text:
    No. 14,150.
    State ex rel. Miss Ella S. Benton et al. vs. James M. Thompson, Judge.
    Syllabus.
    The Supreme Court will not mandamus a district judge to proceed to the taxing of the costs incurred by a succession, where, after hearing of parties upon a rule, it has been made to appear to him that the executrix of the succession has been removed from office, and no successor has yet been appointed contradictorily with whom the question of costs could be liquidated, and where the relators are not the parties to whom the costs are due, hut universal legatees not jet ordered to be placed in possession.
    ^ PPLICATION for a writ of mandamus.

      Stephen D. Ellis, Benjamin M. Miller, and Benjamin Bice Forman, for Eelator.
    Eespondent Judge in propria persona.

      Wichliffe & Falls, Madison & Stifft, for Mrs. Eachel Benton.
   The opinion of the court was delivered by

Nicholls, C. J.

Miss Ella S. Benton and Charlotte Benton, as universal legatees, and Mrs. Mary Monroe, as particular legatee of Edward B. Benton, pray that a writ of mandamus issue against the respondent judge, commanding him to execute the judgment of this court in the matter of the Succession of Edward B. Benton, Nos. 13,738 and 13,739, on the docket of this court, and to tax and fix the costs which the succession is condemned to pay, and to issue an execution against Rachel Benton, lately dative testamentary executrix, for the amount of said costs, and, in the alternative, that the court will render such order and relief in the premises as it may think a proper remedy to compel the execution of the judgment and the payment of the costs, according to its judgment in the said cases.

They pray for such general relief as to law and justice may appertain.

Relators allege that this court had adjudged in the two judgments which it had rendered in the cases referred to, that the costs of the litigation mentioned in said records should be paid by the Succession of E. B. Benton, and that according to the judgment of the court, on the oppositions to the account of Rachel Benton, as executrix, there was over six hundred and fifty-five dollars still in her hands, as executrix, over and above the amounts allowed by the court. That on said decree of the Supreme Court becoming final, they had filed certified copies thereof in the District Court of St. Tammany, and on the 17th of July, 1901, taken a rule upon Mrs. Rachel Benton, late testamentary executrix, to show cause why said judgments should not be executed and she should not pay said costs when taxed out of the funds remaining in her hands as executrix, and, in default thereof, why execution should not issue against her for the amount thereof in order that said judgments be executed.

That said rule was resisted by Mrs. Rachel Benton, and upon the trial thereof relators proved up certain costs which they enumerate. That by her second account it appeared that she had further received the sum of eight hundred and seventy-five dollars, out of which said costs should be paid, according to the judgment of the Supreme Court. That the respondent judge, after hearing of the rulé on the 19th of July, took the same under advisement, and on the 7th of October, dismissed the same, and refused to execute the judgment of the Supreme Court on the alleged ground that Mrs. Rachel Benton, having been removed as executrix, could not be compelled to pay over any money in payment of costs which the succession was adjudged to pay.

That relators, as instituted heirs, were ready to take possession of said succession and there was no necessity for any further administration, as the instituted heirs then had the right to call upon the late executrix to pay over any money in her hands to them, and there was no further need of any further administration or executorship, and there was no dispute between the instituted heirs and the particular legatees, and the district judge refused to execute the judgment and order the payment of the costs out of the funds in the hands of the said dative executrix.

The district judge, in answer to the application for the mandamus, annexed copies of the rule, answer and reasons for judgment on the rule to tax costs, as a full explanation and justification of his course. He avers that this court ordered the costs of the Benton Succession to be paid by the succession and not by the deposed executrix. He denied having held the rule under advisement from July 19th, until October 7th, and states that it was heard on the 24th of July, 1901, just prior to his leaving the State on a leave of absence for several months; that the briefs of attorneys and the record were not received until after his return and, a few days thereafter, the rule was decided.

From the documents annexed to the judge’s answer, it appears that on application made by the relators herein to the District Court for St. Tammany Parish, in the matter of the Succession of Edward B. Benton, No. 360 of the docket of that court, it ordered that the costs incurred in the suit entitled Rachel Benton, Dative Testamentary Executrix, vs. Ella Benton and Mrs. Mary E. Monroe, No. 405 of the docket of the District Court for St. Tammany, be taxed before the judge at the courthouse at Covington on the 24th of July, 1901, and a rule issue to Mrs. Rachel Benton to show cause, ait that time and place, why she should not pay such costs when taxed out of the funds remaining in her hands as executrix of the said succession, and in case of her failure so to do, why an execution should not issue against her and the sureties on her bond on or before July 19, 1901..

In the application for this order and rule it was suggested and recited that the judgments of the Supreme Court in the matter of the Succession of E. B. Benton, and that in said suit No. 405 destituting Rachel Benton as executrix and amending her account and directing that the succession costs and those of said suit be paid out of said succession had become final and had been filed and recorded in the office of the clerk of the District Court for St. Tammany Parish. That it appeared that by the account of said executrix as amended and finally settled by the judgment and decree in the matter of the Sue cession of E. B. Benton, there remained in .the hands of the executrix the sum of about eight hundred and five dollars, which was applicable to the payment of the succession costs and those of the said suit No. 405.

On the day fixed, Mrs. Rachel Benton answered the rule to show cause, urging a number of reasons why the said application of the relators should not be granted. She contended that having been removed, by judgment, from the office of executrix, she could not stand in judgment for the Succession of Benton, so far as the proceeding sought to fix any liability by taxing costs; that having been removed, she could not pay out any money of the succession, if any she had on hand, to creditors or others having claims against the succession, but only to her successor, the dative testamentary executrix, when appointed. That even if she had the capacity to stand in judgment, and could pay out money to creditors áfter her removal, she could only do so after the filing and homologating of an account containing such items either placed there originally or by opposition thereto, and a judgment thereon approving such accounts and directing such items to be paid. That this was not a proceeding whereby she could be compelled to pay out money of said succession, but same should be done and could only be done by way of opposition to her account which was filed on October 4, 1901, and which was awaiting trial or on opposition to some future account to be filed by her. That no execution could issue against her to satisfy a judgment against the Succession of Benton.

That no execution could issue against her sureties to satisfy a judgment against the Succession of Benton, except after legal proceedings had contradictorily with them. That, as shown by the provisional account filed by her on October 4, 1900, .there was no money of the succession in her hands, but said succession was indebted to her. That the matter of the Succession of Benton was still pending and undetermined in the Supreme, Court. That the costs in the suit No. 405 could not be taxed under the rule before the court as it was an entirely separate and distinct proceeding. The district judge, after hearing, dismissed the rule at the costs of the plaintiff and this proceeding followed.

In his reasons for dismissing the rule, the district judge said: “The only defendant in a rule against a succession is the officer who has been appointed to represent it. I cannot see how a court can be asked to tax costs against a succession not represented. When an executrix has been removed, she can perform but one act. That is to settle with the officer appointed to succeed her. In Collins vs. Hollier, 13 Ann. 585, the court held that “creditors cannot compel the distribution of the funds of the estate by a destituted administrator. They must pursue their remedy against the new administrator to be appointed, who is authorized to demand a full account of the former administrator. This decision is sustained in Chaffe vs. Farmer, 36 Ann. 819. Any payment of funds to creditors is a distribution of the funds of the succession. At least a portion of the costs were not on the account already passed upon. I think these claims must be taxed contradictorily with a legal representative of the succession. It is a singular fact that the parties who are pressing this rule are not in any manner interested in the matter except that the payment of the bills will reduce the sums coming to two of them. They are championing, not their own rights, but those of the creditors of the succession.”

Opinion.

The district judge has not refused to execute the judgment of this court. On the contrary, upon the application of relators, he set on foot measures looking to the taxing of the costs. On the trial of a rule having that object in view, it was made to appear to him that the legal situation was such as to necessitate postponement of the consideration of the subject until the costs could be liquidated contradictorily with a legal representative of the succession. In his opinion, the dative testamentary executrix first appointed having been removed from office was no longer able to stand in judgment for the succession.

The position taken by him does not evidence refusal on his part to perform duties which were incumbent upon him. Litigants are necessarily subject to some delay. The reasons assigned by the judge justify his course. Relators assert that the situation is such as to entitle them to presently take possession of the assets of the succession. We are not prepared to accept the statement as correct with the lights before us, and if the situation be really such as relators claim it to be, the proper course to pursue would be to apply to be placed in full possession contradictorily with all parties in interest.

If relators have themselves paid costs they would be entitled to receive to that extent a larger amount from the destituted executrix than they could otherwise claim. There are no holders of claims for unpaid costs seeking relief in this proceeding. For the reasons assigned, the orders heretofore issued herein are set aside and the mandamus applied for is refused at relators’ costs.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 14,111.
    State of Louisiana ex rel. G. W. Wynne vs. J. B. Lee, Judge.
    Syllabus.
    1. A court vested with original jurisdiction ratione materiae and ratione personae is competent to pass upon the constitutionality of a statute under which a criminal prosecution is conducted before it, and its judgment therein is authoritative and conclusive so long as it remains the judgment of the highest court vested with such jurisdiction.
    2. There is no inflexible rule with respect to the stage of the proceedings in the inferior court at which the application for the writ of prohibition must be made, and this court will liberally use its discretion in the use of that writ, according to the circumstances of each case, where there is something yet to be done in excess of the jurisdiction conferred upon such inferior court.
    3. It is not too late to apply for such relief, where there is no remedy by appeal, upon an averment of want of jurisdiction, based upon the alleged unconstitutionality of the statute under which the applicant has been convicted and sentenced, if such application be made before the sentence has been executed.
    Í. The title of Act No. 49 of 1894 expresses but one object, and Section 12 of said act does not go beyond the title, by denouncing the mere selling of drugs and nostrums, etc., as an offense, the offense there denounced consisting of the itinerant vendors professing to treat and cure disease and deformity by the use of the drugs, nostrums, etc., sold by him, and by the other means mentioned.

