text:
    No. 205.
    W. E. Hamilton et al. vs. State National Bank.
    A judicial mortgage attaches to real property of the debtor and affects third persons on registry of the judgment.
    A voluntary transfer subsequently made by the debtor to one who was then a creditor for the unpaid price of sale of such property to such debtor, in consideration of tho return of the note, and who had not acquired, from the original vendor, the right to demand the nullity of the sale, in case of non-payment of the price, does not discharge the judicial mortgage.
    Tho property thus transferred passed cum onere and is liable to be subjected to the payment of the judgment.
    APPEAL from the Second District Court, Parish of Bossier. Drew, J.

      Snider & Smith for Plaintiffs and Appellants:
    Morbgagos and privileges are extinguished and confused when the creditor acquires the ownership of the thing subject to tho mortgage and privilege. It. C. C. 3277, 3411; 15 Ann. 407; 25 Ann. 559, 560 ; 34 Ann. 1032, 1035; 33 Ann. 454, 463.
    A conventional sale or exchange, although made in satisfaction of a prior mortgage, does not discharge or extinguish existing mortgages. The sale must be judicial to have that effect. Ayrand vs. Babin, 7 N. S. 473.
    A consent sale in consideration of a prior mortgage does not defeat subsequent mortgages. The property passes cum onere and the younger mortgage may be enforced against tho immovable in the hands of the third possessor.
    The right to have the sale dissolved for non-payment of its purchase price does not pass with the transfer of the note of the purchaser. Swan vs. Gayle, 24 Ann. 501 to 504; 9 Ann. 84; Heirs of Gastle vs. Ifloyd, 38 Ann. 583 and authorities there cited.
    The general denial only puts at issue the facts necessary to plaintiff's recovery. Heirs of Wood, vs. Nioholls, 33 Ann. 749, and authorities there cited.
    Extinguishment of mortgages by effect of the dissolving condition is analagous to that of payment, release, etc.; it is.a plea that must be specially pleaded. 33 Ann. 479 aud authorities.
    The general denial reduces the controversy betwoin the parties to the question of the truth or falsity of plaintiff’s allegations. The petition alleged that defendant is the owner and third possessor of the land in controversy and that .said lands are subject to plaintiff’s mortgage, and that the defendant admitted on. the trial that plaintiff’s mortgage is valid and an existing judgment against C. O. Nowell and that the same was recorded as a mortgage against him, Nowell, while he was the owner of the land; the answer shows that said Nowell is tho author of defendant’s title. Defendant has admitted the mortgage versus the land and has not shown that it was lifted.

      Litigants must "be hold closely to their pleadings, and courts will decide the issues as made by the pleadings and nothing more.
    A sale or exchange from the debtor to the creditor in consideration of a prior mortgage will not erase nor affect subsequent mortgages unless the purchaser be the wife of the vendor.

      •T. H. Keyset for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to enforce a judicial mortgage against property belonging to the defendant banli.

The material facts as ascertained from the admission of the parties, are the following:

On March 20, 1878, Connell sold the property to Nowell for $4070, for which he issued his note due November 1st, 1879. The act was recoided.

On September 21st, 1878, following, plaintiffs obtained a judgment against Nowell for $2102.67 with interest and subject to a small'credit, which was recorded three days afterwards.

On December 10th, 1881, Nowell transferred the property to Payne, who had acquired the note, the consideration of the c( nveyance being the return of the note of the latter to the former.

On July 31, 3883, Payne transferred the property to Payne, Kennedy & Co., who, on February 11, 1887, conveyed it to the hank defendant herein.

The plaintiffs pray merely that their judicial.mortgage he recognized and enforced by the sale of the property, in default of abandonment of it by the bank. Their averments are denied and title is claimed by the defendant. The appeal is taken from a judgment adverse to plaintiffs.

The question presented is simply, whether the mortgage resulting from the registry of plaintiffs’ judgment against Nowell has continued to attach to the land, notwithstanding- the transfer of it by Nowell to Payne.

It is clear that, as the property stood in the name of Nowell at the date of the recording of the judgment, the judicial mortgage did affect it. R. C. C. 3328.

It is also clear that, had not Connell transferred the note and had he not been paid the same, he could have brought a suit to annul the sale and that the property would have returned to him free from the judicial mortgage in favor of plaintiffs. 19 L. 30; 3 Ann. 217; 6 Ann. 2; 12 Ann. 699; R. C. C. 2045, 2046, 2047, 2561; 8 L. 83.

But the fact is, that Counell did transfer the note to Payne but did not at the same time, confer on him the right to demand the nullity of the sale in case of non-payment of the price.

The transfer of. the property by Nowell to Payne must not therefore be viewed as though made to Connell. 38 Ann. 583.

It consequently follows that the property has not passed free from the judicial mortgage, but that it was conveyed cam onere.

It has been held and properly too, that, even where a sale is annulled by agreement between the original parties, whatever its validity may be as to them, the retroversion does not necessarily affect third persons. Ricks vs. Goodrich, 3 Ann 217.

In a subsequent case, Mr. Justice Rost delivered an interesting and learned opinion in which it is distinctly reannounced that, where the retrocession is the voluntary act of the parties, the rights of third persons are not always affected thereby. Chretien vs. Richardson 6 Ann. 2.

In a more recent suit, decided by the present Court, the following language was used:

“If the parties desire to substitute the voluntary for the judicial rescission and to give to the former the extraordinary effect of revoking the contract ab initio and of obliterating all claims and privileges of third persons against the property, which may have been acquired during the possession of the purchaser, we are satisfied they were bound to comply, in their voluntary act, with all the requirements which the law would have imposed in the judicial proceeding. The purchasers had no authority to abandon or even to compromise the rights secured to them by law to the prejudice of a creditor who, by seizure or orthewise had acquired a privilege on the property.”

This exposition of the law rests on conservative principles, followed by all civilized nations. Sic utere tuo, etc. R. C. C. 11, 1989.

Had the sale, under judicial process, taken place and the property not realized more than enough to satisfy the vendor’s claim, necessarily the judicial mortgage would!have ceased to affect the property which would then have passed unincumbered to the adjudicatee.

Under the circumstances of this case, it is manifest that a fortiori the voluntary transfer does not affect such third persons, as it was made, not to the original vendor, but to one who was only a creditor for the unpaid price of sale and who had not been subrogated to the right of the vendor, to demand the nullity of the sale on account of non-payment of the price and the less so, as in this instance, suit had been brought to enforce payment, pending which the debtor transferred the property in consideration of the return of the note.

In Castle vs. Floyd, 38 Ann. 583, this Court held that the right to have the sale rescinded owing to the non-payment of notes representing the purchase price, did not pass with the note without a special agreement to that effect.

It is perhaps proper to stale that the suit brought to enforce payment liad been instituted by Payne, Kennedy & Co., a firm of which Payne was a ihember and for which he liad acted, and that, when the property was conveyed io him during the proceedings, it was in reality for account of the firm.

We therefore conclude that the judicial mortgage claimed by tbe plaiutiffs ought to bave been recognized and that, in default of a surrender of tbe property, or satisfaction of the debt, tbe judgment must be enforced by sale.

We do not pass upon any mortgage or other rights, if any, which may be asserted adversely to plaintiffs, as no issue on that subject was presented by tbe pleadings.

It is therefore ordered and decreed that tbe judgment, appealed from be reversed, and that there be now judgment in favor of tbe plaintiffs recognizing tbe judicial mortgage claimed by them on tbe land described, and that, in default of payment of that judgment or surrender of the property, the same be seized and sold, after compliance with all legal requirements, to satisfy the judgment in capital, interest and costs in both courts.

Fenner, J. takes no part.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 199.
    The State of Louisiana vs. Alonzo Jones.
    The conlusive presumption of tbe English common law that a male infant under the age of fourteen years is physically incapable of committing the crime of rape, was based entirely on the physiological fact that, under the climate and other conditions prevailing iii England, pnberty is very rarely attained under that age.
    The contrary being unquestionably the fact in Louisiana, the rule has no application; following 2 Pick, 30 ,■ 2 Parker, 174; 14 Ohio, 222; 17 ia. 515, 521.
    PPEAL from tbe First District Court, Parish of C iddo. Hieles, J.

      John JR. Land, District Attorney, pro tem., for the State, Appellee:
    The court may instruct the jury to try the ease according to the law, the evidence and their experience. Bishop’s Criminal Procedure, vol. 1, see. 982. '
    The presumption of the common law. that an infant under the age of fourteen years is absolutely incapable of committing the crime of rape, does not prevail in America. Modified to our own circumstances and conditions, the law is: An infant under the age of fourteen years is'presumed to be incapable of commit ting the crime of rape, or an attempt to commit it; I?pt that presumptibn may be rebutted by proof that he has arrived at the age of puberty. Desty’s American Criminal Law. sec. 22 b; "Williams vs. The State, 14 Ohio Rep. 222'; O'Meara vs. The State, 17 Ohio Stat. 521; Penn vs. Sullivan, Add. Rep. 14J; Com. vs, Thomas, 1 Yirg. Cas. 307; Com. vs. Green. 2 Pick Rep. 381; State vs. Handy, 4 Harrington 566; Moore vs. State, 17 Ohio Sfe 521, etc.
    Burglary is an attempt, and its special reprehensible quality is derived from the particular intent, and not from the act, which may be either evil or indifferent, hence the question of physical capacity to commit rape (the act) is foreign to the issue, the sole question being the intent. Bisk. Grim. Law, vol. 1, sec-. 728.

