author: MANNING, J. Bermudez, C. J. Pochb, J.

text:
    No. 7984.
    Lesassier & Binder vs. Samuel H. Kennedy.
    A share-owner in a .National Bank has the absolute right, while it is a going concern, to make a bona fide and actual sale and transfer of his shares to any person capable inlaw of purchasing the same and of assuming the seller’s liabilities in respect thereto, fraud being absent from the transaction, and the seller for his own protection against creditors of llio bank in case of insolvency, may compel the buyer to register tbe transfer in tbe bank-book, or do it himself.
    Under the provisions of the National Banking Act, the Bank is not legally disabled from prosecuting the business of banking' until she is protested for failure to redeem her circulating notes. Until then the Bank is * a going- concern.’
    The object of that statute, when it charges stockholders with liability in case of the Bank’s insolvency, is to get at the real owner of the shares, and the eouits in construing it uncover all his disguises, so that if his name has never been on tbe transfer-book, and bis stock stands in tbe name of another by bis procurement, he will yet be chargeable with the statutory liability.
    But if his sale was real, not made to escape liability, not to an irresponsible person, not collusive or fraudulent, and made while the bank was going, he will not be chargeable under the statute.
    APPEAL from fclie Fifth District Court for the Parish of Orleans. Boyers, J.

      Miller, Finney á Miller for Plaintiffs and Appellees:
    The sale of shares of stock in a corporation is perfect as between the vendor and the purchaser, by the agreement to sell followed by payment of the price, delivery of certificates, and by tbe vendor signing the transfer book of the corporation, so as to enable the purchaser to fill up his name as transferee in the transfer book, and such sale puts upon the purchaser all the risks and ownership accruing after such sale. Angelí & Ames on Corporations, secs. 353, 354.
    But under the National Banking Act, no one is deemed an owner of stock unless bona fide transferred to him on the transfer book of tbe bank; neither colorable or incomplete transfers are recognized, and when the bank fails tbe liability imposed by that act on shareholders for the debts of the bank will be exacted from all who stand as registered owners, disregarding* all fictitious transfers made to 'evade liability, and irrespective of any actual sale not accompanied with a completed transfer on the transfer hoolc. Thompson on Shareholders, secs. 215, 237; National Bnnkin case. 99th IT. S. 632; Revised Statutes XT. S. 5151.
    But if an actual sale is made of shares of stock in a National Bank, the price paid, certificates delivered, and the vendor signs the transfer hook, in blank, to enable the purchaser or his broker to fill up the name of the purchaser, it must be deemed to be in contemplation of the parties, and as part of their contract, that the blank in the transfer shall be i>romotly filled up with the purchaser’s name, so as to subject the purchaser and not his vendor to the liabilities of ownership attaching to shareholders under the National Banking Act arising after such sale; therefore, it is abroach of the contract and a wrong to the vendor for the purchaser of stock to withhold his own name from the transfer book and leave stock he has purchased still standing in the name of the vendor, so as to subject the vendor to such liabilities accruing after the vendor has sold and parted with all control over the stock.
    Hence, it after such actual sale, delivery and signing the transfer book, the purchaser does not fill up his name as transferee, and in consequence his vendor is made liable for the penalty imposed on shareholders for the debts of the hank accruing after the sale, the vendor in such case will be entitled to recover the amount of such liability paid by him, from the purchaser. Johnson vs. Underhill, 52 N. Y. 203 ; Walker vs. Bartlett, 32 English Law and Equity, p. 7th, Meeson P. W. p. 517.
    Nor will it make any difference as to the liability of the purchaser to his vendor, that about a month after the purchase, during all of which timo he has left the stock standing in the name of his vendor, the purchaser claims to have sold to another, whose name as owner is also withheld from the transfer book, nor because the party to whom the purchaser claims to have sold the stock makes a fictitious sale of the stock to an utterly irresponsible party, whose name is then placed in the transfer book by filling up his name as the transferrer in the blank transfer, the fictitious sale being made on the eve of and when the bank’s failure was notorious, thus making it appear that the vendor in the actual sale had made the fictitious sale, for neither unregistered nor fictitious sales are noticed under the hanking act, under which the liability of the vendor in the actual though unregistered sale is enforced; hut that liability belonged to the purchaser under liis contract with the vendors, and the purchaser cannot be permitted by withholding his name from the transfer book to thus cast his liability on the vendor.

      J. McConnell for Defendant and Appellant:
    1. Under the provisions of the National Banking law, sections 5226, 5227 and 5228, after a banking institution is duly protested “for failure to pay its circulating notes,’’ it cannot thereafter “prosecute the business of banking."
    2. The protest thus made constitutes the legal evidence required by the law, of the failure of the institution, prior to which date the ordinary business transactions of the bank, such as the tremsfer of stock if made bona fide, will be legitimately done.
    3. Where stock was transferred, bona fide, on the books of the bank, on the 15th of March. 1873, and the institution continued its ordinary business and was not protested until the 17th inst., or two days subsequently, “for failure to pay its circulating notes," and the evidence shows that sale and transfer of the stock was a real and bona fide transaction, the transfer will be valid; the transferee of the stock will be burdened with all the liabilities of ownership, and the transferrer will be freed from liability in respect to such shares.
    4. In a case of bona fide transfer of stock on the books of a banking institution, prior to the protest for “failure to pay its circulating notes." and made in good faith, such transfer cannot be disregarded or ignored at the option of the receiver, who subsequently comes into possession of the assets of the .bank. To allow him such option would impair the
      legal right clearly and expressly given by the provisions of the "National Banting law, to the holders of stock, to sell and transfer the same. Johnson, Receiver, vs. Lañin. in Thompson’s National Bank Cases, p. 331.
    5. "Where a National Bank goes into liquidation, and a bill in equity is filed in the Circuit Court of the United States, in which all the stockholders are sued to contribute pro rata as such, and after two years’ litigation and full and final hearing, the defense made by a stockholder thus sued is sustained; and the bill as to him dismissed, such judgment will be viewed as at least prima facie evidence that such stockholder is free from any and all liability as such.
    6. When A purchases forty shares of bank stock from B, a broker, and pays him for it, not knowing from whom B, tiro broker, purchased it, and C, the seller, is paid by tlio broker’s check, and C does not know nor inquire who the purchaser is, but treats with B, the broker, as such, there is no privity of contract in such sale between A and C.
    7. The National Banking law requires actual transfer on the books of the bank from the transferrer to the transferee, before the former is freed from liability as a stockholder. The seller of stock, wishing to avoid liability, can at any time, by mandamus, compel the transfer on the books of tlie bank, and thus relieve himself from any contingent liability. When a broker is the seller and is shown to have full knowledge of the precarious condition of the stock sold, it is at least contributory negligence in him not to see that the transfer is completed at once.
   The opinion of the Court was delivered by

MANNING, J.

On Feb. 24, 1873, the plaintiffs sold to defendant forty shares of the capital stock of the Crescent City National Bank for fifty dollars a share, and delivery was made. The purchase was made through Fcinour a broker. The xdaintiffs transferred the shares by signing tlie transfer on the proper book of the bank, leaving a blank for the name of the transferree.

Eleven days before, Fob. 13th, the London correspondents of the Bank had failed, and it had lost nearly the whole of its capital thereby. This disaster had affected its credit instantly and seriously. Its stock fell, and on March 14th payment of checks drawn .upon it by its depositors was suspended, and on the 17th of the same month its circulating notes went to protest.

On March 15th. the defendant sold these forty shares of stock to Thomas A. Adams for eleven dollars a share, and at his request transferred them on the book of the bank to the porter of Adams, a negro employed by him at small wages. On the bank transfer-hook therefore, the only transaction appearing complete was a transfer from Lesassier & Binder to Morris Dyer, tlie name of Mr. Kennedy in pencil being only on the margin.

The Bank passed into liquidation, and its Receiver disregarded the apparent transfer to the irresponsible negro, and sued Lesassier & Binder for seventy per centum upon these shares as contribution, and recovered $3,579.60 which they were compelled to pay. They now sue to recover that sum from the defendant.

Besides this suit at law of the Receiver against Lesassier & Binder, there was a hill in chancery filed by him against Kennedy to enforce liability against him, wherein the defence now set up was also presented there and was sustained, and the bill was dismissed.

The gravamen of the complaint is that the insertion of Dyer’s name was a device of Kennedy to escape the liability which attached to him as actual owner of the stock; and that by his failure to insert Ms own name he caused the Receiver to pursue Lesassier & Binder. TMs assumes that the transfer from Kennedy was fictitious and colourable only, and that his intent in making it was to , avoid responsibility for contributions. The point given to the examination of the defendant as a witness is an effort to extract from him admissions to sustain this assumption.

A mere transfer would not have released him from responsibility. If the purpose of the transfer was merely to avoid liability to the bank or its creditors, it would be deemed fraudulent in law and would be void. When a national bank is in a failing condition, a transfer of its shares, oven though real and ‘out and out,’ but, made to a. person incapable of responding to liability and for the purpose of obtaining personal immunity, is void. National Bank v. Case, 9 Otto, 628. Even though the bank be not then in failing condition, but the stockholder knows there is .good ground to apprehend its failure, and he colludes with an irresponsible person for the purpose of substituting the latter in his stead, and thus leaving no one able to respond to the liability imposed by the statute, such substitution will be void as to the bank, and he will be held liable. Bowden v. Johnson, 17 Otto, 251.

The object of the statute is to get at the real owner of the shares, and the courts in construing it uncover all his disguises, so that if his name has never been on the transfer-book and Ms stock stands in the name of another by Ms procurement, ho will yet be chargeable as a stockholder with the statutory liabilities. Davis v. Stevens, 17 Blatchf. 259.

