text:
    No. 11,453.
    The State of Louisiana vs. J. W. Murphy.
    The State appeals from a judgment sustaining a motion, to quash an indictment charging the accused with having committed forgery.
    The statute under which the indictment was framed does not comprehend the act of altering an account independently of, and without reference to, any receipt, or intent to use it as part of a receipt or acquittance.

      When in a ease oí forgery the instrument forged does not, on its face, appear to be valuable or adapted to work a fraud, extrinsic matter must be averred to enable the court to see its fraudulent tendency in matter of law.
    APPEAL from the Tenth District Court, Parish of Rapides. Andrews, J-

    M. J. Cunningham, Attorney General, and Phanor Breazeale, District Attorney, for the State, Appellant:
    The Southern Pacific Railroad transported certain furniture consigned to’ithe Woodfine Furniture Company, represented by the defendant, Murphy. One piece, viz , a bedstead, was slightly damaged; Murphy had it repaired by Bragg & Rial, cabinet makers, and made out an account against Murphy, or the company which he represented, for the one dollar; Murphy changes the figure one to the figure five, making the account five dollars instead of for one dollar; he presents this account so altered and changed to the Southern Pacific Railroad Company, who has to pay for the work, and demands payment.
    This is forgery. It is not obtaining mouey under false pretences, because the agent of the railroad does not pay the bill, prefering to investigate; and learning from Bragg & Rial the fact that they had made the account out for only one dollar, thegrand jury preferred the charge of forgery, etc., against Murphy.
    An open account is a “ bill” in the intendment of the statute. R. S., Sec. 833.
    It was intended in this instance to be a “receipt for money;” it was a “bill * * * for money or goods;” it was a “ discharge * * * upon the payment of mojiey;” it was to be a “ receipt for money;” it was a “bill for money or goods.” It was altered and forged so as to defraud the railroad out of four dollars. After committing the forgery he published it as a true “order, acquittance, discharge or receipt,” with the ['guilty knowledge and with the fraudulent intent denounced by the statute.
    It is an “ instrument of writing,” the [altering or changing of which, if done with intent to defraud or injure, constitutes forgery.
    The instrument declared on is not a nudum pactum as defined by Wharton, p. 58f, Sec. 696.
    It is neither palpably nor absolutely invalid, nor can it be said that under no circumstances could it be proof in a legal procedure.
    On the contrary, it is valid on its face, can be the basis of a suit at law, and was intended and calculated to deceive, and to defraud and injure. Wharton, See. 696.
    The entery of a false item in a pass book as commonly used between a grocer and his customer is forgery. Wharton, Sec. 66á.

      Edwin G, Hunter Attorney for Defendant and Appellee:
    “Where the instrument is an accomit or a mere request for the payment of money, it is not subject to an indictment for forgery. In such a case if the moiley is paid, the indictment should he for obtaining money under false pretences; if the money is not paid, it should be for an attempt to obtain money under false pretences.” Archibald, Vol. 2, p. 875 ; W. C. L., Vol. l, Secs. 682, 662.

      2. “The principle is a familiar one, that every indictment must show affirmatively the commission of an offence.” Bishop, Vol. 2, Sec. 459.
    3. It must appear upon the face of the indictment, by proper averments, that the instrument forged is of the particular kind prohibited by the statute upon which the indictment is founded.” Bishop, Vol. 2, Secs. 414, 415; W. O. L., Vol. 1. Sec. 728; 30 An. 557, 570, 571; 37 An. 292.
    4. Criminal statutes can not be extended to cases not included within the clear import of their language. 37 An. 730.
    5. The document set out in the indictment is a nudum pactum. It is without capacity to injure any one — it is not covered by the statute, never was at any time, under any law, subject to forgery. American and English Encyclopedia of Law, Vol. 8, p. 489; W. C. L., Vol. 1, Sec. 703; Bishop, Vol. 2, Secs. 503. 511; 30 An. 562,563, 567.
    6. In this State there is no such offence as “ publishing and uttering- as true a false and forged document. The statute makes it a crime to alter and publish,” etc. 30 An. 572, 573.
    7. Under the statute the indictment must charge that the intent was to defraud some person, or body politic or corporate. The indictment does not charge whether the uttering and publishing was done to defraud “any person, or body politic or corporate.” R. S., Sec. 833; W. O. L., Vol. 1, Sec. 716; Bishop, Vol. 2, p. 207, Secs. 420, 421.
    8. Where the forgery is charged to consist in the insertion of figures or words in a genuine document, the indictment must distinctly set forth the position, of the inserted words, so that their effect upon the original meaning of the document may appear. Where the entire document is charged to be a forgery, this particularity is not required. W. C. L., Vol. 1, Secs. 735, 728; American and English Encyclopedia, Vol. 8, 506, 520.
    9. The crimes charged in this indictment are separate offences and can not be charged in one indictment, unless in separate counts. W. C.L., Vol. 1, Sec. 712; 20 An. 557; 38 An. 202.
    10. Taken as a whole, this indictment is too vague and uncertain to serve as a foundation for a prosecution for forgery. A document may be altered and published without being forged, and the allegations in this indictment and the document, set out as the basis for the charge, all show that'there can be no forgery in tbis case. The document is not susceptible of being forged. It does not come within, the statute; it is signed by no one, it could deceive no one, it does not amount to even a request for money or goods and is absolutely without capacity to injure any one. It is not a document known to the law. In fact, it is a worthless and harmless piece of paper and can not be tortured into the “bill” contemplated by the statute.
    A party can not be tried for the forgery of an account, even if an account was included in the statutes, on an indictment charging him with the forgery of a bill. Bishop, Vol. 2, Secs. 414, 415; W. O. L., Vol. 1, Sec. 728; 30 An. 557,570,571.
   The opinion of the court was delivered by

Breaux, J.

The following propositions are those principally relied upon by the defendant in support of the ruling of the court a qua, maintaining the motion to quash and ordering the indictment quashed:

That the writing charged to have been forged is not included within the operation of the statute, under which the indictment was framed.

That the indictment does not, on its face, show any legal validity. That the indictment contains no averment which could give the instrument any force and effect beyond what the writing itself contains.

The defendant was charged in the indictment with having fraudulently forged, changed and altered a certain bill for $1 as follows, to-wit:

Alex., April 16, 1893.

Woodfine Fur.:

Bought of Bragg & Rial,

April 5, repairing on bedstead $5.

The indictment further sets forth that the bill had previously been made out for the sum of $1 by the said Bragg & Rial; that it had been thus forged for the purpose of obtaining the “ sum of $4.50 of the value of $4.50 from the Southern Pacific Railroad Company through their agent, H. B. Chase.”

It is further charged that knowing it to be a forgery the defendant falsely, fraudulently and feloniously published and uttered the bill as true by demanding payment of the same from the Southern Pacific Railroad Company, with intent feloniously to defraud.

The pertinent part of the statute upon which the indictment was drawn reads: That whoever shall forge, counterfeit or alter any public record, any certificate or attestation of any public officer, in any matter wherein his certificate or attestation.is receivable and may be taken as legal proof, any charter, deed, will, testament, bond, letter of attorney, policy of insurance, or bill of exchange and promissory note, order, acquittance or discharge for or upon the payment of money or delivery of goods, any acceptance of a bill of exchange, or any indorsement or assignment thereof, or promissory note for the payment of money or goods, or for any note, bill or security for money or goods, or shall alter or publish as true any such false, altered, forged or counterfeited record, certificate or attestation, charter, deed, will, testament, bond, letter of attorney, policy of insurance, bill of exchange, promissory note, acceptance, indorsement, assignment, order, acquittance, discharge or receipt. (The italics are ours.)

The word “bill” inserted in the section of the statute, without the expressed qualification of exchange, is not the word “bill” defined by-lexicographers as conveying an account of charges and particulars of indebtedness by the creditor to his debtor.

The words of exchange ” are not repeated, but are made evident as qualifying terms by the words following, clearly conveying the meaning that a bill of exchange is the instrument referred to in the statute.

Such false, altered, forged or counterfeit bill of exchange refers to the word “bill” as well as to the words “bills of exchange,” previously expressed in the section, and does not include in the denunciation the act charged in the indictment.

For the purpose of this case, it may be conceded that “open account” and bill are convertible terms and that a statute denouncing the act of altering a bill would include within its intendment the forging of an account.

We do not read the statute, under which this indictment was found, as authorizing the prosecution in this case.

The writing forged was • evidently intended to serve for a receipt in the event the money had been paid.

Upon that hypothesis, it is argued, on the part of the State, that the act comes within the intendment of the statute.

The statute denounces the forging of an acquittance, which is in effect a receipt; and covers within its terms the forging of a receipt.

In answer to the proposition that the writing forged constitutes forgery, because an attempt was made to use it as a receipt, two grounds suggest the invalidity of the indictment.

In the first place, the defendant is not charged with having forged a receipt, nor with having forged the writing with the intent of obtaining the amount on it as a receipt.

In the second place, the instrument does not sufficiently appear as being, on its face, within the meaning of the statute, and the averments of the indictment do not make it appear that the alleged forged instrument was one intended by and described in the statute.

On the second ground also, the judgment appealed from is legal.

If the incomplete instrument of writing can be rhade complete by averments, it can not form the ground of a prosecution in its incomplete state.

An instrunent to be the subject of forgery must be capable, if genuine, of being proof in legal process.

The writing in this case of itself, unexplained, unconnected with; any other fact, is not admissible in evidence to charge the defendant.

The meaning of the transaction does not appear from the instrument itself.

While it is contended that the purpose was to defraud the Southern Pacific Company, its name does not appear in the writing, nor is it stated how it was purposed to defraud this company, nor is it alleged how it was possible to obtain the amount, or why such a payment was expected.