      T. F. Bell for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The defendant waR indicted under section 854 of the Revised Statutes for entering the dwelling-house of one Gilliland in the night-time, without breaking, with intent to commit a rape.

The record presents two bills of exceptions, viz :

1st. To the judge’s refusal to give the following charge: “If the jury find from the evidence that the defendant, at the time of the offense charged, was under fourteen years of age, he is in law conclusively presumed to have been physically incapable’ of committing the crime charged in the indictment, and is therefore entitled to an acquittal.”

2d. To the following charge given’by the judge, viz : “That if the evidence shows that the defendant was, at the time of the offense charged, over seven and under fourteen years of age, the law raises the presumption that he was mentally incapable of distinguishing right from wrong, but the presumption may be rebutted by evidence of guilty knowledge of wrongdoing; aud as to his physical capacity to commit the crime charged against him, the law raises no presumption whatever founded on age, but leaves said physical capacity as a fact to be determined by the jury from the evidence in the case and view of the accused and the experience of the jury in such matters.”

I.

In his refusal to give the charges asked by defendant, the judge is sustained by the authority of the courts of Massachusetts, New York and Ohio. Com. vs. Green, 2 Pick. 380; People vs. Randolph, 2 Park. 174; Williams vs. State, 14 Ohio 222; O’Meara vs. State, 17 id. 515; Moore vs. State, ib. 521.

It is admitted that the charge asked embodied the rule adopted by the common law of England; but the American decisions above referred to, held that the rule was based upon the physiological fact that in the climate and amongst the population of England and the other northern countries of Europe, puberty was so rarely attained under the age of fourteen in males as to justify the presumption that prior to that age a boy is incapable and hence cannot be convicted of rape. But recogniziug that the period of puberty is affected by circumstances of race, climate habits and conditions of life, and discovering, as a fact, that in this country puberty is frequently attained at an earlier age than fourteen, they refused to apply the English rule, holding that the rule, being founded wholly upon the facts prevailing in England, had no application to the different facts existing in this country.

The reasoning applies with much greater force to the climatic and racial conditions of Louisiana. These authorities fully sustain the refusal of the judge to apply the English rule and we have no hesitation in following them.

II.

It is claimed, however, that the charge actually given by the judge went further than the authorities above quoted, because the latter, while rejecting the conehisiveness of the presumption, still maintained the presumption itself as applicable until rebutted by proof; while tlfe judge a quo charged that the law raised no presumption whatever founded on age, but left the physical capacity as an independent fact to be determined by the jury.

We think the judge’s conclusion is the logical sequence of the rejection of the English rule; for if the common law of England does not establish a presumption applicable here, what other law establishes any presumption whatever 1 We have certainly no statute to that effact other than the act of 1805 (Rev. Stat § 976) which adopts the common law of England as to crimes, rules of evidence and criminal proceedings, “changing what should be changed,” except so far as modified by statute. This statute placed us in the same relation to the common law of England on these subjects which was occupied by the States of Massachusetts, New York and Ohio, and holding, with the courts of those States, that it did not import this presumption because founded solely on facts and conditions which do not prevail in this country, we doubt the judicial authority to substitute it by a different presumption.

If, however, we were to follow the example of those courts in modifying the common law rule only so far as necessary to make it conform to the conditions existing here, we should still reach the same conclu sion announced by the judge a quo.

The Ohio court said: “In our State we know that many infants under fourteen are capable of being guilty, but that a majority are not capable under that age. Hence we are compelled to suit the rule of law to the facts, as the rule itself has no authority but in fact. Modified, then, to our circumstances and condition, the rule is, an infant under the age of fourteen is presumed to be incapable of committing rape, but that presumption may be rebutted'by proof. Williams vs. State, 14 Ohio 222.”

Obviously the modification was based on the fact stated that, in Ohio, “the majority are not capable under that age,” which supported the presumption of incapacity, but subject to rebuttal.

Now, in Louisiana, we believe we hazard nothing in saying that a large majority of youths attain puberty before the age of fourteen years. Therefore there is no foundation for any presumption of incapacity.

It might be wise for the legislature to establish some limit of age within which an irrebuttable presumption of incapacity .might result; but it has not done so. It would not, and could not, with any reason, % so high a limit as fourteen years.

The State of Louisiana has no broader subjection to the common law of England on the subject of crimes and offenses than the other States of this Union, and it is settled that only so much thereof is adopted as is applicable to our situation and circumstances. 2 Bishop Cr. L., sec. 284; 1 Kent’s Com. 472, 473 and note.

Various provisions of the English common and statutory law, such as those with regard to counterfeiting and treason, are rejected as inapplicable. 1 Bishop Cr. L., secs. 177, 456, 611, 612.

We feel fully justified in following the example of our sister States in rejecting a presumption founded exclusively on facts and conditions, the opposite of those which prevail in Louisiana.

Judgment affirmed.

Poclié and Todd, JJ. having been absent from argument, take no part.


author: Bermudez, C. J.

text:
    No. 207.
    The State of Louisiana vs. W. N. Cole.
    A decree setting aside a judgment of forfeiture of an appearance bond is theoretically and practically one granting a new trial and is not appealable.

      APPEAL from the Third District Court, Parish of Claiborne. Young, J.

      JjJ. H. MeGlendon, District Attorney, for Plaintiff and Appellant.

      John A. Richardson and Gluts. W. Seals for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The appearance bond furnished by the defendant, was declared forfeited and judgment rendered, on his failure to appear when summoned.

The surety thereupon took a rule to have the forfeiture set aside and the bond annulled, alleging various grounds in support.

The district judge, after hearing, merely rescinded the judgment.

From this decree, the State appeals. The appellee moves to dismiss on the ground that an appeal does not lie therefrom.

It is evident that the district judge did not pass upon the validity of the bond assailed by the security.

His action in annulling the forfeiture leaves matters iu the condition in which they stood previous to the motion of the district attorney for the forfeiture of the bond.

The right of the State to further proceedings is admitted by the security and remains unaffected.

Theoretically and practically the distriet judge, after reversing and setting aside his judgment, has simply granted a new trial.

It has been repeatedly held that an appeal does not lie from an order granting a new trial.

The motion to dismiss must prevail.

Appeal dismissed.


author: Watkins,-J.

text:
    No. 178.
    A. J. Trounstine & Co. vs. R. A. Ware and G. M. Munn, Consolidated with Carter Bros. & Co. vs. R. A. Ware and G. M. Munn.
    An order of appeal granted at a term of court subsequent to the one at which the judgment appealed from was rendered in open court — is not a legal substitute for citation. In such case, citation of appeal is indispensable to the perfection of the appeal.
    In case two different and distinct appeals are granted on one order, one may be sustained and the other dismissed.
    "When a suit has for its object the revocation of a pretended sale as a fraudulent simulation, the party whose title is attacked is a necessary party. This issue cannot he tried with the debtor alone, after the suit has been dismissed as regards the alleged simulated owner of the property.
    An appeal having been, by plaintiff, prosecuted to the Circuit Court of Appeals from the judgment of dismissal, and same having been by that court reversed and the cause remanded; and, thereafter the plaintiff prosecute an appeal fram the same judgment to this Court, he is conclusively presumed to have abandoned the judgment of said Circuit Court of Appeals in his favor.
    The principal and necessary defendant, having been eliminated from the suit, the only decree this court can render, is one affirming the judgment appealed from.
    APPEAL from the Second District Court, Parish of Bienville. Drew, J.

      D. H. Patterson and J. A. Dorian for Plaintiffs and Appellants:
    Amendments should always be allowed, when justice is subserved thereby if they do not change the substance of the issue, and cause no injury to the opposito party, nor prejudice to his rights. 27 Ann. 316 ; 36 Ann. 786 and 32 Ann. 395.
    Amendments do not change the substance of the issue when they can be cumulated with the original pleadings, 10 Ann. 599 and 8 S. 226.
    Sabstance of demand is not changed when the prayer is the same in original and amendment. 8 K. S. 226.
    Courts will more readily allow an ameudraent than refuse it, because injustice is less liable to be done thereby. 5 Ann. 566; 32 A.nn. 829.
    Insolvency is proved when plaintiff shows debts and defendant fails to show sufficient property to pay them. C. C. 1985.
    Simulation can only be be proved by indirect and circumstantial evidence. 29 Ann 8; 33 Ann. 1065.
    "When fraud or simulation is at issue any act of one of the parties to it bearinar on the issue,, is relevant. 29 Ann. 4,
    The court is not bound to believe the witness, but may disregard his entire evidence when he is one of the interested parties. 33 Ann. 1063.
    When the evidence shows the party has not the means to purchase it, it is presumed to belong to the party alleged. If not, the burden is on the defendant to show that it is his 33 Ann. 1063 ; 11 Ann. 228,

      Watlcins & WatTdns for Defendants and Appellees:
   The opinion of the Court was delivered by

Watkins,-J.

