no legal evidence of the facts they state, applies te their declarations made inter sese, and does not mean that recitals contained in judgments and sheriffs’ deeds must be proven ediwnda.

   The opinion of the Court was delivered by

Fenner, J.

This action is brought by plaintiffs, wlio are judgment creditors of Geo. W. Thompson, against Ms wife,.Sallie E. Burns, to annul, as fraudulent sinralations, a special mortgage and subsequent ■elation en paiement made by Thompson to bis said wife, in fraud of Ms creditors.

The action is brought against the wife alone. The husband is not ■cited or made a party and no relief is asked against him.

Serious objections are urged against the sufficiency of the authorization of the wife to enable her to stand in judgment.

Article 118, C. P., says : “ When one sues a married woman for a cause of action relative to her own separate interest, the suit must be brought both against her and her husband. Should her husband be absent, the plaintiff must demand that she be authorized by tlie judge to defend it alone.”

The suit was not brought against her and lier husband. There was no demand for the judge’s authorization. There was no allegation ■showing or pretense that the husband was absent or that he refused to authorize his wife.

The law is clear and this Court has distinctly hold that tlie judge cannot authorize the wife, when the husband is not absent and has not refused to give Ms authorization. Delacroix vs. Hart, 24 Ann. 141. Hence the judge’s authorization in this case was illegal and insufficient to enable tlie wife to stand in judgment.

It is claimed, however, that this defect.was cured by the appearance of the husband conjointly with the wife in the filing of an exception of Ms pendens. But we find no such appearance. It is inferred solely from the fact that the exception begins. “ Now come the defendants, etc.” No mention is made of the husband or of his authorizing the wife, and as he was not a defendant or a party in any mode, we see not how tlie mere use of a plural can be construed as including Mm.

The answer of the defendant wife, under which issue was joined and .all further proceedings had, was. filed exclusively in her own name, without reference, direct or indirect, to her husband. We tliink this •defect invalidates the whole proceeding.

Her failure .to except on this ground cannot cure the vice. Even her unauthorized confession of judgment would be invalid. Art. 606, C. P., (see Delacroix vs. Hart, 24 Ann. 141), declares the nullity of a judgment, “if rendered, even contradictorily against a person disqualified by law from appearing in a suit, as a married woman without the authorization of her husband or of the court.”

The defendant called attention to the fatal defect of the proceedings by objecting to all evidence, on the grounds that she was a married woman, that her husband had not been joined or cited, that he was not absent and that the judge’s authorization was insufficient.

The objections were valid and should have been sustained.

Further objection was made on the ground that the husband was a-necessary party in his own right. As we shall remand the case, we mention it for the purpose of saying that we consider it a serious one, and that the dictum of certain decisions that in an action to annul a contract for fraud or simulation, it is not necessary to make the original debtor a party when the debt is reduced to judgment, is not free from doubt as to its correctness and rests on authority slighter than is generally supposed.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and that the case be remanded to the lower court, in order that the husband of defendant may be cited and for further proceedings according to law, plaintiff and appellee to pay costs in both courts thus far incurred.


author: Bermudez, C. J.-

text:
    No. 9674.
    L. G. Barron and Gerome Barron vs. J. W. Jacobs et al.
    A suit in rovendication of real estate must bo dismissed, where it appears tlaat prior to the-institution thereof, the plaintiffs have sold all tlieir interest to the land.
    The dismissal of such suit cariies witlijt that of an intervenor claiming the same property as plaintiff’s vendee, the more so, where in terms the judgment so expressly declares.
    A PPEAL from the Eleventh District Court, Parish of Natchitoches. jUA_ Pierson, J.

      Watkins, Scarborough t& Carver for Plaintiffs and Appellants.

      W. G. McDonald and E. E. Buckner for Defendants and Appellees.
   The opinion of the Court was delivered'by

Bermudez, C. J.-

The plaintiffs sue to recover the undivided half of certain real estate, by inheritance from their deceased mother.

The defendant denies the plaintiffs’ pretensions, claims title and calls his vendors in warranty.

The warrantors excepted, charging that the writ was brought without the consent or knowledge of plaintiffs and is the result of a conspiracy to delay the collection of a mortgage claim, etc.

