author: Miller, J.

text:
    No. 12,224.
    State of Louisiana vs. Azarie Meaux.
    See State vs. Riesz, ante, p. 1446.'
    A PPEAL from the Eleventh Judicial District Oourt for the Parish of Acadia. Dupré, J.

      M. J. Cunningham, Attorney General, R.. Lee Garland, District Attorney (and P.' A. Simmons, Jr., of Counsel), for Plaintiff, Appellee. . • ■

      Philip S. Pugh and E. P. Veazie for Defendant, Appellant.
    Submitted on briefs November 7, 1896.
    Opinion handed down November 30, 1896.
    Rehearing refused December 17, 1896.
   The opinion of the court was delivered by

Miller, J.

The accused, sentenced for lying in wait, armed, with intent to murder, appeals, and' relies for reversal of the sentence on his motion to quash the indictment, and the bill of exceptions to the action of the court overruling it.

The motion was on the ground that the judge of the lower court ex proprio motu discharged a member of the grand jury, substituting another in his place, and on the further ground that those who composed the tral jury were additional jurors drawn in the middle of the term to serve another week. It appears the discharge of the member of the grand jury was because he was found to be disqualified, and the additional venire was drawn because it was impossible to dispatch- the criminal cases before the court without the new drawing of jurors.

The questions presented by the motion to quash have received our attention in other eases recently decided. For the reasons given in the cases of the State vs. Wright, 41 An. 600; State vs. Riez, ante, page 1446; Act No. 89 of 1894, Sec. 7, it is ordered that the sentence of the lower court be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12,316.
    The State vs. Ned Shelby.
    See State vs. White, ante, p. 1444.
    A PPEAL from the Twentieth Judicial District Court for the Parish * of Assumption. Guión, J.

      M. J. Cunningham, Attorney General, and G. A. Gondran, District Attorney, for Plaintiff, Appellant.

      Pugh & Pugh for Defendant, Appellee.
    Submitted on briefs November 21, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Miller, J.

This is an appeal by the State from the judgment sustaining the motion to quash, united with a demurrer to the indictment, on the ground that the Sec. 792 of the Revised Statutes on which the prosecution is based was repealed by the Act No. 59 of 1896. The demurrer and motion to quash were sustained without putting the accused on his trial.

For the reasons assigned in the opinion in State vs. White, ante, page 1444, it is ordered, adjudged and decreed the judgment sustaining the motion to quash is avoided and reversed, and the lower court is directed to proceed with the trial of the accused.


text:
    No. 12,253.
    State of Louisiana vs. Arthur Brooks et al.
    Tlie discharge by the court of a grand juror not qualified to serve, affords the accused no cause of complaint, the disqualified juror not participating in finding the indictment against the accused. Wharton’s Criminal Law; Staters. Causey, 43 An. 897.
    APPEAL from the Eleventh Judicial District Court for the Parish oi St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, and R. Lee Garland, District Attorney, for Plaintiff, Appellee.

      John N. Ogden for Defendant, Appellant.
    Submitted on briefs November 7, 1896.
    Opinion handed down November 16, 1896.
   The opinion of the court was delivered by

Miller, J.

The only question in this case of an appeal from the sentence of defendant for robbery is that arising by the exclusion of one of the grand jury directed by the lower court because the juror was ascertained not to be qualified to serve. He did not participate in the finding of the indictment.

It was the duty of the court to purge the jury of disqualified jurors, and no cause of complaint was thereby afforded the defendant. State vs. Causey, 43 An. 897, and State vs. Riez, ante, p. 1446.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


author: Nicholls, C. J.

text:
    No. 12,265.
    Succession of Alphonse Levy.
    While the Supreme Court recognizes the right of persons having exclusive interests in a particular matter .to make such compromises and agreements concerning the same as to them may be deemed advisable , provided they be not contrary to the law, it can not be controlled by stipulations and agreements relatively to subjects in which third persons may be concerned. If the judgment of the District Court fixing an amount of an administrator’s bond be legally correct, the Supreme Court could not reverse it and remand the case with directions as suggested by the parties to the proceeding which provoked the judgment appealed from.
    Where a notary taking an inventory of the effects of' a succession has failed to follow the requirements of Art. 1107 of the Civil Code that he should note the distinction between property which the deceased owned entirely, and that in which he simply had an interest, it can not be required fn order to qualify as administrator of the succession that bond be furnished to an amount one-fourth beyond the estimated value of the effects belonging wholly to the deceased, and also to the estimated value (as fixed in the inventory) of the properties in their entirety which belong -to commercial partnerships and joint stock companies in which he had an interest.
    Article 1041 of the Civil Code, which provides that “ as soon as the inventory or inventories of the succession are finished, the judge shall name an administrator to manage the property thereof and oblige him to give bond and sufficient security for the fidelityo£ his administration, unless the administrator pre fer to furnish, instead of this security, a special mortgage on unincumbered property of a value sufficient to serve as a guarantee for his administration,” justifies the exercise of judicial discretion,in determining under some circumstances and to some extent the amount which an administrator should presently furnish as a guarantee for his administration, the amount so fixed being liable to be increased as changing conditions call for.
    APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Perrault, J.

      H. L. Garland and Bernard Titche for Lazare Levy, Plaintiff in Rule, Appellant.

      JB. D. JBstiUelte, for Creditors, Opponents, Appellees.
    Argued and submitted December 14, 1896.
    Opinion handed down December 19, 1896.

      This case was before the court upon the following agreed statement of facts:
    “ Alphonse Levy died in St. Landry where he resided in February, 1896.
    “ He had business relations as partner, with several persons, as joint owner with others, as member of stock companies, etc.
    “ His partners Julius Meyers of J. Meyers & Co., and Mentor Andrus of Sunset Mercantile Company, Limited; Lazare Levy of Lazare Levy &Bros., have obtained by orders of court possession of the assets of said firms, and other persons, to-wit: W. W. Duson and Eraste Durio, have possession of the properties belonging to the stock companies by virtue of their rights as managers, etc.
    “ Inventories were made in several of the parishes of the State wherein Alphonse Levy had properties belonging to him separately or with others as partners, joint stock company, etc. Lazare Levy, who was his heir at law, applied to be appointed administrator of the estate of Alphonse Levy.
    “ The inventories taken included all the properties in which Alphonse Levy had an interest, and their amount aggregated three hundred and forty-two thousand nine hundred and eighty-six dollars.
    “ With the exception of the individual properties of Alphonse Levy included in these inventories, and the aggregate value of which is twenty-eight thousand nine hundred and twenty-nine dollars, all of the properties inventoried are in the possession of the liquidators, managers and eo-proprietors entitled to administration, etc.
    “ These have actual or constructive possession of said properties.
    “To qualify as administrator of the estate of Alphonse Levy, Lazare Levy took out á rule to have the court determine the amount of bond which said administrator should give.
    “ The rule was served on the attorney of the absent heirs, who put the matter at issue by filing a general denial. Creditors (to-wit: St. Landry State Bank; H. & C. Newman; Hyman, Hiller & Co.) intervened in the rule and opposed the fixing of the bond for less than one-fourth over amount of inventories.
    “ The St. Landry State Bank, H. & C. Newman and Hyman, Hiller & Co. intervened in the rule and opposed the application. The attorney of absent heirs pleaded the general issue.