By consent of parties these causes we consolidated and tried together in the lower court.

Appellee, G. W. Muun, filed in this Court a motion to dismiss the appeal on the following grounds, viz :

1st. Because he has not been cited to answer the appeal; and that an order of appeal, made at a term subsequent to the one at which the judgment appealed from was rendered, is not a legal substitute for a citation.

2d. Because “no bond was ever filed within the time required by law; and none is embraced in the clerk’s certificate to the transcript.”

It appears from tlie record that there was a judgment rendered and signed on the 24th of December, 1885, in the suit of Trounstine & Co. vs. Ware and Munn, sustaining the exception of Munn, dissolving plaintiff’s attachment in so far.as it effects the property of Munn, and dismissing the suit as to Munn.

In the suit of Carter Bros. & Co. vs. Ware and Munn, a precisely similar judgment was rendered in respect to Munn, on the day preceding. In the former case the plaintiffs petitioned in open court for appeals suspensive and devolutive, “from the judgment rendered against him on the — day of December, 1885, sustaining the defendant Munn’s exception of no cause of action, and dismissing plaintiff’s suit, as to G-. AV. Munn ; and also from the judgment rendered herein on the 19th of July, 1886.” The order is of the same tenor, as the petition, and it was gi anted “in open court,” on the 23d of July, 1886.

In tlie latter case a similar petition was filed — the only difference being a prayer for citation, in the latter — and a similar order was granted on the same date.

Neither record contains any citation, or service,, or any substitute therefor. The bond for appeal in each case was only filed on the 2d of October, 1886 — long subsequent to the expiration of the ten days allowed by law for suspensive appeals.

Tlie objection urged to the want of citation, affects fatally plaintiff’s appeal from the judgment, in each case, that was rendered in December, 1885. The appeal that was granted on motion “in open court" at a subsequent term, in July, 1886, was unavailing, in so far as they are concerned, and they must be dismissed. But the same principle does not apply to the judgment that was rendered on the 19th of July, 1886. The appeal that was granted therefrom, was perfected by the filing of the appeal bonds on October 2, 1886 — within a year from its date. In so far as that appeal is concerned, the motion must be overruled.

On the Merits.

In each suit plaintiffs sue Ware as their debtor, for sundry amounts as due them on open account; and upon proper allegations prayed for and obtained attachments, and thereunder caused to be seized and attached, as the property of Ware, several improved lots in the town of New Acadia, and a stock of goods and merchandise — all of which were in the ostensible possession of Munn, who is made a party to the respective suits, on the averment that his title was simulated and fraudulent; and that he had been acting as a person interposed for Ware.

The stock of goods alone is estimated in the Sheriff’s return to be worth $3115.95. In limine Munn tendered the following exceptions, viz:

1st. That plaintiff’s petition shows no cause of action in that it is not alleged that Munn is insolvent, or unable to pay his debts.

2d. That no act or intent is alleged against him as a cause for attachment.

3d. That he is in possession of the property attached, under duly recorded notarial titles, and same cannot be attacked by attachment or otherwise.

4th. That plaintiffs’ debts were out of, and prescribed by three years, etc.

The effect of the judgment of December, 1885, dissolving plaintiffs’' attachment and dismissing their suit as to Munn, was to discharge him and his property from the suit, and to eliminate therefrom the question of simulation vel non, as this issue"could not be tried with Ware alone. Munn was a necessary party to the suit in this respect.

An inspection of the record discloses that plaintiffs prosecuted to the Circuit Court of Appeals for that district an appeal from that judgment, and it was by that court reversed and the cause remanded for further proceedings.

When the cause was returned to the district court, the defendant, Munn, promptly tendered the pleas of res judicata and estoppel — in the alternative — predicated on the judgment of that court that had been thus appealed from, and the plaintiffs tendered and filed — on defendant Munn’s objection and exception — an amended petition, supplying the hitherto wanting allegations of insolvency and injury.

These pleas would have presented difficult’and delicate questions for our consideration, had not plaintiffs placed an interpretation upon the two judgments of December, 1885, by obtaining, in July, 1886, orders of appeal from them. Thereby they are conclusively estopped from denying their existence, and abandoned the judgment of the Circuit Court reversing' them in February, 1886. For this reason we cannot consider the case presented under the reformed pleadings, with Munn as a newly made party to them. Plaintiffs’ double appeals have placed this impediment in the way. Had they solely relied on the decree of the Court of Appeals, that reversed the jaugment of December, 1885, and resisted the defendant’s pleas of res judicata and estoppel, and appealed from that judgment of the 19th of July, 1886, alone, they would have been in line and could have secured a hearing on the whole case. As presented they cannot.

Aside from these considerations, there are other serious difficulties in the plaintiffs’ way, which we need not detail.

Inasmuch as Munh is no longer a party to the suit, and the judgments are not questioned here, as regards the debtor, Ware, we shall not pass upon them. Under the views herein expressed the judgment of the court a qua must remain undisturbed, and it is therefore affirmed with cost of appeal taxed against the appellants.

Justices Poche and Todd take no part, not having heard the argument.


text:
    No. 212.
    The State of Louisiana vs. Boyd Scott.
    Although a pocket knife be not qo nomine a dangerous weapon within sec. 932 of R. S., it may, by its use, be considered such, under sec. 794 R. S., which provides punishment for the infliction, with a dangerous weapon, of a wound less than mayhem.
    A count, charging that the accused “with a certain dangerous weapon, commonly called a ■pocket knife, did feloniously inflict a severe wound less than mayhem on the body of,” when proved, justifies a verdi t of guilty,
    The ruling in 38 Ann. 942 has no bearing here.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

      D. G. Scarborough, District Attorney, for the State, Appellee.

      Jaelc & THsnmlces for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The indictment contains two counts : On the first the accused was acquitted, but on the second he was convicted.

The prosecution is based on section 794 of the Revised Statutes.

The second count is that the defendant, with a certain dangerous weapon commonly called a pocket Jmi/e, did feloniously inflict a severe wound less than mayhem on the body of -, etc.

The motion in arrest made by the accused, charges that the indictment is fatally defective, because a pocket knife is not a dangerous weapon and because it does not charge “with intent to Mil.”

The Statute provides ( sec. 794 R. S.) that, whoever shall, with a dangerous weapon, or with intent to kill, inflict a wound less than mayhem upon another person, shall, upon conviction,” etc.

It may well be that the accused could not, under sec. 932 R. S. have been convicted for carrying a dangerous weapon concealed on or about his person, because a pocket knife is not eo nomine a dangerous weapon; but it does not follow that when, under sec. 794 R. S., the charge is that tlie accused did, with such a knife, feloniously inflict a severe wound less than mayhem,'such weayion may not be considered by the court and-jury as a dangerous weapon, by the use made of it, within the meaning of that section, particularly as the description of the weapon is not necessarily required by the statute, which merely mentions a dangerous weapon, i. e., any dangerous weapon which may be so by its use, or in- itself.

Under the count as made, evidence could well have been received and if deemed sufficient the jury could have convicted the accused for having with a dangerous weapon inflicted a wound less than mayhem, on the body of another person.

It is true that the count does not charge that the accused did, with intent to hill, inflict a wound less than mayhem, though it does, that he did inflict the wound feloniously, but this is of no moment in this case.

The charge was made in accord with the requirements of the statute and, if the evidence adduced justified the findings, the jury could legally return the verdict rendered.

The ruling in State vs. Nelson, 38 Ann. 942, affords defendant no relief.

Judgment affirmed.


author: Watkins, J. Funner, J. Poché, J.

text:
    No. 203.
    M. M. S. MacKenzie vs. J. W. Wooley, Tax Collector, et al.
    When, a district judge recuses himself and calls the judge of an adjoiniQg district to come into his court to try the case, the latter may try and determine the cause after nine months have elapsed. The law accords to either party in interest the right to have the cause transferred to an adjoining district, if it has not been disposed of within nine months from the date of the recusation ; but same is directory only, aud does not coufer such a right as will become prescribed, if not exercised within time indicated.
    A party resisting the enforcement "of a special tax as illegal, caunot avail himself of the time that has elapsed during the pendency of his suit to prescribe against it.
    Notwithstanding a private cor, oration is organized for the double purpose of building a railway aud erecting a cotton compress, the former a public improvement and the latter a private enterprise, a special tax voted in its behalf, in aid of the coastruction of the former alone, is valid.
    In the contemplation of Article 242 of the Constitution, and Act 84 of 1880, the property tax payers who are entitled to vote on the levy of a special tax for the purposes therein mentioned, are only those who are entitled to vote at a general election under the election laws of the State.
    An ordinance of a municipal corporation that has been actually passed by the council, in the exercise of its authority, and in accordance with all legal requirements, and has been duly promulgated and passed into execution, is not invalid because it is not signed by tlie mayor or president of tlie council.
    An ordinance ordering a vote of tlie taxpayers on the question of a special tax, though supplemented by au amendment after it is advertised, will not be vitiated thereby; provided, tlie amendment does not materially affect its essential parts.
    If the rate of taxation be specified in the petition and ordinance, explicitly enough to fully advise the taxpayers of the object aimed at, it is sufficient.
    APPEAL from thn Second District Court; Parish of Webster. Drew, J.