      ^ PPLICATION for writs of Certiorari and Prohibition.

      Goss & Sutherlin and W. C. Pegues, for Relator.

      Walter Guión, Attorney General, and Amos L. Ponder, District Attorney, (Lewis Guión, of Counsel), for Respondent.
   Statement.

The opinion of the court was delivered by

Monroe, J.

The relator having invoked the supervisory jurisdiction of this court, a writ of certiorari issued, together with a restraining order, and a rule nisi, directing the respondent to show cause why he should not be prohibited from furthér proceeding, etc., as prayed in the petition. By way of return to the writ of certiorari, the respondent has forwarded a copy of the record called for, from which his reasons for the action of which the relator complains sufficiently appear; the case being as follows, to-wit:

An information was filed, in the District Court for -the Parish of De Soto, charging that the relator, “whilst acting as an itinerant vendor, did, unlawfully, sell, barter, and trade, drugs, nostrums, ointments and applications, intended for the treatment of diseases and injury, and did, then and there, profess to cure and treat disease and deformity with said drugs and nostrums, contrary to the form of the statute,” etc.

The accused (relator herein) moved to quash this information, on the grounds; that Act No. 49, of 1894, under the authority of which it purports to have been filed, contravenes Articles 29, of the State Constitution of 1879, and 31 of the present Constitution, in that, it embraces more than one object and its object is not expressed in its title, and that it contravenes Articles 2 and 6 of the State Constitution, and the 14th amendment of the Constitution of the United States. This motion having been overruled and a bill of exceptions taken, the accused waived arraignment, filed a plea of not guilty, was tried and convicted; and, having moved for a new trial, and excepted to the refusal of the court to grant the same, was sentenced to pay a fine of twenty-five dollars. He thereupon applied for an appeal, which was granted, and made returnable to this court upon August 22, 1901. Upon August 21st, however, he moved to set aside the order for appeal and gave notice of his intention to apply to this court, and, upon August 26th, alleging that he was without remedy by appeal, he made the application which we are now considering, in which he avers that, for the reasons set forth in his motion to quash, the District Court was without jurisdiction to hear and determine said cause and should be prohibited from further proceeding therein, and he prays judgment accordingly.

Opinion.

There can be no doubt that the court a qua had jurisdiction to determine whether the objections which the relator urged to the constitutionality of the statute under which he was prosecuted were well founded; and its judgment, that they were not well founded, was authoritative and conclusive so long as it continued to be the judgment of the highest court vested with such jurisdiction. If the relator, being dissatisfied, had, then, invoked the supervisory jurisdiction of this court (the case being one in which no appeal lies), and it had been here held that his objections were well founded and that the prosecution was unauthorized by any constitutional law, the District Court might have been prohibited from proceeding with the trial; or, if, after the trial and before sentence, such application had been made (with like result, as to its merits), the District Oourt might have been prohibited from imposing sentence. Upon the other hand, if the relator had waited until after the sentence imposed 'had been executed, his application to this court would have been too late, as there would, then, have been nothing to be done by, or under the authority of, the District Court, and the function of the writ of prohibition is to stay action, about to be taken, and not to annul proceedings which have been completed. State ex rel. R. R. Co. vs. Judges, 48 Ann. 1166; State ex rel. McLeod & Co. vs. Judge, 50 Ann. 109. As the matter stands, the application, whilst coming after the trial and sentence, is made before the execution of the sentence, and for the purpose of staying such execution, which, if the judgment to be executed has no other basis than an unconstitutional law, the respondent is without the legal capacity to authorize.

“There is no inflexible rule with respect to the stage of the proceedings in the inferior court at which the application for the writ ‘of prohibition’ must be made, and the courts have liberally used their discretion in the use of the writ, according to the circumstances of each case, where there was anything to be done in a proceeding clearly in excess of jurisdiction.” Ency. Pl. & Pr., Vol. 16, p. 1133; State ex rel. Crozier vs. Judge, 49 Ann. 1454. We are, therefore, of opinion that the application, as made, should be considered on its merits.

Upon the main issue, counsel for relator say in their brief: “The only questions raised by the application,are, that the object of the said act is not embraced in the title thereof; that said act embraces more than one object, and that the provisions of Section 12 of said act are beyond the range of the objects expressed in the title,” etc. And they contend that there are two objects embraced in the act, to-wit: (1) To regulate the practice of medicine and to prevent the practice of medicine by unauthorized persons,” which they concede to be a single object, covered by the title; and (2) “to prohibit the sale, by itinerant vendors, of drugs,” etc., which they claim is a distinct object not covered by the title.

The title of Act 49 of 1894, reads: “An act to regulate the practice of medicine, surgery and midwifery; to create State Boards of Medical Examiners, and to regulate the fees and emoluments thereof; to prevent the practice of medicine, surgery and midwifery by unauthorized persons; and to provide for the trial and punishment of violators of the provisions of this act by fine or imprisonment, or both, and to repeal all laws, or parts of laws in' conflict, or inconsistent, with the provisions of this act.”

The following is the substance of the several sections which it seems necessary to consider:

Section 1. That, after the promulgation of this act, no one, except those already engaged in such practice under existing laws, shall practice medicine in this State without the qualifications required by the act.
Section 2. That, to entitle a person to practice medicine, he must satisfy .the board of examiners created by the act that he is twenty-one years old, of good moral character, and possessed of, at least, a fair primary education, and must present a diploma from a medical college in good standing; having complied with which conditions, the board will issue him a certificate.
Section 12 provides “That any itinerant vendor of any drug, nostrum, ointment or application of any kind intended for the treatment of disease, or injury, or who may by writing, print or other method profess to cure or treat disease or deformity, by any drug nostrum, manipulation or other expedient, in this state, shall, if found guilty, be fined in any sum not less than twenty-five dollars and not exceeding one hundred dollars for each offense, to be recovered in an action of debt before any court of competent jurisdiction, or shall he imprisoned for a term of not less than ten days or more than thirty days, or both fined and imprisoned.”
Section 13. That a person shall be regarded as practicing medicine who shall append the letters M. D. or M. B. to his, or her, name or repeatedly prescribe, or direct, for the use of any person, or persons, any drug, or medicine, or other agency, for the treatment, cure, or relief of any bodily inury, infirmity, or disease, excepting farmers and planters on certain conditions.
Section 14. That any person practicing medicine without the certificate of the board shall be guilty of a misdemeanor and, on conviction, shall be punished by fine of not less than fifty dollars, etc., or imprisonment, or both.

Act 13 of 1896 amends and re-enacts Section 14, above referred to. so that, instead of being guilty of a misdemeanor and liable to criminal prosecution, a person practicing medicine without a certificate may be enjoined by the Board of Examiners, who may recover in the same suit a penalty of $100, with attorneys’ fees and costs. The question whether the title thus recited expresses the object of the act and whether the body of the act embraces any object not so expressed were presented to this court several years ago in a case in which the Board of Examiners had proceeded against a person who had assumed to practice medicine without having obtained the requisite certificate, and the jurisprudence interpreting constitutional provisions such as those here invoked was exhaustively considered, with the result which may be stated in the following language of the Chief Justice, who, as the organ of the court, decided the case, to-wit: “The act in question has but one single object, the protection of the public from the practicing of medicine in its different branches by unskilled and incompetent persons. The various sections of the act have all direct relation to the enforcement of the purpose announced by the act.” (Title): Board vs. Fowler, 51 Ann., 1358

It is true that the defendant in the ease thus cited was not an ' itinerant vendor, prescribing and professing to effect cures with the nostrums which he was engaged in selling, but was a person who assumed, and may have been entitled to assume, the character and dignity of a medical practitioner, but had not complied with the con-. ditions required by the statute to entitle him to practice in this state. It can hardly be denied, however, that, if the general purpose of the act is to protect the public from unskilled and incompetent practitioners, provisions relating to vendors who undertake to prescribe and effect cures with the nostrums which they sell is quite as germane to the purpose as the provisions which relate to persons who, without having had their qualifications tested, undertake to treat disease by the use of compounds sold by others.

But the learned counsel for the relator call attention to the decision in the case of State ex rel. Dist. Atty. vs. Judge, 105 La., 371, and claim that it was there held that the itinerant vendor referred to in Section 12 of the Act of 1894 is not to be considered a medical practitioner, but, for all the purposes of the act, is to be regarded, solely, as a vendor of drugs and nostrums, and they claim, as we understand them, that, conceding ’that the purpose of the act is to regulate the practice of medicine and to prevent unskilled and incompetent persons from engaging in such practice, that purpose does not include within its scope the mere selling of drugs and nostrums, and hence that Section 12, by reason of the construction so placed on it, must be considered as eliminated from, the act. The conclusion as thus stated is authorized by the premise which the counsel have assumed, since an act to regulate the practice of medicine could not, in view of the constitutional inhibition relied on, fairly include within its scope provisions regulating the mere sale of medicines, or nostrums, or any other articles of commerce; otherwise it might be extended to retail and wholesale dealers as well as to itinerant vendors.

But, for the establishment of their premise, the counsel have given to the opinion and decree referred to a broader interpretation than we are prepared to accept. A careful consideration of Section 12 of the Act of 1894 leads, as we think, to the conclusion that it was not intended to apply to the itinerant vendor, merely in his capacity of vendor, but' that the lawmaker was undertaking to deal with him for the purposes of the act, as a person professing to treat or cure disease or deformity by the the use of' drugs and nostrums which he sells, or by manipulation or other expedients. It is true that the section is inartificially drawn, but, as drawn, it cannot be interpreted as defining and denouncing two offenses, the one of selling and the other of professing to cure with drugs and nostrums. Thus, the language reads: “That any itinerant vendor of any drug, nostrum or application of any kind intended for the treatmet of disease or injury, or who may, by writing, print or other methods, profess to cure or treat disease or deformity by any drug, nostrum, manipulation or other expedient,” in this state, shall, if found guilty, be fined, etc.