      “The twenty-eight thousand nine hundred and twenty-nine dollars is the aggregate of valuation of separate individual properties of estate of Alphonse Levy which the administrator jvould be put in charge of.
    “ Lazare Levy, as surviving partner of Lazare Levy & Bro., has been put in possession of all the assets of said partnership, amounting to one hundred and seventy-one thousand dollars.”
    In the rule taken out by Lazare Levy, referred to in the above statement, his prayer was that he be permitted to qualify as administrator of Alphonse Levy on furnishing a bond “ fixed on the basis of twenty-eight thousand nine hundred and twenty-nine dollars and sixty cents, the aggregate valuation of appraised properties with which petitioner is to be entrusted. ’ ’
    The court dismissed the rule, stating “ the law was plain that the bond of the administrator should be for the amount of the inventory of the estate plus one-fourth over and above said amount, deducting bad debts. The inventories showed the assets of the estate of all kinds, movables, immovables, rights and credits far exceed twenty-eight thousand nine hundred and twenty-nine dollars, and consequently the court was without power to accept a bond differing from the provisions of Art. 1048 of the Civil Code.”
    Lazare Levy, the mover in the rule, appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

The succession of Alphonse Levy, although opened in February, 1896, has remained up to the present time without an administrator, though the properties of the various partnerships, corporations and joint companies in which the deceased had an interest had been placed by the court in the hands of liquidators, etc. Who has had, up to the present time, the custody of the property other than those so administered, which belongs directly to the deceased, does not appear. Lazare Levy declares he has accepted the succession as beneficiary heir; it is possible and probable that he has had charge in that capacity. C. C. 996, 997, 998.

The presumptive heirs in Europe do not appear to have taken any steps themselves in the way of either acceptance or renunciation of their brother’s estate, nor have creditors made any move to force them to declare their intention in that respect.

The inventories which have been taken are doubtless correct as inventories of the property of the different partnerships and stock companies in which the deceased had an interest (C. C. 1103, 1138, 1139); but the notaries who took them do not seem to have complied with Art. 1107, which requires them to make a distinction between properties held in entirety by the deceased, and that which belonged to him in part only. There should have been an estimate made of the value of the present or eventual interest of the deceased in such properties.

An administrator is responsible, not simply for the property in his possession and under his direct administration, but for a proper legal supervision over the administration of that in which the succession has an interest by those who have primarily the administration thereof and who are primarily responsible for the same. The extent of this responsibility may be hard to fix and determine, but none the less it ought to enter as a factor in the determination of the amount of the bond the administrator should give. It is a variable, a fluctuating and not a constant factor, and the amount can be added to from time to time as the court directs. It is obvious that the property of this succession should be placed under the charge of some person authorized to that effect by the court. Since this case has been submitted for decision, a motion has been made by all parties that we reverse the judgment of the lower court, and remand it with directions to the District Judge to grant the application made by Lazare Levy to be permitted to qualify as administrator upon giving security as proposed to be given by him. While we recognize the right of persons having exclusive interests in a particular matter to make such compromises and agreements concerning the same as to them may be deemed advisable, provided they be not contrary to the law, we can not be controlled by stipulations and agreements relatively to subjects in which third parties may be concerned. If the judgment of the District Court was really legally correct we could not reverse it and remand the case with directions as suggested (Succession of Hardy, 46 An. 1309). We-are, therefore, to inquire whether the District Judge, in reaching his conclusions, did not give too rigid an interpretation to a particular article of the Code, leaving other articles out of consideration.

Article 1048 of the Civil Code unquestionably declares, that “the security to be given by every administrator appointed under that article should be one-fourth beyond the estimated value of the movables and immovables and of the credits comprised in the inventory exclusive of bad debts;” but this does not mean that the inventories, as made, should conclusively fix and determine the amount of the security. If they are obviously defective as succession inventories, they are not absolute guides. In the case at bar to require a bond to be given to cover all the properties of all the partnerships and companies in which Alphonse Levy has an interest would practically be prohibitive of an administration of the succession, or lead to ruinous charges by way of administration commissions.

The District Oourt was clearly wrong in exacting the giving of such a bond. While Art. 1048 fixes the amount of the security to be given as therein provided, Art. 1041 seems to contemplate that there might exist a condition of things such as to allow some flexibility in the court in its decision as to the full amount. The variable factor we have mentioned is one which justifies the exercise of judicial discretion in determining to some extent the amount which an administrator should furnish as a guarantee for his proper administration (Labranche vs. Trepagnier, 4 An. 560), the amount so fixed being liable to be increased as changing conditions will call for.

If there were no one willing to take upon himself the duties and obligations of “ regularly appointed administrator ” of this succession (if we may so express ourselves) a question might arise whether we could not and might not be called upon in the exercise of our equitable powers to place its property in charge of a custodian or provisional administrator under temporary special bond as the court has sometimes deemed itself authorized to do in matters of abandoned property of corporations.

In the succession of De Flechier, 1 An. 21, one Domingon, who had been appointed administrator of that succession on condition of his complying with the requirements of the law, having assumed the administration without giving security as required, De Flechier, a beneficiary heir, alleging said fact, moved that he be dismissed from office. The fact alleged having been established, Domingon was removed’, and the court forthwith, without advertisement, appointed De Flechier in his stead. Domingon appealed. On appeal the judgment was affirmed. In its opinion, the court said: “ The appellee (De Flechier) was one of the beneficiary heirs of the deceased, and was a person to be preferred by the judge in selecting an administrator in place of the one removed (Old C. C. 1035; Rev. C. C. 1042). On the removal of the administrator it was necessary to appoint some one to take charge of the effects of the succession. The selection made by the judge we think a proper one. He appointed the appellee, and his appointment can stand provisionally until an application be made for the appointment of a regular administrator under the forms required by law, which, in a succession like this, we trnst, will not be necessary.”

It is enough for us, at the present time and on the issues made, to say that the judgment appealed from, as rendered, is erroneous.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and the cause is remanded to the District Oourt for further proceedings according to law.


text:
    No. 12,225.
    State of Louisiana vs. John Wright et al.
    Not only error but injury must be alleged and shown to justify the reversal of a judgment. State vs. Kennon, 45 An. 1195.
    Affirmative showing should bo made to the Supreme Oourt to enable it to see for itself whether the testimony admitted and declared to be irrelevant would be likely to produce injury and to enable it to say in point of fact it was irrelevant.
    In a criminal case it is improper to ask a witness if an offer had not been made to compromise the case. The rule incivil matters is applicable in criminal matters —i. e., that mere proposals for a compromise or negotiatingto effect one, are not generally admissible, though evidence may be given of any fact or distinct liability admitted in the proposals, negotiations or conversations, the party sought to be affected being entitled to the benefit of the whole conversation or proposal. This court again affirms that “when there is a difference between the judge and the counsel as to the circumstances connected with the bill of exceptions the statements of the former are to be taken as true.” State vs. Underwood, 44 An. 852.
    In preparing bills of exception the prosecuting officer and the counsel for the accused should each make recitals of what the facts testified to were, and not deal in sweeping declarations on the one hand that the cross-examination was clearly within the limitation of the law, and on the other hand that it was not, The court, standing thoroughly impartial between the State and the prisoner should make its own recital of the testimony and not send cases up resting for decision upon mere conclusions of its own on that subject.
    A PPEAL from the Eleventh Judicial District Oourt for the Parish of Acadia. Dupré, J

      M. J. Cunningham,, Attorney General, B. Lee Garland, District Attorney, for Plaintiff, Appellee.

      Philip S. Pugh and Charles Belden for Defendant, Appellant.
    Submitted on briefs November 7, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Accused (John Wright, Adam Wright and William Wright) were tried and convicted of petty larceny, and having been sentenced to one year’s imprisonment in the penitentiary, they have appealed.