Now who was the real owner of these shares when the Receiver took charge of the insolvent bank-? Certainly it was not the defendant. His sale to Mr. Adams was not only out and out, but was not made to an irresponsible person, nor for the purpose of escaping liability. He had bought on a falling market, eleven days after the disaster at London had toppled the stock, and it continued to go down until he was glad to get rid of it at Mr. Adams’ offer, who bought because lie had confidence that the bauk would recuperate. All the insignia of fraudulent transfer are wanting. There was no collusion, the transfer was for an agreed price which was paid, and the stock was not shuffled on to one less capable of answering calls on account of it than himself. Whatever may have been Mr. Adams’ object in requesting the transfer to be put in the name of his porter, Mr. Kennedy had no thought of liability or design of escaping from it. This transaction was had eleven years ago. This was the first failure of a National Bank, and dealers in stocks of those institutions have since learned more than was then ‘dreamt of in their philosophy.’

But this does not meet the issue in its entirety. It is urged with great force and plausibility that it was a wrongful act of defendant not to have filled the blank left on the transfer-book with his own name, and wrong again to fill it with the name of an irresponsible person, in consequence of which the plaintiffs have been condemned to pay contribution. In a sale of shares of the Hudson River Slate Company, where the New York statute required that transfers of stock must be entered upon the proper book, that court say: — it must be implied in such contract that the seller would execute and deliver a transfer to the buyer, and that he would accept and register such transfer with the further undertaking that he should indemnify the seller against calls which the seller might be called on to pay if, and so long as the transfer was not. registered. Johnson v. Underhill, 52 N. Y. 203.

This obligation is equally binding upon every successive buyer. It is the custom to leave a blank for the name of the transferree, and it was because of this custom that the plaintiffs left the blank as above stated. This can only have been in contemplation of successive transfers and to facilitate them, so that if the final transferree is a responsible person, and the blank is filled with his name, the object is attained of having a stockholder answerable for calls. Kennedy’s sale was to Adams who fulfilled all the requisites. Adams chose not to appear as transferree, but this did not relieve him from a.ny liability which attached to him as transferree. Morris Dyer was his alter ego. It was through his instrumentality that a false name was inserted in the blank, and upon Mm rested the final undertaking to indemnify any one who might be called on to pay.

The proposition, says Dillon sitting as judge, may be considered as established that a shareowner in a.National Bank, while it is a going concern, lias tlie absolute right in the absence of fraud to make a bona -fide and actual sale and transfer of liis shares at any time'to any person capable in law of purchasing and holding the same, and of assuming tlie transferror’s liabilities in respect thereto. * * * The seller, for his own protection against creditors of the bank in case of insolvency, may transfer the same on the books to the vendee, and may file a bill to compel the vendee to record the transfer. Thompson’s Nat. Bank Cases, 343-4. The U. S. court in tlie chancery suit protected Kennedy because he had exercised this right of making a sale, which the court found to be bona fide and without taint of fraud.

But the plaintiffs insist that the defendant’s sale lacked one of the elements mentioned in this last quoted authority, for that he sold after the Bank had failed. Payment of checks drawn upon this Bank by its depositors was refused on March 14th. The defendant sold on March 15th. The circulating notes of the Bank went to protest on the 17th. Under the provisions of tlie National Banking Act, aBankis not legally disabled from prosecuting the business of banking until she is protested for failure to redeem her circulating notes. The date of the Bank’s failure is thus fixed as March 17th., and until then it was ‘a going concern,’ and the sale of its shares was made by the defendant prior thereto.

It is the misfortune of the plaintiffs that they have been condemned to pay, in disregard of the principle that under the ruling of the chancery court protected the defendant, but we should only repeat the wrong they have suffered if we should condemn the defendant to suffer in like manner. One infliction of vicarious punishment is too much.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be now judgment in favor of the defendant rejecting the plaintiffs’ demand and for costs.

Dissenting Opinion.

Bermudez, C. J.

When the plaintiffs sold their stock, it passed, through the broker, to his undisclosed principal, then in existence, who from that moment became the owner thereof and as such entitled to dispose of it.

' The money which was used for the purchase, was refunded by the principal, to the broker, with his commission.

Tlie plaintiffs had tlie right to expect, when they signed, in blank, the bank transfer-book, that the name of the real purchaser at that date, and which had been noted on the margin, would be written in ink in the body of the act. The failure of plaintiffs to require sucli insertion, before or at tlie time of signature, did not relieve tlie real purchaser from the obligation of inserting bis name or tliat of another purchaser of equal solidity, and did not authorize him, after disposing of the stock, to substitute to his own name and to that of his vendee, under a false date, the name of an individual who was a Action and who did not even know that his name had thus been used. The fact that this was done by the first purchaser, at the instance of the second, Adams, who was that individual’s agent, for the general purpose of dealing in stock, is not equivalent to actual knowledge in the constituent and does not shield the first purchaser from responsibility.

Had the defendant done that which ho was bound to do, and should have done, that is, incorporated his name or at least that of his solvent vendee, the plaintiffs would not have been condemned by the Federal Court, as they have been. It is only because the defendant has purposely kept himself and his transforree from the roll of stockholders and, therefore, out of the reach of the incoming receivers,, by putting in, without plaintiffs’ knowledge, the name of an irresponsible party, at an improper date, that the plaintiffs had to pay and sustained consequent injury.

Relieving the defendant from all imputation of fraud, it cannot bo well denied, that he is unquestionably liable for the consequences of the voluntary commission of an unauthorized and illegal act, which he should not have done and which, by his fault and his agency, has entailed on plaintiffs a disbursement of mqney which they would otherwise not have had to make.

The judgment should be affirmed.

DissentiNG Opinion.

Pochb, J.

Icannoteoneur with the opinion and decree of the majority in this case.

It is conceded that Morris Dyer was an absolutely irresponsible person, and that the inscription of his name on the transfer-book of the bank, did not and could not have the legal effect of releasing his immediate transferer, as shown on the registry of the bank.

Hence it is that the receiver of the bank legally exercised his recourse against the plaintiffs, Lcsassier & Binder, whoso names appeared on the transfer-book of the bank, as the transferrers of the irresponsible or fictitious transferrec, Morris Dyer, and that his course in the premises was judicially sanctioned and approved.

For the same reason, and as a corollary of that proposition, flowed the conclusion that the receiver was not allowed to hold the defendant, Kennedy, as a shareholder; the transfer-hook did not show that he ha d ever owned the shares of the defunct hank stock, for which the receiver was seeking to levy and enforce contributions from any reputed or apparent holder of the same., other than Morris Dyer, the fictitious transferee, known to him as a negro porter at small wages.

The record shows the following as the real transactions affecting the forty shares of hank stock which have given rise to this litigation.

They were sold hy plaintiffs, through the broker, E. C. Feinour, to the defendant, Kennedy, and by him to Thomas A. Adams. Both of the latter are shown to fill all the requirements of responsible shareholders of such stock, under the National Bank Law.

■ To comply with the true state of things the transfer-book, at the date of the failure of the bank, should have shown the name of Adams as owner of the stock and as the proper party liable for contribution under the National Bank Law, and the book should also have shown the name of Kennedy as the transferee of plaintiffs and as the trans-ferrer of Adams.

Under such a showing no call could have been made on Lesassier & Binder, and to such a showing they were legally entitled.

In default of such a showing they were legally and properly held liable for contributions which they paid under the judgment of a competent court.

The question in the case is, therefore, to ascertain through whose act has the result, visited on the plaintiffs, been operated or brought about.

The record shows that Feinour, the broker, was instructed by his principal, Kennedy, not to enter the latter’s name as transferee under the purchase from plaintiffs, for four or five days, and that a.t the end of that time he was instructed to inscribe his principal’s name in pencil in the margin of the transfer-book. And the evidence thus shows that, after his sale of the stock to Adams, in furtherance of the latter’s request, Kennedy filled the blank in the transfer signed by plaintiffs on the 24th of February, by inserting, in ink, in his own writing, the name of Dyer.

Through and in consequence of the acts of Kennedy the plaintiffs have suffered a loss which they would not otherwise have incurred.

Hence the conclusion that the party whose acts have caused the damage should be held responsible therefor, is irresistible.

The judgment appealed from should, therefore, have been affirmed.

Kehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9187.
    C. J. Fayssoux vs. Succession of Baroness De Chaurand.
    In tbe absence of a published petition on tlie part of abutting proprietors, or of a similar notice of intention on tbe part of tbe city, based on a resolution duly adopted, for tbe paving of a street, recovery cannot be had from the front owners for the cost of such improvement.
    Section 1 of A.ct 73 of 1876, applies to ordinary streets; soction 2 refers to streets, or roadways, in tbe centre of which runs a middle, or neutral strip (not private property). It is in the last case only that the city can, by ordinance and of its own motion, order a paving?, but this can be done solely after a proper vote of the Council, and publication of a notice of municipal intention, subject to the right of front proprietors of objecting, on valid grounds.
    Section 3 of that act, which declares that tbe notarial contract for tbe work, executed by the Mayor, shall be prima, facie proof of compliance with antecedent legal requirements, is not conclusive on that subjeot. It shifts the burden on the property owner, who must be permitted, on plea'and proof, to rebut it.
    Tbe authority to make local assessments does not exist unless unequivocally conferred. It can be exercised no further than clearly delegated. Where tbe mode in which it can be done is prescribed, it constitutes the measure of tbe power and must be followed.
    APPEAL from the Civil District Court for the Parish of Orleans. lissot, J.

      James J). Oolemam and Braughn, Bucle & IKnlcelsjpiel for Plaintiff and Appellant.
    P. JS. Théard & Sons for the residuary legatees, Appellees.