      Snider & Smith for Plaintiff and Appellant.
    Towns are corporations of limited powers and cannot tax except for the very purposes allowed by the law, and in the manner and under the conditions prescribed by law. Cooley on Taxation, 253 and note 1.
    Municipalities must confine themselves closely within the powers conferred. Cooley on Taxation, 96, 257 and note; Burroughs on Taxation, 372-8-4, sec. 128; Municipality No. 1, vs. Millaudon, 12 Ann 769; Rabassa vs, Mayor, etc., 3 Martín (o. s.) 218; Munici- . pality No. 3 vs. Johnson, 6 Ann. 20.
    The construction óf a compress is not a public improvement in purview of Art. 242 of Constitution of Louisiana, and Act 84 of 1880. Cooley on Taxation, 78 and note 1; lb. 79 and 80 and notes 1 and 2; lb. 83 and note; lb. 87 and note; lb. 90 and note; Burroughs on Taxation, secs. 23, 24, and 25; 58 Maine 590; 4th CoIdr-XTenn.) 419,425; The People ex rel. vs. Salem, 20 Mich. 452 ; 4 Am ^Reports, 400.
    Act 80 of 1884, must be strictly construed, is mandatory, and a rigid coupJiance with its provisions is a condition precedent to levy of taxes in pursuance with its provisions. Cooley on Taxation, 254 and notes 1 and 2'; lb. 255 and notes 1, 2, 3, and 4.

      Watkins & Watkins for Defendants and Appellees:
    Unless the purpose for which the tax is levied is unconstitutional or illegal, the Supreme Court is without jurisdiction, unless the amount involved is large enough to give jurisdiction. 36 Ann. 801, Cobb vs. McGuire.
    A railroad and a compress are public improvements, under certain circumstances. Burroughs on Taxation, 19 and 20; 2 Robinson 209.
    The judge called to try a cause, vice the judge recused, is without jurisdiction after the lapse of nine months to try the cause or to make orders in the original parish. Acts of 1880, No. 40, p. 39, sec. 5; 37 Ann. 392, State ex rel. Pontelieu vs. DeBaillon, Judge et al.
    "When new parties become interested in a suit they should be cited. When the original defendants become functus officio and their successors are neither cited nor appear, the suit on exception, should be dismissed for want of parties litigant.
    It is not essential tbat the mayor sign the town ordinances; but should he, and they become lost or destroyed, parol can be substituted. 2 Aim. 939; Town vs. Andrus. 37 Ann, 699 ; Acts of 1853, No. 59. pp. 37, 39; Acts 1850 p. 70; Dillon pp. 340, 341, 342, 444, section 450 and notes, and section 331 and notes : 35 Ann. 960, section 3, Duperier vs. Viator.
    Property taxpayers entitled to vote are males, over twenty-one, who pay tbeir taxes. Those alone are counted who are entitled to voto. 35 Ann. 961, Duperier vs. Viator, section 4; Constitution of 1879, arts. 184 and 185.
    An election is valid when the choice of the majority is fairly expressed • 29 Ann .014, 625 ; 32 Ann. 987 to 991; Cooley’s Constitutional Limitations, pp. 619 to 021.
   Tlie opinion of the Court was delivered by

Watkins, J.

This is an injunction suit in which resistance is made by the plaintiff to an advertised sale of certain personal property of his, for the payment of certain municipal special taxes assessed by the corporation of Minden, and which he complains of as illegal, on the following grounds, viz:

1st. That same were levied for purpose contrary to the Constitution and laws, in that they were in aid of the construction of the Minden Railroad and Compress Company ; and that “to procure, construct, own and operate machinery and works for compressing cotton” is not a “public improvement.”

2d. That one-third of the property taxpayers of said town, did not petition for the levy of said tax, as required by sec. 1 of Act 84 of 1880.

3d. That the publication of said petition and the ordinance of the said corporation, directing an election to be held, was not signed officially by the mayor or other proper official thereof..

4th. That said election was held prior to the lapse of thirty days from the first publication thereof.

5th. That the proposition submitted to the property taxpayers at said election did not specify the rate of taxation, as provided and required by the provisions of Act 84 of 1880.

He avers that said illegal tax is declared to be fixed at five mills, and for a period of ten years, upon all taxable values within that corporation, and although the sum demanded is less than $100, it will, in the future, aggregate a large sum; and he prays thatsame be adjudged and decreed illegal.

The town authorities were cited and joined the tax collector in his answer, pleading the general issue, and alleging that “all things were done, and upon due, full and legal notice, and that the election was duly and legally ordered and the levy.of the tax sanctioned by a unanimous vote of the taxpayers.

I.

Defendant’s objection that this Court is without jurisdiction rations material is not good. 37 Ann. 507, 898; 38 Ann. 99, 230.

The judge of the district wherein the suit was filed, recused himself on account of personal interest as a stockholder in railway and compress company, and called the judge of the adjoining district to try the case. The defendant excepted to the capacity of the, judge thus called to try the case, and plead the prescription of nine months as a bar to .any proceedings in said cause in the parish of Webster.

The call was made on the judge who tried the case in the mode in-cheated in section 3 of Act 40 of 1880, on the 25th of Juue, 1885, and judgment was rendered on the 29th of June, 1887, more than nine months having elapsed in the interim. Section 6 of the act cited directs “that whenever any recused cause, for 1he trial of which a district judge has been appointed, as provided in sections 2 and 3 of this act, it shall be the duty of the district judge to order the transfer of such cause to the district court of the nearest parish of an adjoining district, the judge, of which is compelled to try the cause,” etc.

This exception appears not to have been passed upon by the judge a quo, and the trial was proceeded with and judgment rendered. It being unfavorable to the plaintiff he filed a motion for a new trial on the sole ground that it was contrary to law. This exception was manifestly abandoned.

II.

The plaintiff pleads the prescription of one, two and three years against the taxes sought to be collected. They appear to have been assessed in 1883, and became due on the 31st of December of that year. The suit was brought and service accepted on September 18, 1884, and has been since that time pending and untried.

The plea of prescription was filed on the 27th of Juno, 1887. Three years had not then, and have not at this time, elapsed. But conceding for the argument, that the prescriptible period had elapsed, it could not avail the plaintiff whose injunction against the enforcement of the tax, has prevented its collection in the meanwhile.

III.

The tax complained of as illegal, was assessed in the alleged pursuance of an ordinance passed and an election held under and in conformity with the provisions of Act 84 of 1880, putting in force the 242d article of the Constitution. The latter piovides that “the General Asssembly shall have power to enact general laws authorizing the parochial or municipal authorities of the State, under certain circumstances, by a vote of the majority of the property taxpayers in numbers and in value, to levy special taxes in aid of public improvements, or railway enterprises; provided, that such tax shall not exceed the rate of five mills per annum, nor extend for a longer period than ten years.”

Section 1 of the act cited declares that whenever one-third of the property taxpayers of a municipal corporation shall petition it “ to levy a special tax in aid of any work of public improvement or railway enterprise,” it may order a special election for that purpose. -

Section 2 provides “ that a special tax may be levied by any parish, city or incorporated town in this State to aid the construction aud erection of public buildings, bridges and other works of public improvement,” etc., and when a “majority of the property taxpayers * * * shall vote therefor.”

The name of the private corporation is the “Minden Railroad and Compress Company,” and it was organized for the double purpose of erecting and constructing a tap or short line railway connecting with the Vicksburg, Shreveport and Pacific Railroad, and of constructing, operating and maintaining a cotton compress.

The petition of the taxpayers, which is the foundation of all the subsequent proceedings, requests that there be levied “ a special tax in aid of a railway enterprise to aid in constructing a railroad from Minden to a point of junction with the railroad near J. Gr. Lanes. To aid the railroad called ‘ Minden Railroad and Compress Company, etc.’ ”

Preceded by a preamble setting forth the substance of the petition, is an ordinance of the town council directing the question to be submitted to the vote of the projjerty taxpayers.

It bears date May 8, 1883, and the date fixed for the election was the 16th of June following. On the 16th of May, 1883, there was a supplementary ordinance passed amending and re-enacting section three of the original ordinance, so as to direct the manner of holding the election.-

It left the original in full force in all other respects. Without considering other evidence in the record, it appears to have been the manifest and clearly expressed intention of the petitioning taxpayers and council to limit and restrict the tax to the construction of the railway, which is a “ public improvement.”

This purpose is strengthened by the fact that the contemplated compress has uot been constructed aud no steps have been taken towards it, notwithstanding all- other taxpayers than the plaintiff have paid their taxes.

IV.

To the petition of the taxpayers there are seventy-nine signatures.

On the list of qualified voters in the corporation of Minden as appears upon the assessment roll of 1883, there are one hundred and eighteen names.

To overcome this certificate of the tax assessor, the plaintiff introduced proof to the effect that there were some young men who owned assessable.values that had not been assessed; and that there were some married women and minors who owned property which had not been assessed; upon the theory that they were property taxpayers in the sense of the Constitution and law.

Articles 242 and 209 being in pari- materia, must be construed together; and the latter provides that the levying of a special tax shall be “ submitted to a vote of the property taxpayers of such parish or municipality entitled to vote under the election laws of the State.”