It is obvious that this sentence is rendered grammatically unintelligible by the introduction óf the disjunctive “of” after the word “injury,” thereby dislocating the adjective or descriptive clause, modifying-the subject, “itinerant vendor,” and disconnecting it from its predicate, “shall be fined.” We have, then, either to hold that the section means nothing, or else to ignore the offending word as not written, leaving the sentence to read, “That any itinerant vendor of any drug -* * * who may by writing * * * profess to cure or treat dissease * * * by any drug * * * shall * * * be fined,” etc. And there is abundant authority for the adoption of the latter alternative; C. 0., 18; Hennen’s Digest, Yol. 1, pp. 783-784.

In the case upon which counsel rely (State ex rel. Dist. Atty. vs. Judge, 105 La., 371), the question presented was whether Section 12 of the Act of 1894 was repealed by Act No. 13 of 1896, and it was held that there was no repeal. But it was not held that the itinerant vendor was dealt with in Section 12 merely as a vendor.

The language of the opinion was, in part, as follows, to-wit: “Act No. 13 of 1896 says not a word about amending or repealing Section 12 of Act 49, and the repeal of Section 12 must result, if at all, from an inconsistency between it and the new sections, 14 and 19, inserted by Act 13.” (Sections 12 and 14, the latter as it originally stood in Act 49 and as amended are then recited at length, and the opinion proceeds) : “The two sections, 12 and 14, as they originally stood in Act '49, were not inconsistent. The one section provides for the ease of itinerant vendors of drugs, etc., and seems to put their business, unconditionally, and for good and all, under ban, whilst the other section provides for the case of practitioners of medicine, permitting them to be licensed. Each section makes separate and different provisions for the case it separately deals with. The two sections were not inconsistent as they originally stood in Act 49 and are not rendered more so by the amendment of Section 14. The section after amendment is identical with what it was before amendment, except that the process it provides for is changed from criminal to civil. It continues to deal with a case different and separate from that dealt with by Section 12, and continues to be perfectly consistent with Section 12.” It will be remembered that this language followed the recital, in full, of the sections referred to, and the words, “The one section provides for the case of itinerant vendors,” etc., were used merely to indicate a section, the entire text of which had already been given, so that tlic character, “etc.,” may be considered as standing for so much of the section as is not again expressed in words, and which proceeds to describe tbe subject of the sentence as not merely a vendor, but a vendor “who may profess to cure or treat disease, by any drug, nostrum, etc.” It is true that Section 13 of the Act of 1894 reads, “That any person shall be regarded as practicing medicine, in any of its departments, within the meaning of this act, who shall append the letters M. D. or M. B. to his or her name or repeatedly prescribe or direct for the use of any person or persons any drug or medicine or other agency for the treatment, cure, or relief of any bodily injury, infirmity or disease. This act shall not apply to farmers or planters when exclusively practicing, without compensation, on their employes and tenants.’’ And it is also true that the Act of 1896 so amends the following section (14) of the Act of 1894 as to provide a- civil, instead. of a criminal remedy in cases of persons practicing medicine in violation of the provisions of the act, whilst Section 12 of the Act of 1894, which provides a remedy by criminal proceedings in the case oi the itinerant vendor who may profess, etc., is left untouched. But, as was said in the opinion to which we have just referred, the itinerant vendor professing to treat and to cure disease or deformity is placed in a class by himself. He is not regarded as a practitioner of medicine in the sense of being a person who, by appending the letters M. D. or M. B. to his name, assumes that character. And yet, by undertaking to treat disease, being presumably unskilled and incompetent, he is within the scope and purpose of the act, and is a person against whom there is greater need that the public should be protected than one whose only disqualification is the lack of the certificate of the Board of Medical Examiners.

Confining ourselves to the questions, which from the excerpts from the brief of the relator’s counsel heretofore given we understand to have been the only questions relied on in the District Court, and which are specified as the only questions urged here, we are of opinion that the application for the writ of prohibition should be denied. And it is so ordered.


author: Provosty, J.

text:
    No. 14,139.
    State of Louisiana vs. Willie Carter.
    Syllabus.
    1. The fact of being a constable, though good ground on whieh to claim exemption from jury service, does not disqualify from serving on the Grand Jury.

      2. The witness heard.shots ; and looking in the direction he heard them, saw the smoke and saw two men engaged in the conflict. He grabbed his shotgun and started towards the scene of the shooting. As he went, the deceased ran towards him, pursued by the accused, pistol in hand; when deceased got near enough to him he cried out to witness: “They’ve got me.” Witness asked “Who?” and deceased called out: “Will Carter shot me.” This statement of deceased was part of the res gestae.

    3. A written dying declaration is not inadmissible because sworn to; nor because some of its statements, of themselves and if standing alone, would not fall within the rule admitting dying declarations.
    4. Statements of the deceased to the effect that the accused had fired the first shot and had attempted to murder him without cause or excuse, were allowed to be repeated to the jury, over the objection of the accused because these statements had been made in the presence and hearing of the accused and had not been contradicted by him. The rule is that hearsay evidence is inadmissible ; the exception to this rule in favor of uncontradicted statements does not extend to cases where the accused was under arrest when the statements were made.
    APPEAL from the Twentieth Judicial District, Parish of Lafourche. Gaillouet, J.

      Walter Guión, Attorney General, and W. P. Martin, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      John 8. Billiu, for Defendant, Appellant.
   Motion to Quash.

The opinion of the court was delivered by

Provosty, J.

The fact of being a constable, though good ground on which to claim exemption from jury service, does not disqualify from serving on the grand jury. Act 99 of 1896, Section 1. "

Bill of Exceptions, No. 1.

“The witness heard shots and, looking in the direction he heard them, saw the smoke and saw two men engaged in the conflict. He grabbed his shot-gun and started towards the scene of the shooting. As he went, the deceased ran towards him, pursued by the accused, pistol in hand; when deceased got near enough to him he cried out to witness: ‘They’ve got me.’ Witness asked ‘Who?’ and deceased called out: ‘Will Carter shot me.’ ”

This statement of deceased was part of the res gestae•

Bills Nos.-3 and 4.

A written dying declaration is not inadmissible because sworn to; nor because some of its statements, of themselves and if standing alone, would not fall within the rule admitting dying declarations. The declaration must go in as a whole. State vs. Trivas, 32 Ann. 1086.

Bill of Exceptions No. 2.

Statements of the deceased to the effect that the accused had fired the first shot and had attempted to murder him without cause or excuse, were allowed to be repeated to the jury, over the objection of the accused, because these statements had been made in the presence and hearing of the accused and had not been contradicted by him. But the accused, at the time the statements were made, was under arrest, and it is well settled that the exception by which uncontradieted statements are taken out of the rule excluding hearsay, does not extend to cases where the accused was under arrest when the statements were made. State vs. Diskin, 34 A. 919; State vs. Estoups, 39 Ann. 906.

The statements in this ease bore on material facts such as may have influenced the verdict of the jury. The admission of them, therefore, is reversible error.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from, and the verdict on which it is founded, be set aside, and that the case be proceeded with according -to law.


author: Blanchard, J.

text:
    No. 14,002.
    Willie Gualden vs. Kansas City Southern Railway Company.
    Syllabus.
    1. It is the duty of the master to furnish reasonably safe appliances required in the work he engages his servants to perform, and to keep them in good repair.
    2.- If a servant becomes aware of defects in the appliance, this knowledge alone, in case of injury, does not bar his recovery. Not only the defect, but the danger arising therefrom must be known to him, or be apparent to him.
    3.- The rule that an employee cannot recover where he chooses a dangerous method to perform a given work, after he has- been shown a safe way, is held to have no application to this case.

      4.- A plaintiff’s right to sue and stand in judgment must be challenged by formal plea tendered in Umine.

    APPEAL from the First Judicial District, Parish of Oaddo.— Land, J.

      Lee Emmett Thomas, for Plaintiff, Appellant.

      Alexander & Wilkinson, for Defendant, also Appellant.
   The opinion of the court was delivered by .

Blanchard, J.

Plaintiff, a colored boy, representing himself to be an emancipated minor twenty years old, brings this action seeking to recover of defendant company seven thousand five hundred dollars for personal injuries received while in the service of the company.

He was employed at the shops of the company in Shreveport us helper to the boiler washer, and was, on the day of the accident, directed by the latter, under whose authority he was, to blow off the steam from an engine which had just been brought into the shops from the road.

He alleges he proceeded to the discharge of this' duty with care and circumspection when the hose attachment, by means of which the engine was to be blown off, burst asunder, with the result that the swinging end of the hose, driven with force by the escaping steam, struck him on the side of the head with great violence, knocking him down and off the engine.

He represents he was rendered unconscious, lay for several hours as one dead, was expected to die from the effects of the blow, remained in a comatose condition for several days, concussion of the brain followed, and it was months before he recovered the normal use of his mental faculties, and still longer before he recovered physical health and vigor.

The usual averment of pain and anguish, loss of time and wages, medical attendance, etc., etc., is made, as well as the allegation of fault on part of the company.

His contention is that the hose blew apart when the steam was turned on because of its defectiveness, being old and worn and certain connections thereof being lost or broken, and that he was not aware these defects rendered the hose dangerous.

For answer the company pleaded a general denial and charged contributory negligence on part of plaintiff.