      Alfred Chima for particular legatee.

      A Pitot, Jr., for testamentary executor.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action for the recovery of the cost of paving a street in front of property belonging to the succession of the deceased.

The suit is brought against the executor as the usufructuary, who calls in warranty the residuary legatees.

The plaintiff claims as contractor, under a contract with the city, entered into for the 'paving in question, ordered in furtherance, it is claimed, of authority derived under the provisions of Act 73 of 1876; p. 116. '

The defense is, that the- work was ordered in the absence of either any petition on the part of fronting proprietors, or of any published intention on the part of the city council, either of which was indispensably necessary to justify the ordering of the work, so as to authorize levy and collection of the cost thereof from the front proprietors.

The record fails to show either such petition or such published intention.

Section 3 of the act declares that, the contract between the mayor and the contractor, executed before a notary, shall constitute prima facie proof of due observance of all the antecedent forms and requirements of law. It does not, nor could it, make a conclusive proof. The effect of the existence of such contract is to shift the burden of nonobservance on the defendant, who, on special averment to that end, must be permitted to rebut.

Such defense was set up and the non-observance was allowed to he shown, and was established by proof and even by admission in open court.

The bill of exception to the rulings permitting the introduction of the evidence is, therefore, without merit.

The plaintiff claims that the contract was validly entered into, either under see. first, or sec. second, of the act.

Under the first section of the law which relates to ordinary streets, bordered by improved or unimproved lots, a petition and publication thereof is indispensably necessary. It is only where such has been presented, and where no opposition has been made, that the city authorities are empowered to order the work, whatever it be, to be executed; for, in such case, the whole cost is borne exclusively by the front proprietors equally, without any contribution by the city.

Under the second section, which refers to streets having a strip of land, or neutral ground, running through the middle, not private property, with a road upon both sides, the work can be either petitioned for by the front proprietors, or ordered by the city council, proprio motu.

In the former case, the petition must be published, as is required by section first; and in tho latter, in the absence of such petition, the city being regarded as a front proprietor, notice of the intention is required to be published in the official journal of the city, once a week during four weeks. The council is not allowed to order such work, unless they shall deem it proper for the public interest, and so decide by a two-thirds, vote of its members. In. both cases, fronting proprietors are reserved the right of objection, and in case the work is ordered, are subjected to payment of two-thirds of the cost, the remaining third to be borne by the city, who is considered as owning the strip, or neutral ground, running through the middle, of the roadway.

Bienville street, which is that on which the paving was done, is not a roadway through the middle of which exists a strip, or neutral ground. It is an ordinary street, extending from sidewalk to sidewalk, and does not therefore come within the purview of section 2 of the act relied on.

As there was no published petition on the part of the front proprietors, or no published notice of intention on the part of the city, it is clear the city authorities had no warrant, under any circumstances, to order the work and enter into the contract with the plaintiff, who, having acquired no right, can recover nothing from the defendant.

The authority to make local assessments does not exist, unless unequivocally conferred. It can be exercised no further than it is clearly delegated. Where the mode in which the authority shall be exercised is prescribed, it constitutes the measure of the power and must be followed. Abbott on Corp. p. 487; Dillon on Mun. Corp. Vol. I, p. 362, sec. 246; Cooley on Tax, 418; Burroughs on Tax., sec. 128, p. 372, ch. xix.

Judgment affirmed.

Rehearing refused.


author: Poché, J.

text:
    No. 8947.
    Julia S. Armstrong, wife of G. H. Wright, vs. H. A. Armstrong.
    Parol evidence is admissible between tbe parties to show error in an act of mortgage. Hence, it will be competent for a mortgagee to prove by parol evidence that there is an error in the act which restricts bis mortgage to one-half of a piece of property, and that the real contract was that his mortgage should affect or cover the whole of the property.
    APPEAL from the Twenty-fourth District Court, Parish of St. Bernard. I/ivaudais, J.

      0. McRae Selph for Plaintiff and Appellee.

      John 8. Tally for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The object of plaintiff in this litigation is to obtain judicial correction of an alleged error in an act of sale and mortgage. She states that she was the holder and owner of a promissory note of $2500, secured by mortgage on a piece of property owned in indivisión and in equal shares by her brothers, Christian D. and Henry A. Armstrong, when the former concluded to sell his share of the property to his brother.

That at the instance of the purchaser she agreed to return and cancel her original note, and to accept in lien thereof his individual note to be secured, as before, on the whole of the property originally mortgaged in her favor,

She then charges that through the error of her attorney, who wrote the original draught of the act of sale from Christian Armstrong to his brother, her note was secured by mortgage on the property sold, to-wit: one-half only, and not on the whole of the immovable as agreed upon, and as her claim was originally secured. Alleging that although the defendant had frequently acknowledged that error and promised to rectify it, he has finally refused to execute the necessary act, she prays for judgment compelling him to execute the additional mortgage so as to secure her note on the entire property, and she joined to her action a prayer for an injunction so as to guard against any alienation or encumbrance of the property to the prejudice of her mortgage rights.

The defense was a general denial and the judgment below is in favor of plaintiff allowing her all the relief which she prayed for.

Defendant’s contention is that parol testimony is inadmissible to support plaintiff’s allegations, on the ground that such evidence is calculated and was intended to have effect against or beyond w’< at is contained in the act of sale and mortgage, and to prove a verbal mortgage, in direct contravention of prohibitory laws. C. C. Arts. 2276,3305.

Hence, he objected to the introduction of all parol evidence in the premises and he has reserved his bill of exceptions to the judge’s adverse ruling.

His counsel has industriously collected an immense array of authorities, principally decisions of this Court, and has submitted them to our consideration, in support of Ms proposition to the effect that parol evidence cannot be admitted against or beyond what is contained in the acts, and that no proof can be admitted of a verbal mortgage.

The proposition is undeniable and is supported both by the textual provisions of the Code and by uniform rulings in numerous judicial adjudications. But this is not the issue of the case.

The purpose of the proffered testimony was simply to show error, and it was clearly admissible for that object.

It is a rule of universal jurisprudence that parol evidence will be heard to show error in a contract; it is susceptible of such proof only, and under proper allegations, parties will be heard to show that a valid existing instrument, from accident or error does not contain the real intention and meaning of the parties.

The rule has been frequently considered by this Court, and has been invariably applied in that sense.

Hence, it has been held that parol evidence was admissible to show that a mortgageor was to receive services besides interests on his investment ; to show error in the description of lands and boundaries of the same in an act of sale, to sliow error in tlie name of the purchaser in a sale of immovable property; to show error in the date of a receipt and even of a judgment. Rains vs. Kemp, 4 La. 319; Palanque vs. Guesnon, 15 La. 311; Belot vs. Donovan, 1 Rob. 257; Blanchard vs. Gloyd, 7 R. 547; Hiestand vs. Forsyth, 12 R. 371; Robert vs. Boulat, 9 A. 29; Fleming & Baldwin vs. Scott et al. 26 A. 545.

The same principle was considered by the present Court, and we took occasion to make a thorough review of our whole jurisprudence on the subject, which resulted in an unreserved re-affirmance of the doctrine. Levy vs. Ward, 33 A. 1033; See also Vignie vs. Brady et al. 35 A. 560.

Parol evidence was, therefore, properly admitted in this case for the purpose of showing error in the act of mortgage. An examination of that evidence has satisfied us that it conclusively proves all of plaintiff’s allegations on the subject of the alleged error, and hence we conclude that the judgment appealed from has done justice between the parties.

Judgment affirmed.


author: Todd, J.

text:
    No. 8928.
    Hamlet, Bliss & Elliott vs. Fletcher, Wesenberg & Co.
    In an action for damages where the causes of damage are set forth in such a manner as to enable the defendant to ascertain with reasonable certainty the grievances complained of and their nature, the suit should not be dismissed on an exception of vagueness in the allegations.
    "Where a party proceeds by attachment against another, when at the time he is indebted to the one proceeded against for a larger amount than he claims, and on trial a judgment is rendered against him for this balance and all costs, it cannot be held in a subsequent suit between the parties, that the attachment had been maintained.
    APPEAL from the Civil District Court for the Parish of Orleans. Mowroe, J.

      B. II. Formmi- for Plaintiffs and Appellants.

      Leovy & KruMsolmitt for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs are appellants from a judgment sustaining-certain exceptions to their suit and dismissing the same.

The exceptions were, first to the vagueness of the petition or its allegations, and second, of res adjudicóla as to part of the demand.

The suit was for damages for an alleged violation of a contract and for losses caused by the illegal suing out of an attachment.

The exception of vagueness relates to the first cause, and that of res judicata to the last.

1, The petition charges substantially:

That the plaintiffs were engaged in conducting a saw mill, and were dealers in lumber and general merchandise at McCalla, in the State of Alabama, with a moderate capital and good credit. That induced by the solicitations of the defendants, they left their homes and business at that iliaco and removed to the parish of St. Tammany, in this State, and brought with them tools, and wagons, and hands at great expense, to construct a saw mill lor the defendants on their lands in said parish, and to run the same. That the defendants obligated themselves to furnish materials, machinery, supplies and money for the construction and running of said mill and to sell to plaintiffs five acres of land adjoining the mill, at the net cost thereof, and grant them the exclusive privilege to cut timber from all their lands at one dollar per thousand feet.

That the defendants were the contractors for building abridge across Lake Pontchartrain, for two millions of dollars, for the N. E. Railroad Company, and they bound themselves to take and pay for all the lumber plaintiffs could saw, while defendants were at work for said company, at a stipulated price.