The company is not represented to have been at all indebted to any of the parties named, or that there was the least obligation on the part of the company to pay any amount whatever.

In ease of an account or a proposed receipt, there could not be a. fraud unless a debt existed. Wharton’s Criminal Law, 9 Ed., p. 740.

The relation of debtor and creditor or the responsibility of some one to pay an amount may not appear in the writing and yet exists.

But it can not be proved unless alleged.

Upon that subject, Mr. Wharton says (p. 740) :

“Where an instrument is incomplete on its face, so that as it stands it can not be the basis of any legal liability, then, to make it. the technical subject of forgery, the indictment must aver such facts as will invest the instrument with legal force. Thus, where an indictment charged that A did feloniously and fraudulently forge a certain writing, as follows: ‘Mr. Bostick, charge A’s account to us, B and C.’ with intent to defraud B and C, it was that the indictment, was not valid without charging- that A was indebted to Bostick, as there could be no fraud unless a debt existed.”

The account was ineffective on its face, against the Southern Pacific Company, and no attempt thereby appears to have been made to charge that company, either in the account as originally made or as altered.

The indebtedness may be proved aliunde. To admit the proof and give legal force to the indictment it must aver such facts as will invest the instrument with legal efficacy.

“Where an instrument is not on its face sufficiently full to be a receipt, the defect may be supplied by showing a course of dealing between the parties in which it is understood to be and treated as such. This extrinsic matter must appear both by averment and proof.”

Forgery consists in falsely making or materially altering or Tittering with intent to defraud a note or other instrument in writing, which, if genuine, might be of legal efficacy or might be the foundation of legal liability.

Assuming for the discussion that the account forged is genuine, it is not per se of legal efficacy against any one without additional averments in the indictment setting forth the facts connected with the transaction.

This writing is not within the statute and has no legal force; unexplained, it does not enable the court to determine its fraudulent tendency in matter of law.

The judgment appealed from is affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 11,477.
    Ernest Troegel vs. Fred. D. King, Judge.
    The relator sues for peremptory writs of certiorari and mandamus -under the super visory jurisdiction of this court.
    The appeal was returnable to the Circuit Court of Appeals.
    The Circuit Courts of Appeals are vested with authority to issue writs of mandamu prohibition and certiorari in aid of their appellate jurisdiction.
    If the relator has a right to relief {lie must apply to the court in which the appeal is lodged, the only court having jurisdiction of the questions propounded in his application.
    y^PPLICATION for Certiorari and Mandamus.
    A. B. Phillips and B. B. Forman Attorneys for Relator:
    Where there is a judgment for money against one defendant who does not appeal the other cannot appeal suspensively without giving bond as required by C. P. 575, exceeding by one-half the amount ofjthe judgment. The insurance company, the defendant, condemned to pay $1144.02, is not an officer of the court, nor is the money in the hands of the court, and the district judge has no authority to order a suspensive appeal on either defendant giving bond in a sum less than that required by law, and it was the duty of the district judge to rescind the illegal order and to issue execution. C. P. 575; Marshal vs. Grand Gulf Co., 5 An. 360; Montan vs. Whitley, 12 An. 175; State ex rel. Bankhead vs. Judge, 22 An. 35; Leblanc vs. Sue. Massieu, 27 An. 326; State ex rel. Cientat vs Judge, 32 An. 814; citing 4 An. 3; 5 An. 518; 21 An. 44,55, 114; State ex rel. Gill vs. Judge, 34 An. 90; Demurest vs. Bierne,-36 An. 751.

      Respondent Judge in propria persona cites:
    Sue. of Clark, 30sAn. 801; approvingly cited in Pasley vs. McConnell et al., 38 An 470; State ex rel. Durand vs. Parish Judge, 30 An. 285, 286; Sue. of Edwards, 34 An. 219; Brewing Co. vs. Boebinger, 40 An. 278.
   The opinion of the court was delivered by

Breaux, J.

The relator seeks, by the interposition of the writs of certiorari and mandamus to compel the respondent to' rescind his order for a suspensive appeal.

The appeal was made suspensive on a bond for an amount sufficient to pay costs.

The record of appeal is now lodged, under the order of appeal issued by the respondent, in the clerk’s office of the Court of Appeals.

The controversy involves an amount of eleven hundred and forty-four dollars, in the hands of the agent of the Manhattan Mutual Life Insurance Company.

The relator claimed to be the owner of that fund.

The testamentary executrix of the succession of August Bernau also claims the amount.

The insurance company is represented as being a mere stakeholder, with no interest save to obtain a valid and sufficient receipt.

The relator, plaintiff in injunction, sued out a restraining order to prevent the executrix from receiving the amount, and directing the agent of the insurance company not to hand over the amount in contest to the executrix.

He prayed for judgment making the injunction perpetual and recognizing him as owner of the amount.

There was judgment for plaintiff Troegel, and against the defendants, decreeing that plaintiff was entitled to the amount of the life policy, in New York exchange, in the sum before stated.

On application of the legal representative of the succession of Angust Bernau, for a suspensive appeal returnable to the Court of Appeals, respondent granted it, and fixed the bond at two hundred dollars.

The respondent returns that there was no moneyed judgment pronounced.

That in granting the appeal on that bond he was governed by the principles enunciated in Succession of Clark, 30 An. 801, approvingly cited in Pasly vs. McConnell et al., 38 An. 470; State ex rel. Durand vs. Parish Judge, 30 An. 285; Succession of Edwards, 34 An. 219, and Brewing Company vs. Boebinger, 40 An. 278.

This court has no authority to make the writs sued for peremptory.

The amount is within the jurisdiction of the Court of Appeals, and the appeal is now before that court..

It has authority to issue writs of mandamus, prohibition and certiorari in aid of its appellate jurisdiction.

The question involved in this application for certiorari and mandamus relates to the requirement to perfect an appeal before that court.

The proceeding is within its control and jurisdiction.

That power was recently interpreted as exclusive.

It was determined that the Circuit Court of Appeals to which an appeal is granted is not only competent, but the only court having jurisdiction of such issues.

In the case of State ex rel. Sample vs. Judge, 43 An. 936, the complaint was, as in the case at bar, that the district judge should have required a bond for one-half exceeding the amount of the claim.

The relator applied to this court to compel the judge to rescind his order.

This court decided that the question, the amount involved being less than two thousand dollars, was not within its jurisdiction, and that the relator was without right to writs from this court in aid of the appellate jurisdiction of the Court of Appeals.

The court, in that case, refers to Arts. 95 and 104 of the Constitution as absolutely controlling in the matter involved.

The principles laid down in that decision are not assailed, and no argument advanced in the case at bar bears against their force and correctness.

The authority of that decision controls the case at bar.

It is similar in all important respects.

It is not possible to difference the two cases, in so far as relates to the proposition of law involved.

As in the case cited, the relator has no rights under the supervisory powers of this court, and if he has any rights, he must apply to the Court of Appeals in which the appeal is lodged.

The writ nisi issued in the case at bar is rescinded, and the application for writs of certiorari and mandamus is dismissed at relator’s costs.


text:
    No. 11,457.
    State of Louisiana vs. Wm. Kye.
    “ Shooting into a dwelling house” is-the crime charged.
    Shooting in the house at a person, in the house, was the proof.
    New trial was granted by the trial judge, because the proof did not establish that the crime charged had been committed.
    The ruling is sustained.
    The proof of shooting in a house, at a person, who is also in the house, is not the proof required to show that a person shot at a dwelling house, there being persons therein.
    APPEAL from- the Second District Court, Parish of Bossier. Watkins, J.

      M. J. Cunningham, Attorney General, and A. J. Murff, District Attorney, for the State, Appellant.

      J. A. Snyder for Defendant.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted for having wilfully and feloniously shot into a dwelling house in violation of the statute denouncing as an offence the shooting at a dwelling house.

The jury returned a verdict of guilty as charged.

The defendant moved for a new trial on the ground that the indictment charged the defendant with shooting into a dwelling house, and not with shooting at a dwelling house.

The court granted the new trial.

The district attorney excepted to the ruling, and from- the judgment granting a new trial the State prosecutes this appeal.

The trial judge incorporated the. statement in the bill of exception reserved; that the evidence showed that the defendant and others had a difficulty; that the shots were fired at indivduals in the room in a dwelling house, and that they were not fired at the house or into the house.

The court did not decide that the bill of indictment was illegal, but granted a new trial.

The court states the shooting was in the house at a person, and not a shooting at the house or into a house.

The question propounded for our determination is:

The defendant being charged, as before stated, can he be sentenced for having shot at some one in a dwelling?

There was a shooting at persons; not a shooting at a dwelling house, a different crime from that denounced by the statute under which the indictment was framed.

In shooting at a dwelling house the effect is directed toward the dwelling, and the inference, unavoidable, is that the person shooting is not in the house.

In shooting at a person in a room of the house the environment can no longer be the same, nor is the object directed toward the. house in the sense of the statute.

Shooting by one in a dwelling may be directed toward some one away from the house — in the road or street, for instance.

He would not thereby violate Sec. 8 of Act of 1870 any more than he does violate it in shooting while in the dwelling a person who is also in the same dwelling.

The proof of shooting in a dwelling can not be made the equivalent of shooting at a dwelling.

They are distinct acts not embraced in one statute, but denounced in different statutes as distinct crimes.

The ruling is correct.