The contention of the defense is that the hose did not burst asunder, and that the trouble was occasioned by plaintiff’s failure to properly screw the hose together and by suddenly turning on a full head of steam. Further, that had plaintiff assumed the proper position and not unnecessarily exposed himself he would have escaped injury even though the hose did come apart by reason of the pressure of the escap - ing steam.

The case was tried by jury, who found for plaintiff and assessed his damages at five hundred dollars in the aggregate.

Both parties appeal — plaintiff for an increase in the quantum of damages; defendant in the hope of securing the reversal of the verdict and judgment.

Ruling — As it is not unusual in damage suits we find much conflict in the testimony. The ease turns on the preponderance and weight of evidence.

The jury, who had the advantage of seeing and hearing the witnesses and the further advantage of having before them the hose attachment, with explanation of how the same fitted on the boiler and into the escape pipe, and an exemplification of how and where the break occurred, thought the weight of the evidence to be on the side of the plaintiff, and in this our examination of the ease and appreciation of the testimony lead us to concur.

The appliance with which plaintiff was furnished in his work of blowing off the engine is shown to be defective, and while he had knowledge of the fact that it was not in good condition he did not know and was not apprised by the man placed over him by the master, and who ordered him to do the work with the means at hand, that the condition in which it was made it dangerous, and, therefore, is not to be presumed as having assumed the risk.

Not only the defect, but the clanger must be known to the servant. This is the rule laid down by Mr. Wood in his work on “Master and Servant” at See. 376, and the same author, at Sec. 327, says:

“The servant, although he may know that the instrumentalities of the business are not in good repair or condition, is not necessarily chargeable with negligence in remaining in the master’s employ and using them, unless real danger therefrom is apparent.”

See also Myhan vs. Electric Light Co., 41 La. Ann. 964; Clairain vs. Telegraph Co., 40 La. Ann. 182; Faren, Tutrix, vs. Sellers, 89 La. Ann. 1011; Daly vs. Kiel, 106 La. 170.

There is a rule of lav/ that where there” are two ways of performing an act, one dangerous, the other not so, and the employee chooses the dangerous way and is injured, he cannot recover damages.

The defendant invokes this rule in support of his contention that the proper side of the engine for the plaintiff to be upon in blowing off the steam was the right side, and that inasmuch as he deliberately stood upon the left side in performing this duty, he unnecessarily exposed himself to greater danger and cannot recover.

But the jury were not satisfied from the evidence, nor are we, that the plaintiff was ever directed or instructed to stand upon the right side, or told that that was the safe side and the other unsafe.

Besides, it is in evidence that both sides of locomotives in the shops of defendant company are indifferently used by those engaged in the work of blowing off their steam.

If this employee had chosen a dangerous method to do this work after he had been shown a safe way, he would be debarred from recovery. Such was the rule applied in Jenkins vs. Maginnis Mill, 51 La. Ann. 1011. The facts of the'instant case, however, do not warrant its application here.

With regard to the quantum of damages, the jury allowed $250 for loss of wages, and the same amount for pain, suffering and injury.

As to the first, it about suffices. The .plaintiff was disabled about six months and was earning at the time of the injury about $45 per month.

As to the second, $250 is, we think, an under-estimate. The plaintiff was struck a terrible blow producing sustained unconsciousness, violent concussion of the brain. The physician thought the chances were he would die. He suffered greatly and was ill a long time. Five hundred dollars would be little enough compensation for this degree of injury.

As to defendant’s contention, made only in argument’ that plaintiff being a minor at the time he suffered the injury and during the resulting illness, his time belonged to his parents and they, not he, could recover the amount claimed under the head of loss of wages, it suffices to say that a plea denying a plaintiff’s right to sue and stand in judgment must be formal and tendered in limine. 36 La. Ann. 750; 35 La. Ann. 251; 34 La. Ann. 850; 24 La. Ann. 404.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be amended by increasing the amount thereof from five hundred dollars to seven hundred and fifty dollars, with legal interest thereon from the 30th day of March, A. D. 1901, until paid, and that as thus amended the same be affirmed at the cost of the defendant in both courts.


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    No. 14,122.
    State of Louisiana vs. Jacob Jackson, alias Shamp.
    Syllabus.
    1. A former trial cannot be made the basis of a plea of once in jeopardy when it was had before the judge instead of before the jury, in a case in which, under the Constitution, the prisoner could not waive trial by jury.
    2. The affidavit on which the defendant was arrested on the charge on which he is being tried is inadmissible in evidence against Him; and since such affidavit is a sworn dclaration of the defendant’s having committed the crime for which he is on trial, and is therefore of a nature to make an impression on the minds of the jury, its admission in evidence is reversible error.
    3. Whether such affidavit is ever admissible, it is certainly not so to prove that a certain witness had not made it, when the fact of the said witness not having made the affidavit has already been established by the witness, and 1b, besides, not material to the issue.
    APPEAL from the Nineteenth Judicial District, Parish of St. Martin. — Foster, J.

      Walter Guión, Attorney General, and Anthony N. Muller, District Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Fdward Simon, for Defendant, Appellant.
   The opinion of the court was delivered by

Provosty, J.

A first conviction of defendant having been set aside on the ground that the trial had been before the judge, when the case was one in which, under the Constitution, jury could not be waived; and the defendant having been brought to trial a second time, he pleaded once in jeopardy, basing himself on the first trial. It is very plain that since the first trial could not possibly have resulted in a legal conviction, the defendant was not by it put in jeopardy. For jeopardy to exist the court must be competent to try the case. Am. & Eng. Ency. of L. Vo. Jeopardy.

The court admitted in evidence the affidavit on which the defendant had been arrested. This was error — affidavits are not legal evidence in criminal cases, no more than is hearsay; and the error is reversible error, since the affidavit was a sworn declaration of the defendant’s having committed the crime for which he was on trial and, therefore, may have influenced the jury.

In explaining why he admitted the evidence, the judge says that the defendant’s counsel had asked a witness in a “peremptory and assuming manner” the question: “Why did you make this affidavit against the accused?” That the question had been asked in this manner in order to create upon the minds of the jury the impression that the witness was prejudiced against the accused, and that the affidavit was admitted for the purpose of showing that the witness had not made it; thereby to counteract the effect sought to be produced on the jury. The witness had testified that he had not made the affidavit. Therefore there was no necessity for introducing the affidavit to prove that fact; and if in any case an affidavit may be admitted to prove rem ipsam, of who made or did not make it, this is not such a case.

That the evidence was introduced for a stated purpose, not on the question of the guilt or innocence of the prisoner, does not cure the situation. After evidence is in for a stated purpose, there can be no guaranty that the jury will not consider it for other purposes. It has been held that the admission of improper evidence cannot be cured by the judge’s giving instructions to the jury that they are to- disregard such evidence. Rice Crim. Ev., p. 415.

It is therefore ordered, adjudged and decreed, that the verdict and sentence herein be set aside and that the case be remanded to be proceeded with according to law.


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    No. 13,939.
    The Globe Lumber Company, Limited, vs. Keete Lockett, Sheriff and ex-officio Tax Collector.
    Syllabus.
    Standing timber is property susceptible of being acquired separately from the land on which it grows, and being thus acquired it is assessibie for taxation in the name of tbe owner, while the land Itself is assessible to the owner of the fee. That is to say, the owner of the land must pay taxes on it; the owner of the timber taxes on it, and the assessments should be separate.
    APPEAL from the Eleventh Judicial District, Parish of Eed Eiver. —Porter, J.

      Stewart & Stewart, for Plaintiffs, Appellants.

      W. A. Wilkinson and Stephens & Garter, for Defendant, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff company, whose domicil is "the Parish of Webster, purchased, in April, 1900, the timber on 10,400 acres of land situated, in several tracts, in the Parish of Eed Eiver.

The assessor of the latter parish listed this timber on his rolls as the property of the Company and assessed it for taxation for the year 1900 at a valuation fixed.

Whereupon the plaintiffs brought this action to avoid the assessment, asserting the same, and the tax claimed thereunder, to be without warrant of law.

They represent that none of the timber purchased has been felled and converted into movable property, and that the land upon which' it is growing is owned by and assessed to various other parties and is paying its full quota of taxes.

Their contention is that the timber is not taxable separate and apart from the land on which it is growing; that the same is not “property” in the sense and within the meaning of that term as used in Art. 225 of the State Constitution and of Sec. 1 of Act 170 of 1898 — the revenue law of the State.

The answer of the tax collector affirms the validity of the assessment and his right to enforce payment of the taxes due thereon.

From a judgment rejecting their pretensions, plaintiffs appeal.

The sale of the timber was evidenced by written acts which recite that for the moneyed considerations therein mentioned the vendors “grant, bargain, sell, transfer, convey and deliver unto the Globe Lumber Company, Limited, * * * with full warrant of title, all the pine and oak timber, ten inches and over in diameter at the stump, growing, standing or lying on” — then follows the description of the land by legal subdivisions, etc. There went with the purchase the stipulation of the right to enter upon the land and cut, remove and transport the timber therefrom, and the purchaser was granted a term of fifteen years in which to do this.

There was due registry of the acts of sale in the Parish of Red River.

Undoubtedly, they evidence the conveyance of tangible property. The acts are sales, good and valid in form and substance, of property. After their execution every stick of timber, every tree, on the 10,400 acres of land, of the size and dimension of ten inches and over at the butt, became the property in full ownership of the purchaser, and there was accorded to the latter, as part of the transaction, the privilege to go upon the land for the purpose of cutting and removing the trees — this right to be exercised at the will of the purchaser for a period not longer than fifteen years.

So that as a result of the sales, - the plaintiff company acquired (1) the timber itself; (2) the right of entering upon the land to get it out.

It is true, the land upon which the timber stands is assessed to the owners of the fee, and the timber, separately, is assessed to plaintiff Company.