That they, plaintiffs, had faithfully performed their part of the contract, built the mill, sawed and delivered lumber for defendants, exceeding $1758 85 and had ready for delivery 97,772 feet more and had done*other work of value for them. That defendants violated their agreement by failing to furnish a boiler for the mill of sufficient power and to make the advances promised for the running- expenses of the mill.

That, after plaintiffs had more than paid them for all their advances in lumber delivered, defendants with a view to break up their business and injure and harass them, maliciously sued out a writ of attachment against them for $1006 88, and caused to be seized thereunder 97,072 feet of lumber, 200 saw-logs, nine yoke of oxen, wagons, tools, implements, etc., etc.

That they were unable to bond the property seized, and it remained under seizure until the final trial of the cause, when a judgment was rendered in their (plaintiffs) favor, by the effect of which the attachment was dissolved and the property released.

That the attachment subjected them to heavy expenses in the cost of litigation, in the ruin of their business, in the destruction of their credit here and at their home in Alabama.

They estimate their damages for the violation of the contract and up to the issuing of the attachment at $100,000, and those resulting from, the writ at $25,000.

Wo have gone thus extensively into the charges or allegations of the petition, with a view to judge of their character, and to ascertain whether they were sufficiently definite to afford the defendants an idea of the complaints made and grievances charged, to enable them to meet and answer them.

1. Wo cannot discover from the above review any difficulty on this score. The charges may, in the estimation of defendants, seem extravagant or even unfounded, but we do not think that they can be at any loss in discovering the grounds of complaint in the alleged causes of damage.

The law does not require that a distinct and separate amount or estimate of damage should be ascribed or imputed to each cause alleged; but all the charges may be assigned separately, and the total of the resultant damages lumped or given in the aggregate.

We do not, therefore, find the petition obnoxious to the charge of vagueness or obscurity, to such an extent at least, as to justify the action or ruling of the lower court, with respect to it. This part of the exception should have been overruled.

2. The exception of res judicata is based on the judgment rendered in the attachment suit referred to.

That suit was first instituted in the District Court of St. Tammany and was subsequently removed to the United States Circuit Court, and there decided.

As stated it was brought by the defendants in the instant case to recover of the plaintiffs herein $1006 33 for advances made them and also for $5000 damages. The plaintiffs — defendants in that suit — i claimed in reconvention the price or value of lumber delivered and for work done, time, labor, etc., $4162 72, together with $100,000 damages for the same causes, substantially, that are alleged in this suit, as resulting from the violation of the contract as charged.

Before the trial of that case, on motion of the respective parties, these items of damages were withdrawn.

No damages were demanded in that suit as caused by the attachment, nor is it so claimed by the counsel of the defendants in this case, but, as we understand the exception and their argument, it is contended that the judgment of the United States Circuit Court did not dissolve the attachment, but on the contrary, the verdict of the jury and the judgment rendered thereon in that case, construed together, maintained the attachment.

That, therefore, the validity of the attachment was a thing' adjudged, and plaintiffs herein could not assert otherwise, or claim anything on account of its issuance and the proceeding under it.

As stated before, the trial in that case resulted in a judgment in favor of the defendants therein and plaintiffs in this suit for $752 53, with interest and costs, as will be seen by the terms of the final judgment, which is here reproduced as follows :

“This cause came on to be heard on the motion herein made by defendants and intervenor for a new trial, and was argued by counsel j on consideration whereof, the court refuses a new trial to the inter-venor, and as to the defendants, the court orders that the judgment herein rendered on 3d June, 1882, be so modified as to read as follows:
“By reason of the findings and verdict of the jury herein entered oh 3d June, 1882, it is ordered, adjudged and decreed that the defendants, Hamlet, Bliss and Elliott, do have and recover of and from the plaintiffs, Fletcher, Wesenberg & Co., and of John F. Fletcher, William Wesenberg and Thomas O’Connor, the individual members of said firm, in solido, the sum of seven hundred and fifty-two dollars and fifty-three cents, with five per cent per annum interest thereon from 28th April, 1882, till paid, and costs of suit.
“It is further ordered, adjudged and decreed that, on the intervention of Newton L. Wilson, there be judgment in favor of said Fletcher, Wesenberg & Co., and against the demand of the said intervenor, Newton L. Wilson, with costs of intervention.”

It is difficult to understand how Fletcher, Wesenberg & Co., at a time when they were actually in debt to Hamlet, Bliss & Elliott, could legally sue out an attachment against their property and detain it under seizure for months. Yet they did it, according to this judgment which they invoke. It seems that common sense and common justice would alike declare that the writ under such circumstances was illegal and unwarranted.

The judgment itself virtually so declares, when by its terms it condemns the plaintiffs therein to pay the costs of the attachment — that is all costs — and also a balance found owing the defendants.

Nor is the force of these facts aad this conclusion affected by the purely technical objection, that the verdict of the jury allowed, first,the claim of the plaintiffs, and secondly, the claim of the defendants set up in their answer for a larger amount, and the first allowed, was followed or accompanied by the words “with privilege on property attached.” This finding or these words cannot with us outweigh the language and decretal part of the judgment, and its final and conclusive determination and adjudication of the rights of the respective parties at the commencement and end of that litigation.

As we construe the judgment, the attachment of Fletcher, Wesen-berg & Co., against Hamlet, Bliss & Elliott, plaintiffs in the- instant case, was not maintained, but was held and decided to have improperly and illegally issued.

The plea of res acljiidieata was, therefore, incorrectly maintained.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the case be remanded to the lower court to be proceeded with according to law, costs of appeal to be paid by the appellees, and of the lower court to await the final determination of the cause.


author: Fenner, J.

text:
    No. 8984.
    C. L. Hardeman vs. Tabler, Crudup & Co.
    Under the facts disclosed by the evidence the judgment appealed from is, in all respects correct.
    A partnership for doing work of construction on a railroad is an ordinary partnership and does not impose solidary liability on the partners.
    PPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      M. S. Marr for Plaintiff and Appellant.

      Olías. 8. Bice for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The defendants had contracted with the New Orleans and North-Eastern Railroad Company for the construction of its roadbed on thirty sections, being numbers 24 to 53 inclusive, of which about six and one-half sections lay on Honey Island, being numbers 34 to 40 in-elusive. For tlie embankment on these last named sections they were to receive thirty-seven cents per cubic yard. The contract provided that the work was to be completed by November 15, 1882, and contained a stipulation to the effect that if, from any cause whatever other than acts of the company, the contractors should be prevented from, or delayed in, proceeding with or completing the work according' to this contract, or shall not commence or proceed with the work to the satisfaction of the chief engineer, it shall be lawful for the railroad company to give, or cause to be given, notice in writing . * * * requiring them to enter upon, commence and regularly proceed with the work; and in case they shall for seven days after such notice, make default in commencing or regularly proceeding with the work, it shall be lawful for the said company to employ any other person or persons by contract to proceed with said worli and complete the same; and, on the expiration of said notice, the said contract shall, at the option of said company, become void as to said Tabler, Crudup & Co.”

The obvious and admitted object of this provision was to secure the company in the completion of the work, by enabling it to require its continuous prosecution with such vigor and progress as to satisfy the engineer that it would be duly completed.

On the 5th of June, 1882, the defendants entered into a contract with the plaintiff, C. L. Hardeman, by which they sub-let to him “ that part of the work on Honey Island, N. 0. & N. E. R. R. Co., known as sections 36 and 37, to be clone and completed in the time and manner as required by engineer in charge,” and by which Hardeman agreed to do the embankment work at the price of twenty-six cents per cubic yard.

Hardeman entered on the work and proceeded satisfactorily with the same until October 23, 1882, on which date ho abandoned his contract with defendants and entered into a direct contract with the railroad company, by which he and another person, McNamara, were to complete the work at the price of thirty-five cents per cubic yard for embankment work.

Down to the date of October 23d, for all work done by Hardeman, defendants collected from the company, thirty-seven cents per cubic yard, and were required to pay Hardeman only twenty-six cents per cubic yard, making- a clean and legitimate profit of eleven cents per yard. Such would have continued to be/tlie case, had Hardeman completed the entire work under, and according to, his contract.

The present suit is brought by plaintiff to recover a balance due for work done by him prior tó October 23, 1882. Defendants reconvene claiming damages resulting from plaintiff’s acts in abandoning Ms work and in inducing tlie company to annul tlie contract with the defendants and to give plaintiff and McNamara the work under a new and direct contract.

There was judgment below in favor of plaintiff on the principal demand, and in favor of defendants, for a larger amount, on their recon-ventional demand.

The only serious question in contestation on this appeal is as to plaintiff’s liability on the reconventional demand.

Plaintiff’s position is, substantially: that the railroad company had, or had not, the right to cancel its contract with defendants; if it had not the right, then the latter’s recourse against the company is not impaired; if it had the right to cancel it, then the company had the right to make a new contract with anybody and plaintiff did no wrong in accepting such contract.

The argument is plausible but not sound, as applied to the facts disclosed by the evidence.

We are quite satisfied that, under the terms of the contract as heretofore quoted and under the notices given in accordance therewith, the railroad company had acquired the option to avoid the contract and to employ any other person or persons to proceed with the work and to complete the same.” But we are equally satisfied that the company never intended or desired to exercise that option as to the whole contract, nor as to any part of the work upon which satisfactory progress was made.

All the work on Honey Island, with the exception of the two sections sub-let to Hardeman, was being done by Tabler, Crudup & Co. directly. The company exercised its option only so far as to take from them the work on section 38 and to re-let that section to one Rembrandt at the price of thirty-five cents per cubic yard.

No complaint whatever was made as to the work on Hardeman’s sections and not the slightest disposition existed to interfere with the contract as to them.

But, when Hardeman heard of the action with reference to section 38 and of the advantageous contract which Rembrandt had secured, he conceived the idea of abandoning his contract with defendants and of obtaining a like advantage by direct contract with the company.