On the day preceding the trial of the exception, Mrs. Thompson intervened, claiming title to the land in controversy.

On the trial of the exception, it was proved without objection that, on the 10th of May* 1883, the plaintiffs, some sixteen months previous, to the institution of this suit, which was brought on January 3, 1885,. had sold and transferred to Mrs. Thompson their interest in the same property sued for.

After hearing evidence, the district court dismissed the suit and the-intervention. The judgment thus rendered is now before us for review.

The court decided correctly:

The transfer by plaintiffs of their interest, whatever it was, stripped them of any right to sue for the same as though the transfer had not. taken place.

The dismissal of the suit carried with it the intervention. It cannot be claimed that, by joining the plaintiffs, the intervenor became a plaintiff or substituted herself to the plaintiffs.

If she has any right to the land in question she will have to bring a proper proceeding to have the same recognized and enforced.

Judgment affirmed.


author: Podrís, J.

text:
    No. 9601.
    The State of Louisiana vs. Reuben S. Williams.
    An information charging the accused -with an assault with a dangerous weapon, to-wit: a» certain pistol * * with intent then and there wilfully, feloniously aod of his malice aforethought to hill and muider, etc., is a sufficient compliance with the requirements of Section 792 of the Revised Statutes, which denounces among others the crime of an assault with iuient to commit murder.
    In criminal cases the Supremo Court cannot review the verdict of the jury on questions of fact. The jury are the sole judges of the sufficiency of the evidence as to the guilt or innocence of the accused.
    APPEAL from the Criminal District Court for the Parish of Orleans. ■ Roman, J.
    If. J. Cnnninyliam, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee:
    1. It is not requisite to charge in the indictment anything more than is necessary to accurately and adequately express the offenee. Whart. Cr. PI. and Pr., Sec. 158. Therefore when the crime is charged with certainty and precision, with a complete description of .•such facts as constitute it in the language of the statute, and the accused in bearing -the indictment read, would clearly understand the charge he is called on to answer, and •the court could feel no doubt as to the judgment to be pronounced on conviction, the in•dictmont is good. 9 Ann, 106; lb. 210 ; 13 Ann. 243; 34 Ann. 529; 23 Miss.'525 ; 8 Blade. ■212; 2Iowal62; 13Miss.l3; 12 Miss. 268; 5Black.54S; 3 Stroh. 269 ; 6 Miss. 147 ; 1 hTott & McC., 91; 3Penn.l42; 3 McCord, 442; 16 Mason,448; 20 Pick.356; 3 Gratt, 590; 6 Gratt. 664 ; 3 Blackf. 307 j 1 Baily, 144.
    -2. Pursuant to this rule of construction it was held in Tennessee that, in an indictment for malicious shooting, it was sufficient to charge that the accused did “ unlawfully and maliciously shoot” without describing the pistol or the circumstances attending the act. State vs. Ladd, 2 Swan, 226. And in Louisiana it was adjudged that an information for an assault by wilfully shooting under Sec. 792, B. S., need not allege that the shooting was done with a dangerous weapon. State vs. Cognovjtcli, 34 Ann. 529.
    .3. In an indictment for assault with intent to murder, at common law, or where the statute does not specify the instrument, it is not necessary to state the instrument or means made use of by the assailant to effectuate the murderous intent. 1 Whar. Cr. Law. Secs. 644, 190; Wliart. Cr. PI. and Pr. Sec, 159,
    4. Where no irregularity is complained of in the proceedings at common law, the court trying the caso is the sole tribunal by whom a new trial can be granted; and the refusal being a matter of discretion cannot be reviewed as error. Whar. Cr. PI. and Pr. § 897.
    5. In Louisiana, the jurisdiction of the Supreme Court in criminal cases depends upon the Constitution alone. It cannot review the acts of the judge below resting in his discretion. To the exercise of that jurisdiction, confined exclusively to questions of law, an unmixed question of fact presents an insuperable objection. Const. Art. 81; 8 B. 540 ; 2 Ann. 921; 3 Ann. 497; 4 Ann. 505 ; 6 Ann. 311, 593, 631; 7 Ann, 47; 8 Ann. 114; 10 Ann 501; 14 Ann. 79, 673, 785; 8 Ann. 312; 11 Ann. 81, 422, 479 ; 14 Ann. 40, 42;'12 Ann. 895; 22 Ann. 9; 23 Ann. 149 • 30 Aim. 92.
    >6. In most of the States, however, provision is made for obtaining revision by an appellate court, and for the presentation of the evidence to the appellate tribunal. Whar. Cr. Pl. and Pr., § 897. As, however, in criminal trials, the presumption is in favor of the verdict, unless the record affirmatively overthrows this presumption, even in such jurisdictions, the court will not disturb the evidence; and it must do this in such manner as to show that manifest injustice and wrong have been done in the premises. 4 'Ark. 87; 2 Strobh. 60; 3 Strobh. 106: 16 Miss. 391; 5 Gratt. 703 ; 2 STofcfc & McC,, 331.