Is this permissible under the law? Or must there be one assessment covering both timber and land, and this in the name of the owner of the land.

The tax collector maintains the affirmative of the first; plaintiff Company the affirmative of the second.

Ruling — The Constitution ordains that all property shall be taxed, except 1hat specially exempted by the terms of that instrument itself. Lands and timber are not within the exemption.

The Revenue Law (Act 170 of 1898), following the constitutional mandate, levies taxes on the assessed valuation of all property situated within the State, except that expressly exempted. What is meant by “property” is set forth in the act, and the long list enumerated in the first section thereof concludes with: “all movable and immovable, corporeal and incorporeal articles or things of value, owned and held and controlled within the State of Louisiana by any person in any capacity whatever.” The scope of this phrase is latitudinous and embraces everything.

Land is property; timber is property, whether standing on the land where it grows, or felled. Both, therefore, are within the purview of the Act of 1898 and are taxable.

The 7th section of the act makes it the duty of tax assessors to place upon the assessment list all property subject to taxation. But it is insisted that this does not authorize the assessing of standing timber or growing trees separate and apart from the land.

. There is force in this contention where the timber and the land upon which it stands belong to one and the same party; but none where the growing timber belongs to one man and the land to another. In such case each should have assessed to him his own.

If the property in standing timber may be sold and conveyed separately from the land, and no one disputes this, then may it be, when thus sold, separated from the land on which it stands for the purpose of taxation. “Standing timber is an interest in land that may be acquired by deed, and the fact it must be removed within a definite period does not prevent the title to the timber from vesting in the grantee.” American Digest, 1894, p. 1386, § 123.

If timber on land may become the property of one man and the land remain the property of another, a judgment creditor of the owner of the timber may seize and sell the latter in satisfaction of his debt. Equally so may a judgment creditor of the owner of the land seize and sell the land for his debt.

In the one case the timber would be sold separate from the land; in the other the land separate from the timber. There would be no interference by the two judgment creditors with each other.

The creditor of the owner of the trees could not seize and sell the land, belonging to another than his debtor, along with the trees which grew upon the land. And the creditor of the owner of the land, not possessing any antecedent real right on the property, could not seize and sell the trees along with the land upon which they stood.

May these things be, and yet it be said that the timber cannot be assessed and taxed separately from the land, in the case where one man owns the timber and another the land? We think not.

“One person may be taxed as owner of the fee and another as owner of structures upon, or minerals or quarries within the land.” A. & E Ency. of Law (1st Ed.), Vol. 25, p. 123, citing decisions of many State Courts.

“Since the mineral interest in land may be severed from the surface interest thereof by conveyance, thereby becoming separate real estate, it may be taxed as other real estate.” American Digest, 1894, p. 4328, §42; or, Stewart vs. Commonwealth (Ky.), 23 S. W. 367; also Am. Digest, 1896, p. 5047, § 32.

“Where the owner of mining land has sold the right to take all the minerals from the land, but has retained the land, the owner of the land and the owner of the mineral are each taxable according to their several interests.” Note to p. 124 A. & E. Ency. of Law (1st Ed.), Vol. 25, citing 29 Pa. St. 373 and 105 Pa. St. 469. See also Burbank vs. Assessor, 52 La. Ann. 1506.

If the conveyance of this growing timber be viewed as the conveyance of an interest in the realty of which it formed part, it is taxable in the name of the vendee of such interest. If, by reason of the purchase of the same, to be later felled and removed from the land, the timber become mobilized by anticipation, it is equally taxable in the name of the purchaser, and this, too, in the Parish of Red River.

“Trees bought by a lumber company for the purpose of allowing them to stand for several years before cutting them are taxable in the county where they are situated, irrespective of the company’s domicil.” Coldrion vs. Ky. Lumber Co. (Ky.), 32 S. W. 224, or Am. Dig., 1896, p. 5074, No. 32.

The 11th section of the Act 170 of 1898 contains the express declaration that “movable property shall be assessed in the parish or district where it is located, except as hereinafter provided.” The exception has no reference to tangible movable property like timber.

There is great force in the argument that the mobilization by anticipation of the trees resulted from the transfer of their ownership to the plaintiff company.

This question of mobilization by anticipation underwent, quoad, the pledge of a growing crop under the Act of 1874, learned discussion in Citizens’ Bank vs. Wiltz, 31 La. Ann. 245, where Mr. Justice White, speaking for the Court, said:

“True, by Article 465 C. G it is ixrovided that “standing crops and the fruits of trees not gathered and trees before they are cut down are likewise immovable and are considered as part of the land to which they are attached,” but the immovability provided for is only one in abstracto and without reference to rights on or to the crop acquired by others than the owners of the property to which the crop is attached. * * * The existence of & right on the powing crop is a mobilization by anticipation, a gathering as it were in advance, rendering the crop movable quoad the right acquired therein.”

And, quoting from Marcadé, Yol. 11, p. 338, to the effect that where the owner of a tract of land sells the timber standing thereon, reserving his ownership in the land, the timber loses its character as an immovable and by a fiction of the law becomes movable by anticipation, the learned Justice declared:

“Our own jurisprudence recognizes the possible mobilization of a growing crop”-citing Poché vs. Bodin, 28 La. Ann. 762; Sandell vs. Douglass, 27 La. Ann. 629—to which we add Lewis vs. Klotz, 39 La. Ann. 267.

The argument applies equally to growing trees sold to be removed from the land. The two, growing crops and growing trees, are treated of in the same article of the Code — 465.

Nor is it true, as is the contention of plaintiffs, that there is legislative enactment against the separate assessment of trees from the land to which they are attached. See. 7 of Act 170 of 1898 is pointed to as sustaining this. We find there this declaration:

“Provided, that the true intent and meaning of this section is that all crops, whether growing or gathered, shall be considered as being attached to the realty while in first hands, and shall not be separately taxed while in possession of the lessor or his agent and- no property shall be taxed twice in the same year.”

It will be observed that only “crops” are within the exception of this proviso. Trees are not mentioned. Trees growing in their natural state — not planted — are not within the meaning of the term “crops” as used in the statute.

The preceding part of the section had directed tax assessors to place upon the assessment list all property subject to taxation. Then followed the provision that crops, while in first hands, i. e., the hands of the producer, shall not be the subject of separate assessment. “Crops,” as used here, meant only the annual products of the soil resulting from planting and cultivation.

Besides, the prohibition of the separate assessment of “all crops,” whether growing or gathered, only applies to and affects crops which are still in first hands — an expression meaning while still belonging, in the sense of proprietorship, to the producer; or, in case of trees (if at all applicable to the latter), the owner of the land.

The trees in question are no longer in “first hands” — i. e., the- owner of the soil. They have passed into other hands. If, then, they be within the purview of the proviso of Sec. 7 of the statute quoted above, and, hence, not liable to assessment and taxation while in first hands, having passed out of “first hands” into the possession and ownership of others, they are no longer to be considered as “attached to the realty,” and are assessable and taxable separately from it.

Assessing the land to one man and the timber standing upon it to another who has bought it (the timber) is not double taxation. In such, case, in the absence of proof to the contrary, it is assumed that the land as land only, not taking the trees into consideration, is assessed at its true value, and that the timber is assessed at its true value, independent of the land upon which it stands. Johnson vs. Roberts, 102 Ill. 655.

Besides, if plaintiff company is called upon to pay taxes only upon the timber at its true value, ascertained without regard to the land, he is without interest to complain that the owner of the land is required to pay the taxes assessed against the latter itself. Lech vs. Austin, 43 Cal. 590. Judgment affirmed.

Provosty, J., takes no part.


text:
    No. 14,143.
    State ex rel. Arthur Weber vs. Quitman Kohnke et als.
    Syllabus.
    Considering Act 192 of 1898, in connection with Article 296 of the Constitution, for the carrying into effect of which said act was adopted, and considering the language of said act, whereby provision is made for the organization of municipal boards of health, there is no sufficient reason for holding that the General Assembly, in requiring that three, out of five, members of such boards “ shall, if practicable, be duly licensed and registered physicians,” intended to prohibit the organization of any municipal boards with more than three physicians as members.
    APPEAL from Civil District Court, Parish of Orleans. — St. Paul, J.

      Armond E. Blachmar, for Relator, Appellee.

      Joseph E. Generelly, for Respondents, Appellants.
   The opinion of the court was delivered by

Monroe, J.

The relator, who is a duly licensed physician, was elected, by the Council of the City of New Orleans, a member of the City Board of Health established under the authority of Act No. 192, of 1898, and was duly commissioned by the Mayor. He presented his credentials to the Board and demanded recognition, which was denied. He then applied for relief by means of the writ of mandamus, and obtained judgment, making the writ peremptory and ordering the members of the Board, defendant herein, to recognize him and accord him the privileges of membership, and the defendants have appealed from said judgment.

They base their refusal to accept and recognize the relator on the ground that, under the law, the Board is to consist of five members, not more than three of whom are to be doctors of medicine, and that, as three of .them are members of that profession, there is no room for the relator.

Article 296 of the Constitution provides that “The General Assembly shall create, for the State, and for each parish and municipality therein, Boards of Health, and shall define their duties and prescribe the powers thereof. The State Board of Health shall be composed of representative physicians from various sections of the State. Until otherwise provided by law, both the president and secretary of the State Board of Health shall be ex-officio members of the Board of Health of the City of New Orleans, the president of the State Board to be the president of the local Board of the City of New Orleans.”