The company was exceedingly solicitous about the progress of the work on Honey Island. It was liable to overflow and it was matter of great importance to have it completed before the coming on of the winter floods.

Hardeman initiated Ms proceedings by a telegram to the chief engineer inquiring whether he could not be guaranteed thirty-five cents per cubic yard for his work. Ho was referred to the division engineer. Ho told that officer that he could not and would not continue the work under his contract with defendants, that he abandoned that contract and would hot proceed under it; but proposed in behalf of himself and McNamara to complete the work if it would give a direct contract at thirty-five cents per cubic yard.

The comi>any was thus confronted with the necessity of either making this direct contract or of seeing the work abandoned by the only organized force at hand capable of doing it.

The evidence is positive that the only reason of the company’s action was Hardeman’s positive refusal to proceed under his contract with defendants and Ms declaration that he would abandon the work unless he got the new contract.

Hardeman justifies his course by the fact that the higher price allowed Rembrandt and defendants for work on either side of him, enabled them to pay better wages to hands than he could do and would thus rob him of his hands. We can well understand that this might have made his contract a losing one, hut it did not affect or impair his obligation to perform it. Neither defendants nor the company had assumed any obligation to Mm as to the prices which they should pay for labor nor as to the price at which they should let ór sub-let other work to other persons. Their liberty in these respects was entirely untram-melled, and their action afforded ’him no lawful release from the obligations of his original contract.

Satisfied, as we aro, that Hardeman’s action and abandonment of Ms own contract with defendants were the sole causes which provoked the rescission of the company’s contract with the latter as to sections 36 and 37, we-cannot suffer Hardeman to profit by Ms own wrong, but must hold him liable for the damages occasioned to defendants thereby. C. C. 2769.

These damages have certainly not been over-estimated by the judge a quo.

Plaintiff complains of the judgment on the principal demand in not condemning defendants in solido as commercial partners.

It is well settled that a partnership for constructing a railroad is 'ordinary, and hence does not impose solidary liability on the partners. McGehee vs. McCord, 14 La.. 362; Moores vs. Bates, 13 A. 40.

Judgment affirmed.

Rehearing refused.


author: Manning, J.

text:
    No. 9196.
    Succession of Mrs. Eliza Vance.
    A fund bequeathed to a charitable institution of 23 ew Orleans, which is under the administration of the City Council, cannot be diverted by the Council to another institution un der the admistration of a State Board.
    A bequest to the City Insane Asylum, wherein the insane of the city alone are cared for cannot be expended for the benefit of the State asylum, wheroin the insane of the whole State are cared for, even though the city insane have been removed from the local asylum to that of the State.
    Qusere; — whether the City Council may not receive and administer the bequest for the City insane who are confined in the State Asylum.
    PPEAL from tbe Civil District Court for the Parish of Orleans. T-issot, J.

      B. B. Formam, for the State Insane Asylum, Appellant.

      Leovy á KruttsohnAtt for the Executor, Appellee.
   The opinion of the Court was delivered by

Manning, J.

Eliza Yance made her will in June 1879 giving three hundred dollars to each of four “ charitable institutions, all of the city of New Orleans, viz the little Sisters of the poor; the Home of the aged and infirm; the Louisiana Retreat; the Insane Asylum,” and directed the residue of her estate (after numerous legacies) to he equally divided between five of her grandchildren and these four institutions. She died in July 1882.

When her will was made and at the time of her death there was an institution at New Orleans, called the Insane Asylum, but in September following it was discontinued, and the patients under treatment therein were removed to the State Insane Asylum at Jackson. That institution now claims the benefit of the testatrix’ bounty, because the indigent insane that were in the one designated by the testatrix have been transferred to it, and all of that class who shall hereafter be similarly affected and who would in consequence have been sent to the city asylum will hereafter be sent to the State asylum.

In August 1883 the City Council by formal ordinance assigned all the right and interest of the city in and to Mrs. Yance’s legacy and residuary bequest to the Board of administrators of the State Insane Asylum, and the President of that Board makes the present demand for the legacy and bequest, which is in the form of an opposition to the executor’s account, he having ignored the City asylum because it no longer existed and refusing to consider the State asylum as the legal trans-ferree of his testatrix’ bounty.

We are cited tlie text of the Code directing that donations for the benefit of a hospital or of the poor of a community shall be accepted by the administrators thereof, Rev. Civ. Code, art. 1549 — community here meaning municipal corporation, vide French text — and the legal conclusion is said to result that the administrators of the State asylum have the right to receive and administer this legacy. But that is a non-seqwUttr. That article gives tho City Council the right to accept this donation as administrator of the community whose poor were to be benefitted by it, but the question here is, not who may accept, but whether they who can accept can also divert the fund.

The objects of the testatrix’ bounty were tho indigent insane who were housed, and were hereafter to be housed at the City Insane Asylum. She made a similar provision for another asylum for the same unfortunate people — the Louisiana Retreat — where attendance, shelter, and support are furnished for pay, while at this everything was necessarily gratuitous. By designating these two she meant to confine and did confine her bounty to the insane of New Orleans. Now it is obvious that if the fund is paid to the administrators of tho State asylum, and is administered by them as a fund of that institution, the indigent insane of New Orleans will benefit by it only so far as they are a component part of that larger aggregation of unfortunates, afflicted similarly to themselves, who are inmates of the State institution, and there will thus be a partial and considerable diversion of the fund bequeathed for their sole benefit.

It is not at all necessary for us to enter upon the discussion or consideration of the rules adopted and applied by the English Chancellors in construing bequests for pious uses. We have only to search for the intention of the testatrix (and it is not difficult to find) and to give effect to it; Or rather in the present controversy, for we can go no further just now, to prevent the fund consecrated by her to one purpose being diverted to another, and we think it would be diverted by recognizing tho opponent as legally entitled to it for the use of an institution which would distribute it among a large class of insane, of whom the persons really entitled to it form only a part.

An inversion of this mode of applying a charitable bequest is illustrated in Succession of Mary, 2 Rob. 438, but the principle is the same. There the bequest was to the orphans of the first municipality, and the claim was made of it for the male orphans cared for by a Catholic Association. The bequest was to all. The claim was for a part. Here the bequest is to a part. The claim is for all. The claim is not sustained in either case.

It may be that the legacy and the residuary bequest have not absolutely lapsed. The ordinance of the City Council assigning them to the opponent is nidi, but it is not necessarily a renunciation of them. Whether the Council can or will accept and administer the fund for the benefit of those for whom the testatrix intended it is a matter not of present concern to us. If the indigent insane of the City are the sole recipients of it, there seems to be no satisfactory reason why the legacy and bequest shall not be maintained. The locus where these unfortunates are detained is not a material consideration. The object of the testatrix was to relieve their destitution and assuage the rigour of their lamentable condition. The City Council is the administrator of the fund she has donated for that purpose. The Council may apply but cannot divert it.

The State Asylum is therefore without interest in the distribution of the assets of this succession.

Judgment affirmed.


text:
    No. 9191.
    New Orleans and North Eastern Railroad Company vs. Mississippi, Terre-aux Bœufs and Lake Railroad Company.
    A preliminary injunction can issue to maintain a plaintiff in possession, but should not be allowed to oust one in possession of property.
    PPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Bobert Mott and W. D. Denegre for Plaintiff and Appellant.

      H. D. White and Kewncm-d, Howe & Prentiss for Defendant and Ap-pellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs appeal from a decree dissolving on bond and on the face of the papers, the injunction herein issued, on their application.

The complaint is substantially that the plaintiffs have a right of way through St. Claude or Goodchildren street, in this city, by municipal concession ; that while they were about using this privilege, the defendants enjoined them from doing so; that -the case was put at issue by the defendants therein, and was about to be tried, when the plaintiffs, on their own motion, discontinued the suit, thus dissolving the writ; that, between the institution of the action and the withdrawal thereof and during the existence of the injunction, the defendants took possession of the street, using it for their purposes; that the petitioners are entitled to enjoy the franchise granted by the city and to remove the constructions put on the street by the defendants, during the pen-dency of their injunction suit.

The prayer now is for an injunction to prevent the defendants from in any way interfering with the plaintiffs in removing the railroad, its buildings and constructions of every kind from the part of said street allotted to them, and from interfering with petitioners in constructing, maintaining and operating on their own tracks, and, that after proceedings, there be judgment for thirty-five thousand dollars damages in their favor.

The defendants first took a rule to have the injunction dissolved on bond and next, another rule, for the same purpose, but on the face of the petition.

The court allowed the injunction to be bonded and besides dissolved it otherwise, unqualifiedly.

The suit has two objects, which are sought to be at once accomplished, namely : to resume possession of a street or of part thereof, of which the plaintiffs claim once to have had possession and to remain in possession of a part of the street of which it has the possession, actual or constructive.

The prayer is to prevent the defendants from interfering with the plaintiffs in ejecting them and in using their (plaintiffs) right of way on said street.

It appears from the petition and also from the defenses set up that two possessions are imperilled: that of the plaintiffs by the defendants and that of the defendants by the plaintiffs, while it is apparent that the street is a wide street, ample enough for the purposes of each company, touching which there shpuld be no collision of rights.

The plaintiffs cannot be permitted to oust the defendants who are in actual possession, (whether rightfully or not is now immaterial), by a preliminary injunction; while the defendants cannot be allowed, on a bond or otherwise, on the showing made, to dissolve the injunction, so as to consider themselves authorized thereby to interfere with plaintiffs in the enjoyment of their possession. 22 A. 512; 24 A. 154; 33 A. 133, 560.