They rely on a motion on which they sought to quash the venire and challenge the array of jurors, and upon several bills of exception taken to rulings of the District Court with reference to the introduction of testimony. The motion referred to is based upon the same grounds which were taken in the case of State vs. Thibodeaux, recently decided, and therein held not well founded. The decisions in these cases control to that extent the present one.

In the first bill of exception it is recited that one of the defendants (John Wright) being on the stand, he was asked by counsel for the State “whether he knew whether on Thursday night Adam Wright (another of the defendants) had a calf tied to the fence back of his house;” that counsel for defendant objected to the question on the ground “that while defendants were charged with stealing a calf from one Simon a day or two after the Thursday alluded to, there was nothing to connect the calf tied to the fence vith the calf stolen, and the question was irrelevant; and for the further reason that defendant had not been examined in chief on that subject, and could not be cross-examined thereon, same being new matter. Counsel claimed that the evidence showed no direct evidence that Adam and William Wright (defendants) participated in the taking of the calf alleged to have been stolen, they having simply “ helped John Wright, then ru ,ning a butchery, to butcher the calf, and one Simon having brought up the calf from the pasture.” That the testimony showed that John Wright had tried to buy another calf from one Quebodeaux that morning; that the question asked had a tendency to injure Adam Wright, and prejudice the jury against him.” The court declared in the bill that the evidence, as a matter of fact, was brought out on the examination in chief, and was not new matter; that there was proof that one of the defendants had a calf tied to the fence on the Thursday referred to; that all the defendants participated in the larceny, and the pleas that they were innocent agents of each other found no favor with the jury.”

The second bill recites that the same witness was asked on cross-examination by the State: “ Did you tell Adam Simon in presence of Anding, on the day of your arrest, when you were going with the deputy to get your brother George, that Adam Simon had nothing to do with the stealing of the calf, and he (Adam) did not know but that you bought the calf from Brewer?” that objection was made to the qu ¡stion for the reason that it had not been brought out on direct examination; also because it incriminated the witness, who could not be made to incriminate himself, and that it was irrelevant and inadmissible. The court states that “ the question was asked the witness for the purpose of contradiction; that the question had been divided, and witness had already answered that he had gone with the deputy sheriff to get his brother George, and balance of question was put when objection was made to the latter portion; objection was made to first question as well as second one. Adam. Simon while on the stand as a witness for the State did state, in his examination in chief, that John Wright, in presence of Anding, on the day of his arrest, at the time and place in question, above objected to, that he and Adam Simon had nothing to do with stealing the calf and knew nothing about it, and the question was allowed because it tended directly to rebut and disprove the theory of the defence, the defence maintaining that Adam Simon, the witness on the stand, had himself stolen the calf, and that they were only innocent agents assisting in the butchery, and did not travel beyond the examination-in-chief, but on the contrary, was directly in line with the same. Furthermore, the question was permitted to be asked to shake the credit of the witness and to contradict him out of his own mouth by showing previous contradictory statements.”

The third bill recites that the same witness (John Wright) was asked by the State on cross-examination whether Adam Wright had offered to compromise the case; that the question was objected to by counsel for defendant, as same had not been brought out on direct examination; that the question was irrelevant and inadmissible and would tend to prejudice the jury against William Wright. The court allowed the question “because the answer tended to show the motives of Adam Wright, and to show the relation Adam bore toward the crime, Adam himself being one of the parties charged in the indictment with the stealing. The subject had been fully brought out in chief, because Adam had set up through the same witness the defence that he was an innocent agent, and cross-examination went directly to break down and impeach his direct examination on this point.”

The fourth bill recites that the witness John Wright was asked, on cross-examination by the State, “ whether there was any excursion to the Gulf to which he was to furnish meat about the time the calf was alleged to have been stolen; ” that the question was objected to on the ground that same had not been brought out on direct examination, and consequently was irrelevant and inadmissible. The court stated: “The question was elicited on the examination in chief to show that Adam alone was interested in the butchery, the other defendants protecting themselves under the plea of innocent agency. The question was asked to show the true relation of all the defendants toward the crime, which was that John Wright made arrangements to sell the meat to the Gulf excursionists, and after' this was arranged all the defendants joined together and stole the calf. On this line the evidence did not transcend the limits of examination in chief, but, on the contrary, was directly in line with it.”

In State vs. Kennon, 45 An. 1195, referring to the bill of exceptions reserved in that case, we said: “The bill states that the District Attorney was permitted, over the objection of the accused, to ask him a certain question, but it goes no further: whether the question was asked or not; whether, if asked, the accused refused to answer it or not; what he answered (if he did answer) is not stated. It may well be that the accused answered the question, saying he had never been a fugitive from justice, and may have so stated perfectly consistently with the truth. In other words, even though the question may improperly have been permitted to be asked, the permission to ask may have resulted in no injury. Not only error, but injury must be alleged and shown to justify the reversal of a judgment. Appellant has alleged error, but has not alleged or shown injury.”

The present case stands before us in the same situation as did that of the State vs. Kennon. We are not informed what answers were made to the questions stated to have been improperly permitted to be asked. It not infrequently happens that an improper question elicits an answer directly the reverse of that which the questioner expected. Granting, however, that in this case answers were given such as the questioner expected, we are unable to say from the bill what influence or effect the answers would have had upon the jury. (See on this subject 63 N. W. 447.) The principal complaint urged is that of irrelevancy and inadmissibility. Irrelevancy, as we have heretofore said in 47 An. 4, State vs. Dixon (particularly in Louisiana in criminal matters, where the whole evidence is not brought up), is a weak objection — not that irrelevant testimony may not sometimes be in point of fact very prejudicial testimony before a jury when permitted to go to it. We would, however, in the absence of a recital of facts and a recital of the condition of the case as to the testimony, actually elicited in it naturally assume that irrelevant testimony would (as it should not) have any weight with the jury. Permission by the court to introduce testimony as against an objection of irrelevancy would carry with it primarily the presumption that the condition of the evidence was such as to justify aud authorize its admission. An affirmative showing should be made to this court to enable it to .see for itself whether the testimony declared to be irrelevant -would be likely to produce injury and enable it to say that it was, in point of fact, irrelevant. One of the objections urged by the defendant is that a question was permitted to be asked concerning a calf tied to a fence on a certain Thursday night when there was nothing to connect the same with that alleged to have been stolen. Whether there was or there was not evidence connecting the two is a matter of fact of which we have no knowledge. The statement is a conclusion of the accused which may have been entirely wrong, but while there may have been at that particular time no connection shown — such connection, we presume, would have been, at least, attempted to be shown later. There was no motion made to strike out the testimony (Rice on Criminal Evidence, Sec. 256 et seq.). The State is not tied down absolutely in the order of its proof. If no connection was shown the result, doubtless, was that the matter inquired into worked no harm. The bills of excep- ' tions taken are, some of them, taken in the name of the defendants generally; others, simply in the name of the “defendant,” without specifying the particular defendant excepting. Where there are several defendants, bills on behalf of a particular defendant should specially give his name. While the view we have taken of this case makes it unnecessary for us strictly to express any opinion on the subject it may be well to say that one of the questions asked of John Wright, when on the stand (the question as to whether or not Adam Wright had not offered to compromise the case) should not have been asked. What answer was given to that question we do not know, but in civil matters it is a rule that mere proposals for a compromise or negotiations to effect one, are not generally admissible, though evidence may be given of any fact or distinct liability admitted in the proposals, negotiations or conversations, the party sought to be affected being entitled to the benefit of the whole conversation or proposal. Delogny vs. Rentoul, 2 Martin, 175; Agricultural Bank of Mississippi vs. Barque Jane, 19 La. 1. We see no reason why this rule should be less applicable in criminal matters. Defendants complain that the State was permitted to cross-examine -one of the accused when on the stand as a witness, concerning mat.ters not testified to by him in his examination in chief, and our attention is directed to State vs. Underwood, 44 An. 852, as conclusively establishing their right to relief. There is an essential difference between that case and this. In the former case the judge did not question the correctness of the recitals of the bill, while in this case he does so. In the case cited, we declare that where there was a difference between the judge and counsel as to the circumstances connected with a bill of exception the statements of the former are to be taken as true.” The argument urged by defendant on this subject demonstrates the importance of District Judges examining carefully the recitals of the accused set forth in his bills before assigning the special reasons which may have influenced them in their ruling and of their negativing entirely or modifying the recitals when incorrect. It is claimed that in the absence of such .action the situation is that of a defendant wh), without pleading the general issue or making special denials, relies exclusively upon special defences, which leave the allegations of the petition uncontested and the case to be depended solely on the merits of the special defence.