Act 192, of 1898, was passed to carry this article into effect. It provides for the establishment of a State Board of Health, to consist of seven representative physicians, to be appointed by the Governor, from the various sections of the State; for the establishment of a Board from each parish, to consist of one suitable person, from each ward in such parish not embraced in an incorporated municipality, to be appointed by the Police Jury, with the qualification that “at least three of the persons so appointed shall, if practicable, be duly licensed and registered physicians;” and it further provides that the Council, or legislative body, of each and every municipal government in the State, shall “Elect, or appoint, five persons in said municipality to be members of the Municipal Board of Health,” that “such persons shall not be members of the said Council, or occupy any other office in said municipality, and three of the persons so appointed, or elected, shall, if practicable, be duly registered and licensed physicians.”

The counsel for the respondents, referring to the provisions relating to the Parish and Municipal Boards, submits the following, as the proposition upon which his clients reply, to-wit:

“In making provision for the creation of local Boards of Health, two dissimilar conditions were kept in view, and an endeavor made to meet the exigencies of both. Parish Boards were to be organized in contradistinction to the Boards which were to be elected within every incorporated municipal government'. The former, from the very necessities of the situation, were to concern themselves, solely, with the preservation of the public health within the locality over which they were vested with jurisdiction; the latter were not only to exercise authority over infectious and contagious diseases, but, also, in the establishment of health and sanitary regulations, to avoid, without danger to the public safety, injurious and needless burdens on commerce.”

The text of the act, however, makes no such distinction as is thus suggested. On the contrary, the identical provisions which confer authority on the municipal Boards, confer it, also, on the Parish Boards, and the act provides that both Parish and Municipal Boards shall act under the supervision and advice of the State Board, and that, for the City of New Orleans, the State Board, alone, shall have power to establish quarantine.

But, the State Board, though thus vested with general authority over the Parish and Municipal Boards, and with special and exclusive authority over the matters which mainly affect the commerce of the State, is required by the Constitution, itself, to be composed entirely of physicians. If, therefore, we should adopt the theory propounded on behalf of- the defendants it would seem to lead to the conclusion that the spirit of the Act of 1898 was in conflict with that of the article of the Constitution for the carrying into effect of which the act was passed. Under these circumstances, we find no sufficient reason for holding that the General Assembly, in requiring that three, out of the five, members of the Municipal Boards shall, if practicable, be duly registered and licensed physicians, intended to prohibit the organization of such Boards with more than three physicians as members. The purpose seems rather to be to require that a majority of the members shall be physicians, leaving the selection of the others to the discretion of the municipal Councils, though, no doubt, this purpose is more plainly expressed in the provisions relating to the Parish Boards. We find no error in the judgment appealed from, and it is affirmed.


author: Nicholls, C. J.

text:
    No. 14,201.
    State of Louisiana vs. Baptiste Collette and Meyer Collette.
    Syllabus.
    Where defendant in a criminal case asks for an instruction which would be correct only under an exceptional state of facts, he must preface the instruction by a predicate which would bring it under the operation of this state of facts.
    APPEAL from the Twenty-ninth Judicial District, Parish of Plaquemines. — Hingle, J.

      . Walter Guión, Attorney General, and Albert Estopinal, District Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      A. E. & O. S. Livaudais, for Defendants, Appellants.
   The opinion of the court was delivered by

Nicholls, C. J.

In the indictment against defendants it was charged that they, in the Parish of Plaquemines, “ten barrels of oysters of the value of ten dollars of the goods and chattels of Alfred Eodi, then there being found, unlawfully, wilfully and feloniously, did take, steal and carry away.”

Accused moved to quash the indictment, averring that they were not bound to answer to the same; that, under the laws of this State, the matters in said indictment contained, were not sufficient in law to warrant an accusation of larceny; that, under the law, the ownership in the property charged to have been stolen should be absolute and perfect and not imperfect and dependent on conditions.

The motion was overruled and the case went to trial, resulting in the conviction of the accused.

The defendants moved for a new trial, which was refused, and defendants appealed. No bill of exception was taken to this ruling of the court and, in the absence of such a bill, under a well settled jurisprudence, it does not come before us for review.

We find in the transcript a bill of exceptions which had been prepared for the signature of the judge, but which* in fact, was not signed. Counsel declare that they were not aware of this fact until their attention was called to it, when the ease came on to be argued before this court, and that the failure of the judge to sign it was due to inadvertence.

The bill of exception, as prepared for signature, recites “that the accused requested the judge to instruct the jury that, under the laws of this State, oysters are not susceptible of ownership, unless bedded within poles or marks clearly identifying them as private property; that the judge refused to give this instruction, and defendants reserved a bill of exceptions.”

Through the argument, made on the trial, we are informed that the oysters which defendants were charged with having stolen were claimed to have been taken from the waters in which they were imbedded, and that the point which they desired to press was that oysters situated thus were authorized to be taken by the public unless the place in which they were found had been staked off so as to disclose the fact that they were upon “leased bedding grounds.”

There is no recital in the bill of the testimony which had been taken on the trial, nor of the state of facts under which defendants were claiming to be justified in asking the court to charge the jury as requested.

Had the bill of exceptions before us been signed, as tendered, defendants could have derived no benefit from it, as the judge could not have done otherwise than decline to give the instruction as it was presented. This is too plain for discussion. Persons asking judges to give instruction which, if correct at all, would be correct unly' under exceptional circumstances and conditions, must preface the instructions by predicates which would make them, as given to the jury, contain correct propositions of law.

The motion to quash was properly overruled. Defendants do not claim that the indictment, as drawn, would not be a proper one charging larceny of oysters taken from an oyster establishment, for instance, in New Orleans. Their contention is that by reason of the place and the conditions in which these particular oysters were taken, they were not objects of private ownership, and their taking was not larceny.

Assuming this to be true, defendants’ defense would have to be worked out by evidence, to be adduced on the trial, and by special charges applicable to the facts disclosed by the evidence and not by a motion to quash an indictment legally framed. The fact that the charge made therein might fail under evidence thereafter adduced, does not affect the correctness of the indictment as found and returned.

We find no error in the judgments appealed from herein, and they are hereby affirmed.

Eehearing refused.


text:
    No. 14,073.
    State ex rel. A. Sorrel vs. Hon. T. Don Foster, Judge.
    Syllabus.
    1. Article 90 of the Constitution of 1879 and Article 94 of the Constitution of 1898 give this court plenary powers of control and general supervision over inferior courts.
    2. And in the exercise of this power the court will issue its writs in its discretion, according to the exceptional features of each case submitted.
    3. The writ of mandamus will lie to compel a judge to try a case when he declines to try it on an erroneous determination of a question of practice preliminary to the whole case.
    4. Act No. 70 of 1886 relieves the owner of stock killed from proving negligence or fault on part of the railway company, in an action to recover the value of the stock.
    5. Accordingly, a sufficient cause of action is set forth by the owner when he avers his animal has been killed, when and where killed, and that its value is so much.
    6. As a plaintiff may not prove what he does not allege, so he need not allege that which he does not have to prove to make out his case.

      ^ PPLICATION for writs of Mandamus, Prohibtion and Certiorari.

      Cammach & Muller, for Eelator.

      Percy .Saint, for Eespondent Judge.
   The opinion of the court was delivered by

Blanchard, J.

The relator instituted suit. in. the Second Justice of the Peace Court, Parish of Iberia, against Morgan’s Louisiana and Texas Eailroad and Steamship Company to recover the sum of ninety dollars, the value of a bull killed by the company’s train of cars.

The company failed to plead or appear in the Magistrate’s Court and judgment in due course was entered-up in favor of the relator for the amount claimed.'

Whereupon, the company took a suspensive appeal to the District Court of that parish, of which the respondent herein is the presiding Judge.

In the appellate court the defendant company filed an exception of no cause of action.

While the Justice Court is not a court of record' and no petition setting forth a suitor’s cause of action is necessary, it seems, nevertheless, that Sorrel (plaintiff in that case, relator herein) did file a petition in which he alleged the killing of his bull by the railway cars, the time and place of killing, the value of the bull and failure to pay on amicable demand made. Ilis prayer was for citation upon the defendant company and judgment for $90.00 and costs.

The exception of no cause of action filed in the District Court was leveled at this petition in this, to-wit :• — that it did not contain an allegation the bull had been killed through the fault of the agents of the company.

This exception, tried on the face of the papers, was sustained by the District Judge and the plaintiff’s suit dismissed at his costs.

After vainly urging an application for new trial, the plaintiff, Sorrel, applied to this court for the exercise of its supervisory control under Article 94 of the Constitution of 1898.

This is sought through the writ of certiorari coupled with mandamus.

Relator alleges he has exhausted all legal remedies before the inferior court; that he has no remedy by further appeal; and that justice has been denied him.

He contends no petition was necessary setting out his case in the Justice Court, and even if it were it was not required it should contain an averment that the bull was killed through the negligence of the railway; that Act No. 70 of 1886 specially relieves the owner of stock killed by a railroad from showing the killing was the result of the fault of the company; that all the owner has to prove is the fact of killing and the value of the animal, and thereupon he takes judgment, unless the defendant shows affirmatively the injury or killing was not through its fault or negligence; that if it be not incumbent on a plaintiff to prove negligence it would be vain and idle for him to allege it.

The prayer of the application for the writs is that the respondent Judge be commanded to reinstate the cause on his docket and proceed to the trial thereof on its merits.

Eesponding to the rule nisi, the Judge sends up the record of the case; pleads to the jurisdiction of this court to grant the relief sought; avers the court cannot legally direct inferior courts in the matter of the judgments they should render in causes pending before them; that certiorari cannot be substituted for appeal, etc.

He further responds that while it was not incumbent on the relator to file a petition in the Magistrate’s Court, he did, in point of fact, do so and is bound by the pleadings so filed; that in his petition he had failed to allege the killing of the bull was the fault of the railway company; that this averment was sacramental and without it no cause of action was disclosed.