The lower court erred iu dissolving the injunction unqualifiedly. It could and should have been dissolved so far only as it proposed to forbid the defendants from interfering with the plaintiffs in removing their road, with its buildings and constructions, from that part of the street of which the defendants were then in possession. The judgment should be such as will maintain the previous status >m quo until the determination of the merits.

It is, therefore, ordered and decreed that the judgment appealed from, so far as it dissolves the injunction forbidding the defendants from interfering with the plaintiffs in their own possession, actual or constructive, of the portion of the street allotted to them by the city authorities, be reversed and that the rule to dissolve to that extent be dismissed; and it is further ordered that, so far as the judgment dissolves the injunction prohibiting defendants from interfering with the plaintiffs in removing the tracks, buildings and constructions of defendants on the portion of the street allotted to them by the city authorities, it be affirmed; appellees to pay costs in both courts.

Rehearing refused.


author: PoonÉ, J.

text:
    No. 9019.
    Widow Paul Eloi vs. Victor Eloi.
    The opinions of witnesses who are not physicians or experts in matters of insanity, touching tlieACondition of the mind of a human being, are entitled to Jiittlo or no weight as evidence in a trial involving the alleged insanity of a person.
    Such witnesses should state facts and incidents in the life and conduct of the party, from which the court alone is authorized to draw inferences and legal deductions touching the true condition of the mind of the person on trial for interdiction.
    Great weight and legal effect will be given to the opinion and report of physicians and experts appointed to inquire into the condition of the party.
    PPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      L. Marrero for Plaintiff aud Appellant,

      Braaich K. Miller, Curator ad hoe, contra.

   The. opinion of the Court was delivered by

PoonÉ, J.

This is an action for the interdiction of the defendant, who is now under sentence of death for the murder of his wife.

The plaintiff, Ms mother, alleges that he is of unsound mind and wholly irresponsible for his actions, and that he has' been in that condition from his infancy, insanity being hereditary in his family.

The case was tried contradictorily with a curator ad?hoc appointed by the court, and the judgment was against plaintiff. Hence this_ap-peal.

Under the order of the court the defendant was thoroughly examined by a commission of eminent physicians who, in an able and elaborate report, informed the court that, in their opinion, the defendant was not insane, or of unsound mind, and that he was responsible for his actions.

All the proceedings in the case were carried on with great legal accuracy, and every facility was extended to the mother in her last and desperate effort to rescue her son from his impending doom.

Her counsel introduced the testimony of a large array of witnesses, principally friends and neighbors, who had known the defendant for several years, and who all joined in the opinion that the defendant, Eloi, is a person of a low order of intellect, an imbecile or a man wholly incapable of taking care of his own person or of managing his own affairs. A few of the witnesses went so far as to say that Eloi was and had always been a person of unsound mind and wholly irresponsible for his actions.

As should be naturally expected in a ease of such importance and of such immense consequence to one of our fellow-men, we have read, considered and closely analyzed all that testimony, and we leave it with the painful conviction that it falls short of its intended effect.

None of the witnesses introduced by plaintiff are physicians or experts in matters of insanity. Hence it follows that under elementary rules of evidence, little or no weight can be given to their opinions as to the mental condition of the defendant.

It is worthy of particular notice, that notwithstanding the repeated efforts of the district judge, and of the counsel on both sides to draw from the witnesses statements of facts and of actions in the life of the defendant, on which they based their conclusions touching the state of his mind, the record is almost barren of those essential requisites in the trial of such an issue.

On the other hand, it is gratifying to us to have noticed that in their report the eminent physicians who composed the commission de luná-tico inquvrendo, are by no means as bold in their assertions, and that every conclusion or expression of opinion which they report is based on, and amply supported by, facts which they discovered, either in their examination of the defendant, or in the evidence of witnesses whom they examined.

Their report, taken in connection with the testimony adduced on the trial, has entirely satisfied us of the correctness of the judgment appealed from.

Judgment affirmed.


author: Todd, J. Bermudez, C. J.

text:
    No. 8684.
    Felix Bellocq et al. vs. P. G. Gibert et als.
    Where the payment of the price of immovable property -is resisted on the ground that the vendor Tras not the sole owner, hut that another party had an interest in it, and the vendor agrees that, if this other party will renounce in his favor, he shall share the price with him when collected, such agreement can be proved by parol and if proved should be enforced.
    JSTor will the disclaimer made of title in the act of renunciation estop the party from recovery under the agreement or be used to show that the party had no interest* and that the agreement was a nudum pactum.
    PPEAL from Houston, J. the Civil District Court for the Parish of Orleans.

      Slcmc <& Butler for Plaintiffs and Appellees.

      ‘Albert Voorldes for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs sue to recover of the defendant, P. G. Gibert, as tutor of the minor children of Ms deceased wife, Charlotte Coralie Bellocq — and in said capacity representing her succession — and of him personally, the sums stated in the petition, being the proceeds or price in part of certain immovable ” property, situated in the village of Mandeville, parish of St. Tammany. They allege, in substance, that the said Charlotte Coralie Bellocq and her said husband, Gibert, made a verbal agreement to pay them a certain amount out of the price of said property, which she, Mrs. Gibert, had sold, and the payment of whieh was being resisted, if they, the plaintiffs, would make a renunciation in her favor of any rights they, the plaintiffs, might have to the property. That they made the renunciation in question, but that when the price of the property was collected by Gibert, after the death of his wife, he refused to pay them the amounts promised or any part thereof.

The defendant filed a number of exceptions to the petition, which-were overruled, and we think properly, as they denied a plain cause of action and set up matters entirely foreign to the substance and merits of the demand.

The defendant answered by a general denial, specially denied the agreement alleged and made a reconventional demand for an amount larger than that claimed by plaintiffs.

Prom a judgment in favor of the plaintiffs against him, as tutor, for the sum claimed and dismissing the reconventional demand, the defendant has appealed.

As the defendants’ counsel is silent in his brief and argument before this Court with respect to the action of the lower court on the recon-ventional demand, it may be considered as eliminated from the controversy, leaving alone to be considered the issue raised by the pleadings touching plaintiffs’ demand.

The facts bearing on the litigation, are substantially these :

The plaintiffs — Pelix, Paul and Marie Bellocq, and Charlotte Coralie Bellocq (Mrs. Gibert), were brothers and sisters, children of the late Jean B. Bellocq and his wife Odile Derbes, to whom the Mandeville property mentioned in the pleadings belonged in community at the time of their death.

Jean Bellocq died in 1856. His widow, in 1860, conveyed the property to her daughter Charlotte by private sale. In 1866, Charlotte Bellocq, then the wife of the defendant Gibert, sold the property to one Charpaux, under the condition that the purchaser could withhold the price until certain incumbrances on the property were removed, and a clear title could be given.

The next year Charpaux sold to one Vallette on the same terms.

In 1872, Charpaux, for the use of Vallette, brought suit against Mrs. Gibert and husband to annul the sale in question on the ground — among others — that Mrs. Gibert was not the sole owner of the property and that it had belonged to the community between Jean B. Bellocq and his wife, and the rights of the other heirs of- said Bellocq thereto had never been divested.

Mrs. Gibert and her husband were represented in said action of nullity by Fergus Fuselier, Esq., an attorney at law, who, about the time the suit was instituted, wrote and sent to Paul Bellocq, one of the plaintiffs in the instant suit, the following communication which we transcribe in fall:

“ New Oeleans, March 22d, 1872.
“ Mon Cher Paul:
J’ai vu Gibert et cansé avec ltii <le l’affaire en question. II est parfaitement convenu que le prix de la vente faite a Mr. Charpaux sera également divisé entre les parties interressóes, si on parvient a le faire payer, chose dont jo ne doute pas si toutes les parties fournissent une ratification.
“ Yois les héritiers et je passerai au magazin ce soir, prendre la re-ponse, afin de faire, desuite, ce qui sera nécessaire.
Tout a toi,
“Fergus Fuselier.”

Upon receipt of this note Paul Bellocq communicated with his coheirs referred to — and his co-plaintiffs herein and getting their consent to the proposition contained in the note, reported this fact to Mrs. Gibert and husband, who, thereupon, agreed to pay to the plaintiffs, in equal shares with Mrs. Gibert, the price for which the property had been sold by her, so soon as the same was collected from the purchaser.

The proposed ratification was then made by the plaintiffs in a formal act passed before a notary and in terms full and complete.

The action of nullity brought by Charpaux, referred to, was pending for several years, and was finally brought by appeal to this Court and was therein finally decided in favor of Mrs. Gibert, on the 10th February, 1879. By reference to the opinion in the case it will appear that Mrs. Gibert’s success in ilefeating the action resulted mainly, we might say entirely, from the effect of the ratification in question.

After the determination of this suit the plaintiffs, doubtless, with a view to assist in the collection of the price and to meet any possible objection of the purchaser of the property, just prior to the institution of a suit for the recovery of the price, confirmed their previous ratification by what is termed a quit claim deed.

Tn 1879 this suit for the price was brought against Charpaux by Gibert, as tutor of the minor children of his wife — who had in the mean time died — and terminated in a judgment in his favor, upon which the money, was realized in June, 1881 — amounting, after deducting all expenses, to $3028 40.

Under the alleged agreement the plaintiffs — each of them — would be entitled to one-fourth of said amount ($757 10), as claimed in this suit. The defendant repudiated or denied the agreement and refused to pay the money and the pivotal question in the case is that touching the existence of tlie agreement in question and its legal effect if there ever was one.