The reasons assigned by the District Judge in some of the bills are by no means satisfactory, and leave us in doubt as to whether, while stating conclusions and opinions formed by him, he is not reasoning from entirely wrong premises. Testimony perfectly admissible when drawn, and if drawn from an ordinary witness, might be totally inadmissible when elicited from an accused and tested as to its admissibility by the rule that the cross-examination of an accused when on the stand as a witness should only extend to matters concerning which he had given his testimony. As we said in the Underwood case, the questions might well be asked as properly bearing upon the case, and ‘ ‘ yet not be asked of this particular witness.” It is of the utmost importance in the consideration of questions touching the scope of the'examination of accused parties when on the stand as witnesses that we should be brought to a knowledge as to what was exactly testified to by them in chief and also as to what was sought to be elicited from them on cross-examination, and as to what was the result of that cross-examination if permitted. The prosecuting officer and the counsel of the accused should each make recitals of what the facts testified to were, and not deal in sweeping declarations on the one hand that the cross-examination was clearly within the limitations of the law, and on the other that it was not. The court, standing thoroughly impartial between the State and the prisoner, should make its own recital of the testimony, and not send cases up to us resting for decision upon mere conclu - sions of its own on that subject. In one of the bills in the record the court states that all the accused participated in the larceny, and their pleas that they were innocent agents of each other found no favor with the jury.” The proposition before the court was simply that of the admissibility of the testimony as affecting the question to be submitted to the jury whether accused did or did not participate in the larceny. Whether or not they did so was the very matter at issue. The jury’s subsequent conclusions could have no legal bearing in determining the legal correctness or incorrectness of the rulings of the court upon the testimony to be sent before them for the purpose of reaching those conclusions.

We do not think even if the questions had been answered, as accused would have us assume them to have been answered, they would have led up to serious injury or wrong, or affected the verdict.

For the reasons assigned, the judgment appealed from is affirmed.

      The ease of the State of Louisiana vs. Thibodeaux, No. 12,226 of the docket of the Supreme Court, did not become final until January 4, 1697; the opinion will appear in 49fch Annual. The following is the syllabus:
      1. The jury law of 1894 authorizes a trial judge, when, in his discretion he thinks it necessary and proper, to require the Jury Commission to select additional jurors for service, either as regular jurors or as talesmen, and they shall be summoned without delay, or within such time as the judge may indicate; and interpreting a similar law, this court held this to have been a proper exercise of legislative authority and a sound public policy.
      2. In a motion for a new trial only such matters can be availed o I as shall have transpired during the progress of the prosecution, and its refusal because of alleged nullities in the proceedings not adverted to during the trial, nor brought to the attention of the jury, will not be reviewed by this court.
      3. The use of the words “ then and there ” in an indictment for perjury are not so sacramental that they shall appear in exact conjunction therein. and being separately employed in the same sentence of the portion of the information charging the taking of the false oath, it will be deemed sufficient.
      4. In such an indictment it is not essential that the authority and jurisdiction of the court administering the oath should be expressly averred if they sufficiently appear from the facts set forth; and when the presentation for perjury is in the same court in which the perjury was committed it may take judicial cognizance of its own jurisdiction if the indictment sufficiently sets forth the facts. — Khpoktek,


text:
    No. 12,340.
    The State ex rel. Brakenridge Lumber Company vs. J. T. Tully Justice of the Peace for the Fourth Ward, Livingston Parish.
    Under the Code of Practice the justice of the peace is not required to assign and try separately from the answer, the exception on which the defendant relies. Arts. 1032 at saq., 1036.
    This Court has no po wer, under the writ of aartiorwri, to review the judgment of the lower court sustaining the plea of domicile; the writ can not be substituted for an appeal. Constitution, Art. 90; G. P,, Arts. 855 at saq.; 41 An. 180; 42 An.1090; 43 An. 177.
    QN APPLICATION for Writs of Certiorari and Prohibition.

      Henry P. Dart and Benjamin W. Hernán for Relators.
    Respondent in propria persona.

    Submitted on briefs December 5, 1896.
    Opinion hande.d down December 14, 1896.
   Application eor Writs on Certiorari and Prohibition.

The opinion of the court was delivered by

Miller, J.

The relator was sued before the fourth justice of the peace for the parish of Livingston, and pleaded his domicile in this parish. The plea was overruled, judgment was rendered againstthe defendant, and that judgment is sought to be reviewed here on the writ of certiorari.

It is claimed that the judgment for the amount claimed was rendered without previously fixing the plea of domicile and notifying the relator that the plea was overruled. Under the articles of the Code of Practice the defendant, cited to answer the demand, must make his defences, whether by exception or answer. The proceedings contemplated by the Code do not require the assignment for trial first the exceptions and then a trial on the merits. The record shows the court heard testimony on the merits and considered the exception. He decided against the defendant, and he was notified of the judgment. The proceedings show no irregularity, and our cognizance under the writ of certiorari is confined to the record and to a correction of proceedings. We find no such basis for the writ.

Again it is claimed substantially that the exception of domicile should have .been sustained. But the court had the jurisdiction to determine that question. The certiorari, we have had frequent occasion to hold, is not the substitute for an appeal. Constitution, Art. 90; State ex rel. Block vs. Judge, 41 An. 180; State ex rel. Matranga vs. Judge, 42 An. 1090; State ex rel. Railroad Company vs. Riley, Justice, 43 An. 177.

It is therefore ordered, adjudged and decreed that our previous order herein be set aside, and that this application be denied at relator’s cost.


author: Watkins, J.

text:
    No. 12,282.
    Mrs. J. C. Fishel vs. Mary Alexander, Individually and as Executrix, et al.
    Of a suit having for its object to reduce an excessive donation mortis causa, so that plaintiff may realize out of the fund obtained, a judgment for less than one hundred dollars he o-wns against one of the heirs of the testator, this court has no appellate jurisdiction. Such a suit is revocatory in character, and the amount sought to be realized from the res, or sought to be subjected thereto, governs the jurisdiction, and not the legitime of the heir.