Judgment affirmed.


author: .McEnery, J.

text:
    No. 11,435.
    Hermitage Planting and Manufacturing Company vs. Frederick Higgason.
    In a possessory action, where the plaintiff annexes a deed to his petition, made a ' part thereof, for the purpose only of showing the nature of the possession, that fact will not impress the action with the character of a petitory one. ,
    In a possessory action only the fact of possession and the action thereof can be considered.
    If the deed contains a resolutory condition, the defendant in the possessory action has no right to offer evidence as to the happening of the condition which destroyed the deed. Nor has he the right, while the plaintiff is in possession of the property, to determine the fact of the happening of the condition and to violently disturb his possession.
    APPEAL from the Twentieth District Court, Parish of Ascension. Guión, J*.

      Edward N. Pugh Attorney for Plaintiff and Appellee:
    1. Possession of immovable,property, botli under the common and civil law, is highly favored, and the rights of the possessor are strictly safeguarded. Even a trespasser is protected in his possession until his trespass is established at the demand of one who shows some better right in himself in a suit regularly brought. To all others, “Possideo quia possideo” is a sufficient answer. 37 An. 117; C. P. 46, 47, 49, 50, 52, 55; C. 0. 3419, 3454, 3455; 16 La. 414; 41 An. 952; 7 N. S. 488; 7 La. 415; 32 An. 701; 11 An. 512; 44 An. 819, 517; 34 An. 1158; 119 TJ. S. 608; 142 TJ. S, 280, 449; 14 An. 34, 733.
    2. The requirements of the law justifying plaintiffs suit are judicially admitted by defendant to be fulfilled. No inquiry into title or other matters is admissible, and the allegation of plaintiff that he is owner does not change the cause of action, which is determined by the prayer of the petition. (a) 7 N. S. 488; 10 La. 140; 34 An. 386, 1055; 7 La. 415; 32 An. 701; 119 TJ. S.; 13 La. 237; 10 An. 518; 6 La. 559; 2 An. 225; 14 An. 733. (5) 16 La. 44; 37 An. 241; 1 R. 109; 10 An. 160; 20 An. 69; 21 An. 356; 25 An. 166; 41 An. 705.
    3. Plaintiff was in possession. Defendant went upon the land and destroyed the railroad bed — he ignored the existence of the courts, which were open to him to assert his rights, and took the law into his own hands. “The law jealously protects the possession of property against invasion and violence. It punishes with severity the trespasser, although he may believe he has some right which he can enforce by violence. Public order and the highest interest of society require that no violence shall be done to one in peaceful possession of property. As against the lawful owner the possession of immovable property must be protected against the unlawful disturbance of his possession.” 44 An. 819, 516; 119 U. S. 608; 142U. S. 280, 449; 34 An. 1158,386; IR. 140.
    4. Contracts subject to resolutory condition are in full force and effect until set aside by law or by mutual consent — neither party can predicate his acts upon the theory that he is entirely right in his interpretation of the obligations arising from a contract, and that the defendant or the other party is entirely wrong. In this case there is a dispute as to whether or not the contract has been violated. C.C.2046; 27 An. 113; 3L An. 237, 169; 44 An. 516.
    5. Plaintiff’s domicile is New Orleans. Defendant, by his illegal acts, can not force plaintiff to litigate in Ascension, before defendant’s court, issues which could only regularly be tried at plaintiff’s domicile. Wrongful and illegal acts can not vest the court with jurisdiction, and the manner and form which defendant elects to present their issues can not change the result. The accidental fact that their issues came up by way of reconvention can have no influence or bearing in depriving plaintiff of the right of being sued at his own domicile. Defendant can not do indirectly what he could not do directly, and reap an advantage from his illegal acts. O.'P.162; 7 N. S. 488; 34 An. 1055; 32 An. 74; 6 An. 241; Black on Jurisdiction 43, p. 117; 124 U. S. 146.

      G. A. Gondran, Paul Leche and R. N. Sims Attorneys for Defendant and Appellant:
    1. In a suit for the judicial recognition of an alleged conventional right of servitude of way, coupled with an injunction to prevent the defendant from obstructing the use or enjoyment of said right of way pending the suit, the defendant — on proper allegations to that effect and on showing by a counter letter or writing executed and signed by the plaintiffs, annexed to and made part of his answer, that plaintiff’s position does not set forth correctly or truly the nature of their title to the servitude claimed but that said alleged right of way over defendant’s land was the subject of a commutative contract between the parties with a resolutory condition expressly attached thereto — is entitled to set up as a defence to the action plaintiffs’ failure to comply with their ob~ * ligations and to pray for the annulment of the contract on that issue. C. 0. 2046 2047; C. P. 20; 14 An. 427; 12 Rob. 472.
    2. The injunction obtained by plaintiffs does not constitute the suit, but is a mere incident to the main action. The object or purpose of that action is to have plaintiffs’alleged right to exercise and enjoy the servitude claimed in perpetuity judicially recognized. If that judicial recognition be withheld, the in*junction necessarily fails. The nature and scope of plaintiffs’ action is no, limited by the verbiage of the prayer of the petition. All of the allegations must be considered, together with the prayer for general relief. 38 An. 912; 3 An. 268; 10 An. 719; 15 An. 426.
    3. The contention of plaintiffs that this is apossessory action and that the question of possession is the only possible issue in the case is not well founded. The rule invoked is inapplicable to plaintiffs’ pleadings. * * * “ where a plaintiff himself puts at issue his right of possession, exhibiting his title in his petition, he does so at his own risk and peril.” "39 An. 970; 4Martin, 626; 34 An. 1054. “ The issues in a possessory action maybe twofold: (1) The fact of possession; (2> the nature of the possession.” Concurring opinion of Fenner, Judge, in 34 An. 1054; see also 41 An. 1108; 40 An. 248.
    4. On plaintiffs’ motion to strike out the allegations of defendant’s answer and his reconventional demand, all of defendant’s allegations of fact must be taken as true. The motion is in the nature of an exception of no cause of action by plaintiffs to defendant’s answer and reconventional demand. Therefore, for the purposes of the motion to strike out, it is true that plaintiffs suppressed in their pleadings the real nature of their title, that the contract exhibited by them is subject to an express resolutory condition, which condition has been, accomplished by plaintiffs’ flagrant violation of their obligation under the contract.
    “The contract is entire, and by its very terms must stand or fall Jas a whole. Neither party has any advantage as to any rights acquired under it.” 2 An. 478. In all cases the dissolution of a contract may be demanded by suit or by exception. C. C. 2047; 6 N. S. 224.
    When a remedy may be sought by action, the party entitled thereto may avail himself of it by way of exception. C. P., Art 20; 14 An. 427; 12 Rob. 472.
    5. The plaintiff having its domicile in a parish different from that in which the defendant resides, a fortiori has the right to set up his defences in this suit and enforce his demand therein for a dissolution of the contract, and for damages by way of reconvention, as he has done. C. P., Art. 375; Smith vs. Atlas Cordage Company, 41 An. 1.
    Reconventional demand may be pleaded either ás an exception in the answer or by distinct and separate suit before same court. C. P., Art. 877.
    Article 375, as amended by Act No. 164 of 1839, provides that, under the circumstances above stated, the defendant may reconvene for any cause. The proviso in that article makes no distinction or discrimination whatever, and the courts ought not to recognize any. Ita lex scripta est.

   ■ The opinion of the court was delivered by

.McEnery, J.

On the 31st day of August, 1888, the plaintiff company purchased from the defendant a right of way over his property for the purpose of building a railroad.' The consideration and price of said sale was the great personal advantage and benefit to the defendant and to the neighborhood by the construction of the railroad, and the sum of twenty-five dollars cash. The plaintiff built the railroad in accordance with the stipulations to the act of sale.

On the 13th August, 1888, the following argreement was entered into between plaintiff and defendant: That the said Hermitage Planting Company obligates itself to pay off all of its hands employed on the Hermitage plantation from and after the 15th day of September, 1888, and further binds and obligates itself to give all •orders for goods and merchandise which the hands so employed may need on Frederick Higgason, of the parish of Ascension, store keeper at Darrow P. O., Ascension, La. And he the said Nolan, for and in the name of said planting company, binds himself and the said company to see that said Higgason is paid or secured for any advances which he may make to any of the hands employed on said Hermitage plantation (provided said advances be to a reasonable amount, and not to exceed the amount which said laborer or laborers, or hand or hands, may have earned, and which money be actually due him or them).

And now, in consideration of the said premises and .above covenants and agreement on the part of said Hermitage Company, the .said Higgason has this day signed before S. A. Gondran,- notary public, in and for the parish of Ascension, a certain contract granting ■unto the said Hermitage Planting Company a certain right of way ■across his lands for the purpose of establishing by the said Hermitage Planting Company a railroad on his lands. Should the Hermitage Planting Company fail to comply with and fulfil any of the •conditions and agreements herein contained and agreed to be carried out by them, then this right of way granted by the said Higgason this day, as per contract before said Gondran, shall be set •aside or left at his option to do so.

It is further understood by the parties hereto that said Higgason is to give notice to the said Hermitage Planting Company before the pay day of the hands of said plantation of any amount which may be due Mm by any of said hands or laborers on said Hermitage plantation*

The defendant, believing that the plaintiff bad violated the contract above recited, in May, 1893, went upon the right of way and' tore up the rails of the railroad track crossing the length of the right of way granted to plaintiff. In September, 1893, the plaintiff brought this suit, setting out the act by which the right of way was granted in its petition, and alleging that it had continuously up to date, and said road ever had been in the quiet and undisturbed possession of the same; that plaintiff, in May, 1893, tore up the track on the road bed crossing right of way granted by defendant to plaintiff; that defendant with malice did obstruct plaintiff in replacing the track on the said land, and that defendant’s acts were malicious, wrongful and tortious.