In the foregoing statement we have made mention of this agreement as a fact proved, for the evidence on this point — which we have carefully examined — leaves no doubt on our minds that it was made, and that it was fully understood by the parties during the many years that the litigation was pending touching the property and for the recovery of the price of it. It became, as it were, a settled family matter often referred to and discussed.-

The chief contention in the case, however, made by the defendant’s counsel, is that this alleged agreement was but a verbal one, and that parol evidence to prove it was improperly admitted; and to the admission of such testimony bills of exception were taken, to be found in the record.

The objection was, substantially, to the effect that the agreement related to rights in or to immovable property, and should have been in writing, and besides, that the evidence offered sought to contradict the written act of ratification or renunciation of the plaintiffs, in which, title to the property had been disclaimed by them.

We think, after mature reflection, that the objection was wholly inapplicable to the character of the demand and the issues and the facts of the case, and that, therefore, it was properly overruled.

The plaintiffs in this suit are not asserting any title to immovable property or any real right thereon. There is no such issue raised by the pleadings. It is simply an action to recover a sum of money under a verbal promise to pay it. The testimony objected to, related solely to this promise and was not offered or designed to establish any interest in or right to immovable property. In truth, the agreement was directly predicated on the fact assumed or acknowledged by all parties thereto, that the plaintiffs had an interest in the immovable referred to. That immovable, or the rights of the plaintiffs thereto or thereon, did not, therefore, form the object of the agreement. Its sole purpose was to ensure the collection of the price of the property — which one of the parties had sold — and which none of them wished or sought to recover. The consideration and the sole consideration which was to entitle the plaintiffs to share in that price was that they should do a certain act, and that was to renounce in favor of one of the parties — Mrs. Gribert— any and all interest in the immovable, which was deemed essential to her success in the pending suit and as ensuring the realization of the price.

Tlie plaintiffs paid the stipulated consideration, they executed the promised act of ratification and renunciation, and so far as that act is full and sweeping in its language and disclaims all right and title to the property in plaintiffs, and acknowledges Mrs. Gibert as the true owner, to the same extent should it be regarded as the complete and strict fulfillment by the plaintiffs of their part of the agreement — the entire and literal payment of the consideration — and as conclusive proof of such payment, instead of being used as evidence of a want of right in plaintiffs to make the agreement and to recover under it by reason of their necessary disclaimer of title to the property. The renunciation they agreed to make, and did make, would have amounted to nothing without such disclaimers. They were intended to operate in favor of Mrs. Gibert and against her adversary in the contemplated or pending suits, and had to be shaped and formulated to such end. And instead of being opposed to plaintiffs’ claims in this action, it should be pointed at as the very best evidence of the payment of the consideration or the fulfillment of the condition of their contract, upon which alone they could be entitled to recover the amount claimed.

The contention of the defendants’ counsel amounts practically to this:

That a party seeking to recover the price of property, finds himself in danger of losing his suit by the assertion on the part of the buyer, that he, the seller, was not the owner or sole owner of the property when conveyed, but that it belongs in whole or in part to another, that go remove the danger and insure his success in the suit, he induces that other person to renounce in his favor, in consideration of sharing the price of the property with him when collected; and when the renunciation is made and its purpose accomplished, and the money in hand, and the party renouncing asks for his share, his renunciation can be held up to him and he be told that it furnishes an absolute bar and es-toppel of his claim to share in the price of the property. That his disclaimer of title is fatal to such right.

We do not think such contention is well founded, and whether the property was movable or immovable, it would not affect the question of the admissibility of evidence to prove the agreement which led to the renunciation and the impossibility of turning the language of the renunciation to defeat the agreement.

If this was an action on the part of the plaintiffs to recover their father’s community interest or the interest inherited by them from him in the property, against the purchaser or its present owner, under the title derived from Mrs. Gibert, their sister, in such case their claim could be successfully met and their pretensions forever barred by their renunciation in question and the disclaimer therein contained. The rule invoked and the objection urged by the defendants would, in the supposed case, be strictly applicable and their effect irresistible; but they find no place in the present instance and under the real facts and issues of this case.

The letter of the attorney was also properly admitted as leading up to the agreement and in 'corroboration of it.

The other documentary evidence offered may be regarded in the same light, and as in fact affording legal proof, that at the time the agreement was entered into and the renunciation made, the plaintiffs had a snbstantial and real interest in the property by inheritance from their father.

Nor in view of this fact and other circumstances. of the case presented, can the agreement, in whatever light we regard it, be held a rmckum, paetmn, as contended by the defendants’ counsel.

The counsel has also suggested that at phe time the agreement was made, Mrs. Bellocq and another son of hers were then living, and was subsequently died, and that the amount or amounts that plaintiffs would be entitled, in any event, to recover would be affected by said fact. We cannot discover the force of this suggestion. Louis Bellocq died before his mother; his interest, under the agreement in question, passed to Ms mother and Ms brothers and sisters, and jipon Mrs. Bel-locq’s death, the interest thus inherited by her, passed equally to her four children, the plaintiffs and Mrs. Gibert. If the sale of Mrs. Bel-locq to her daughter, Mrs. Gibert, was simulated, and in point of fact she retained to her death her community interest in the property, when that event happened, such interest passed to her children alike.

If the sale to Mrs. Gibert was real, still her agreement to share equally with the other heirs, was, under the circumstances of that agreement, binding on her, although in point of fact she might have had when she sold the property, the largest interest in it.

For these reasons, the judgment of the lower court is affirmed with costs.

DissentiNg Opinion,

Bermudez, C. J.

The relationship between the parties, their heir-ship, as the issue of the same authors, are matters entirely foreign to tMs litigation.

The claim avowedly rests exclusively upon the agreement declared upon and which is said to have been entered into previous to the confection and signature of the act of ratificatification of the sale of the real estate in question.

The plaintiffs should recover in the event only that the agreement was legally proved.

They claim that it is established by :

1. A letter from the attorney-at-law, who, at the time represented Mrs. Gibert in the suit for the price, brought against the purchasers of the property.

2. The act of ratification signed by the plaintiffs and used by Mrs. Gibert.

3. Oral testimony.

It does not strike me that an attorney-at-law who institutes a suit in the name of a vendor against a vendee, to recover the price of sale, has any legal authority on that account to offer to outstanding parties whose intervention, in the shape of a ratification is necessary for recovery, a participation in the proceeds when realized. Even then, the letter does not purport to have been authorized by the plaintiffs in the suit, but simply by her husband.

There is no evidence to show, except the ipse dixit, that the attorney was empowered even to that extent. It is after all at best, nothing but a beginning of proof.

The act of ratification emphatically repels the idea' of the existence of the alleged agreement, which if it ever was entered into, must have preceded the confirmation.

This act unequivocally declares, that the plaintiffs acknowledge that they had no right, title or interest to the property conveyed by their mother to their sister and by the latter to her vendee.

The oral testimony offered to prove the consideration of the ratification was improperly received. It was designed to establish a state of facts anterior to the drawing up and signature of the act of renunciation and antagonistical to its recital j namely, that, being owners, the plaintiffs had agreed themselves not to be such, therefore, to tell a falsehood, with the understanding that the proceeds would be equally distributed between them and their sister.

It is elementary that parol evidence is inadmissible against or beyond what is mentioned in a written act, or what may have been said before or at the time of making it, or since.

The familiar articles of the Code read:

“The authentic act is full proof of the agreement contained in it against the contracting parties and the heirs and assigns, unless it he declared and proved a forgery.
“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before or at the time of making them.” R. C. C. 2233 and 2276.

The authorities expounding these texts are innumerable and inflexibly forbid oral testimony in a case like the present one.

The claim in this case is for the price, in consideration of which the plaintiffs admitted they had no claim to the property, or of which they renounced or transferred that claim. The effort is to prove the contract by parol or oral testimony. Could such testimony be admissible to prove the price of sale of real estate? Unquestionably not. Why then should it be~received in a parallel, if not identical case ?

The inhibition is absolute between the parties, when the act relates to real estate. Conversations, considerations and conclusions anterior to the contract are presumed to be embodied in the act.

The unbending rule of our jurisprudence is that a party cannot vary, explain, impeach or destroy his voluntary written acknowledgment, unless after alleging fraud, error, or the like. This is inflexibly the case, where the meaning and purport of the act is the subject matter under consideration; when the suit is to enforce a right alleged to arise in consequence of it; where the oral testimony is palpably offered to inject therein, or extract therefrom, matters which were included and embodied therein; where the object is to restrict or enlarge, crip pie or aid, subvert or support the act and where the rights of minors are at stake and imperilled.

In such case, the only evidence which the law allows is a counter letter; none has been produced in this instance.

In the absence of legal proof in support of the agreement, which is the only foundation on which this suit rests,the plaintiffs should not recover.

I, therefore, dissent from the opinion and decree.

Rehearing refused.


author: MANNING-, J. Todd, J.

text:
    No. 9179.
    The State of Louisiana vs. L. E. Poynier et als.
    -A. voluntary confession of a prisoner is admissible in evidence against Titan.
    The cross-examination of a witness may embrace any matters pertinent to, and growing out of, or connected with, what has been elicited on the examination in chief.

      The general rule of law is that who fn- rough another’s agency is to he regarded as done by himself. One whose *oie v. ■.» i- < -?:e^ the commission of a criminal act is prin cipal, -without regard to the physical e;s ho emx>l*»\and whether he is present or absent when the act is done.
    The test to determine whether one is principal rathei accessory is whether he is so situated as to make his personal help available--not actual ph vsh;al help necessarily, but help of any kind — not help i.'udored by actual presence but, c ‘refractive presence as well. Thus if he watched to j>n v< oí Lis companions brim; Miiprmed, or stationed himself to give the alarm to favour their escape, or was in ¡ao.-h til nation as to come to their assistance, so that the knowledge of his watching, or position, or .situation i 'spired or was calculated to inspire his confederates with additional conHumce, and enable them quicker or safer or more effectually to commit the crime, then he is ^principal.
    If one, with knowledge that the commission of a crime has been determn^l /.u, gets away and keeps away from the spot for the purpose of facilitating the commission of it, he is a principal although he is not present or near enough to givo assistance physically and manually to his confederates.
    APPEAL from the Criminal District Court, for the Parish of Orleans. JBalcer, J.