In 35 Ann. 957, Duperier vs. Viator, this Court held, that the property taxpayers entitled to vote are only those who ai’o entitled to vote at a general election.

We are satisfied that more than one-tliird of the property taxpayers entitled to vote signed the petition.

V.

The original ordinance does not seem to have been signed by the mayor of the town; but the amendment which recites its substance ivas, and both were advertised and offered in evidence.

In The Town of Opelousas ex rel. C. M. Thompson, President, vs. Andrus, we held that where an ordinance of a municipal corporation had been actually passed by the council in the exercise of its authority and in accordance with all legal requirements, and had been duly promulgated by publication, and had passed info execution, the mere failure of the president to sign it would not invalidate it, unless the legislative intent to the contrary was clear. The proceeding under consideration fulfills all of those requirements and is valid. 1 Dillon, on Mun. Corp. 331 and note.

We can see no force in the plaintiff’s contention that the publication of the petition and ordinance were not signed officially by the mayor.” It could certainly be no more important that it should be signed than the ordinance itself.

VI.

Prom the evidence it appears that the first ordinance and petition were advertised on the 10th of May, 1883, only two days subsequent to the passage of the former. On the 16th of May following, and prior to the second issue of the weeMy newspaper, the amendment was enacted; and thereafter the original and amendment were advertised in each consecutive issue thereof until the 14th of June, 1883.

The law' is that the election shall be held not sooner than thirty days after the official publication of the petition and ordinance ordering the election.” The original ordinance ordered the election and the amendment altered the method of it only.

We think the computation was fairly made from the date of the first insertion of the 10th of May, 1883, and the election occurred on the 14th of June, 1888, tlie day fixed in the original ordinance — more than thirty days had elapsed.

. YII.

The petition of the property taxpayers submitted the proposition to levy a special tax of five mills jper anmum for ton years, and same was repeated in the ordinance in full compliance with the law.

The plaintiff’s objections to the tax are untenable, and for the reasons assigned herein and those assigned in the concurring opinion of Associate Justice Fenner, ilie judgment appealed from is affirmed with all costs against him.

Concurring Opinion.

Funner, J.

On the point of the power of the judge to try the case, I think the section 6 of the Act of 1880 raises no question of jurisdiction.

The object of the section was simply to hasten the trial of recused cases, and, with that view, it made it the duty of the judge to whom a caso is referred, who has neglected to try it within nine months, to transfer it as directed. But this duty is imposed entirely iu the interest of the parties and to enable them to secure a speedy trial.

If, notwithstanding the lapse.of the nine months, they conclude that their interest and desire for a speedy trial will be promoted by submitting their cause to the judge, without invoking the exercise of his duty to transfer, they have the right to do so, and the judge’s jurisdiction is, in no manner, affected.

Otherwise, parties ready and anxious to try their cause and with a judge ready to try it, would be deprived of the right and subjected to the delays of a second transfer, and thus the law would defeat its own sole purpose.

If, after the lapse of the nine months, either party had required the transfer, and the judge had refused, he would have violated his duty, of. which we would have compelled The performance by mandamus if applied to.

But, in this case, no such motion has been made, and though an anomlaous plea of nine months’ prescription was filed some time before the trial, defendant never provoked any action upon it, but went to trial without objection and without any disposition of his plea, which, so far as record shows, lias never been acted on. Even in his motion for new trial no complaint is made on this ground.

I consider this an abandonment of it and a voluntary submission to the jurisdiction, which was never divested ; and, after thus taking the chances of the trial, ho cannot now be beard to raise or renew this objection. •

I concur in the opinion and decree.

Dissenting Opinion.

Poché, J.

I respectfully dissent from that part of the opinion of the majority 'which recognizes the autlioiity of Judge Young, to try and determine this case, after nine months liad elapsed since the date of the recusation of Judge Drew.

According to the,plain and unambiguous language of sec. 5 of Act No. 40 of 1880, the judge to whom a recused case has been referred, is stripped of all power in the premises except to order the transfer of the case to the nearest parish of an adjoining district the judge of whom is competent to try the cause.

The language is peremptory, and was intended to be mandatory; the act reads that if the cause referred to him has not been tried within nine months, “ it shall be the duty of the district judge to order the transfer of the such cause,” etc., (italics are mine.)

Nothing in the section or in the whole act justifies the argument that an application from either of the parties to the cause is necessary to put the power or duty of the judge to order the transfer in motion. As soon as the nine months have elapsed the judge becomes functus officio for all purposes for the trial and disposition of the cause, in which he can render no valid judgment.

But in this case a formal objection was made to the j udge’s authority to try the cause, and all acts-of his in the premises after such protest should be treated as absolutely null and void, save and except the order of transfer which he should have made.

Such is the clear inference to be drawn from the decision of this Court in the case of Fontelieu, 37 Ann. 392.

When plaintiff’s protest was presented it became the duty of the judge to order the transfer of the cause to the nearest parish of an adjoining district, the judge of which was competent to try the cause, and we must take judicial cognizance of the fact that the parish of Webster is surrounded by three such districts.

It is no answer to the positive mandate of the law to argue that, as plaintiffs went to trial without insisting on a trial of their protest or exception, they had abandoned or waived it. Consent cannot invest an incompetent judge with legal authority or capacity.

Dnder these views, I take no part in the decree.

Mr. Justice Todd concurs in this opinion.


author: Bermudez,- C. J.

text:
    No. 9933.
    Succession of Mrs. Charles A. Larendon.—On Opposition to Account.
    The rights and obligations arising under acts passed in one State to he executed in another, respecting the transfer of real estate in the latter, are regulated in point of form, substance and validity by the laws of the State in which such acts are to have effect.
    An act of donation drawn up in Louisiana, in the form in which such acts arc required to ho put iu Georgia, to convey real estate in that State, is valid, ¡Jtliongli not passed before a notary and two witnesses, as the laws of this State prescribe, under pain of nullity.
    Under the law of Georgia, a donation is presumed to be accepted unless the contrary is shown.
    Although, in general, a case will not be remanded for the reception of evidence which could have been and was not offered, paities, in exceptional instances, may he allowed a re* manding -where the rulings of the trial judge during the proceeding* are at variance with his finding on the merits, and the party asking rhe remanding abstained from offering evidence which the judge would have ruled out as superfluous.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      A. Brieugne, 22. T. Beauregcwd and B. A. Hueros for the Under Tutor, Opponent and Appellee :
    Both the form and effect of an ante nuptial gift of real estate, situated in Georgia, are governed by the law of that State. Georgia Code, § 8, 1782,1950, 2741, 2692, 2657, 2658, 2659, 2660, 58, 59, 2706; Story, § 438, 444, 444a, 475; Prolix, No. 60, 72, 73, 85; 27 Texas, 38; 1 Zacliariro, § 31.
    This gift, when clothed with the form prescribed by that law, is valid, by the comity of nations, in the State of Louisiana, no positive rule whereof denies or restrains the operation of said foreign law. Story, §§ 29, 30, 31, 35, 38; Prolix, Nos. 11, 12, 13, 14, 15, 59, G1; Wheaton, Int. Law, ed. 1863. p. 162 ; Borer, Interstate Law, pp. 167,169, 170 ; D. 1, 3, 25; Georgia Code, § 9 ; C. C. 10 ; 1 Marcardé, Nos. 79, 245 ; 1 Zachaiiro, pp. 56, 78; 18 Merlin, Bep. verbo loi, § YI, No. VII; 3 Larombú'vre, p. 37; 5N.S.141; 5Aun.517; 2 Ann. 508; 9 Ann. 166; Inst. B, 1, 2, par. 1 and 2.
    Parol evidence is inadmissible in Georgia and in Louisiana, even when unobjected to on trial, to show the conventional revocation or avoidance of such a gift. Georgia Code, § 2706 (a); Story, § 365 ; C. C. 2275, 2276; 9 B. 416; 12 Ann. 66; 3 M. 253 ; 23 Ann. 747 ; 24 Ann. 401; 5 Larombiére, p. 81; 5 Marcadé, pp. 148-9 j 9 Tonliier, Nos. 36, 37, B8; Dantin, ch. 1, Nos. 9, 35; 24 Merlin, verbo Preuve, §§ 2 and 3, art. 1, Nos. 28, 29, 30 ; 5 Zachariro, p. 695.
    Evidence of tlie admissions or declarations of a dead person, testified to by her surviving husband, in his own interest, and unsupported by any proof aliunde, is entitled to little or no weight. 10 L. 355; 14 Ann. 275, 763; 24 Ann. 604; 7 B 112; 10 Ann. 279; 6 Ann. 114.
    Personal estate is subject, as regards the rights thereto oí the dead owner’s heirs, to the law of the former’s place,of domicile. Story, § 481 et seq; Prolix, No. 37.