      A PPEAL from the Civil District Oourt for the Parish of Orleans. ^ Ellis, J.

      Ernest T. Eloranee, Charles Rosen and Dart & Kernan for Plaintiff, Appellant.

      Andrew J. Murphy for Defendants, Appellees.
    Submitted on briefs November 30, 1896.
    Opinion handed down December 14, 1896.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The ground of the motion is that this court is without jurisdiction ratione materim, for the reason that the amount iuvolved is below the lower constitutional limit of two thousand dollars.

This suit is brought by the plaintiff as assignee of a judgment which was rendered by the First City Oourt of New Orleans in favor of the plaintiff in the suit entitled Ohapsky Bros. vs. John Alexander, for the capital sum of seventy-two dollars and seventy-five cents, with legal interest thereon from the 25th of October 1885 and costs; and he seeks to recover a judgment against Mary Alexander, executrix of Mrs. Jane Alexander, deceased, decreeing John Alexander, judgment debtor, to be a forced heir of the testator and entitled to recover one-fourth of the estate, aggregating ten thousand dollars.

The averment of his petition is that as Mary Alexander was constituted the sole legatee under the will, her legacy should be reduced in so far and to the extent that it deprives John Alexander of his legitime.

That said John Alexander has made no attempt and does not intend to make an attempt to have said legacy reduced, and that unless same is reduced he will be deprived of his inheritance and the plaintiff will be prevented from realizing the amount of her judgment.

Evidently the plaintiff would be entitled to take from the amount of John Alexander’s legitime only the amount of the judgment Ohapsky Bros, assigned to her, and that is less than one hundred dollars.

True it is that she alleges that the interest of her debtor, John Alexander, is about two thousand five hundred dollars in the estate of his mother, Mary Alexander, deceased, but she does not sue in the capacity of an heir or creditor of the estate of Mrs. Jane Alexander, and does not allege an interest therein. There is no eoneursus formed in which she alleges an interest, and there is no fund for distribution.

This is in the nature of a revocatory action in which the amount of money sought to be realized from the res in court, or sought to be subjected thereto, governs the jurisduction and not the thing itself. Loeb & Blum vs. Arent, 33 An. 1085; State ex rel. Zuberbier &. Behan vs. Judge, 34 An. 1215; Mullen vs. Zuberbier & Behan, 39 An. 888.

Manifestly this court has no jurisdiction.

Appeal dismissed.


author: Breaux, J.

text:
    No. 12,255.
    Paul Gelpi & Bro. vs. C. H. Schenck, Treasurer.
    The proof is that the plaintiffs are importers; that they sold the goods in the original packages, but had not collected the proceeds of the sale. The defendants sought to collect a municipal tax upon these goods.
    Sales by the importer are held to be exempt from State taxation. The importer by paying duty aeciuires a right to dispose of the merchandise, as well as to bring it into the country. The tax claimed would have the effect of intercepting the import in transitu, to become incorporated with the general mass of the property, and would prevent it from becoming so incorporated until it should have contributed to the revenue of the State.
    APPEAL from the Civil District Court for the Parish of OrleansBightor, J.

      Harry H. Hall for Plaintiffs, Appellees.

      Samuel L. Gilmore, City Attorney, and W. B. Sommerville, Assistant City Attorney, for Defendant, Appellant.
    Argued and submitted November 19, 1896.
    Opinion handed down December 14, 1896.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs were assessed for taxes in the year 1894, as follows: “Money loaned on interest, all credits and all bills receivable for money loaned or advanced or for goods sold, twelve thousand dollars.”

The tax claimed is designed for municipal purposes, and has no reference to any inspection law.

They have brought this suit claiming exemption from taxation on the property above mentioned.

They allege that in 1893 they conducted a wholesale business as importers of foreign goods in this city; that there was that year levied against their imported goods, in unbroken original packages, an assessment of fourteen thousand dollars; that in the case of State ex rel. Gelpi & Bro. vs. Board of Assessors, 46 An. 145, it was decided that their imported goods in such packages were not liable to taxation by the city of New Orleans; that notwithstanding the decision of this court, an assessment for 1894 has been levied against them upon credits and bills receivable for goods sold; that their only credits and bills receivable are for sale of foreign imports in unbroken original packages, upon which they have paid duty to the United States Government, and that to assess them is illegal and unconstitutional, as no such tax can be levied by a State or municipal corporation upon sales of imported goods in unbroken original packages.

The plaintiff prayed for and obtained an injunction prohibiting the defendant from seizing their property for the tax in question.

The answer was, in substance, a general denial.

The following was the agreed statement upon which the cause was tried:

“It is admitted that Paul Gelpi & Bro., plaintiffs herein, had in their business credits and bills receivable for goods sold for the year 1894, amounting to twelve thousand dollars; chat said bills were for imported goods, upon which they had paid an import duty to the United States Government, and that said goods were sold by them in original unbroken packages, said bills representing simply and solely the unpaid prices never reduced by them to possession of such imported goods.”

The foregoing is the case in so far as relates to the facts.

From a judgment in favor of plaintiffs, and against the city treasurer enjoining him from collecting the tax claimed, the latter prosecutes this appeal.

The question involved in this case is whether a State can constitutionally impose a tax upon the price of unbroken packages, not ■collected; under an assessment for “ goods sold; ” these words from the assessment are the only words which have any application to the present case.

The other portions of the assessment, as made, applies to “money loaned,” which is not a question here.

The power of the State is subject to well defined limitations.

Within these limitations, the States are prohibited from creating the power of taxation in a way contravening with the revenue laws of the general government.

The rule is that the State shall not so tax imports as to impede foreign commerce.

Property bears the burden of taxation. Its value is affected' to an amount equal to the tax. 'An increased price of foreign merchandise may result from the tax. If the importer owes this tax, he will, in accordance with business rule, add the amount to the cost of the goods. In so far as this is an impediment to foreign commerce, it would be in contravention with the article of the Constitution upon the subject. It is true that the impediment to commerce is thereby quite limited. It nevertheless is an impediment. The purpose of the provision of the Constitution invoked by the plaintiff in this case has received the attention of the Supreme Court of the United States in a number of cases.

Notably a well considered case upon the subject was the ease of Cook vs. Pennsylvania, 97 U. S. 566, 575, reviewing a number of decisions upon the subject here at issue.

The contention was between the State of Pennsylvania and an auctioneer, who sold imported goods, in original packages, at auction, for importers. The law of the State required him to pay as the amount of a license, into the treasury of the commonwealth, a tax of one-quarter of one per cent. The effect of this was, the court held, a discrimination to that amount against foreign goods sold at auction; and further, that it contravened with the clauses of the Constitution which give to Congress power to regulate commerce with foreign nations and forbids a State, without the consent of Congress, to levy imports or duties on imports.

“ Sales by the importer are held to be exempt from State taxation because the importer purchases by the payment of the duty a right to dispose of the merchandise as well as to bring it into the country.” Waring vs. The Mayor, 8 Wallace, 110, 123; Desty, and also Cooley on Taxation, have copied the words of these decisions as part of their texts.

From Hare’s American Constitutional Law, p. 252, we extract:

‘‘ A State tax can not be levied on goods that have been brought from abroad, nor can the importer be made to purchase a license before effecting a sale, because such a requirement is virtually a tax and would, moreover, operate as a regulation on commerce.”

The present is a stronger case than those to which we have referred, and more clearly contravenes the articles here invoked.