The prayer is that said defendant be enjoined from disturbing or placing any obstacles in the way of plaintiff from laying and replacing the track of their said road on and across said land, and from interfering with plaintiff in the use and enjoyment of their said, railroad until the further orders of this court.

The injunction issued as prayed.

The plaintiff did not annex to his petition, and we do not think ifc was essential that he should have done so, the contemporaneous: agreement made with defendant. The defendant answered, filing a-general denial, and specially urges as a defence the supplemental agreement referred to, and that plaintiff had failed to comply with the stipulations contained in the same, and he prays that there be judgment annulling the act. He also filed a reconventional demand for damages.

It is admitted that plaintiff is incorporeal and actual possessor of the part of land running through defendant’s line along the right of way, and all the acts of defendant in tearing up the track are also-admitted.

The pleadings also show that the plaintiff denies having violated the contract.

The pleadings being in this condition, on the judicial admission, plaintiff filed a motion that they entitled him to a judgment. The-motion was tried and the injunction perpetuated, reserving to both parties the right to sue for the amount of the contract. From this-judgment the defendant appealed.

The contention of the defendant is that the contract is subject to a resolutory condition, and that he has the right to plead in avoidance matters of defence showing a dissolution of the contract in order to reject the demand of plaintiff for a recognition of the right of servi" tude and its preservation thereof in perpetuity, and that the defendant being a non-resident of the parish he had the right to make any defence against plaintiff’s action and to institute a demand against plaintiff by way of reeonvention for any cause.

If this suit was based on the contract, and was intended to enforce the same, or for damages for its violation, the contention of the defendant would be well founded. 12 Rob. 472; 14 An. 627.

. The averments in the petition and the prayer of the plaintiffs stamp plaintiff’s action as possessory, pure and simple, and as such it must be governed by the law controlling possessory actions. There is no issue of title presented. It is contended by defendant that the exhibiting by plaintiff of his title to the right of way changed the character of the action and it became petitory.

The petition contains an allegation of ownership to show the nature and character of the possession, and the act of sale was exhibited, and annexed to plaintiff’s petition as evidence of the fact and nature of possession, not of title, as the prayer of the petition is alone to be quieted in peaceable possession of the premises. It was not necessary to exhibit the act of sale, or to disclose by what title the company held possession of the right of way, but by doing so the plaintiff company did not impress upon the action the character of a petitory one. Kempers’ Heirs vs. Hulic, 16 La. 46; Williams vs. Harmanson, 41 An. 705; Nieholl vs. Railroad Company, 44 An. 817.

As said by this court in 41 An. 705: “We are not concerned with the sufficiency or even with the existence of such title. The fact and nature of the possession alone is at issue,” and we may add that we are not concerned with the fact whether or not the contract has been violated and by-the resolutory condition the contract dissolved. This is a matter for future judicial determination under the reservations in the judgment appealed from if the parties see fit to resort to judicial process. It is certain the defendant had no right to take the law into his own hands and to disturb by violence the possession of the plaintiff. In such a case no inquiry is made as to whom the legal ownership of the property belongs, but the law is prompt in protecting the possessor, and to rebuke the unlawful act of disturbance by restoring the possession of the property to the party dispossessed. Nicholl vs. R. R. Co., 44 An. 817.

The defendant’s remedy was before the law and through the courts, and no act of violence can supplement his resort to legal process to fix and ascertain his legal ownership of the property. Nicholl vs. R. R. Co., 44 An. 8'7; Boniel vs. Block, 44 An. 515; Fox vs. McKee, 31 An. 69; Trader vs. Ins. Co., 237; Laloix vs. Ins. Co., 27 An. 113.

The defendant contends that the primary object of the suit is to obtain a judicial recognition of the right of way and to perpetuate the same by injunction.

We do not so understand it.

The judgment was restricted to the allegations in plaintiff’s petition, and the right of plaintiff to present possession was only recognized. The injunction is to prevent a disturbance of this possession. A judgment dissolving the contract would put an end to plaintiff’s possession and the injunction would expire with it.

Judgment affirmed.


author: Fenner, J. Breaux, J. McEnery, J.

text:
    No. 10,619.
    State of Louisiana vs. Miss Laura Gaines et al.
    The State can not be sued before her own tribunals without her consent — the question is not affected by the fact that the claim is a demand in reconvention, set up in a suit brought by the State. State vs. Bradley, 37 An. 623.
    The State should not be permitted to invoke judicial aid in wresting from the defendants evidences of a serious claim against her, until she has first, by proper legislative action, consented to submit to the courts the determination of all the rights and obligations incident thereto.
    On Application por Rehearing.
    The decision of this court in State vs. Hart, 46 An. 55, must control.
    APPEAL from the Oivil District Court, Parish of Orleans. King, J.

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

      W. S. Finney and Henry 0. Miller, Attorneys for New Orleans Canal and Banking Company, Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The State, acting through her Attorney General, brings this suit to recover from the defendant possessors fourteen State bonds, which, she alleges, were fraudulently and illegally embezzled and put in circulation by her late State Treasurer, E. A. Burke.

The bonds were held by Miss Laura Gaines, and were pledged by her to the Canal Bank, and they are both made defendants.

The State also claims from Miss Gaines a judgment for three thousand six hundred dollars, amount of interest coupons collected by her on said bonds.

The defendants answer, asserting their just title as bona fide holders of said bonds, which they assert to be valid and binding obligations of the State, and they pray for judgment rejecting the State’s demand, and further decreeing that they be paid by the State in principal and interest, according to the terms of the contract.

From a judgment in favor of the State, the defendants appeal.

The issues involved are three, viz.:

1. The right of the State to oust the defendants of the possession of the instruments purporting to be bonds of the State, and to take the game into her own possession.

2. The right of the State to recover from Miss Gaines the amount of the interest coupons collected by her as having been unduly received.

3. The right of defendants to recover judgment against the State decreeing her liability for the principal and interest of said bonds to be paid according to the terms of her contract.

The third issue just mentioned is one which must be unhesitatingly decided against the defendants.

The State can not be sued before her own tribunals without her consent, and she has given no such consent. The question is not affected by the fact that the claim is a demand in reconvention set up in a suit brought by the State. State vs. Bradley, 37 An. 623.

So far as the other two issues are concerned the rights of the defendants as bona fide holders of said bonds, and the liability of the State to them as such, are urged as defences to the demands of. the State, and if it were necessary for us to determine these questions in order to decide the issues between the parties, it might be our duty to do so.

But we are strongly impressed with the sense of our duty to abstain from considering or determining the liability of the State as a debtor on these bonds, which the political authority of the State has not consented to submit to judicial arbitrament, unless such determination is absolutely essential in order to dispose of those issues which are validly submitted to us. Our decision thereon would be in no manner binding upon or executory against the State, and would simply operate an unwarranted intrusion of our opinion in matters which are confided to the free discretion of the political branch of the government.

We therefore felt bound carefully to examine the issues presented, in order to see if they admitted of determination on any grounds which did not involve the necessity of considering questions of such vital moment to both the State and the holders of these instruments.

We have concluded that these issues may be readily determined on grounds involving no such necessity.

So far as the right of the State to recover possession of the bonds is concerned, we must consider the nature of such instruments. They belong to the class of things known at common law as choses in action, or demands enforceable by action. With us they are merely evidences of debt, and belong to the class of incorporeal rights. They are not, at common law, subjects of larceny, though by statutes, in this and many other States, they have been made so. 1 Bish. Or. L., Sec. 578.

They are no doubt subject to corporeal seizure under judicial process, and are treated in many aspects like corporeal property. They may become the subjects of action for specific recovery. But, nevertheless, their essential character and value consist in their -quality as evidences of debt.

The Oanal Bank is undoubtedly the lawful holder and possessor of these bonds, acquired by it in good faith and for a valuable consideration. They represent, on their face, an obligation of the State of Louisiana, signed by her Governor and Treasurer and under the seal •of State, all attached in accordance with law.

They are the sole evidence which the bank has of the claim which she asserts against the State.

Where is the law or the equity which would authorize the State to invoke judicial process to wrest from the hands of her apparent creditor the sole evidence of his claim, without at least submitting to the court .for .valid and binding determination all the, rights and obligations arising thereon? We think there is none.. •

...The demand of the State is entirely.one-sided.. If -we decide ii?, favor of the State,- the judgment is executory, the defendants are-ousted of possession of the sole evidence of their claim, and their mouths are-forever closed. If-we decide-in,favor of defendants, they, acquire no new right under the judgmentj but - are - simply left-in statu quo and at the mercy of the State. ,

- We think it too clear to require further argument that the State should nqt be permitted to invoke judicial aid in wresting from de; fendants their lawful possession of these evidences of-a serious claim against her, until she has first, by proper legislative action, consented to submit to the courts the determination of all the rights and obligations incident thereto. , .

The claim for the return of the interest coupons alleged to have been unduly collected and received by Miss Gaines might have presented these questions in a different-shape, requiring their determination — that is,, a suit for money unduly received, in which we would b.e bound to determine whether it was unduly received or not, and which would necessarily involve the right of Miss Gaines to receive and the obligation of the State to pay. ■

But, as the case is presented, the evidence clearly establishes that the bonds were unlawfully put in circulation by E. A..Burke, and the only ground upon which any holder thereof could assert auy rights thereon against the State would be that they were negotiable instruments, and that he acquired them before maturity in good faith and for a valuable consideration. After proof of their uníawful issue the burden was upon Miss Gaines to show that she acquired them in good faith. This burden she has entirely failed to discharge. We do not mean to asperse, in the slightest degree, the actual good faith of this lady.- It was simply her'misfortune, as thi's record shows, to be in- a condition of health and' nervous prostration : which, in the opinion of her physician, rendered it improper and unsafe for her to be examined in this case, either at the trial or' at any reasonably certain' date in the future! 1 Her counsel,-therefore, submitted the case without her own or any other evidence', on -the subject df the method- and circumstances' under which- éhe acquired these •bdndsi•' ■ ..........‘ *■ '• ':

> 'This is-fatal-to hdr-3efeh'eb'¿ independently df 'any‘question ad to the rights of holders in good faith of these instruments, and we have no ground for reversing the judgment for two hundred dollars rendered against her in the court a qua.