      WMte <& Saunders and A. J*. c& Omer Villeré for the Tutor, Appellant:
    Under Art. 10, B. C. C., where a contract is made in Louisiana to he executed in Georgia, the validity of the form of the contract is determined by the law of Louisiana,
    The State of Louisiana has its peculiar policy in regard to donations, and refuses to recognize their existence unless they are both made and accepted in a prescribed manner, Accordingly, a Louisiana court will not disregard this policy and enforce a donation, made here and to a citizen of this State and not in the prescribed form.
    The evidence shows, that even considered as a Georgia contract, the donation was incomplete from express refusal to accept.
    The lower court having ruled at the trial that the donation was a Louisiana contract, and so led i he appellant to omit to introduce evidence bearing on its validity viewed as a Georgia contract, and having then held in its judgment that it was a Georgia contract; under these circumstances, this Court, if not satisfied that the donation was invalid even as a Georgia contract, is bound, in fairness to the appellant, to remand the case to admit further evidence as to the validity of the contract under the law of Georgia.
    The lower court erred in excluding the testimony of the husband for or against his wife after ber death.
   Tlie opinion of the Court was delivered by

Bermudez,- C. J.

The main question presented in this case is whether an act of donation drawn up in Louisiana, according' to the law of Georgia, designed to convey real estate in that State, is a nullity, because not passed before a notary and two witnesses and not accepted in terms, as the law of Louisiana requires.

The next question is, whether if such act be valid, the donation presumed to have been accepted by the law of Georgia, until the contrary be established, has been shown not to have been accepted and, if not so shown, whether the case ought to be remanded to allow proof on that subject.

The facts are as folio ws:

On January 1st, 1878, Chas. A. Larendon, declaring himself to be of the city of Atlanta, Ga., voluntary gave, granted and delivered unto Miss Laure Beauregard, in consideration of the love and affection he bore to her and of their contemplated marriage ón Jauuai-y 14th following, certain real estate situated in said city and State.

The deed wa.s signed by him and two witnesses and authenticated by a Georgia commissioner in this city. It was accompanied with a photographic view of the property donated to Miss Beauregard, who received both.

Subsequent to the marriage and during the same, Larendon sold the property for some $15,000, as though he had never ceased to own it.

Mrs. Larendon, having afterwards,departed this life, and Larendon administering her estate as tutor of the miuor children born of their union, rendered an account in which he did not set forth among the property inherited by the minors from their mother, the proceeds of sale. The under tutor opposed the account, asking that they be placed thereon and the district court sustained the opposition.

From the judgment thus rendered, Larendon appeals.

He contends that the deed in question, not having been executed before a notary and two witnesses, as is required by the Louisiana law, and the gift not having been formally accepted, in writing, by the donee, the act is. an absolute nullity.

He further contends that, if the act be valid, the donation, far from having been accepted, was expressly refused.

He besides insists that, if the record does not satisfactorily establish that the donation was declined, the case ought to be remanded to enable him to adduce legal evidence to show the refusal.

He says that he abstained from fmmshbng further proof, for the reason that the district judge, during the trial, treated the contract as a Louisiana contract, which dispensed from such proof; but that the judge, after submission of the case, changed his views and dealt with the contract as a Georgia contract.

Ilo therefore, concludes that, under such circumstances, equity requires a remanding.

On the other hand, the under tutor of the minors urges that the act is perfectly valid, that it was drawn up iu the form in which the law of Georgia requires donations inter vivos to be put inj that it was intended to convey real estate in Georgia; that by the law of Georgia, the donation is presumed to have been accepted ; that it is not proved that it was not so; that the property passed from Larendon to Miss Beauregard and next from her to her children and that Larendon is responsible for the price of sale received by him and which represents the property.

I.

It is evident that the act in question is not in the form in which the law of Louisiana requires that donations inter vivos be framed ; but it is apparent that it is diawn according- to the requirements of the law of Georgia.

It is probable that, had it been prepared according to our law and autheniicated for recognition in Georgia, the piesent controversy would not have arisen ; but is it true that because not so drawn up, but drafted in the shape in which a similar act would have been passed in Georgia, such an act is a nullity1?

After reviewing what the most distinguished authors, ancient and modern, have written, as well as the doctrine expounded by the adjudications of courts, on the subject of foreign contracts, relative to personal and real property and stating the distinction to be made between the former and the latter, Story in his commentaries on the conflict of laws, emphatically lays down the rule as being, “that the laws of the placo where such (real) property is situate, exclusively govern in respect to the rights of the parties, the modes of transfer and the solemnities which should accompany them. The title therefore to real property can be acquired, passed and lost only according to the lex rei sttw.n P. 708, No. 424.

Kent in his commentaries says :

“ If a contract be made under one government and it is to be performed under another, and the parties had in view the laws of such other country iu reference to the execution of the contract, the general rule is that the contract, in respect to its construction and force, is to be governed by the law of the country'or State in which it is to be executed, and the foreign law is, in such, cases, adopted and' effect given to it.” Vol. II, lect. 39, p. 595, No. 459.

Wharton, on private international law, says that “ jurists of all schools and courts of all nations are agreed in holding that land is governed by the law of the place where it is situated.” No. 273. And he adds that “if the lex rei sites be abandoned, there is ho other law that can be invoked.”

It is uniformily held, says Rorer, on interstate law, that if the instrument be made in one State for the conveyance of realty situated in another, then under all circumstances it must in substance and in its execution and also in the evidences thereof, conform to the law of the place where the land to be affected thereby is situated ; for, it is a well settled principle of the law that the jurisdiction over real property is local and appertains to the State wherein the property lies and that title thereto passes only by conformity with the laws of such State. Many authorities in the notes; pp. 208-9.

It would be cumbersome and useless to refer to the authorities which underlie this conservative and sound doctrine.

Our own code, art. 10, has, in broad and general terms, recognized the principles announced and applied, where it says :

“ The form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed or executed.

“But the effect of acts passed in one country to have effect in another country, is regulated by the laws of the country in which such acts are to have effect.”

It is unnecessary to refer to the exception which the article contains in favor of wills, for, no will is involved in the present case.

It is clear that, when the Legislature adopted the Code reported by the compilers, and which included the article in question, it was not intended as legislation for any territory beyond that of this State; nay, it may be said that wliat was designed was simply the announcement of a universally recognized principle, without the remotest idea of placing any restriction upon it, but with the purpose of leaving to courts of justice, as cases would present themselves, to apply or not, that principle, according to the circumstances of each case.

The article contemplates the form, substance and effects of acts, public and private.

As it cannot purport to legislate for other States, it must be considered as peremptory only where the form, substance and effect of such acts relate to property within this State, and therefore that the validity of these must be governed by our own laws and usages.

There is no doubt that this is the case with every sovereignty. Hence it is that the United States Supreme Court has well said, touching this class of property, that “ the power of the State to regulate the tenure of real estate within her limits and the modes of its acquisition and transfer, and the rules of its descent and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted.”

But the law-giver has foreseen the contingency of an act passed in one place and intended to be carried out or executed in another, and has wisely provided therefor.

Read in the proper light, the second paragraph of the article, touching that contingency, simply means :

But the rights and obligations arising under acts passed or drawn up in one country, to be exercised or complied with in another country, are regulated by the laws of the place where such acts are to be executed.

The provision, although at first sight at variance with that contained in the previous paragraph, is not such at all. It relates to a state of things not till then considered, and simply announces the policy which this State would follow when the contingency arises.

In the case of Beirne vs Patton, the old court distinctly held that: Where a contract is expressly or' tacitly to be performed in another place than that where it is made, its validity is to be governed by the law of the place of performance.” 17 L. 590.

When the court used the word validity it necessarily meant its legality, both in form and substance.

In the present case, the act was drawn up according to the law of Georgia, with the avowed design of conveying real estate in that State, by one stating himself to be a citizen thereof.

The contract was not a Louisiana, but a Georgia contract, and its validity must be determined accordingly.

Had this controversy, instead of arising in Louisiana, taken place in Georgia, in what light would a Georgia court have looked upon and treated the contract?

Would it have undertaken to say that the act is a nullity, because not passed in the form in which the law of Louisiana, where it was drawn, requires donations inter vivos tobe drafted? Undoubtedly not. It would have said: Here is an act for the conveyance of real estate in Georgia. It is drawn up in another State in the shape in which, if passed in Georgia, it would have been put in.

The court cannot require that it be clothed beyond the State in a form which is not that in which it would have been bound to be put in if passed in Georgia. The court would undoubtedly have recognized its validity in point of form.

This is precisely what it lias done in a kindred case, in which it held that, where a contract is made in one State, and intended to have effect in another, it must conform to the laws of the latter State. Stricker vs. Tinkham, 35 Georgia, 176. See also Herschfeld vs. Drexel, 12 Ga., 582.

To make the proposition plainer reverse the facts.

Suppose a party domiciled in Louisiana had donated, by an act before a notary and two witnesses in Georgia, real estate in Louisiana, would a Louisiana court refuse .to recognize the validity of the act because it was not drawn up there in the form in which, by the law of Georgia, donations inter vivos have to be passed ? Assuredly not.

The laws of Georgia, on the subject, are as follows :

“ To make any agreement, made upon consideration of a maniage, which a valuable consideration, binding on the promisor, the promise mu3t be in writing and signed by him. § 1782, 1950, 2741.

“ A deed to lands must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser.” § 2690.

“ No prescribed form is essential to the validity of a deed to lands. If sufficient in itself to make known the transaction between the parties, no want of form will invalidate it.” § 2692.

“To constitute a valid gift there must be the intention to give by the donor, acceptance by the donee and delivery of the article, or some act, accepted by the law, in lieu thereof. § 2657.