His further contention is that Act 70 of 1886 merely shifts the burden of the proof of negligence in damage suits for killing stock from the owner to the railroad company, and'does not relieve the owner from the necessity of alleging the negligence of the company.

Ruling — Article 90 of the Constitution of 1879 and Article 94 of the present Constitution give this court plenary powers of control and general supervision over inferior courts.

State ex rel. Gas Light Co. vs. Judge, 37 La. Ann. 285; State ex rel. Murray vs. Judge, 36 La. Ann. 578; State ex rel. LeBlanc and Richard vs. Judge, 41 La. Ann. 908.

It is this power which is here invoked, and this court will issue its writs in its discretion according to the exceptional features of each case submitted. 36 La. Ann. 582.

The writ of certiorari will issue, coupled with mandamus, when the Judge of an inferior tribunal refuses to try. a case and such refusal amounts to a denial of justice.

State ex rel. Boyd vs. Judge, 34 La. Ann. 1178; State ex rel. Bright vs. Judge, 36 La. Ann. 482; Montague vs. Coquillon, 35 La. Ann. 1102; State ex rel. Sheehan vs. Judge, 32 La. Ann. 315; State ex rel. Fredericks vs. Judge, 33 La. Ann. 146.

The writs thus coupled will be.issued in cases where the law has assigned ho relief by the ordinary means and when justice and reason require that some mode should exist of redressing a wrong, or of redressing an abuse of any nature whatsoever. C. P. 830, 837, 838; 36 La. Ann. 578, 581.

Here, there was no appeal from the ruling of the District Judge, and, consequently, no relief could be had by the ordinary means.

The position of the relator is that the Judge illegally refused a trial of his cause on its merits, and that this refusal is equivalent to failure to perform duty.

It has heen distinctly held that the writ of mandamus will lie to compel a Judge to try a case when he declines to try it on an erroneous determination of a question of practice preliminary to the whole case.

State ex rel. Cohen vs. Judge, 41 La. Ann. 41; State ex rel. Chism & Boyd vs. Judge, 34 La. Ann. 1177; State ex rel. Leeds vs. Judge, 32 La. Ann. 542; Ex parte Bradstreet, 7 Peters, 634; U. S. vs. Judge, 5 Cranch, 115; see also High Ex. Rem. §§ 151, 250, 251.

A distinction is always recognized between cases where it is sought by mandamus to control the decision of the inferior court upon the merits of a cause, and cases where it has refused to go into the merits of the action upon an erroneous construction of some question of law, or of practice preliminary to the case. State ex rel. Isaacson vs. Judge, 34 La. Ann. 76.

And that is the case at bar. Relator urges that the respondent Judge has dismissed his case on an erroneous determination of a question of practice preliminary to a trial upon its merits.

The question, then, presented is: — Did the Judge err in sustaining the exception of no cause of action because the relator had failed to allege in his petition the killing of his bull was the result of che fault of the railway company?

The answer to this depends upon the effect to be given to Act 70 of 1886.

That Act reads:—

“That in suits against railroad companies for the loss of stock killed or injured by them, it shall be sufficient in order for the plaintiff and owner to recover to prove the killing or injury, unless it be shown by the defendant company that the killing or injury was not the result of fault or carelessness on their part, or the negligent or indifferent running or management of their locomotive or train.”

It will be observed this statute changes in an important respect the rule which obtained prior to its enactment. Then, the claimant owner must prove the killing or injury and the fault of the company. Now, it entirely suffices for the owner to recover that he prove merely the killing or injury.

Since the law relieves the owner of proving negligence, wherefore the necessity of alleging that which he does not have to prove?

His cause of action is complete, under the law as it now stands, when he sets forth his animal has been killed by the defendant company, where and when killed, and that its value is so much.

He does not have to prove anything save this to recover. Therefore, he has a cause of action when he alleges this.

The public policy of the State announced in Act 70 of 1886 is that railway companies must pay for all stock killed or injured by their trains unless they (the companies) succeed in showing the killing or injury occurred through no fault of theirs.

It is, therefore, for the railway company, in its answer to a suit, to allege no negligence and to prove no negligence.

It is not for the plaintiff to either allege fault or prove fault on part of the company.

It would be requiring a vain thing of the plaintiff to insist he must allege negligence when he does not have to prove it. It is surplusage to aver that which need not be proven to make a case. Eiee on Evidence, Yol. 2, p. 1101.

As a plaintiff may not prove what he does not allege, so he need not allege that which the law relieves him from proving.

The district judge should have overruled the exception of no cause of action filed in his court, based on the absence of the averment of negligence in the relator’s petition.

•It is, therefore, ordered that a peremptory writ of mandamus do issue commanding the respondent judge to reinstate the cause of A. Sorrel vs. Morgan’s Louisiana and Texas R. R. & S. S. Company on his docket and to proceed to the trial thereof on its merits.


author: Breaux, J.

text:
    No. 13,639.
    Peoples’ Bank of New Orleans vs. J. L. Lemarie et als.
    Syllabus.
    1. Acceptance of guaranty. Notice of acceptance of guaranty may be waived by the form of the guaranty, or it may be Implied from the terms of the Instru ment. The waiver of acceptance finds support in the facts and circumstances of the case.
    2. Conditions to secure guaranty complied with hy plaintiff. Willingness to accept the guaranty and the acceptance Itself was made evident on the part of the plaintiff by complying with defendants’ proposal in postponing payments of overdrafts at the time due and paying others covered by the instrument of guaranty.

      i. Interest. The overdrafts covered by the instrument, and not the amount of the guaranty bore Interest.

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

      E. Howard McCaleb, for Plaintiff, Appellee.

      Chaffe & Bowers, for Lemarie, Defendant, Appellant.

      Saunders & Gurley, for O. E. Levy and S. D. Jackson, Defendants, Appellants.

      Bouse & Grant, for Godchaux, Koen and Martinez, Defendants, Appellants.
   The opinion of the court was delivered by

Breaux, J.

The following is a copy of the written instrument upon which this suit was brought:

“New Orleans, January 20th, 1896.
“We, the undersigned stockholders of the New Orleans Abattoir Co., Ltd., do hereby bind and obligate ourselves jointly unto the Peoples’ Bank of New Orleans in the sum of twenty thousand dollars ($20,000) to cover any over-drafts which have been or may be made by the New Orleans Abattoir Co., Ltd., up to said amount with eight per cent, interest per annum, and do bind and obligate ourselves jointly to pay said sum on demand.” ■

This written instrument is signed by all the defendants except Charles E. Levy, who added the following lines to the writing: “I hereby guarantee as my part, two thousand dollars,” and then signed the addendum.

The material averments of the Peoples’ Bank are that the principal of the defendants, the New Orleans Abattoir Co., Ltd., is its debtor in an amount exceeding twenty thousand dollars, and that this company is absolutely insolvent, and that the defendants sued are each liable in the sum of two thousand dollars, with interest at eight per cent, per annum from January 20th, 1896, this amount being the extent of the joint obligaion upon the contract sued upon. Four of the defendants appealed. It follows that the other signers of the obligation present no issues before us for decision.

In its answer to defendants’ appeal, the appellee complains of the judgment, in so far as the appellants have been condemned to pay only i as it contends) five per cent, interest after judicial demand. The (ontention of the appellee regarding interest is that defendants ¿nd appellants should have been condemned to pay eight per cent, interest after judicial demand as well as (as they were so condemned) before judicial demand.

With reference to plaintiff’s claim, plaintiff’s counsel urges upon the court’s attention that the instrument in writing constituted an absolute and perfect guaranty on the part of the defendants. With refer-er ce to interest, plaintiff’s counsel contends that the contract stipulates for eight per cent, from its date.

The defendants and appellants, on the other hand, set out, in substance, that plaintiff failed to sustain a cause of action because no evidence was offered showing that defendants were ever notified of plaintiff’s acceptance of that which defendants contend was a mere proposal; that they were entitled to notice within a reasonable time of plaintiff’s acceptance of that which they aver was an offer to become guarantors. The defendants in argument contended further that the is sues are similar to those decided in Laehman and Jacobi vs. Bloch Bros., 47 Ann. 505.

With reference to the interest claimed by plaintiff, defendants contend that, in case we should find them liable for the principal, the District Court erred in giving judgment from the date of the contract at eight per cent, interest on the principal allowed and five per ce nt. interest from judicial demand.

The questions of law may not be very simple, those of fact are simple enough.

The facts are, as testified to by the president of the bank, that he received the instrument in writing about the time it was dated, and that at the time this instrument was signed, the overdrafts amounted to seven thousand six hundred and twenty-one dollars. It further appears that the plaintiff bank is a creditor of the Abattoir Company in an amount larger than is covered by the instrument of guaranty. It also appears that no express or special notice was ever given by the bank to those who signed the instrument of guaranty.

We take the rule as settled that the absolute promise in due form to a t swer for the debt of another is binding. True, care should be taken to mark the difference between a perfect guaranty and the mere offer to become a guarantor. In the former case no formal acceptance is necessary, in the latter the offer or tender of guaranty must, be accepted, and the acceptance notified to the offerer in order that it n ay become a binding contract.

In the case before us for decision, the promise was direct and the guarantors assumed from the date of the contract to secure an existing debt of the principal in such terms that it is manifest that no notice was in contemplation of the parties. The guarantors in the commercial instrument said: “We do hereby obligate and bind ourselves, etc.” In view of the terms of the instrument they signed, they must be held to have waived all notice of acceptance. The expressions contained in an instrument similar were construed in Davis vs. Wells, 104 U. S. 159, and the principle approvingly commented upon in I 'randt on Surety, § 194, citing several cases quite in point, and Story, § 1133, 4th Edition. From the last we quote: “The only notice to which the guarantor has a strict right is notice that his proposal of guaranty is accepted and will be acted upon; and this right may be waived by form of the warranty, or by the manifest intention of the parties as implied thereby.” Illustrative of this principle, this commentator cites a case in which the guarantee was in these terms: “If you will let A have $100 worth of goods on three months’ notice, you may consider me as guaranteeing the same,” as one in which no notice of acceptance was necessary. Our Civil Code gives to an act, although not directly an acceptance, the effect of acceptance. Arts. 1802, 1816.