In thus disposing of this appeal we wish it distinctly understood that we make not the slightest intimation of an opinion on the rights and obligations arising between holders in good faith of such bonds and the State. When a case comes before us requiring the expression of our judicial opinion on those delicate and difficult questions, we shall not shirk the responsibility, but our sense of official duty requires us to abstain from expressing such opinions unless absolutely necessary to the decision of a pending cause.

It is therefore ordered, adjudged and decreed that the judgment appealed from, in so far as it maintains the sequestration and condemns the defendants to return to the State the bonds involved, be annulled, avoided and reversed, and that the demand of the State, to that extent, be dismissed, and that the sequestration be dissolved; and that, in other respects, said judgment be affirmed.

Dissenting Opinion.

Breaux, J.

The issues are presented.

The plaintiff and the defendant pray for a decision on the merits, settling the vexing and perplexing questions growing out of the embezzlement of certain bonds from the State Treasurer’s office.

The effect of good faith, its scope, extent, the right of those who have become owners for valuable consideration without notice, can be decided at this time and the question forever settled.

If the holders of these fourteen State bonds own values for which the State is bound, they should be relieved from the claim on their property.

If they are valueless, delay serves no purpose.

The political branch of the government will be influenced by the decision as well at this time as at any time hereafter.

It is preferable to decide the issues at once and not to postpone questions that must be decided later.

These bonds should remain in gremio legis until the rights of the the parties in interest are finally determined.

I therefore dissent.

On Application for Rehearing.

McEnery, J.

The consideration of the application for a rehearing in this case, by consent of counsel, was deferred until after the decision of the case of State vs. Hart, recently decided and reported 46 An. 55.

The issues involved in the two cases are identical.

It will be unnecessary, and it would be fruitless of results to reopen the case for argument and postpone our decree.

We will refuse the rehearing, and will annul our former decree, and will now enter such a decree as should have been rendered in the first instance. Therefore, for the reasons assigned in case No. 10,899, State vs. Hart, it is ordered, adjudged and decreed that our former decree rendered herein be annulled, and it is now ordered, adjudged and decreed that the judgment appealed from be affirmed.

Rehearing refused.

Miller, J. recused.


author: Miller, J.

text:
    No. 11,383.
    Mrs. Louisiana E. Flowers vs. William Hughes et al.
    The receipt by the appellant of a portion of the amount decreed to him by the judgment is acquiescence in the judgment and defeats the appeal. Code of Practice, Art. 567; 3 An. 115; 4 An. 150; 7 An. 233; 18 An. 64; 32 An. 947.
    Nor is this acquiescence at all affected because the appellant,receiving part of the amount of the judgment, undertakes to reserve his appeal. The reservation can not avoid the effect the law attaches to the acquiescence in the judgment. 18 An. 64.
    PPEAL from the CJivil District Court for the Parish of Orleans. Rightor, J.

      Riee & Montgomery and J. P. Blair of Counsel for the Motion:
    The transcript does not contain all the evidence on the trial of the case below.
    On examining the certificate the court will find these words qualifying the usual declaration as to the completeness of the transcript: “ Record No. 34,962, being succession of John Hughes, offered in evidence by Mr. Blair, attorney for Mrs. Murdock et als., defendants, having /been only partially copied as per instructions of counsel for defendant and appellant, copied at page 420.” On the page referred to will be found the following remarkable instructions: “ Inasmuch as the record of the succession of John Hughes, No. 34,962, was offered in evidence by Mr. Blair, one of the counsel for defendants, was offered, but not filed, for the purpose of showing that the succession of John Hughes has been opened and administered, and the heirs put into possession, and the District Court admitted the record for the purpose, and inasmuch as the facts for which it is offered are not disputed, you should and shall not include in your transcript more than the several petitions and orders putting the heirs in possession. “ New Orleans, October 16,1893.
    “ George l. Bright,

      “Counsel for Wm. Hughes.

      “ To the Clerk of the Civil District Court.”

    The court, over objection, had admitted the entire record.
    Appellant’s counsel, not satisfied with reserving a bill of exceptions, has constituted himself a court of review, has set aside the ruling of the lower court, and has issued a decree in the form of instructions to the clerlr, directing that only the portions of the record which he designates shall be considered in evidence and shall be embodied in the transcript.
    When a transcript, made under instructions of counsel for appellant, is defective and incomplete, the penalty is dismissal of the appeal. Heirs of Hoover vs. York, 38 An. 652; Samuels vs. Brownlee, 38 An. 36; Morrison vs. Lynch, 36 An. 611; Torres vs. Falgoust, 35 An. 818.
    It can not be controverted that under the laws and jurisprudence of this State the party who voluntarily executes, either partially or in ¿cío, a judgment rendered for or against him, or who voluntarily acquiesces in or ratifies, either partially or in toto, the execution of that judgment, is not permitted to appeal from it. 0. P. 567; Williams vs. Duer, 14 La. 523; State vs. Judge of Parish Court, 4 Bob. 85; Campbell vs. Orillion, 4 An. 115; Huhart vs. Golden, 7 An. 233; Landry vs. Connelly, 4 B. 127; Succession of Egana, 18 An. 72; Succession of Bougere, 28 An. 743.
    When a plaintiff who had appealed from a judgment rendered in his favor, but for a less amount than he claimed, executing a bond with surety for the costs only, subsequently causes a fi.fa. to be issued against the defendant, it will be considered a voluntary execution of the judgment and an abandonment of the appeal. Campbell vs. Orillion, 3 An. 115.
    The principle is well settled that a party is not permitted to do an act which he is at liberty to abstain from, and by mere reservation screen himself from the consequences of that act. Succession of Egana, 18 An. 64.

      A. J. Villere and Geo. L. Bright of Counsel, Contra:

    This is a suit for partition. The heirships are not disputed, but the appellant, William Hughes, one of the heirs, claims that the community that existed between his father, John Hughes, and his second wife, should be charged with certain moneys brought into marriage by his father. The parties were referred to a notary public. He made a partition, assuming that no charge should be made against the community, and he allotted to each of the heirs of John Hughes, including William Hughes, appellant, two thousand nine hundred and twenty dollars and seventy-four cents.
    So far as two thousand nine hundred and twenty dollars and seventy-four cents are allotted to each, no one disputes the correctness of that amount except William Hughes, who contends that, besides two thousand nine hundred and twenty dollars and seventy-four cents, allotted to him, he should receive a larger amount, because of the indebtedness of the community to his father, John Hughes. The two thousand nine hundred and twenty dollars and seventy-four cents were not in dispute. Several of the heirs had purchased property at the sale, and retained the price on account of their share. William Hughes, the appellant, did not purchase. His share was in the registry of the court. No one disputed his right to it. From a judgment which denied him the right to more than two thousand nine hundred and twenty dollars and seventy-four cents, he appealed, and upon a subsequent] petition, which showed—
    “ That judgment was rendered in this cause homologating the partition made by N. B, Trist, notary public, on May 1,1893, and on showing that said act of partition allots to your petitioner two thousand nine hundred and twenty dollars and seventy-four cents; that your petitioner opposed the partition and allotment made to him, claiming that the allotment to him should be largely increased, and all the other parties to the litigation maintain and assert the correctness of the partition and allotment as made by Trist, notary, as aforesaid ; that your petitioner, William Hughes, does not complain of the allotment of two thousand nine hundred and twenty dollars and seventy.four cents, made to him, but contends that the amount should be largely increased, and as prayed for in his petition; that the judgment of this court homologated the act of partition made by said Trist, notary public, and decreed your petitioner was entitled to only two thousand nine hundred and twenty dollars and seventy-four cents; that from said judgment your petitioner has taken a suspensive appeal, returnable to the Supreme Court on the first Monday of November next. And on further showing, your petitioner needs moneys to pay costs of transcript of appeal and other necessary expenses, your petitioner prays that it will please this Honorable Court to make an order directing the Whitney National Bank, in this city, where the moneys to be partitioned have been depositéd by order of court, and where the-same is now “ - deposited, directing and ordering said bank to pay out of said funds so deposited, to your petitioner or his attorney at law, the sum of five hundred doilars, without prejudice to the appeal taken by your petitioner, and without prejudice to the rule taken by him and now pending,” the court ordered: “ By reason of the foregoing petition, it is ordered that the Whitney National Bank, of this city, where the moneys to be partitioned have been deposited, and are now deposited, pay out of said moneys, so deposited, to the petitioner, William Hughes, or his attorney and counsellor at law, George B. Bright, the sum of five hundred dollars, without prejudice to the appeal taken by the petitioner, William Hughes, and without prejudice to the rule taken by him and nowpending.”
    This is not an acquiescence. 8 R. 253: 3 An. 589.
    The clerk of the court, in making the transcript, asked appellant for instructions as to what part of record 34,962 should be copied. This record was offered to show that the succession had been opened and administered and the heirs put in possession, and the court admitted it for that purpose.
    Inasmuch as it is not denied .that the heirs were put in possession, that the pleadings admit it, counsel for appellant instructed the clerk it was not necessary to copy a whole large record of irrelevant matters; that he should copy only that which referred to the object for which the record was offered, viz.: the putting in possession of the heirs. The clerk, after certifying that the transcript contains a true, correct and complete transcript of all the proceedings had, documents filed, testimony and evidence adduced on thp trial of the cause, states, that Record No. 34,962, Succession of John Hughes, was partially copied by instructions of counsel for appellant. Even had he had no instructions, he should not have copied more than was copied. .We repeat, the record, ' .although offered, was not filed in. evidence. It was offered to show the heirs , were put'in possession.. The petitions and orders putting them in possession áre copied. That they were put in possession Is not denied", but admitted.