      ■Jas. O. Walker for Defendant and Appellant:
    1. An information for assault with intent to murder (It. S. 792), will ho set aside by motion in arrest of judgment as fatally defective, if it do not state the facts necessarv to constitute the assault. 2 Arch., Waterman’s Notes, p. 70; Troxler vs. Stace, 19 Ala. 21; Beasley vs. State, 18 Ala. 535; Petit vs. People, 3 Johns. 511.
    2. The Supreme Court will review the ruling of the judge a quo refusing a now trial, if clearly erroneous, although it involves a question of fact, when, such fact is made to appear by hill of exceptions. 32 Ann. 844, 1052; 33 Ann. 313; 30 Ann. 539.
   The opinion of the Court was delivered by

Podrís, J.

Having been convicted and sentenced to imprisonment ■at bard labor, under tbe charge of an “assault with a dangerous weapon, to-wit: a certain pistol * * with intent then and there 'wilfully, feloniously and of his malice aforethought to kill and murder,” etc., tlie defendant seeks relief by means of a motion in arrest of judgment and a motion for a new trial.

1. The complaint under the motion in arrest is that the information does not charge or describe the particular manner in which the assault was made; whether it was by shooting at or attempting to strike the intended victim of the defendant with the pistol, or otherwise.

There is no force in the contention, and the motion was properly overruled.

The information complies with all the requirements of the Statute under which it was framed, and that is legally sufficient. The Statute (Section 792, Revised Statutes) reads as follows:

“Whoever shall assault another by wilfully shooting at him, or with intent to commit murder, rape or robbery, shall, on conviction thereof, be imprisoned at hard labor not exceeding two years.”

A slight comparison of the words of the information, with the language of the Statute, shows at once that the former contains even more than the necessary ingredients prescribed in the Statute. The gist of the offense therein denounced as applicable to the case in hand is an assault coupled with the intent to commit murder.

The law provides for several distinct crimes, one of which is the charge of an assault by wilfully shooting at another; another is an assault with intent to commit murder; a third, an assault With intent to commit rape, and Anally an assault with intent to commit robDery, all four being disjunctively connected.

Under the charge as contained in the information, the accused therefore knew, and the court was sufficiently informed, that the defendant was to be tried for an assault with a dangerous weapon, to-wit: á pistol, not by wilfully shooting at another, but with intent to Commit murder, and after trial, resulting in a verdict of “guilty,” the court had all the required foundation on which to base a legal judgment within the provisions of the Statute.

We therefore conclude that the information fully covered and sufficiently described the offense denounced by the Statute. State vs. Cognovitch, 34 Ann. 529.

2. The substance of the motion for a new trial was that the evidence was not sufficient to justify'a verdict of guilty of an assault with intent to commit murder, but that it could at most have warranted a verdict of an assault with a dangerous weapon.

Counsel annex to this bill the testimony of the party assailed by the accused, which had been taken down in writing by the committing magistrate, and which had been read to the jury at the trial. We will not do the injury to the counsel of the defendant of supposing for one moment that they are serious in pressing us to consider that testimony with the object which they propose.

But candor compels us to say that we are simply amazed at their attempt, regardless of the motive which prompted it.

We had indulged the hope that the last of such errors had been committed in the case of Taylor, 37 Ann. 40. Hereafter we shall pass over such means of defense as absolutely trivial and unworthy of consideration.

Judgment affirmed.