“If the donation be of substantial benefit, the law presumes the acceptance, unless the contrary be shown. § 2658.

“ When a law requires a conveyance in writing to the validity of a gift, or the conveyance is made for a good consideration, such conveyance, executed and delivered, will dispense with the necessity of the delivery of the article given. § 2659.

“ Actual manual delivery is not essential to the validity of a gift. Any act which indicates the renunciation of dominion, by the donor, and the transfer of domiuion to the donee, is a constructive delivety. § 2660. '

The conclusion which this court reaches is therefore, that, as the act in question was passed in Louisiana, in the form in which the law of Georgia requires that such acts be drawn, for the conveyance of real estate situate in that State, its validity must be recognized.

II.

The next question relates to the acceptance of the donation.

Under the very terms of the Georgia law the donation is presumed to be accepted, unless the contrary is shown.

The donor, therefore, retains the right to show that the donation was not accepted; in other words, to rebut the presumption of acceptance created by the law.

It is unnecessary to express any opinion touching the legality and sufficiency of the evidence adduced, for the reason that the appellant claims that, owing to the rulings of the district judge during the trial, which showed that he considered the contract as a Louisiana contract, while after submission of the case he dealt with it as a Georgia contract; he did not offer the evidence which he otherwise would have tendered.

However strongly inclined we might be in general to refuse a remanding for the purpose of admitting evidence which could have been, and was not offered, we consider that, under the exceptional circumstances of this litigation, the ends of justice will be better subserved by sending back the case; but this is done for the sole purpose of enabling the appellant to offer legal evidence to rebut the legal presumption of the acceptance of the donation.

This view of the case dispenses us from considering the prayer of the appellee for an amendment' of the judgment, so as to specify the amounts for which the appellant is claimed to be liable.

It is, therefore, ordered and decreed that the judgment appealed from be afSimed so far as it recognizes the validity of the act of donation in question, and that, in other respects, it be reversed ; and,

It is now ordered and decreed, that the case be remanded to the lower court for the sole purpose of allowing the appellant to adduce legal evidence to rebut the presumption of acceptance of the donation, created by law, reserving to the heirs the right to offer counter proof; the case otherwise to be further proceeded with according to the views herein expressed and according to law, the costs to abide the final determination of the controversy.


author: PocnÉ, J.

text:
    No. 10,049.
    The State of Louisiana vs. A. J. McDonald.
    An indictment containing tlie charge of an “ assault with an intent to commit murder,” and a charge of “ inflicting a wound less than mayhem ” is not vicious for duplicity — as the two offenses can grow out of the same act, are kindred offenses and were incorporated in sepaiate counts.
    A PPEAL from the Eleventh District Court, Parish of Natchitoches. r\ Pierson, J.

      M. J. Cunningham, Attorney General, and D. G. Scarborough, District Attorney, for the State, Appellee.

      W. G. McDonald for Defeiula.nt and Appellant.
   Tlie opinion of the Court was delivered by

PocnÉ, J.

Under an indictment charging the defendant with an assault with intent to commit murder, and also with inflicting a wound less than mayhem, he was convicted of the latter offense, and his appeal presents two questions embodied in a motion-in arrest of judgment.

1st. His first point is that the indictment is bad for duplicity, as the the two offenses charged therein are not kindred.

It is quite apparent to our minds that the two offenses could grow out of the same act, hence they are kindred, and therefore they could be charged in the same indictment; provided, they be'incorporated in separate counts.

The identical point was made and considered in the case of Robert Green, 37 Ann. 382. We can but repeat here what we said in that case.

“The indictment contained two counts, and presented-the following charges:

1. With stabbing with a dangerous weapon with intent to murder.

2. With inflicting a wound less than mayhem with a dangerous weapon with intent to kill * * * It is too clear for argument that both offenses could grow out of the same act. Hence it follows that these are kindred offenses, and belong to the same generic class, and jurisprudence has crystalized the rule that such offenses may be charged in the same indictment; provided, they be incorporated in separate counts. No amount of reasoning on our part could settle the rule on more solid grounds than we find it announced in numerous decisions of this Court. State vs. Malley, 30 Ann. 61; State vs. Depass, 31 Ann. 487; State vs. Jobey, 32 Ann. 812; State vs. Gilkie, 35 Ann. 53.” See also State vs. Pierce, 38 Ann. 92.

2d. The second point made by the counsel for the accused is that the charge incorporated in the second count of the indictment is not accurately, fully and sufficiently set forth.

His contention is that: “The count states that he, defendant, did in and upon the body of Maniieim assault with a dangerous weapon, commonly called brass-knucks, and did wound less than mayhem,” etc. And it is therein argued that the count does not specify on whom the-wound was inflicted.

A reference to the indictment lias led us to the conclusion that defendant’s counsel, usually painstaking aDd correct in his pleadings and assertions, must have quoted the passage hereinabove transcribed, from the wrong indictment. The second count in the indictment under consideration reads as follows:

‘‘ And the grand jurors aforesaid do further present that A. J. McDonald, at and in the parish, district and State aforesaid, on the day and date afort said, in and upon the body of H. Manheim, wilfully, maliciously and feloniously did inflict a severe wound less than mayhem with a dangerous weapon called a brass-knnck.”

We fail to perceive any ground for the slightest doubt as to tbe person on whom the wound is charged to have been inflicted.

There is no force in either of the contentions suggested by the record and the indictment was properly sustained by the district court.

Judgment affirmed.


author: Todd, J. Boché, J.

text:
    No. 9889.
    J. C. Dirmeyer vs. Wm. P. O’Hern.
    "When the defendant in a suit for damages on account of an alleged tort, dios pending tire litigation, after citation and before issue joined, tlio suit may be prosecuted against tlie beirs of tbe deceased who have accepted bis succession. O. P. art. 25.
    But, if besides lawful beirs, tbe deceased bas left a surviving wife, the widow cannot be sued as an heir, but only as widow in community, as slie thus becomes liable for one-half of tlie damages which may be recovered, and tbe beirs aro then liable for tbe other half, each for bis virile portion.
    If tbe widow is cited as an heir slie is not properly brought into court in her legal capacity, and in such an event the succession being only in part represented, no valid judgment can be rendered in tbe case.
    A trial held under such pleadings is illegal, null and void, and the judgment rendered therein must bo set aside, and tbe cause remanded to tbe lower court for further proceedings.
    A PPEAL from tbe Civil District Court, Parish of Orleans. lx. Bightor, J.

      JE. W. Huntington & Fred. D. King, for Plaintiff and Appellee.

      B. B. Forman, for Defendant and Appellant:
   Tbe opinion of the court was delivered by

Todd, J.

This is an action for damages caused by tbe alleged violent acts and conduct of the defendant, connected with and attending the execution of a writ of provisional seizure, which he (O’Hern). caused to issue against the piaiutiff.

After tlie institution of the suit the defendant died, and his heirs, who had accepted his succession unconditionally, were made parties. They appeared, and pleaded the general issue.

The case was tried by a jury, who rendered a verdict in favor of the plaintiff for .five hundred dollars, and from the judgment thereon the defendants have appealed.

The facts are these :

The plaintiff leased from O’Hern a dwelling-house at the rate of $12 per month. The lease commenced on the 6th February, 1886. The rent for that month, March and April, was punctually £aid.

On the 2d of June the plaintiff called on the defendant, and informed him that he had lost his situation, and would be compelled to leave his house, as he could no longer pay the rent. He offered him $8 for the rent of the previous month, and promised to pay the balance in a few days, which offer was refused.

On the next day tlie plaintiff moved with his family to another residence. On the same day the defendant procured a writ of provisional seizure.

He banded the writ to a constable, who refused to execute it, because O’Hern insisted on accompanying him to the plaintiff’s house, and because, as the officer stated, he knew O’Hern’s mode and manner of collecting his rents, which he (the officer) characterized as rough and bulldozing.”

O’Hern procured the services of another officer, and went with him to the premises. He stalked into the house in advance of the officer without knocking, throwing open doors, and going from room to room. When remonstrated with by the occupant of the house (Dirmeyer, his tenant), he told him to go to h — 11, and raised his stick, quite a bludgeon, as if to strike him, when Mrs. Dirmeyer rushed between them and then he addressed her in jrrofane and obscene language He was told to leave by the officer ; he did so, but soon returned, and entered the house in the same unceremonious manner. He procured a cart and carried the furniture away.

The jury by their verdict fixed the damages, caused by this outrageous conduct of O’Hern, at’ $500. It cannot well be seen how they could have found for a less sum consistently with the facts stated.

The counsel for the defendant, seeks to palliate the conduct of 0’IIei;n by suggesting that it was proper for him to have accompanied the officer, in order to show him the place. It could have been found very easily by the officer without O’Hern’s assistance, as the house was numbered and on a well known street.

lie also urges that O’Hern was provoked to the violence shown by him, by Dirmeyer breaking a shelf or some small article of furniture, saying as he did so, that he had made it with his own hands. This was utterly insufficient to justify his rude and unfeeling conduct.