      On Motion to Dismiss.
   The opinion of the court was delivered by

Miller, J.

The motion to dismiss is on two grounds: That the transcript is imperfect, and that the defendant in the lower court, the appellant here, has acquiesc.d in the judgment from which he appeals.

The suit was for a partition between the plaintiff and defendant and others, heirs of John Hughes. The defendant m his answer urged that in the petition the last community should be charged with certain amounts of the separate estate of his father, received by or which enured to the benefit of that community, and the answer also contained other demands pertinent to the settlement of accounts between the hems. The partition and sale of the property was decreed and the usual order of reference to the notary for the completion of the partition was made. The partition act awarded to the defendant twenty-nine hundred and twenty 74-100 dollars, and on motion of one of the parties the partition was homologated, against the objections of the defendant, whose demands urged in his answer were disallowed. From the judgment homologating the partition the defendant took this suspensive appeal. Pending his appeal, on his motion, he obtained an order to receive five hundred dollars of the amount awarded to him. by the judgment, and accordingly that amount was paid to him. . This payment is the acquiescence in the judgment, the basis of the motion to dismiss.

It is the text of the Oode that the appellant can not maintain his appeal from the judgment acquiesced in by him. Oode of Practice, Art. 567. To receive the amount of the judgment, in whole or in part, is, in its natural significance as well as under our jurisprudence, an acquiescence in the judgment. To receive part is as . significant as to receive the whole. If the defendant could receive part of the amount decreed to him and still preserve his appeal, he might just as well take the full amount. If the judgment was satis - fled by the defendant receiving the full amount, it certainly could not be urged he could still maintain the appeal from a judgment that, satisfied, had ceased to exist. Payment in part of the judgment as an acquiescence in that judgment is not to be distinguished from full payment. Any payment received by defendant under the judgment is fatal- to his appeal from it. See 3 An. 115; 4 An. 150; 7 An. 233; 18 An. 64; 32 An. 947.

The defendant contends he can maintain his appeal, because he claims more than the judgment gives him, and his acquiescence is only to the extent of the amount decreed to him, but does not extend to the greater amount he claims and that the judgment disallows. But it is only through the judgment he can appeal to claim the greater amount, and if he acquiesce in that judgment the basis for his appeal disappears. It is often the experience that the plaintiff asserting a money demand recovers less than he claims. But, of course, no one supposes he could collect his judgment and still maintain his appeal, because he demands a greater amount than that decreed to him. Such a pretension was advanced in one of the cases cited in this opinion, where the appeal was devolutive. It was supposed in that case that the plaintiff, taking only the devolutive appeal, could collect his judgment and still prosecute his appeal for the greater amount he claimed. The court discarded this pretension, and held that acquiescence in the judgment by payment ended the appeal, though plaintiff claimed more than the judgment gave him. See 8 An. 115.

The defendant cites the case from 3 Rob. 253. There the judgment was in favor of the plaintiff for the partition of the land, and against him in favor of defendant for the improvements. The plaintiff took steps to execute the judgment in his favor for the partition, but appealed from the money judgment against him for improvements; that is, he took the appeal from the judgment to contest the money demand. The court held in that case, on the motion to dismiss, that, acquiescence in the decree for the partition was not acquiescence in the decree against plaintiff for money. There was no act of plaintiff in that case of acquiescence in the money decree. The other case cited by defendant (3 An. 593) is that of an injunction against the seizure of property. The injunction was on motion dissolved aS' to part of the property, and that part plaintiff proceeded to seize and sell. By a subsequent judgment the injunction was maintained as to the residue of the property seized, and from that judgment plaintiff appealed. The court on a motion to dismiss held, that executing the judgment dissolving the injunction as to part of the property was not an acquiescence in the judgment maintaining the injunction as to the residue. There were two judgments. The court, observed, the judgment in that case was not indivisible. There was manifestly in that case no acquiescence in the judgment appealed. from, because the appellant had executed another judgment. Here, there is one indivisible judgment in favor of the defendant for a sum of money. He takes part of the sum decreed to him. That must be deemed an acquiescence in it. The circumstance that in taking it,, he undertakes to recover his right to the appeal is of no consequence. The protest itself evinces his appreciation of the significance of the act; the protest is unavailing to avoid the consequence the law attaches to acquiescence in the judgment.

It is a reluctant duty to dismiss appeals, thus precluding the relief sought by the litigant in the court of last resort. In this case the court conceives there is no alternative.

It is therefore ordered, adjudged and decreed that this appeal be dismissed at appellants’ costs.

Rehearing refused.


author: Nicholls, 0. J.

text:
    No. 11,470.
    The Cypress Shingle and Lumber Company vs. P. Leonce Lorio.
    1. A person who has made advances of money and also of supplies in kind, in aid: of the deadening of trees and the cutting and hauling of logs, can not claim a privilege for the whole advances on the logs and also a vendor’s privilege on the special articles furnished. McRae vs. His Creditors, 16 An. 306.
    2. The affidavit made for the purpose of obtaining a writ of sequestration is prima, facie evidence of the facts authorizing the writ.
    A PPEAL from the Fourteenth District Court, Parish of Iberville. Talbot, J.

      Alex. Hebert, Geo. Wailes, Geo. L. Bright and A. H. Leonard Attorneys for Plaintiffs and Appellants:
    Appellant claims that the judgment rendered in the court a qua is erroneous in so far as it dissolves the sequestration. We are utterly at a loss to conceive the reason which induced the learned judge a quo to so decide.
    There was no motion made to dissolve the sequestration, no suggestion in argument that it should be dissolved, and if there had been, such motion or suggestion could not have prevailed. There can be no doubt with regard to the advances made by the company to Lorio. He does not dispute them.
    Act 33, session 1882, invests any person advancing money or furnishing supplies to enable another to deaden, cut, haul, float or raft any logs or forest timber, with a privilege upon such logs or timber.
    • The affidavit, order and bond for sequestration do not seem to be in any respect defective.

      R. N. Sims and G. A. Gondran Attorneys for Defendant and Appellee:
    A contract should be construed to give effect to every part of it. 3 An. 363; 7 An. 229; 8 An. 488; C. C. 1942, 80.
    Plaintiff’s mere demand for timber, without any offer to comply on his part, does not constitute default. C. C. 1912,1913; 23 An. 107; 19 An. 84, 130, 178; 37 An. 835; 31 An. 165.
    Plaintiff’s original petition does not allege that defendant was ever put in default, and contains no prayer for a specific performance or for the rescission of the contract. The supplemental petition contains no allegation as to the putting 'in default, and sets forth no additional fact in support of the prayer therein for the annulment of the contract. Neither petition exhibits legal or sufficient ground to warrant the avoidance of said contract, by judgment, at plaintiff’s instance, nor the recovery of the amount advanced under the contract, nor for alleged damages. As to all of these matters, plaintiff’s petition and supplemental petition do not disclose any cause of action, and defendant’s exception thereto ought to have been sustained. 0. 0.1912-1913; 30 An. 1125; 37 An. •659-885; 5 La. 415; 14 La. 80; 11 La. 240; 7 La. 193; 18 La. 510; 3 An. 28; 9 Rob. 52; 2 Au^ 392. The allegations of the petition, as to plaintiff’s obligations under the written contract, are controlled by the terms of said contract, which is annexed to plaintiff’s petition as part thereof. Hennen 1148, No. 4.
    The dismissal of plaintiff’s petition on the exceptions of no cause of action would have left intact defendant’s reconventional demand, his answer having been filed before the exceptions. Defendant, as appellee, having answered the appeal, is entitled to ask for the reversal of any part of the judgment of the lower court in which there may be error to his prejudice. 0. P.,Arts. 888, 890; Hennen, p. 70; 7 N. S. 657; 15 La. 352; 12 An. 241.
    The contract involved, contemplated and stipulated the delivery by defendant to plaintiff of about five million feet of cypress lumber to be taken from the former’s lands after being deadened, cut and hauled, together with other usual preliminaries and. preparations incident and necessary to its proper manipula-' tion, and further contemplated and stipulated expressly the obligation on the part of plaintiff to advance the defendant all the money required to fulfil his part of the contract.
    Plaintiff utterly failed to carry ;out its agreement with the defendant, and its refusal to make further advances was under a mere groundless pretence. Plaintiff was formally put in default on the 9th of February, 1893, and defendant may lawfully claim damages for all losses suffered by him resulting from his enforced abandonment of the work. Sutherland on Damages, yol, 1, pp. 127,128, 130, 132; 0. 0. 1934; 44 An. 472.
    Measure of damages. Defendant entitled to the profits he could have made under the contract. Full indemnity the true measure of damages, plaintiff having acted in bad faith. 0. 0., Art. 1934; Sutherland oaDamages,, pp. 17, 74 and 149; 44 An. 472; 26 Kan. 482; 10 N. Y. 489; 72 111. 161; 55 N. Y. 664; 13 Wis. 34; 73 Fean. 365.
   The opinion of the court was delivered by

Nicholls, 0. J.