      J. 0. JEgan, Attorney General, and Henry O. Castellanos, for the State, Appellee.

      Lionel Adams for Defendant and Appellant.
   The opinion of the Court was delivered by

MANNING-, J.

Poynier with four others was prosecuted for larceny of thirty two bales of cotton, the property of the Texas and Pacific Railway, and upon conviction was sentenced to four years’ imprisonment at hard labor. He alone is before us on this appeal.

By request of the prisoner’s counsel the judge charged that “persons not sufficiently near to give assistance are not principals. That they' were sufficiently near must be proven by tlie State beyond a reasonable doubt. If a man be at such distance from the place where the offence was committed that he could not assist in it if required, he cannot he deemed a principal.” And then immediately added — “ where a person keeps away from the place where the crime is committed for the purpose of facilitating the commission of the offence, even if he be not sufficiently near to give assistance if required, he is to be considered as constructively present.”

This addendum of the judge was excepted to by the prisoner, and presents the question for our review. In his reasons for the charge, inserted in the bill of exceptions, the judge says“ The accused was a foreman of the Texas and Pacific Railway at their freight depot in this City. I charged the jury that if the evidence established a combination on the part of the accused and others to steal the thirty two bales of cotton, and that Poynier, with the view of assisting the actual perpetrators of the larceny, kept out of the way, he was guilty as principal.”

The counsel for the prosecution lays stress on the circumstance that this last enunciation was not excepted to. How could it be? It was not a charge to the jury, but an amplification of the charge previously given, and not appearing until the bill was ready to be signed, and appearing only in it. The jury never heard or read it. The charge to them is the matter for our consideration.

The distinction between principals and accessories before the fact is in most cases a distinction without a difference, and often requires nice and subtile verbal refinements to express it. In some of our States it has been abolished by statute — in others, judicial decisions have attenuated it until it is perceptible only by a close mental effort. The fact is, it is not a creature of statutory law but wholly of judicial construction, the origin of which is so vague and indeterminate that the text writers have not found out where to place it. • Tt is supposed to have originated at a time when criminal lawyers puzzled their wits and taxed their ingenuity to invent metaphysical shades of distinction, such for instance as that between principals and accessories at the fact, which once existed but is now exploded. The distinction between principals and accessories before the fact is fast following its kindred technical refinement.

The general rule of law is that. what one does through another’s agency is to be regarded as done by himself. In the pwnislvment, neither the common nor statutory law makes any distinction between a principal and an accessory before the fact, nor is there any difference in the structure of the indictment. Tn morals there are oftentimes circumstances wherein we attach greater blame to the accessory than to his' principal, as where a husband commands his wife to do for his benefit a criminal act which she would not do without his command. 1 Bishop Crim. Law, $ 673.

A man whose sole will procures the commission of a criminal act is principal without regard to the physical agencies he employs, and whether he is present or absent when the act is done. Where there is a principal — and there can be no crime without one — no other person will be considered a principal with Mm unless in a position to render personal assistance of some kind. The test to determine whether he is principal rather than accessory is, whether he is so situated as to make his personal help available — not actual physical help necessarily, but help of any kind — not help rendered in or by actual presence, but constructive presence as well. Ibid, $ 653. Thus if he watched near or' at a distance to prevent his companions being surprised, or stationed himself to give the alarm to favour their escape, or was in such situation as to come to their assistance, so that the knowledge of his watching or position or situation inspired or was calculated to inspire his companions with additional confidence, and enable them quicker or safer or more effectually to commit their crime, then he is a principal. 1 Whart. Am. Cr. Law, $ 110.

One need not be either an eye witness of the criminal act or within hearing of it, to make him a principal. If he had knowledge of it, and watches so as to assist in any manner, it is enough. Doan v. State, 26 Ind. 495. Or if he do any act in execution of the common design, or to aid those who are immediately engaged to escape. Wixon v. People. Ibid. Each person consenting to the commission of an offence, and doing any one act which is an ingredient in the crime, or immediately connected with or leading to its commission, is a principal. U. S. v. Wilson, Baldw. 78, 102. U. S. v. Libby, 1 Woodb. & M. 221.

Therefore if a person, with knowledge that the commission of the crime has been determined on, gets away and keeps away from the spot for the purpose of facilitating the commission of it, he is a principal, although he is not present or near enough to give assistance physically and manually to his companions. And this is but a paraphrase of the judge’s charge. Reg. v. Flatman, 42-L. Crown Cas. reserved, 159.

It was for the jury to And the fact whether the defendant had formed a combination to steal the cotton, and whether he had kept out of the way to assist Ms confederates. They found the fact, and applied the law as the judge gave it to them, and a conviction thus had is legal.

There is a bill to the admission of Poynier’s confession which is without merit. The confession was voluntary and therefore admissible. State v. Alphonse, 34 Ann. 9.

The third bill is to a question of the State’s attorney in cross-examination. The defendant asked a witness — are you the person who is charged with having knowingly received the stolen cotton spoken of in this case ? And again — did you buy thirty two bales of cotton or any cotton from the accused Poynier 9 Upon cross examination he was asked — how do you account for the tags wMch had been attached to the cotton which was found in your pickery? The objection was that the cross-examination must be confined to the facts and circumstances which were the subject of the examination in chief.

The answer is that the question is sufficiently connected with the matter that had been brought out before to justify its admission under our ruling in State v. Stuart, 35 Ann. 1015.

Judgment affirmed.

DissentxNG Opinion:'

Todd, J.

The common law recognizes two kinds of principals to a crime — principals in the first and second degree.

A principal in the first degree is the actual perpetrator of the deed, either in person or through an innocent medium or irresponsible agent. Wharton Cr. Law, (4th Ed.) sec. 112; 1 Hale, 233, 615; Bishop Cr. Law, (5th Ed.) secs. 648, 651; 1 Arch Cr. Pr. and PI. (7th Ed.) 58.

Principals in the second degree are those who are present, aiding and abetting at the commission of the fact. 1 Hale, 438, 439; Foster, 349, 350; Wharton Cr. Law, (4th Ed.) 116; Bishop, (5th Ed.) sec. 649.

This presence is either actual or constructive. TIlus it is a constructive presence if a party watches for his companions, the actual perpetrators, to prevent surprise or favor their escape, or give assistance and is near enough to afford it, if required. Wharton (4th ed.), seec. 116, 124; Hale, 438 ; 1 Arch. pp. 58, 59; Bishop, sec. 653.

If a person is present aiding and abetting in some act making part of the offense, although absent when the crime is completed by his confederates, he is a principal with respect to the whole of it. 1 Arch. Pr. and PI. pp. 61, 66; Reg. vs. Jordan O’Sullivan, 7 C. and P. 432.

These leading authorities shed all necessary light on the question, as to who are to be held as principals in a crime whether in the first or second, degree. The doctrine upheld by these authorities still governs in this State, except that the distinction or difference between principals in the first or second degree can scarce be said to be any longer recognized;

In the instant case the trial judge, after charging the jury in exact accord with the principles adverted to above, farther charged, substantially, that although a party may be absent from the place where the crime is committed and such a distance therefrom as not be able to render any assistance if required, yet if his absence is for the purpose of facilitating the commission of the offense he is a principal and is constructively present aiding and abetting.

The question recurs: does the proposition conveyed in this.charge fall within* or is it covered by the doctrine established by the authorities cited, or is it justified and sanctioned by any known rule or principle of law?

After an exhaustive examination of all authorities on the subject, and the minutest consideration, 1 am constrained to answer this question in the negative. So far from being supported by authority or precedent, I think it opposed to the controlling principles referred to and really inconsistent with the first part of the charge given to the jury, and the law therein so clearly enunciated. ,

If it should prevail, it would effectually, in my opinion, destroy the distinction so firmly established between principals and accessories before the.fact.

To constitute a party a principal in the crime, in any degree, he must be a co-operator therein at the time of its commission.

Thus it is laid down by Archibold, that going towards or in the direction of a place where a larceny is committed for the purpose of assisting in carrying oft the property and assisting accordingly, but at such distance as not to be able to assist in the commission of the fact, at the time of the felonious taking and carrying away, did not make the party a principal in the larceny. Archibold Or. PL and Pr., p. 66.

And in a case presenting a strong analogy to the instant one, where an employee in a house in pursuance of an a/rrcmgement made with a confederate, admitted this confederate into the house where he remained till the next day, when he stole the money from a cash-box in the house, during the absence of the employee therefrom, it was held that the latter was not a principal in the crime, but an accessory before the fact. Eeg vs. Jackwill and Perkins, 1 Carrington and Marshman, p. 215.

Eeference is made in the brief of the Attorney General to two cases as supporting the principle announced in the charge we are considering: those are, Rey vs. Flatman, 42 L. T. ( Eng.) 159 and Scales vs. The State, 4 Tex. App. 361.

The first of those cases turned on the effect to be ascribed to the delivery by the wife of the husband’s goods to an adulterer and did not involve the general principles governing the point or question under review.

And the other case was decided under a special statute of the State of Texas, which changed materially the common law on the subject of principals and accessories. See Peck Digest, art. 1809, et seq. Penal Code. art. 214, et req..

I am thus brought to the conclusion that there was an error in the charge complained of and of gravity sufficient to vitiate the verdict of the jury and the sentence based thereon.

I, therefore, dissent from the opinion of the majority.