Again the counsel urges that there was no proof offered that the defendants were the heirs of O’llern, and that therefore the judgment was wholly unauthorized. The motion filed alter O’Hern’s death to make parties allege that the defendants (naming them) were the heirs of ’the deceased, and had been put in possession of his estate, and asked that they he cited.

They appeared and answered by a general denial, without putting at issue, by an exception the capacity in which they were sued and which was necessary if they desired to contest it.

The general issue admitted their capacity, and the question could never he subsequently raised.

It is also urged that the damages given by the verdict and judgment were exemplary or punitory in their character, awarded on account of an offense or quasi offense of O’Hern, and that the defendant, or his heirs, could not he responsible for the same; that they were personal to O’Hern, and the action to recover them abated at his death.

There is no force in this contention. The damages were actual iu their character, although of that kind that the estimate of them is left largely, under our law, to the discretion of a jury or the court. C. C. 1934.

We may well conceive that the injury, the suffering inflicted on Dirmeyer and his family by tho brutal conduct of O’lloru, was as intense and painful, or perhaps, more so, than if physical violence had been used, and he had actually belabored the man and his wife with his bludgeon.

There has been great confusion of ideas which, even to some extent, is shown in our. own reports, respecting actual and exemplary or punitory damages.

The former is often confounded with a pecuniary loss, and limited to such loss; and all beyond that, such as injuries physical or meutal, are classed with the latter. This is a mistake. Indeed, were the question1 au open one, we would hesitate before recognizing this element of exemplary punitory or vindictive damages, as existing in the civil law. The theory of this kind of damages, is that, after a full indemnity has been found by a jury or a court for the injury suffered, a sum in addition thereto may bo arbitrarily imposed to punish the wrong-doer, and by suck punishment set an exammple to deter others from the commission of a like offense. And these additional damages, thus found, are likewise called vindictive damages, which a judge or jury may inflict under a just sense of indignation for the wrong done, and are sometimes characterized by the homely phrase of “ smart money.”

It is a principle that has been borrowed from the common law, and though tacitly, and sometimes expressly, recognized in our decisions, it is really an exotic in our system.

However this may be, the present court, in repeated decisions, has recognized this kind of damages as actual damages, and these decisions are supported by eminent elementary writers on the subject. Byrne vs. Gardner, 34 Ann. 6; Deslondes vs. O’Hern, 37 Ann. 881.

The damages inflicted byO’Hernon the plaintiff being then actual damages, his liability for the same accrued then and there, and was transmitted to his heirs, although, both as to him and them, the measure of such damages was in futuro to be fixed by verdict and judgment.

There is, however, an error in the judgment as relates to John D. Crawford, the husband of one of the heirs, who was condemned therein. He came under no liability whatever on account of this relation to one of the heirs, and besides it does not appear that he was ever cited, or that he appeared at all in the proceeding, by answer or otherwise.

The judgment is erroneous, also, as to Mrs. Crawford. She was not cited conjointly with her husband, nor does it appear that she was authorized by him or the court to defend the suit. It was, therefere, nullity in this respect.

There is a further error in the judgment in condemning the defendant in solido.

Heirs are only bound jointly for their ancestors debts.

There are four heirs made parties as legal representatives of the original defendant. The entire judgment is $500, and each defendant is only bound for his virile share thereof, $125.

These several errors in the judgment must be corrected.

It is, therefore, ordered adjudged, and decreed, that the judgment of the lower court be amended as follows-:

v That the judgment as against John D. Crawford and his wife, Catherine O’Hern, be annulled, and the demand as to the former be rejected, and as to the latter it be dismissed as of non-suit. That the judgment as to the others, to-wit: Annie O’Hern, Wm. M. O’Hern, Matilda Breard, be reduced to the virile share of each of the total amount of said judgment, i. <?., to one hundred and twenty-five dollars, with legal interest thereon from the 23d of December, 1886, the date of the rendition of the judgment in tlie lower court, and as thus amended it be affirmed, costs of appeal and of the lower court as to Mr. and Mrs. Crawford to be paid by the appellees.

On Rehearing.

Boché, J.

The considerations which induced the court to reopen this case were the serious doubts suggested by a second examination of the record touching the correctness of the mode adopted by plaintiff to make proper parties, after the death of the defendant O’Hern, and as to the extent to which the heirs of the wrong-doer can be held legally responsible for the injuries which he may have inflicted through the acts complained of.

The pith of the charge made against the defendant was brutal and unmanly conduct, the use of abusive language and threats of personal violence towards plaintiff in the presence of his wife, at their own house, whither the defendant had gone in company with a constable who was seeking to execute a writ of provisional seizure, sued out against Dirmeyer, by the defendant O’Hern.

After the death of O’Hern, and before issue joined, plaintiff filed the following motion, and obtained the order subjoined thereto with a view to make new parties to his suit.

“ On motion of E. W. Huntington and Ered. D. King, of counsel for J. C. Dirmeyer, plaintiff, and on suggesting to the court that since the service of citation and a copy of the petition on the defendant, the said William P. O’Hern has departed this life, and the heirs have been put in possession of his estate, and plaintiff is desirous of making them parties to this suit.

“ It is]ordered that the- heirs of William P. O’Hern, to-wit: Annie O’Hern, widow of William P, O’Hern, Catherine O’Hern, wife of John D. Crawford, William M. O’Hern, and Matilda Breard, be made parties defendant to this suit, and be served with a copy of this order.”

The most striking feature of the motion and order is, that while Annie O’Hern is therein alleged to be the surviving widow of the defendant, Win. P. O’Hern, she is brought into court simply as an heir. And at the same time it is alleged that William P. O’Hern has left heirs at law, from which condition of things it follows clearly that Widow W. P. O’Hern could not be an heir of her husband’s succession.

Article 924 of the Civil Code provides for the only circumstances under which the wife may, according to law, be the heir of her husband. It reads:

If a married man has left no lawful descendants nor ascendants, nor any collateral relations, but a surviving wife not separated from bed and board from him, the wife shall inherit from him, to the exclusion of any natural child or children, duly acknowledged.”

Now, the motion does not set forth the quality of heirship which it alleges in the case of Catherine, and William M. O’Hern, and Matilda Breard — and whether either or any of'them are descendants of the deceased, or whether they are all collateral relations, and in what proportion between themselves they are each to inherit the property of the deceased, nor does it state whether the widow is a partner in community or not. As Matilda Breard does not hear the name of the deceased it is certainly not a violent presumption to conclude that-she is not a child of the deceased, but nothing in the record suggests any more information touching her legal liability for which she is sought to he made a party to the suit.

But under the law by virtue of which heirs can bo sued for civil reparation of the injury caused by the crimes or misdemeanors of the deceased, whose succession they have accepted,” as expounded in our jurisprudence, such heirs are only liable jointly, each for bis virile share in the succession, and the widow in community for one-half. Code of Practice, art. 25; Edwards vs. Peck, 30 Ann. 926.

Now, as the record contains no suggestion, either by pleadings or evidence, of the proportions of the property of the deceased accruing to eacli or any of the parties made defendants as heirs of O’Heru, how can the court determine the respective responsibility of the heirs under the verdict of the jury.

It is no answer to these views to argue that by filing a general denial these defendants have acknowledged their alleged capacity as heirs. That sucli a general rule lias been sanctioned and enforced in our jurisprudence cannot be gainsaid. But that tlie rule does not apply to the peculiar circumstances .of this caséis equally true. What capacity will Mrs. Widow O’Hern be held to have admitted .by her answers ? None but that of the surviving wife of the deceased, who has left heirs, for the allegation of her widowhood coupled with the allegation of the existence of lawful heirs, excludes absolutely the possibility in law of her being an heir. But she is not sued otherwise than as an heir, lienee it follows that slie is not brought into court in her real and only capacity, as surviving wife, and that no judgment could be rendered against her at all.

As an heir, she is not liable, as surviving wife, she is not sued.

As to the other defendants, the contention that their general denial admits their capacity as heirs could be successfully opposed to them if their object was to dismiss the suit, but tlie argument is harmless when levelled at their only complaint, which is that there has been, no legal tiial of the cause for the reason that one-half of the succession was entirely unrepresented, and also that they are erroneously condemned in solido, under the verdict of the jury allowing to plaintiff damages in the sum of five hundred dollars.

The legal attitude of the case is precisely where it stood previous to the unsuccessful effort of plaintiff to make new parties after the death of the original defendant.

Whatever is done in contravention of law is null and void, and such is the condition of the trial which has taken place below.

The foregoing views had not been pressed upon us at the first hearing of the canse, and hence onr attention had been exclusively directed to the facts of the case, and not to the legal status of the suit under the pleadings.

As the necessary parties are not before the court in their true, legal and proper capacity, and as the conclusion is that there has been no legal trial of the case, it becomes unnecessary to pass, at this time, on other matters which are discussed by counsel in their briefs.

It is, therefore, ordered that onr previous decree herein he annulled and set aside ; and it is now ordered, adjudged and decreed, that the judgment appealed from and the verdict of the jury in this case be reversed and set aside at the costs of plaintiff in this court, and in the lower court from and after service of petition and citation on the deceased, Wm. P. O’Hern •, other 'costs to abide the final determination of the case, and it is finally ordered that the cause be remanded to the lower court for further proceedings according to law and to the views herein expressed.

Mr. Justice Todd dissents.