On 27th September, 1892, the plaintiff fund ¡defendant entered into a contract which recites that “ the defendant is the owner of a certain tract of land with cyress lumber thereon to the amount of five million feet, more or less, and of o her tracts from which he also intends to get timber.” The contract contains the following stipulations: ,

1. Lorio agrees to deaden, cut and haul, on the bank of Bayou Maringouin, there to be measured and docked, then to be rafted and delivered at the mouth of the bayou to the company, lengths of timber of not less than a specified measurement.

2. The company are to measure the timber at the end of each month as it lays on the bank of Bayou Maringouin, ready to be rolled into the bayou; the timber after being measured is to. be .rolled into the bayou, rafted and run down to the mouth of the bayou.

3. Lorio agrees to deliver the timber as aforesaid at the mouth of the bayou, all necessary expenses incurred in delivering the timber At the mouth to be paid by him.

4. The timber to be delivered at the mouth of the bayou for the sum of eight dollars per one thousand feet B. M. The shingle company obligating themselves to furnish to Lorio all money needed for current expenses in deadening and hauling, etc., and also to advance money on two timber wheels, also to advance feed for oxen.

5. As the timber is measured at the end of every thirty .days, settlement is to be made at every time — one-third cash, one-third four months’ note, one-third eight-months’ note.

6. The money advanced on current expenses and for feed and timber wheels is to be deducted from the first cash payment on the timber. In the event that the cash payment is less than the money advanced, then the balance of the money due on expenses is to be deducted from the second cash payment on the timber, and- if ,.expenses still exceed the amount cash due, the money still due for Advances will then be deducted from the third cash payment. •

7. Lorio agrees to commence work at once as to deadening and -other preparations necessary in manipulating the timber.

.8. The company agree to let Lorio have five hundred dollars -in ■ the course of eight or ten days, to be deducted from the second or third cash payment, on which he is to pay interest at eight per cent.

In February, 1893, the plaintiffs brought the suit, in which they ¡prayed for a judgment against the defendant for the sum of two thousand two hundred and thirty-four dollars and twenty-three cents, with interest, with recognition of a privilege to secure payment of the same upon certain logs and other movable property of the defendant.

In the petition filed, after referring to this contract plaintiffs declared that it was understood and agreed that the money advanc d fór current expenses, for feed and for the timber wheels was to extend no further than the third cash payment, claiming that under their construction of the contract the first cash payment was to have been on October 27, 1892, the second on the 27th of November, and the third the 27th of December. That the advances were not to extend further than the date of the third cash payment, as it was the true intent and understanding of the parties that Lorio could then by discount or otherwise realize on his notes and would be his own furnisher of supplies, and would then require but small advances if any at all.

Plaintiffs further averred that, believing defendant to be acting in good' faith, they not only advanced him the money and mater als mentioned in the contract but made him advances both in money and materials far in excess of his obligations; that from the date of the contract to the 23d of February, 1893, they advanced him in money- one thousand seven hundred and sixty-two dollars and twenty-three cents in cash, and four hundred and seventy-one dollars and fifty cents in materials.

That though defendant bound himself to haul with ox teams timber from his lands to the bank of the bayou, and to deliver same at the mouth of the bayou every thirty days, he had failed and refused to do"" so, in violation of his contract, nothwithstanding the most favorable and exceptionally fine weather.

That defendant had never exhibited to them an account of his current expenses; that although he had drawn money for the purpose Of paying his labor, he had failed to do so, and owed largely on that ' item for the same; that in violation of his co tract and in fraud of plaintiffs’ rights he had used the money advanced to under-cut timber, and to prepare to float the same during the coming spring in case of a sufficient flood so to do, when by the calls of the contract ■he was to haul the same; that to these and other purposes he had ■'fraudulently diverted the advances made him to carry on his contract.

That defendant had hauled one hundred and sixty-five thousand feet of timber which, had been measured and rolled in the bayou, and. that he had on the banks fifty thousand feet to be measured and rolled in said bayou. That it would cost, about two hundred and fifty dollars to roll, raft and float all of said timber to the mouth of, the bayou at the point of delivery.

That defendant insisted that the plaint ffs were bound under the •contract to advance him money without limit, and declared that he would deliver timber when he was ready and when it suited his convenience. Plaintiffs claiming that they had a privilege on the timber then in and on the banks of the bayou, and on the movables advanced to Lorio, to the extent of two thousand two hundred and thirty-four dollars and twenty-three cents, and averring that they verily believed and feared that defendant would part with and dispose of said movables in his possession, and upon which they had a lien during the pendency of the suit, prayed for and obtained an order for the sequestration of the same. A claim for damages was set up by the plaintiffs, but no special reference to it is necessary, as it has been substantially abandoned in this court.

The sequestration ordered having been executed by seizure of a number of logs and other movables belonging to defendant, it was released on bond furnished by the latter.

Plaintiffs subsequently filed an amended petition, in which they prayed that the contract be set aside, annulled and avoided on account of the wrongful, tortious and illegal acts of defendant.

Defendant pleaded the general issue, but further answering admitted that he entered into the contract declared upon. He averred that soon after the same he went to work to carry out his part of the agreement; that he cut and hauled from his land to the banks of the bayou about two hundred thousand feet of timber, ready to be delivered at the mouth of the bayou as soon as the stage of water would permit of floating it; that in further compliance with his part of the agreement he caused to be deadened three thousand cypress trees on his lands for the purpose of having them cut and hauled to the bayou, to be delivered to the plaintiff as stipulated; that during the month of January and early part of February, 1898, in view of the fact that plaintiffs had ceased to make the necessary advances to enable him to carry out his contract, he made frequent demands on plaintiffs to make said advances and to furnish him with the funds required for the prosecution of the work; that the officers of the company, when they entered into the contract, knew that the disbursement of large sums of money would be required to deaden, cut and haul so vast a quantity of timber to the banks of the bayou, notwithstanding which the company ceased to make advances for that purpose, and persisted in their refusal to do so, ignoring and disregarding his demands; that on the 9th of February, 1893, he caused to be served a written notice and demand to the end of formally putting the company in default for non-compliance with and acting in violation of their obligations under the contract; that he had been at all times ready and willing to comply with all of his obligations under the contract, and that he had been prevented from continuing the prosecution of work solely by the wrongful neglect and failure of plaintiffs to perform thei- obligations; that the-active and wrongful violation of the contract had caused, and will-cause, him great damage and injury; that the deadened trees on defendant’s land, so deadened on the faith of plaintiffs’ obligations, are subject to deterioration and decay, and ultimate loss; that by’ plaintiffs’ failure to comply with their obligations and repudiation of their contract he will be deprived of the profits which would have accrued to him under the contract; that said profits embracing the' delivery of five million feet of timber to defendant would amount to-two dollars per thousand feet and to ten thousand dollars for the quantity of timber covered by said contract, which sum he is entitled to recover; that the deterioration and decay of the three thousand deadened trees would involve a loss to him of four thousand dollars, which amount he is also entitled to x’ecover. Defexxdant px’ayed that plaintiffs’ demand be rejected, and assuming the position of plaintiff in reconvention he prayed that plaintiffs be adjudged to have wrongfully and actively violated their contract, and by their wrongful acts to have annulled the same, and that he have judgment for the sum of ten thousand dollars as damages for the loss of profits which would have accrued to him under said contract, and for the further sum of four thousand dollars as damages for the loss occasioned and involved' in the deterioration and decay of the deadened trees.

The Disti’idt Court rendered judgment in favor of the plaintiffs, against the defendant, for the sum of two thousand two hundred and thirty-four dollars and interest, with privilege to secure the sum of seventeen hundred and thirty-four dollars and interest thereon, asbeitog for moneys’ and materials furnished by the plaintiffs on one hundred and sixty-five thousand feet of cypress logs in Bayou Maringouin, and fifty thousand feet of cypress logs on the banks of said! bayou, on two pair of timber wheels, three oxen, two hundred and ninety-seven chain-dogs. The judgment annulled, avoided and set aside the contract, and set aside and dissolved and avoided the sequestration decreeing that all the costs incurred by virtue of the writ of sequestration and the seizure thereunder be paid by the plaintiffs. It further dismissed the claim of both parties for damages, reserving to defendant his right of action for any damages caused by the wrongful issuing of the writs and the seizure.

The plaintiffs appealed. Defendant in answer to the appeal prayed that plaintiffs’ entire demand be rejected, that the contract referred to in the pleadings be avoided and set aside on his (defendant’s) demand, and not on that of plaintiffs’; that he have judgment for damages as prayed'for in reeonvention, and that the costs of both courts be cast upon the plaintiffs.

Both sides having asked the setting' aside of the contract, the judge’s action in so doing was correct. The only question touching this action is as to the party at whose instance the ávoidance must be properly held to have been made. Defendant contends, as we have just said, that the contract should have been set aside on hi® prayer.

The avoidance of the contract finds the parties in this situation r Defendant has received from the plaintiffs a quantity of movable® which he still holds and owns. He has received from them over two thousand dollars. By common consent and understanding, áve hundred dollars of this sum were applied by defendant to his household expenses; the balance was expended by him deadening, cutting and hauling timber on his land to the banks of the bayou. The number of trees deadened, cut and hauled and now in his possession is represented by over two hundred thousand feet of timber in the bayou on his land and on the bayou bank — the number of deadened trees still standing on his land is about three thousand. This is the defendant’s position. Plaintiffs, on the other hand, have up to date paid out the money and furnished the supplies mentioned, and not only have not received anything by way of return, but are confronted with a large claim for damages.