The price of the property it was sought to tax was not in the possession of the importer. The importer having the right to sell (without taxation for municipal purposes) the imported goods in original packages, it follows that he has the right to collect the price without having to pay the taxes claimed.

It not being cash in the possession and enjoyment o'f the importer, but the price not collected representing the property sold, we are confident that it is not subjected to taxation.

The judgment of the court a qua is therefore affirmed.


author: McEnery, J.

text:
    No. 12,337.
    State of Louisiana ex rel. L. K. Watkins vs. James W. Baten, Justice of the Peace.
    The judge has no authority to supply the plea of prescription, which must be specially pleaded by the defendant.
    The case of Abraham Stein vs. Lazarus Brunner, 12 An. 772, affirmed.
    QN APPLICATION for Writs of Certiorari and Mandamus.

    Relator in propria persona.

    Respondent in propria persona.

    Submitted on briefs November 30, 1896.
    Opinion handed down December 14, 1896.
   The opinion of the court was delivered by

McEnery, J.

The relator applies for a mandamus, under the supervisory jurisdiction of this court, to compel the respondent judge to proceed with a suit filed by him, aud to enter up judgment in the case.

In the suit of relator against one Gilford Sampson, filed in the respondent’s court, the magistrate dismissed- the case because of want of jurisdiction. This order of dismissal was on the motion of the magistrate who took notice of the fact that the obligation sued on was more than five years’ standing, and in his opinion the obligation was prescribed, and as there was nothing due he could not entertain the suit. In his return he alleges that he bases his action upon an opinion and decree recently rendered by the Circuit Court of Appeals in this circuit. We are inclined to believe that the respondent judge is in error in interpreting some decree of that court.

Prescription can not be supplied by the judge. It must be specially pleaded by the defendant. In this case the obligation sued on was for the sum of ten dollars. When it was executed the defendant waived citation and confessed judgment for the amount. The waiving of citation was a personal privilege, which he could do in advance, and he could confess judgment at the same time. The hardship, if any, is of his own making. Stein vs. Brunner, 42 An. 72.

The duty of the judge was very plain. In the absence of any appearance of the defendant, or any plea filed by him, to enter judgment against the defendant. Id.

The relief prayed for is granted, and the mandamus made peremptory.


text:
    No. 12,290.
    The State vs. Harry Porter.
    An indictment for rape is defective that does not charge the felonious intent accompanying the act: The qualification merely of the assault as felonious will not suffice. 2 Archinard’s Criminal Raw, pp. 307, 312; 42 An. S2; 6 An. 328; 33 An. 1288.
    The conviction for the lesser offence is not supported by an indictment which neither charges the greater offence, nor embraces the constituents of that of inferior grades. R. S., Sec. 1053; 29 An. 601; 38 An. 887; 20 An. 145.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.

      M. J. Cunningham, Attorney General, and J. B. Lee, District Attorney, for Plaintiff, Appellee.

      Elam & Egan for Defendant, Appellant.
    Submitted on briefs November 21, 1896.
    Opinion handed down December 14, 1896.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from a sentence for assault to commit rape; the indictment being for rape.

He relies for the reversal of this sentence upon the motion to quash the indictment and the bill of exceptions to the overruling the motion. The indictment charges that fhe accused in and on one I. B. violently and feloniously did make an assault, and her the said I. B. then and there forcibly and against her will did ravish and carnally know. The ground of the motion is the indictment sets forth no offence, the felonious intent essential to constitute the crime of rape not being charged. The assault is charged to have been felonious. The State claims that “ feloniously ” is to be taken also to qualify ravish and carnally know.

Indictments for common law offences must set forth the constituents of the crime; it is not sufficient to follow merely the words of the statute using the common law term of the offence. State vs. Read, 6 An. 228; State vs. Cook, 20 An. 145; State vs. Flint, 33 An. 1288. Nor can there be any question that the felonious intent to ravish and carnally know is essential to the crime of rape. The crime is of the highest order of felonies, and feloniously qualifying “ ravish ” it is laid down must be Charged in all indictments for. such crimes. 2 Archibold Crim. Practice and Pleadings, 304, 307, 312; 2 Bishop Crim. Proc. 807, 808. In this indictment “ feloniously ” is used in qualifying the assault, but is not used in qualifying the sentence, ravish, etc. By no rule of construction can we extend the function of this important adverb and make it qualify any act but the assault in connection with which only it is employed. If this construction required any additional support it will be supplied by the precedents for indictments found in all the books of forms, and exacted by all the authorities. The indictments invariably use the adverb twice, i. e., qualifying the assault, and again in qualifying the following acts the substantial elements of the crime, thus: the said A. B. did feloniously assault O. D., and her, the said O. D., did then and there feloniously ravish and carnally know. Arehibold Ibid.; 2 Wharton’s Precedents, p. 186. We have been referred by the State to authorities from other States to support the indictment. We think we must follow our own decisions, as the decisions in other States may be controlled by their legislation. The authorities (State vs. Bradford, 38 An. 921; State vs. Sonnier, 38 An. 962; Carroll vs. Succession of Carroll, 48 An. 963; State vs. Langford, 45 An. 1178; Manning’s Unreported Cases, p. 394) we do not think sustain defendant’s contention. Our conclusion is the indictment is defective.

The State insists that the indictment, if not sufficient for rape, will sustain the conviction for assault with intent to commit rape. Revised Statutes, 1053; State vs. May, 42 An. 82. The rule applies when the indictment, charging with sufficiency one offence, includes another. Here no offence is charged and none is included. The cases cited by the State on this branch of the argument hold: one that it is enough, in an indictment for assault to commit rape, to charge the act itself as done feloniously; the other, that an indictment good for murder would sustain a conviction for manslaughter. The case in 42 An. was an indictment for rape, to which there seems to have been no objection. State vs. Langford, 45 An. 1178; State vs. Lee, 46 An. 623. The difficulty here is the indictment will not avail for the offence charged, nor include that of lower grade, and hence will not sustain the conviction for the assault. Archibold, 2d Vol., 7th Ed., p. 69, Note 1; State vs. Thomas, 29 An. 601; State vs. Green, 36 An. 99; State vs. Scott, 38 An. 387.

We think under our system, excluding the judge from charging on the facts, that the instructions asked in this case, in effect instructing the jury as to the inference of consent on the part of the woman, the jury should draw from the hypothesis of fact stated in the bill, was properly refused. We notice the point in view of the new trial that must occur.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be avoided and set aside, and the prisoner held for another trial on the indictment that may be preferred for the offence.


text:
    No. 12,202.
    State ex rel. James Wilkinson vs. Robert Hingle, Judge.
    The District Judge has the right, at any time, to appoint jury commissioners and the exercise o£ this right will not he interfered with. When a judge succeed, another who during his incumbency o£ the office ordered a special juiy terms the new judge can set aside the order.
    REPLICATION for Writs of Mandamus and Prohibition.
    Relator in propria persona.

      E. Howard MeOaleb and John Dymond, Jr., for Respondent.
    Submitted on briefs June 13, 1896.
    Opinion handed down June 29, 1896.
   The opinion of the court was delivered by

McEnery, J.

The predecessor of respondent set aside and annulled the appointment of a jury commission and then appointed another, and subsequently ordered a special jury term, without reference to the trial of any particular case.

The respondent judge, on qualifying, set aside the order of his predecessor, and appointed another jury commission, and set aside the order for a special jury term.