The appellants cite the Laehman and Jacobi case. The signers of the paper addressed to Laehman and Jacobi of San Francisco, setting out “I agree to become surety to you for an amount stated for B and B.” (Our italics.) In view of the facts and-circumstances, this letter was construed by the court as containing a mere proposal which required acceptance, and there was nothing about the issues from which acceptance could be implied. In the case in hand there was a delivery made of the instrument to the creditor carrying with it, in view of the time of delivery, and the words of the contract, a complete and perfect obligation of guaranty. In arguing in the case before us, it was said by plaintiff substantially that the obligation was voluntarily assumed by defendants, who, as stockholders of the Abattoir Company, were not unconcerned parties. The defendants seek to meet this by urging that the shareholders of a company are absolutely distinct from the corporation and that, in consequence, they are not to be held as legally affected with notice of what was done in the course of the business between the company and the bank. Our view of the issues renders it unnecessary to attach great importance to the notice to which stockholders may or may not be held. In considering the circumstances of this case, however, the attending relations of stockholders may, to some extent, at least, be taken into account. Although stockholders are ordinarily distinct from the corporation in which they own stock, they are not absolute strangers to it, and cannot always be considered as entirely ignorant of the business they assume to protect by their signatures as guarantors, and of all circumstances connected with an indebtedness they undertake to secure.

They know, or they must, we think, be held to have known, that their corporation was indebted to the bank; that their signatures would obtain some forbearance in the collection of .the amount due, and secure an additional amount on drafts to he drawn by the corporation.

Coming now to the defendants’ position that the accounts of the bank do not show the consideration upon which the items debtited to the Abattoir Company were based; further that it does not appear whether the charges were for overdrafts within the terms of the guaranty, we think it sufficient to say, in answer, that the evidence shows • that plaintiff’s (overdrafts) accounts are correct. They were the only overdrafts of the company against this bank, and, manifestly, they were the overdrafts the defendants undertook to guarantee.

To the argument of the learned counsel for defendants that the president may have received this instrument as a proposal, and thal, under the circumstances, he may have been unwilling to accept it, at the time, that he may have supposed that the acceptance of the instrument would have bound the bank to advance to the Abattoir Company, to the extent of twenty thousand dollars as a condition ol the guaranty, an answer to these contentions presents itself in the fact that the overdrafts due at the time were not pressed for collection and that further advances were made in compliance with the contract. In other words, as to the amount to be advanced, the president received the instrument and paid the overdrafts. It may be said here, we think, that the instrument of guaranty was the inducement for giving the additional credit.

Interest on the amount of the principal allowed in the judgment presents the next question for our decision. There is a decided lack of clearness in the instrument regarding interest. The first part of the writing absolutely states an amount as the sum for which the signers will be bound, but near the end or bottom of this writing the total of the overdrafts is referred to and an amount mentioned as follows: “To cover any overdrafts which have been or may be made by the New Orleans Abattoir Company up to said amount with eight per cent, per anniumIt is not very clear whether the signers intended that the eight per cent, interest should refer to the amount (if the bond or to the overdrafts. There is some obscurity in those clauses of the contract which calls for construction of the contract. We are not certain that it was the intention to add interest to the amount of the bond. It is unusual to specify the amount of a guaranty, and at the end of the writing, add interest, as an additional amount to be paid by the guarantors, over and above the sum first stated. The argument is persuasive, to say the least, that sureties desiring to obtain time for the principal will stipulate that the amount of the obligation shall stand for principal and interest of the overdrafts.

We conclude that the parties intended, in using the expression “up to the said amount with eight per cent, per annum," to bind themselves to pay the amount of the overdrafts with eight per cent, interest to the amount of twenty thousand dollars, and not twenty thousand dollars with eight per cent, interest, not expressly stated.

It is therefore ordered, adjudged and decreed, that, as to the defendants, Charles Godchaux, Urban Koen, D. B. Martinez and Charles L. Levy, the judgment appealed from be amended by striking out and deducting therefrom the sum of four thousand eight hundred dollars and interest of five per cent, on said amount.

It is further amended by condemning each,. Charles Godchaux, Urban Koen, D. B. Martinez and Charles L. Levy, to pay unto the Peoples’ Bank of New Orleans the sum of two thousand dollars each with legal interest from judicial demand and that appellee pay costs of appeal.

In those respects that the judgment appealed from is not in conflict to or inconsistent with our decree, it is affirmed.

(Monroe, J., dissenting, handed down a separate opinion.) Rehearing refused. (Monroe, J., dissenting.)

Provosty, J., takes no part, he not having been a member of the court at the time the case was submitted.


text:
    No. 14,011.
    Othon Richard vs. Eraste Mouton, et al.
    Syllabus.
    1. In a suit for settlement of partnership affairs, the prayer of the petition should be for judgment in favor of plaintiff for whatever sum the settlement might disclose as existing in his favor, and not for a judgment for a specific sum.
    2. But where judgment for a specific sum is asked for, the suit will not be dismissed outright, if, viewing the petition as a whole, it is made out to be a demand for a partnership settlement and It is found that the prayer for the specific sum may be eliminated, leaving the legitimate matter — the suit for settlement — intact.
    3.- In the settlement of partnership affairs, where material correction, amendments, or reductions are made in the account submitted, the latter should be recast in accordance with the view of the trial judge, to the end of facilitating the understanding of the case in the appellate court. There should, at least, be a showing made of how the figures and totals and conclusions embodied in the decree were arrived at, and where this is not done, and the same is not supplied by the briefs of counsel, and not easily ascertainable from the evidence, the case will be remanded.
    APPEAL from the Seventeenth Judicial District, Parish of Vermillion — Gordy, J.

      hewis L. Bourges and W. B. White, for Plaintiff, Appellant.

      Bwards & Greene, for Eraste Mouton, Defendant and Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff brought this suit for the purpose of securing a settlement of a partnership in the business of buying and selling cattle which had subsisted between himself and the defendants, Mouton and Trahan. Instead of asking a judgment in his favor for whatever sum the settlement of the partnership affairs might disclose as existing in his favor, he made the mistake of praying judgment against one of the parties for a specific sum.

He made the further mistake of connecting with the suit for settlement of the partnership, a demand for judgment against one of the partners, in his individual capacity, for sums alleged to be due him (the plaintiff) on account of outside business transactions having no relation whatever to the partnership.

lie was met by a peremptory exception that one partner may not claim a specific sum from his copartner, but is limited to suing generally for a settlement of partnership accounts and affairs.

His suit was saved from dismissal outright by the fact that, viewing his petition as a whole; it is made out to be a demand for a partnership settlement, and the prayer for judgment for the specific sum named could well be eliminated and leave the legitimate matter — the suit for setlément — intact.

Such was the ruling of the trial Judge. He sustained the exception to the extent of dismissing the suit in so far as it claimed for plaintiff a specific sum resulting from the partnership, and overruling it in so far as it sought the dismissal of the entire petition. He permitted the case to stand as a suit, pure and simple, for a partnership settlement.

We approve this ruling.

As to the outside demands against one of the partners, plaintiff was permitted, by formal motion, to discontinue that part of his suit. We are not prepared to say this was error.

We take the case, therefore, as the lower Judge considered it — one for settlement of partnership affairs.

Defendant Mouton, who was the managing, partner and financial agent of the firm, and who kept the books, was required to file an account and statement of the receipts and expenditures had and made by him for and on account of the partnership. This he did.

This account showed a net profit to the partnership of $635.90. The trial court decreed that the account be amended by increasing the net profits and the amount to be divided among the partners “by the sum of $695.52.”

Plaintiff appeals, and in this Court defendant, Mouton, prays amendment so as to make the judgment one of approval, merely, of his account, and ordering settlement between the partners on its basis.

Ruling — The record does not favor the Court with any statement of the trial Judge giving the process, figures and calculations by which he arrived at the increase of $695.52 entered up in his judgment.

Neither is there explanation of any kind whatever of this in the briefs filed on either side.

We interpret the judgment to mean that the amount of the net profits of the partnership disclosed by the account, $635.90, is increased by the addition of the sum of $695.52, and that the aggregate of these two sums, to-wit: — $1,331.42, is decreed to be the amount which defendant Mouton is to divide between the partners — the plaintiff, Richard, himself and his co-defendant, Trahan.

Without explanation from the Judge or from counsel, the evidence found in the record does not, of itself, enable us to understand this judgment, the correctness or incorrectness of which we are called upon to pass.

In the settlement of partnership affairs, where material corrections, amendments, or reductions are made in the account submitted, the latter should be recast in accordance with the view of the trial Judge, to the end of facilitating the understanding of the case in the Appellate Court.

There should, at least, be a statement made showing items added, if any be added; showing items rejected, if any be rejected; showing items reduced and to what extent reduced, if any be reduced. There should be a showing made of how the figures and totals and conclusions embodied in the decree were arrived at.

Where this is not done, as in this instance, and an easy understanding of the ease as it comes here is not supplied by the evidence, the cause will be remanded.

If the trial Judge cannot conveniently recast the account himself, it is his privilege to refer the same, with his views, to an accountant for recasting.

It is ordered that the judgment appealed from be reversed and that this case be remanded to the Court a qua for further proceedings according to the views herein set forth, costs of this appeal to abide the final determination of the suit.