We have examined the record with great care to see whether this unequal condition of affairs was brought about by the conduct of the plaintiffs themselves. It will serve no good purpose to enter minutely into the testimony. It suffices to say that, in our opinion,, defendant’s complaints are not only without merit, but, on the •contrary, his cause has been unjustifiable and his demands unreasonable. There is nothing in the contract to warrant defendant in the pretension that plaintiffs were to continue to furnish him with money •and supplies, either until he should have deadened enough trees on his land to furnish five million feet of timber, or until he should have done this and should besides have cut and hauled the same to the bayou. With over two hundred thousand feet of timber on the banks of the bayou, ready for measurement and shipment (the product of the advances made by the plaintiffs), defendant was not warranted in attempting to hold on to the -same on the ground that plaintiffs had ceased to make advances under the contract. The contract is indefinite, both as to the quantity of timber which defendant was to furnish and the money and supplies plaintiffs were to advance, but it was clearly in contemplation of the parties that' the furnishing of the latter and the delivery of the timber were to go on, if not simultaneously, at least with reasonable relations, one to the other. Whilst it might have suited the defendant to continue indefinitely to deaden trees without delivering timber, this certainly would not have suited the plaintiffs, whose outlays were made with reference to prompt returns. We think plaintiffs did all that they •could have been expected to have done in the way of advances. The personal judgment in their favor, and that rejecting defendant’s claim for damages under the contract, must stand.

Plaintiffs’ object in taking the appeal was to obtain a reversal of that portion of the judgment dissolving the sequestration and reserving to defendant a right of action for any damages caused by the wrongful issuance of the writ of sequestration and to obtain a judgment in this court sustaining and maintaining the sequestration.

We concur with the District Court in its c.inclusions that plaint.ffs’ claim is to extent of one thousand seven hundred and thirty-four ■dollars and twenty-three cents, secured by privilege upon the logs, ¡but we do not think the privilege covers strikes and the timber wheels, the oxen or the chain dogs. These articles are themselves part of the supplies for the furnishing of which we have recognized privilege on the logs. See McRae vs. His Creditors, 16 An. 806.

The district judge does not state upon what ground he dissolved the sequestration. There was no motion made to dissolve it. The affidavit seems to be in due form and the allegations of the petition appear sufficient to justify the writ. Johnson vs. Johnson, 18 An. 581.

Defendant does not present to this . onrt any reasons going to show error in the order for the sequestration, and we think it should have been maintained as to the logs, though not as to the other movables, which as we have stated were not struck by privilege.

Forthe reasons herein assigned itis ordered, adjudged and decreed that the ju gment appealed from be reversed and set aside in so far as it dissolved the sequestration issued in this case and reserved to defendant a right of action for any damages caused by the wrongful issuance of the writ of sequestration.

It is further ordered, adjudged and decreed that the judgment be amended in so far as it recognizes a privilege upon the timber wheels, the oxen and the chain dogs; the privilege claimed on the said movables being hereby denied.

It is further ordered, adjudged and decreed that the writ of sequestration which issued herein be and the same is sustained and maintained upon the property sequestered except as to the timber wheels, the oxen and the chain dogs, and the said sequestration is reinstated.

It is further ordered, adjudged and decreed that the judgment, except as to the particulars herein above amended and reversed, be and the same is hereby affirmed.


text:
    No. 11,454.
    Mayor and Council of Alexandria vs. H. H. White.
    Municipal corporations are restricted by their charters with respect to the taxes the corporation may impose on property or occupations. See Burroughs on Taxation, Chap. 19, p. 381; 29 An. 261.
    The Legislature may, by general act i. e. applicable to all such corporations, enlarge their taxing power — that is, without amending their charters, this enlargement of this taxingpower may be effected by general legislation. 1 Dillon, Ohap. 5, p. 169; Revenue Act 1890, No. 150, Sec. 14.
    On Application pok Reheaking.
    Legislative provisions conferring the taxing power on cities, towns and parishes are within the scope of the title of the act “To levy, collect and enforce payment of an annual license tax upon persons, associations or business firms and corporations pursuing any trade, profession,” etc. Act No. 150 of 1890; Const. La., Art. 29; Municipality vs. Michaud, 6 An. 606; Succession of Lambeth, 9 An. of 333.

      APPEAL from the Justice’s Court, Alexandria Ward, Parish of' Rapides. Raehal, J.

      John C. Ryan Attorney for Plaintiffs and Appellees:
    This suit was brought to recover from defendant, an attorney, five ($5) dollars amount of his license for practising law in the limits of the town of Alexandria,, during the year 1893. He contends that the town has no right, under its charter, to collect the license, and that the license is illegal and unconstitutional. The magistrate gave judgment in favor of the town, and defendant prosecutes this-appeal.
    Plaintiffs contend the power is given and conferred by the License Act of 1890, No. 150, by Sec. 14, p. 207, which reads; “Be it further enacted, etc., that any municipal or parochial corporation in the State shall have the right to impose a fair and equitable license tax on any business, occupation or profession herein provided for; provided, that all such license tax shall be graded.”
    The Legislature had the power to amend the charter of the municipalities in this-way. Dillon on Municipal Corporations, 4th Ed., pp. 140,385, reads: “The powers conferred upon municipal corporations may at any time be altered or repealed by the Legislatures, either by a general law operating upon the whole State, or in absence of constitutional restriction by a special act.”

      H. H. White and J. F. Aviail Attorneys for Defendant and Appellant :
    A statute will not repeal a prior statute merely because it repeals some and admits others, or adds new provisions. 124 TJ. S. 406.
    The provisions of a special act, or special authority derived from the Legislature are not affected by general legislation on the subject. 17 Wall. 425; 100 U. Sr 585; Cooley Const. Lim., p. 337; 1 An. 49.
    The general rule that a latter statute which is general does not repeal a former one which is particular, and that where there is a difference in the whole purview of two statutes apparently relating to the same matter the former statute remains in force, is applied.to the charters of municipal corporations. The law does not favor repeals by implication. American and English Encyclopedia of Law, Vol. 15, p. 974.
    The charters or acts of incorporation of municipal corporations within the State are the measure as well as the source of their powers. Mayor vs. Both, 29 An. 261.
    The general rule that the powers of a municipal corporation are to be construed with strictness is peculiarly applicable to the case of taxes on occupations. It is presumed the Legislature has granted in plain terms all it has intended to grant at all. If it is not manifest that there has been a purpose by the Legislature to give authority for collecting a revenue by taxes on specified occupations any exaction for that purpose will be illegal. Cooley Const. Lim., p. 387; Act No. Ill, 1868, Sec. 12; Act. No. 150,1890, Sec. 14; Act No. 138, 1880; New Iberia vs. Migues, 32 An. 923; Act 107, 1868.
   The opinion of the court was delivered by

Miller, J.

There is an appeal under Art. 81 of the Oonstitution from the judgment of the justice’s court of the Alexandria ward, parish of Rapides, in favor of the town of Alexandria, against the defendant for the amount of the license tax as an attorney at law.

The defence is, there is no authority to exact the tax.

The charter of the town, granted in 1868, conferred no power to impose taxes on occupations. Deriving their existence from their charter, municipal corporations can exert the taxing power only to the extent authorized by the Legislature. Dillon on Municipal Corporations, Vol. 2, Secs. 740, 763; Mayor vs. Roth, 29 An. 261; Board of Trustees vs. Migues, 32 An. 923. The Legislature, however, in the revenue acts of 1886 and 1890, has manifested its appreciation that all parochial and municipal corporations should possess the power to impose license taxes. These acts declare that all municipal or parochial corporations shall have the right to impose a fair and equitable license tax on any business, occupation, or profession herein provided for; provided, that license shall be graded. See Act No. 101 of 1886, See. 13; Act No. 150 of 1890, Sec. 14. These acts provide for license taxes on attorneys. In pursuance of this authority, the plaintiff, by ordinance, imposed such licenses and under that ordinance the defendant is sued.

In our opinion'it was competent for the Legislature by a general statute to enlarge the taxing powers of parochial and municipal corporations. 1 Dillon Municipal Corporations. If in the legislative wisdom such increase of the corporate powers was beneficial, it is not easy to appreciate any objection to a general law, i. e., applicable to all municipal or parochial corporations, declaratory of the legislative purpose. The defendant contends, on the contrary, that the charter of Alexandria should have been amended under the Act No. 110 of 1880, providing for amendments to charters of towns or cities, and it is urged, it was only by such amendment, the power to tax occupations could haye been conferred on plaintiff. While under the act of 1880 the town might have obtained the necessary amendment conferring the power to exact licenses, still the competency of the Legislature by general act to deal with the subject is, in our view, undoubted. Again, the defendant urges that the charter of Alexandria being special legislation is not to be deemed affected by provisions applicable to towns generally, contained in the Revenue Acts of 1886 and 1890. But the express purpose of the provisions of the revenue acts under consideration was to supplement with the right to tax occupations the powers of all parochial and municipal corporations not clothed with that right by their charters. The charter of Alexandria not conferring any taxing power in respect to occupations was clearly within the scope of the provisions in the revenue acts.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed at the costs of the appellant.

On Application eor Rehearins.

The defendant in his application for a rehearing in this case directs our attention to his defence that the power to tax occupations or professions conferred on municipal and parochial corporations by the acts of the Legislature of 1886 and 1890 is not embraced in the titles of the acts. We had not overlooked the point, but did not appreciate it was pressed. The titles are to levy, enforce and collect a license tax, etc. The act was intended to embrace the State and the political corporations — cities, towns and parishes, each exerting within its sphere the taxing power. In the body of the act the power is conferred on parochial and municipal corporations to levy license taxes. We think these provisions are fairly within the scope of the title to be construed as expressed by the court accord-big to the understanding of reasonable men. Const., Art. 29; 6 An. 605; 9 An. 239; Act No. 161 of 1886, Sec. 13; Act No. 150 of 1890, Sec. 14.

It is therefore ordered that the application for the rehearing be refused.