These orders he had an undoubted right to make, and we can not annul them. It does not appear that the orders were issued with special reference to the trial of the case of Wilkinson vs. Hingle who is the respondent in this case, and who is recused. The judge selected to try the case has full power to issue all necessary orders. If on the trial of the case of Wilkinson vs. Hingle it appears that the jury commission appointed by the respondent judge acts with partiality and illegally, it will be time enough to notice the irregularities in the trial. It is certain that we can not in advance take notice of the alleged intended partiality of the jury commission appointed by the respondent judge.

It was a power vested in him when he ascended the bench to appoint the jury commission, and to set aside the order for a special jury term, if, in his judgment, it was necessary and essential for the public interests.

The relief prayed for is denied.


text:
    No. 12,205.
    Board of Trustees of the Seventh Street Colored M. E. Church vs. William Campbell.
    Under Seo. %T¡, R. S., which requires that the incorporators “ shall prepare and sign ” an act, either in an authentic or private form, it is not essential that the incorporators should each and all be able to sign their names. 9 La. 521; H La. • 251; 15 La. 48; 5 An. 685.
    Where, in an act, a vendor declares that ho sells the property with full warranty without a word of reservation, exception or limitation, a clause at the very close of the act which declares “Intrust that said premises shall he used and kept, maintained, and disposed of as a place of divine worship, for the use of the ministry and membership of the Colored Episcopal Church in America, subject to the discipline, usage and ministerial appointments of said church, or from time to time authorized and declared by the general conference of said church, and the annual conference within whose bounds the said premises are situated,” is no part of the contract between the vendor and his vendee; it is an enunciation foreign to the disposal of the property, in which vendor who had parted absolutely with his entire interest had no concern. It is merely a clause declaratory of the object for which the purchase was made.
    A PPEAL from the Civil District Court for the Parish of Orleans. ^ King, J.

      Bogers & Dodds for Plaintiffs, Appellees.

      J. MeOonneU & Son for Defendant, Appellant.
    Argued and submitted November 16, 1896.
    Opinion banded down December 14, 1896.
    Statement of the Case.
    Plaintiffs gave to W. P. Curtis, an auctioneer, a written authorization to sell their church property on Prytania near Conery street for the sum of forty-five hundred dollars. The defendant, Campbell, agreed to purchase the property at the price stated, and to bind the agreement made the usual deposit of ten per cent, of the price with the auctioneer. On examination by his counsel the title was rejected as defective. (1) Because it was held by plaintiffs in trust, and really for use only; (2) because the charter of the plaintiff corporation was irregular and illegal in form. Afterward the parties entered into an agreement, expressed in the following:

      "Mr. W. P. Curtis:

      “ You are authorized to return to Oaptain Campbell the amount of four hundred and fifty dollars deposited by him to secure sale mentioned herein.
    “ (Signed) Charles T. Hendren,
    “ Chairman Trustees.”
    At the time of the signing and delivery of the foregoing instrument to the auctioneer the defendant signed and executed the following:
    “ New ORLEANS, January 5, 1895.
    “ I hereby agree and t ind myself to take the property known as the Mt. Calvary O. M. E. Church property corner of Prytania and Oonery streets, in this city, and pay therefor, the sum of forty-five hundred dollars cash.

    “This agreement holds good only in case the said church makes me a good title to same within thirty days from this date.
    “ In ease I pay only one-third in cash the deferred payments are to bear interest at the rate of seven per cent, per annum. Should this transaction fail by fault of the vendors I am to have interest on my deposit of' four hundred dollars at seven per cent, per annum for forty-five days’ time, same was held by Wm. P. Curtis.
    “ (Signed) Wm. Campbell.”
    Plaintiff brings this suit to compel the defendant to accept title. There was judgment for plaintiff and defendant appeals.
   The opinion of the court was delivered by

Nicholls, C. J.

In the examination of plaintiffs’ act of incorporation we confine our attention to the specific objections to the same urged by the defendant. Sec. 677 of the Revised Statutes declares that the incorporators of a corporation organized under its authority “shall prepare and sign” an instrument either in an authentic form or private signature containing certain specified declarations, among which is not included a requirement that the names of the incorporators should be mentioned in the body of the act. They are required to “ prepare and sign ” an act which, after being so prepared and signed, approved by the District Attorney, and registered by the recorder, constitutes the “ subscribers ” to the same a body corporate. It is not essential that the incorporators should each and all be able to write their names.

“ In the primary sense of the word, a person signs ’ a document when he writes or marks something on it in token of his intention to Ibe bound by its contents. In the case of an ordinary person signature is commonly performed by subscribing his name to the document, and hence signature is frequently used as equivalent to ‘ subscription,’ but any mark is sufficient if it shows an intention to be bound by the document. Illiterate persons commonly sign by making a cross.” (Sweet’s Dict. Knox’s Estate, 131 Pa. St. 230.)

“ A signature consists both of the act of writing a party’s name and of the intention of thereby finally authenticating the instrument. It is not necessary that a testator should write his entire name. His mark is now held sufficient. And if the signature is made by another guiding his hand with his consent, it is held sufficient.” 2 Greenleaf Evidence, 674, followed in Watson vs. Pipes, 22 Miss. 466; Vines vs. Clingfoot, 21 Ark. 312; see also ‘Wills.’

“ All the definitions include a mark, and no dictionary limits a signature to a written name.” Zacharie vs. Franklin, 12 Peters (U. S.), 161; Shank vs. Butsh, 28 Ind. 19; Bickley vs. Keenan, 60 Ala. 295; (See the American and English Encyclopedia of Law, Vol. 22, verbo “ Signature,” and the same work, verbo “Mark,” Vol. 14, p. 457.)

Our decisions have recognized the ordinary mark of a person as being his signature in a number of cases; proof of the same having been made. See Tagiasco vs. Molinari’s Heirs, 9 La. 521; Madison vs. Zabriskie, 11 La. 251; Lopez vs. Berghel, 15 La. 43; Chaffe vs. Cupp, 5 An. 685.

It is not claimed that the marks subscribed to the act of incorporation are not those of the persons named. The act was submitted to the District Attorney, was approved by him and ordered to be registered. It is to be presumed that there was proper proof made to him of the signatures before he took such action. We think the act very clearly shows who are to have the direction of the affairs of the company. The third article provides for a president, a secretary and a treasurer, to be elected from time to time by the trustees. The fourth article provides for meetings of the Board of Trustees from time to time “ for the transaction of business.” A majority of the board is declared to constitute a quorum for that purpose, and such meetings are authorized to be called by the president, or any two members of the corporation.

The duties of the president, secretary and treasurer are not specifically set out, but such officers, in all organizations and corporations, have well recognized general duties, which could be made specific by by-laws, subsequently to be adopted by the Board of Trustees, who, obviously, were to have the general control of the affairs of the corporation. The terms of office of the president, secretary and treasurer were not fixed by the act. That matter was left open also to be provided for by by-laws. The Board of Trustees was a continuing body. In the event of vacancy, their number was to be kept filled from among members of the colored Methodist Episcopal Church in America, by election and vote of a majority of the remaining members of the board. The president was specially designated as the person upon whom all process should be served.

We fail to see wherein the act of incorporation is defective. The party with whom defendant dealt was unquestionably a corporation.

That preliminary question having been disposed of, we next direct our attention to the claim made by defendant' that although he entered into a contract of sale with the plaintiff corporation, that contract was set aside.

He says that plaintiff acknowledged that the title which it held at the time of the first contract was not a valid one, and it consented to a rescission of the contract of sale, and to the return of the deposit of money which he had made “to bind the sale.” That thereafter, he, himself, tendered to the plaintiff a new distinct proposition that he would purchase the property, provided it made to him a good title within thirty days from the date of the offer. He says that that offer has never been accepted; that plaintiff has taken no steps to acquire a new title, and has tendered to him the identical title which it had acknowledged to be bad. We do not think there was any abandonment or rescission of the contract of sale- — -there was simply a consent of both parties that the deposit should be returned to defendant to await, during thirty days, the final result as to the validity of the title offered. If, at the end of the time fixed, the title which plaintiff tendered was not a good one defendant was to have interest on his deposit during the forty-five days it was held by W. P. Ourtis. There was a postponement for the purpose evidently of meeting some objection which had been urged to the title, but no waiver of rights-on either side. What the precise objections were we do not know. Plaintiff took certam steps during the delays fixed in reference to the disposal of the property by it, which do not seem to have been previously taken. It obtained the approval of the quarterly conference of the Colored Methodist Episcopal Church to the proposed sale and its consent thereto, and the approval and consent thereto of the local preacher in charge of the church, and tendered title to defendant within the delay fixed. This tender was an acceptance of defendant’s proposition, if any new acceptance were needed,, as defendant claims. Whether the title tendered was a good and valid title is the only question we have to decide.

Defendant claims that the title is defective; that it is not absolute, and in fee simple, but held “intrust” in violation of the laws of the State. If, by this, defendant means that the title which the plaintiff received from Calvary Church was one m>t complete and absolute, he is clearly mistaken. The act declares that the vendor sells the property with full legal warranty to the plaintiff corporation, to have and to hold the same unto the said purchaser, his heirs and assigns forever. There is not a word of reservation, excep - tion or limitation on the part of Calvary Church. It parted with its entire title, conveying it to the plaintiff corporation. The clause at the very close of the act, which reads: “ In trust that said premises shall be used and kept, maintained and disposed of as a place of divine worship for the use of the ministry and membership of the Colored Episcopal Church in America, subject to the discipline, usage and ministerial appointments of said church as from time to time authorized and declared by the general conference of said church and the annual conference of said church, and the annual conference within whose bounds the said premises are situated,” is no part of the contract between plaintiff: and Calvary Church. It is an enunciation foreign to the disposition of the property between the parties, and merely the announcement of an intention of the corporation to connect itself with a superior religious body - Calvary Church had obviously no interest in that matter. The clause in question was simply one declaratory on the part of the purchasers of the object and purpose for which the pi rchaser made the purchase. It was, as we have said, an enunciatb n foreign to the disposition of the property, as between the vendor and vendee — a mere “ admission ” evidencing no “contract,” or “part of a contract” between them (33 Pac. 838-839) — and no “ contract” between the plaintiff corporation and the Colored Methodist Episcopal Church of America. C. C. 1814.

The title which the plaintiff received from its vendor being a good one, we are next to inquire what objections can be urged by the defendant to any title which plaintiff itself would convey. Defendant in general terms says that the property is held in trust and the title is bad, but he does not inform us who the party is for whom it is held and what particular danger is to be apprehended from its passing by sale out of the plaintiff to the defendant. The property has certainly not passed out of commerce, and so situated as to forcedly remain hereafter forever in plaintiff’s ownership and possession. Defendant himself says that such a condition of things would be violative of the policy of the law. There must be, therefore, some present method by which the property can be disposed of. We know of no one but the plaintiff who could dispose of it. It holds the legal title, and if there be any person or persons having any vested interest in it, they have not been made to appear. It may be that the plaintiff corporation as a condition of placing itself subsequently in religious connection with a religious body known as the Colored Methodist Episcopal Ohurch of America has been made to consent and has consented to deal with the property according to the rules and regulations of that body, and that in so doing they have consented to subordinate, for certain purposes, their power’s to the control or supervision of a superior body, but if they have done so the only interest which defendant has in that matter is that the Board of Trustees should have exercised their powers in the manner and form and under the conditions it had agreed to. If it has done so and the controlling, superior body approves and consents to the transfer defendant can have nothing to apprehend. The property will have been freed from further control and will pass unfettered and free into defendant’s ownership. Defendant has not pointed out to us anything which would tend to show that the property has been sold in strict accordance with the rules, regulations and discipline of the Colored Methodist Episcopal Church. The course pursued by the plaintiffs seems to have been in conformity to the same.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.

      Act or Incorporation or the Plaintiee Corporation.
      “ Wo, the undersigned members oí the Colored Methodist Episcopal Church in America, residing in the city oí New Orleans and State of Louisiana, have agreed and consented together to constitute and organize ourselves into an incorporation under the laws of the State oí Louisiana, providing for the organization of corporations for literary, scientific, charitable and religiouspurposes, under the following rules and articles.
      article first.
      This corporation shall be known by the name and style of Trustees of the Seventh Street Church of the Colored Methodist Episcopal Church in Am'eriea, and as such shall be capable of suing and being sued. It shall be domiciled in the city of New Orleans, where its president shall reside, upon whom all legal process shall be served.
      Article Second.
      The object of this association shall be to receive title to and hold, care for, and preserve the buildings and property of the Seventh Street Colored Methodist Episcopal Church in America, for the use of said church in the worship of Almighty God, together with such other properties as may be considered right and proper for the use of said church, or for a parsonage therefor.
      Article Third.
      All the members of this corporation shall be members of the Colored Methodist Episcopal Church in America, and shall have attained the age of twenty-one years. The trustees shall elect from time to time, from their own members, a president, a secretary and a treasurer.
      All vacancies occurring in this corporal ion, by death, resignation or otherwise, shall be filled by the remaining members of the corporation by election and vote of a majority of the members at any regular meeting; or the'same may be filled in accordance with the provisions of the discipline of the Colored Methodist Episcopal Church in America.
      Article Fourth.
      The president, or any two members of this corporation, shall bo empowered to eallameeting of the same by giving a reasonable notice, and a majority of the members shall constitute a quorum for tile transaction of business.
      Article Fieth.
      This corporation, as a board of trustees, shall be governed by the discipline and rules of the Colored Methodist Episcopal'Church in America, enacted tor the government of trustees of churches, so far as the same is not contrary to or inconsistent with the nrticles of this incorporation, the laws of the State or the laws of the United States.
      article Sixth.
      This corporation shall continue to exist for the term and space of ninety-nine years from the date hereof,unless sooner dissolved by theconsent of the members, hereof.
      (Signed) IMMER BALL, Witness. his (Signed) JAMES x SOUTHERN, mark,
      “ \V. H. FOSTER,’ “ o his “ ARCHIE x BALDWIN, mark,
      " W. II. FOSTER, his “ PHILIP x JINKS.
      “ W. IL FOSTER, “ mark. his “ SAMUEL x RUSSELL.
      “ W. II. FOSTER, “ “ EMANUEL^x HALL.
      “ W. IT. FOSTER, “ “ W. II. FOSTER, “ “ JOHN JONES.’ “ J. C. OLIVIER, JR.
      “ I, the undersigned District Attorney of the parish of Orleans and city of New Orleans, State of Louisiana, do hereby certify that I have examined the foregoing form of charter, and find the articles thereof in all particulars according to law, and hereby approve the same and admit it to registry, whereby it will become a legal act of incorporation and charter of the trustees of the Seventh Street Church of the i olo.red Methodist Episcopal Church in America.
      “ New Orleans, April 8,1881.
      " (Signed) • JOHN J. FINNEY.